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Full text of "History of mediaeval political theory in the west"

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A HISTORY 



OF 



MEDIAEVAL POLITICAL THEORY 



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A HISTOEY 



OF 



MEDIEVAL POLITICAL THEOEY 
IN THE WEST 



BY I 

R. W. CARLYLE 

i •■ 

K.C.S.I., CLE. 



, AND 

A. J. CARLYLE 



M.A., D.Litt., Hon. D.D. (Glasgow^ 

HON. FELLOW OF UNIVERSITY COLLEGE ; FOREIGN MEMBER 
OF THE ROYAL SOCIETY OF NAPLES 



VOL. VI. 



POLITICAL THEORY FROM 1300 TO 1600 




WILLIAM BLACKWOOD & SONS LTD. 

EDINBURGH AND LONDON 

MCMXXXVI 






PRINTED IN GREAT BRITAIN 
ALL RIGHTS RESERVED 



rT 






TO 
THE MEMORY OF MY BROTHER 

R. W. CARLYLE 



a. j. c. 






VOL. VI. 

POLITICAL THEOKY FROM 
1300 TO 1600 



I 



PEEFACE TO VOLUME VI. 



It was with the help of my brother that this work on the 
history of Mediseval Political Theory was begun in 1892 ; 
indeed his article on " The Political Theory of St Thomas 
Aquinas " in the « Scottish Keview,' 1896, was its first published 
form. He was one of the pupils of Arnold Toynbee at Balliol, 
and though what he learned from him was mainly in Economics, 
it was from him, I think, that he learned not only the signifi- 
cance of Economic History and Theory, but also the importance 
of the history of Political Thought. During the many years 
of his long service in the Government of India, 1880 to 1916, 
and in spite of the pressure of his public work, he contributed 
by his continual sympathy and his careful judgment and 
criticism to help and correct this work ; and happily, in the 
years after his retirement in 1916 he was able to write a large 
part of Volume V. I had hoped to finish, as I had begun, 
with his help, but this was not to be, for he died in 1934, and 
I can only express something of what he was and did by 
dedicating this volume to his memory — the memory of an 
honourable, just, and kindly man, and an indefatigable scholar. 
Till the last year of his life he was occupied with the materials 
for this volume, and happily something of his work I have been 
able to include in it, but only a little of that which he was 
preparing. This has unavoidably compelled the omission of 
one very important subject which we had hoped to treat in 
this volume, as in former ones — that is, the relations of the 
Temporal and Spiritual Powers — and I fear that it is too 



X PREFACE. 

late to hope to be able to deal with this. I greatly regret 
this, but at the same time I feel that in the fourteenth century, 
and still more in the fifteenth and sixteenth centuries, these 
relations must be studied under terms in many ways very 
different from those under which we have dealt with them 
in these volumes. 

With the downfall of Boniface VIII. the long conflict 
between the Papacy and the Empire had, as it seems to me, 
really come to an end. No doubt it was renewed in the 
struggle between the Popes and Henry VII. and Louis of 
Bavaria, and it may even be said that this ended in the success 
of the Popes ; but the Declaration of the Electors at Ehense 
in 1338 seems to indicate that there Avas little real significance 

in this. 

Again, while there were in the fourteenth century several 
treatises like those of Augustinus Triumphus which asserted 
the theory of the temporal supremacy of the Popes in the 
strongest terms, these do not seem to add anything of import- 
ance to the contentions of Innocent IV, or Hostienis, or 
Egidius Eomanus, or James of Viterbo. 

The truth is, as it seems to me, that from the fourteenth cen- 
tury the history of the relations of the Temporal and Spiritual 
authorities, while we must not overlook the great import- 
ance of Papal authority, must be studied primarily under the 
terms of the relations of Church and State within the separate 
nations. This is true of the fourteenth and fifteenth centuries, 
and even more of the sixteenth, and that not only in the 
Eeformed but also in the Catholic countries. These questions 
are so important that their proper treatment would require 
a detailed examination of the circumstances and the literature 
of the .subject in each of the more important Western countries, 
and this is a task of a formidable complexity and magnitude. 

At almost the same time as our last volume appeared, there 
was published the most important and valuable work of Pro- 
fessor J. W. Allen, ' A History of Political Thought in the 
Sixteentli Century,' and I would express both my high admira- 
fcion for this admirable and illuminating work and also my 
obliual ion to it for much information. I trust that our readers 



PREFACE. XI 

will recognise that what we have attempted in this volume 
on the sixteenth century is not like Professor Allen's work, 
a detailed study of every important aspect of the rich and 
varied " Political Thought " of that century, but a treatment 
of it, primarily, in its relation to that of the Middle Ages. 

Among other important works recently published, I should 
wish to draw the attention of historical students to the very 
valuable work of Professor Ercole of Palermo, l Da Bartolo 
all' Althusio,' and to the excellent work on the Political 
Theory of Hooker by Professor A. P. d'Entreves of Pavia. 

I must also express my great obligation to the late Professor 
G. Fournier of Paris in directing my attention to the sources 
of information on the French Civilians of the sixteenth cen- 
tury, and I should wish to express something of the regret 
that every serious student of mediaeval civilisation must feel 
at the loss which we have suffered in the death of so great, 
so learned, so judicial a student of Canon Law. We are indeed 
glad that he was able to complete his work on the Collections 
of Canon Law from Pseudo Isidore to Gratian ; and we look 
forward to the forthcoming treatment of Gratian himself by 
Fournier's learned successor in Paris, Professor Le Bras. 

By the kindness of Professor Giorgio del Vecchio of Eome, 
one chapter of this work (Chap. II. Part II.) was translated 
into Italian and published in the ' Eivista Internationale 
di filosofia del diritto.' 

I cannot end without once again expressing my profound 
indebtedness to Dr E. Lane Poole, the most learned of English 
mediaeval scholars. Looking back after fifty years I remember 
not only his continual kindness to an immature student, but 
also that it was from his ' Illustrations of Mediaeval Thought ' 
that I first learned something of the real character of the 
political principles of the Middle Ages. 

A. J. CAELYLE. 

March 193G. 



CONTENTS OF THE SIXTH VOLUME. 



PART I. 

FOURTEENTH CENTURY. 
INTRODUCTION. 

CHAPTER I. 

THE SOURCE AND AUTHORITY OF LAW. 

The supremacy of Justice and Law the most important political 
conception of the Middle Ages, 3 — actual methods of legislation 
in England, Castile, France, and the Empire, 4 — theory of 
legislation: Britten, Fleta, 'Mirror of Justices,' 7 — Marsilius of 
Padua, 8. 

CHAPTER II. 

THE LAW, ITS SOURCE AND AUTHORITY. CIVILIANS. 

The prince derives his authority from the people, 13 — Cynus, how 
far had the Roman people retained its legislative authority, 14 
— emperor is " legibus solutus," ought to obey the law, " de 
honestate," not " de necessitate," 15 — emperor can take a man's 
property, " de facto," not " de hire," 16 — Bartolus and Baldus, 
custom of Roman people overrides written law, 16 — prince 
bound by his contracts, 19 — Joannes Faber and Jacobus Butri- 
garius hold the same view, 22 — Canonists of fourteenth century 
on custom, 23 — powers of Italian cities in making municipal 
laws, and methods of legislation, 25. 

CHAPTER III. 

SOURCE AND NATURE OF THE AUTHORITY OF THE RULER. 

THEORY. 

Fleta, Britten, ' Mirror of Justices,' ' Modus tenendi Parliamentum,' 
30 — ' Somnium Viridarii,' 37 — Lupoid of Bebenburg, 39 — 
Marsilius of Padua, 40 — William of Occam, 44 — Wycliffe, theory 
of the " Divine Right," meaning of " Dominium," 51. 



Xiv CONTEXTS. 

CHAPTER IV. 

NATURE OF AUTHORITY OF RULER : CONSTITUTIONAL PRACTICE. 

France, Castile, England, 64 — examples of contractual conception, 
Dauphine, Castile, 67 — deposition of Richard II., 70. 

CHAPTER V. 

NATURE OF THE AUTHORITY OF THE RULER. CIVILIANS. 

Bartolus, 'De Regimine Civitatis,' 76 — ' De Tyranno,' 80 — Baldus, 
prince not under the law, " de necessitate " ; can do anything, 
" supra ius, et contra ius, et extra ius," 82 — prince and contracts, 
83 — prince and private property, Bartolus, Baldus, Faber, 
Angelo de Perusia, 85 — deposition of tyrant, Bartolus and 
Joannes Faber affirm that subjects can do this, Baldus denies 
it, 86. 

CHAPTER VI. 

DEVELOPMENT AND FUNCTIONS OF REPRESENTATIVE INSTITUTIONS. 

The Cortes of Castile and Leon, their frequent meetings, and func- 
tions, 89 — their control of taxation, 92 — legislation and general 
authority, 93 — France, States General and Provincial Estates, 
their general powers, 96 — their authority in taxation, 98 — aboli- 
tion of all illegal taxes in 1381, 101 — control over taxation till 
end of the century, 103 — constitutional crisis of 1355-1358, 105 
— development of Parliament and its authority in England, 108. 



CHAPTER VII. 



CONCEPTION OF UNITY OF EUROPE. 

Dante, ' Commedia,' ' Convivio,' ' De Monarchia,' 112— Engelbert of 
Admont and Bartolus, 123 — Dubois, ' De Recuperatione Terrae 
Sanctae,' 124. 



CHAPTER VIII. 

SUMMARY OF POLITICAL THEORY OF THE FOURTEENTH 
CENTURY, 128. 



CONTENTS. XV 

PAET II. 

FIFTEENTH CENTURY. 
CHAPTER I. 

THE SOURCE AND AUTHORITY OF LAW. CONSTITUTIONAL 
PRACTICE AND THEORY. 

Cortes of Castile, and attempts of the king to override the law, 133 
— Nicolas of Cusa, law made by community, and binds the 
prince, 136 — Roman people can take away his legislative power, 
137 — France, the States General of 1439, 138 — Gerson and 
Peter d'Ailly, 139 — England, Fortescue, ' Dominium Politicum 
et Regale,' 141. 

CHAPTER II. 

THE SOURCE AND AUTHORITY OF LAW. CIVILIANS AND CANONISTS. 

Porcius on legislative power of Roman people, could revoke the 
election of the emperor, 144 — Saliceto, Jacobus Butrigarius, 
and Paulus de Castro on the same questions, 146 — legislative 
power of the prince, Paulus de Castro and Jason de Mayno, 
148 — Jason de Mayno cites Baldus as having said that Pope 
and prince can act "supra ius, et contra ius,et extra ius," 149 — 
prince and custom, John of Imola, Bertachinus, Zabarella, 
Panormitanus, Turrecremata, 150 — prince and contracts, John 
of Imola, Paulus de Castro, Bertachinus, Jason de Mayno, 
Philip Decius, 153 — summary, 156. 

CHAPTER III. 

THE AUTHORITY OF THE PRINCE : ITS SOURCE AND NATURE. 

POLITICAL WRITERS. 

Gerson and Peter d'Ailly, 158 — Zabarella, 164 — Turrecremata, 167 
— Nicolas of Cusa, 169 — Fortescue, 172 — Philippe Pot, Sieur de 
la Roche, 175 — Wesselius of Groningen, 179 — deposition of 
Emperor Wenceslas, 182 — summary, 183. 

CHAPTER IV. 

THE THEORY OF THE DIVINE RIGHT. 

Declaration of Cortes of Olmedo in 1445, 186 — Aeneas Sylvius, ' De 
Ortu et Auctoritate Imperii Romani,' 188. 



XVi CONTENTS. 

CHAPTER V. 

TAXATION. 

France, States General and Provincial Estates, examples in first 
part of the century, 192 — States General of 1439 and the Tailles, 
195 — assembly of princes and nobles in 1441 and the Tailles, 
1441, 197 — Provincial Estates and taxation from 1439 to 1484, 
197 — States General of Tours, and taxation, 1484, 199 — Commines 
denies that King of France, or any other prince, could impose 
taxation without the consent of his subjects, 201 — Cortes of 
Castile and taxation, 203 — England, 205. 



CHAPTER VI. 

REPRESENTATIVE INSTITUTIONS. 

Cortes of Castile met very frequently, 206 — king not to interfere in 
the election of representatives, 208 — claim to be consulted on 
all important affairs, 209 — States General in France, and im- 
portant public affairs, 210 — States General of Tours, 1484, their 
organisation, and claim to share in appointment of regency, 213 
— Commines and importance of the States General, 214 — 
Nicolas of Cusa and Council of the Empire, 215 — Diet of Worms, 
1495, 216 — Fortescue on Parliament. 216 — Summary of fifteenth 
century, 217. 



PAET III. 

THE EARLIER SIXTEENTH CENTURY. 
CHAPTER I. 

THE THEORY OF A LIMITED MONARCHY. 

De Seyssel, ' Grant Monarchic de France,' 219 — French monarchy 
neither completely absolute nor too much restrained, 220 — 
the three " Freins," 220 — " La Justice," the king subject to 
the " Parlemens " in civil matters, 221 — judges independent, 
because permanent, 222 — "La Police," laws and ordinances, each 
estate has its " preheminences," 222 — king should take counsel, 
the groat Council sometimes includes men from the great cities, 
224— Machiavelli, reference to Kings of Fiance as bound by the 
laws and under the " Parlemens," 225. 



CONTENTS. XVU 



CHAPTER II. 

THE SOUBCE AND AUTHORITY OF LAW. 

The nature of law in general, St Germans, Soto, Calvin, 227 — recogni- 
tion of place of Cortes in making law, by Ferdinand and Isabella, 
Juana, and Charles V., 231 — Royal Pragmatics contrary to 
law invalid, 237 — St Germans, Customs, and Statutes of 
Parliament, 234 — France, the Provincial Estates, 237 — 
Collection of Customs, as sanctioned by the estates of each 
district, 238 — on the other hand, declaration by President of 
"Parlement" of Paris that the king was above the laws, 239 — 
Louis XII. forbids "Parlemens " to pay any attention to royal 
dispensations contrary to Ordinance of justice of 1499, 239. 



CHAPTER III. 

THE SOURCE AND NATURE OF THE AUTHORITY OF THE RULER. 

James Almain of Sens, 241- — John Major, 247 — Machiavelli, ' Dis- 
courses on Livy,' 249 — Soto, 254 — St Germans, 258 — Starkey, 
' Dialogue between Cardinal Pole and Thomas Lupset,' 259 — 
Calvin, 263. 

CHAPTER IV. 

THE THEORY OF THE DIVINE RIGHT. 

Derived from St Gregory the Great, but had no real importance in the 
Middle Ages, 271 — revived by Luther, 272 — his general political 
theory the same as that of Seneca and the Fathers, State a con- 
sequence of, but also a divine remedy for sin, 273 — doctrine of non- 
resistance in 1522, but developed in his tracts against the revolt 
of the Peasants, 275 — a change in 1530, letter to Elector of 
Saxony, Declaration of Torgau, 280 — Melanchthon, his opinions 
pass through the same changes, 284— Declaration of the Clergy 
of Magdeburg, 286 — Tyndale, ' Obedience of Christian Men,' 
Exposition of Matt, v.-vii., 287— R. Barnes follows Tyndale, 291. 



CHAPTER V. 

THE POLITICAL THEORY OF THE CIVILIANS IN THE SIXTEENTH 

CENTURY. 

Guillaume Bude, an extravagant monarchist, but Kings of France 
submit to the " Parlement," 293 — Ferrault and de Grassaille, 
297— Alciatus, 298— Oonnon, 301— Duaren, 304— Vigelius, 306 
— Doneau, 308 — Cu jus, general political theory, 310 — treatment 
of " legibus solutus," 315 — Zasius of Freiburg, 318. 

6 



XVU1 CONTENTS. 



PAET IV. 

THE POLITICAL THEORY OP THE LATER SIXTEENTH 

CENTURY. 

CHAPTER I. 

THE SOURCE AND AUTHORITY OF LAW. 

Sir Thomas Smith, ' De Republica Anglorum,' 325 — Francis Victoria, 
328 — Bishop Ponet, 329 — George Buchanan, 332 — 'Remon- 
strance aux Seigneurs,' 334 — ' Droit des Magistrats,' 335 — 
' Archon et Politic' 336 — 'Vindiciae contra Tyrannos,' 338 — 
Molina, 341 — Suarez, 344 — Mariana, 348 — Hooker, 350 — 
Althusius, 357. V 

CHAPTER II. 

THE PRINCE UNDER THE LAW. 

Section 1. The Source of the authority of the Prince, 364 — Section 2. 
The Conception of the Sovereignty of the Community, 372 — 
Section 3. The Relation of Kings to the Courts of Law, 379 — 
Section 4. The Theory of a Contract between the Prince and the 
People, 383 — Section 5. The Right of Resistance and Deposition, 
395 — Section 6. Magistrates, Nobles, Ephors, 407. 



CHAPTER III. 

THE THEORY OF ABSOLUTE MONARCHY. 

L'H6pital, 415 — J. Bodin, definition of the Respublica and 
Maiestas, 417 — limitations of absolute power, 420 — there is no 
such thing as a mixed government, 424 — difficult to find an 
absolute monarchy except in France, 425 — absolute monarchy 
tho best form of government, 427 — Bilson, absolute monarchy 
by Divine Right, but hesitates about continental countries, 429 
— Blackwood, 434 — James I., 437 — Pierre de Belloy, 440 — Peter 
Gregory of Toulouse, 440 — Barclay, 445 — Albericus Gentilis, 
450— James Cowell, 454 — Summary, 458. 



CONTENTS. XIX 



CHAPTER IV. 

REPRESENTATIVE INSTITUTIONS IN PRACTICE. 

Cortes of Castile, its place in legislation, 463 — in taxation, 465 — 
Provincial Estates in France, their relation to public affairs, 
469 — States General not wholly ignored or forgotten in first half 
of the century, 472 — revival of States General, Orleans, 1560, 
473_Blois, 1576, 475— Blois, 1588, 476— Henry IV. intends to 
call the States General, 478 — Assembly of Notables, 1593, 479 — 
Edict of Nantes issued after consultation with Catholics and 
Reformed, 479 — examples of authority of Provincial Estates in 
taxation, 481 — States General and Assemblies of Notables and 
taxation, 482. 

CHAPTER V. 

THE THEORY OF REPRESENTATIVE INSTITUTIONS IN THE 
POLITICAL LITERATURE OF THE SIXTEENTH CENTURY. 

Commines, 485— De Seyssel, 486— L'Hopital, 486— Bodin, 486 — 
James Almain and John Major, 488 — Sir Thomas Smith, 489- — 
George Buchanan, 490 — Hotman, 491 — ' Remonstrance,' 491 — 
' Droit des Magistrats,' 492 — ' Vindiciae contra Tyrannos,' 493 
— Mariana, 494 — Hooker, 497 — Althusius, 498. 



PART V. 

CONCLUSION OF THE WHOLE WORK. 

The scope of the work, 504 — formal aspect of Mediaeval Political 
Theory, contrast between the natural and conventional order 
of Society, 505 — the first and fundamental principle, the mainte- 
nance of justice, 505 — justice finds its effective form in law, 
506 — the law is primarily the custom of the community, 507— 
when deliberate legislation begins, it is conceived of as expressing 
the will of the whole community, including the king, 510 — 
the law is supreme over the whole community, including the 
king, 511 — the influence of the revived study of the Roman law, 
513 — law the expression of justice, 513 — the people is the ultimate l 
source of law, 513 — actually the emperor is the legislator, 514: — 
but some Civilians thought that Roman people could reclaim 
their authority, 514 — conception that Prince was " legibus 
solutus," 515 — -the theory of the Divine Right, 517 — the theory- 
of the contract between Prince and people, 519 — theory that in 
the best government all members of the political community 
should have a share, the mixed constitution, 523 — the representa-^ 
tive system, 524. 



A- 



TEXTS OF AUTHORITIES REFERRED TO 
IN VOLUME VL 



Accoltis, Franciscus, Commentary on Decretals, ed. 1581. 

Aeneas Sylvius (Pius II.), ' De Ortu et Auctoritate Imperii Romani,' 

ed. 1554. 
Albericus a Rosate, ' Comm. de Statutis,' ed. 'Tract. Universi Juris,' 

Venice, 1584. 
Albericus Gentilis, ' Regales Disputationes Tres,' ed. London, 1605. 
Alciatus, Opera Omnia, ed. Basel, 1582. 

Aldegonde, Ste., Philip Marnix de, ' Oeuvres,' ed. Brussels, 1859. 
Almain, Jacobus, in J. Gerson, ' Opera,' ed. Paris, 1606. 
Althusius, Johannes, ' Politica Methodice Digesta,' ed. C. J. Friedrich, 

Cambridge, U.S.A., 1932. 
Andreae, Joannes, ' Comm. on Decretals,' ed. 1581. 
Angelo de Perusia, ' Super Codicem,' ed. 1579. 
Archidiaconus (Gulielmus Baisio), ' Apparatus ad Decretum,' ed. 

1513. 

Baldus, ' Comm. on Code,' ed. Lyons, 1545. 

' Com. on Digest,' ed. Lyons, 1540. 

' Super Feudis,' ed. Lyons, 1542. 

Barclay, William, ' De Regno et Regali Potestate,' ed. Paris, 1660. 

' De Potestate Papae,' ed. 1609. 

Barnes, R., ed. in Tyndale Works, London, 1573. 
Bartolus, ' Comm. on Code,' ed. Basel, 1562. 

' Comm. on Digest,' ed. Basel, 1562. 

' Consilia,' ed. Basel, 1562. 

— — ' De Regimine Civitatum,' ed. Basel, 1562. 

' De Tyranno,' ed. Basel, 1562. 

' De Guelfis et Gebelinis,' ed. Basel, 1562. 

' Bekenntuiss und Unterricht . . . der Pfarrherrn zu Magdeburg,' 
ed. Magdeburg, 1550. 



XX11 TEXTS OF AUTHORITIES REFERRED TO EN' VOL. VI. 

Bellarmine, Cardinal, ' De Potestate Summi Pontificis,' ed. Rome, 

1610. 
Belloy, Pierre de, ' Apologie Catholique,' ed. 1585. 
Bertachinus, ' Repertorium Juris,' ed. Venice, 1580. 
Bilson, Bishop, ' The True Difference, &c.,' ed. London, 1585. 
Blackwood, Adam, 'Pro Regibus Apologia,' ed. Pictaviae, 1581. 
Bodin, J., ' De Republica,' ed. Paris, 1586. 

Boucher, J., ' De Justa Henrici Tertii Abdicatione,' ed. Paris, 1589. 
Britten, ed. Oxford, 1865. 

Buchanan, George, ' Opera Omnia,' Edinburgh, 1715. 
Bude, Guillaume, ' Annotationes in Pandectas,' ed. Basel, 1551. 
Butrigarius, Jacobus, 'Thesaurus Legum,' ed. Rome, 1611. 
Butrio, A. de, ' Comm. on Decretals,' ed. 1488. 

Calvin, John, ' Epistolae,' ed. 1575. 

' Lettres Francaises,' ed. Jules Bonnet, 1854. 

' Institutio,' ed. 1559. 

Homilies on "i. Samuel," ed. 1667. 

Comment, on "Romans," ed. 1607. 

Castro, Paulus de, ' Comm. on Digest and Code,' ed. 1527. 

Commines, Philippe de, ' Memoires,' ed. 1843. 

Connon, Francois, ' Libri Commentariarum Juris Civilis,' ed. 1553. 

Cortes of Castile and Leon, ed. Royal Academy of Madrid, ed. 1861. 

Cortes of Castile, 1563-1589, ed. Madrid, 1877, &c. 

Cowell, James, ' Institutiones Juris Anglicani,' ed. Cambridge, 1605. 

'The Interpreter,' ed. Cambridge, 1607. 

Cujas, ' Opera Omnia,' ed. Lyons, 1606. 

Cunerus, Bishop, ' De Christiani Principis Officio,' ed. Mons, 1581. 
Cusa, Nicolas of, ' De Concordantia Catholica,' ed. Schardius, 1618. 
Cynus, ' Commentaries on Digest and Code,' ed. Frankfort, 1578. 

D'Ailly, Cardinal Peter, ' De Ecclesiae et Cardinalium Auctoritate,' 

ed. in Gerson, 'Opera,' 1606. 
Dante, Works, ed. Oxford, 1894. 
Decius, Philippus, 'Consilium,' ed. in Goldast ' Monarchia,' 1621, 

Vol. III. 
' Deutsche Reichstagsakten,' ed. Royal Academy of Munich, Vol. III. 
Doneau, H., ' Opera Omnia,' ed. Rome, 1828. 
' Documents relatifs aux Etats Generaux . . . sous Philippe le Bel,' 

ed. G. Picot. 
' Droit des Magistrats,' ed. in ' Memoires sur l'Estat de France,' 1576. 
Duaren, Francois, ' Opera,' ed. Frankfort, 1592. 

Dubois, Pierre, ' De Recuperatione Terrae Sanctae,' ed. C. V. Langlois. 
Durandus, Gulielmus (Junior), ' De Modo Generalis Concilii Tenendi,' 

ed. ' Tract. Universi Juris,' Venice, 1584. 



TEXTS OF AUTHORITIES REFERRED TO IN VOL VI. XXiii 

Engelbert of Admont, ' De Ortu et Finie Romani Imperii,' ed. Offen- 
bach, 1610. 

Faber, Joannes, ' In quatuor Libros Institutionum,' ed. Lyons, 1543. 

' Breviarium in Codicem,' ed. Lyons, 1550. 

Ferrault, Jean, ' Tractatus de Juribus Regis Francoram,' ed. ' Tract. 

Universalis Juris,' Vol. 16, 1584. 
Fleta, ed. London, 1647. 
Fortescue, Sir John, ' Works,' ed. 1877. 

Gerson, Jean, ' Opera,' ed. 1606. 

Grassaille, Charles de, ' Regalium Franciae, Libri Duo,' Lyons, 1538. 

Hooker, Richard, ' Works,' ed. J. Keble, 1874. 
L'Hopital, Michel, ' Oeuvres Completes,' ed. Paris, 1824. 

' Oeuvres Inedites,' ed. Paris, 1824. 

Hotman, ' Franco Gallia,' ed. in ' Memoires sur l'Estat de France,' 
1576. 

Imola, Joannes de, ' Commentaries on Decretals,' ed. 1575. 

James I., King of England, ' The True Law of Free Monarchies,' ed. 

London, 1603. 
Jason de Mayno, ' Commentaries on Digest and Code,' ed. 1542. 
John Major, ed. in Gerson, ' Opera,' ed. 1606. 
Juvenal des Ursins, ' Histoire de Charles VI.,' ed. 1611. 

Knox, John, ' Works,' ed. D. Laing, 1864. 

Lupoid of Bebenburg, ' De Jure Regni et Imperii Romani,* ed. 

Schardius, 1610. 
Luther, Martin, ' Werke,' ed. Weimar, 1900. 

' Briefe,' ed. de Wette. 

' Brief -wechsel,' ed. Enders. 

Machiavelli, N., ' Opera,' ed. London, 1772. 
Mariana, Joannes, ' De Rege,' Maintz, 1605. 
Masselin, J., 'Diarium,' ed. A. Bernier, in ' Collection des Documents 

Inedits.' 
Melanchthon, P., ' Opera Omnia,' in ' Corpus Reformatorum,' ed. 

Bretschneider, 1809. 
' Modus tenendi Parliamentum,' ed. T. Duff us Hardy, 1846. 
Molina, L., ' De Justitia et Jure,' ed. Maintz, 1614. 
Monstrelet, ' Chronique,' ed. 1859. 
Muller, K., ' Luther's Aiisserungen iiber das Recht des Widerstandes,' 

in Transactions of the Royal Bavarian Academy, 1915. 



XXiv TEXTS OF AUTHORITIES REFERRED TO IN VOL. VI. 

' Nene Sammlung der Reichsabschiede,' cd. Senkenburg und 
Schmaus. 

Occam, William, ' Octo Quaestiones,' in Goldast, ' Monarchia,' Vol. II., 

ed. 1614. 

' Dialogus,' in Goldast, ' Monarchia,' Vol. II., ed. 1614. 

Orange, William, Prince of, ' Apologie,' ed. Brussels, 1858. 

' Ordonnances des Rois de France de la Troisieme Race.' ed. Paris, 

1723, &c. 

Panorcnitanus (N. de Tudeschis), ' Commentaries on Decretals,' ed. 

1586. 
Peter Gregory of Toulouse, ' De Republica,' ed. Lyons, 1596. 
Picot, G., ' Histoire des liltats Generaux,' ed. 1872. 
'La Politique, Dialogue' ('Archon et Politie'), in ' Memoires sur 

l'Estat de France,' ed. 1576. 
Ponet, Bishop, ' A Short Treatise of Politike Power,' ed. 1556. 
Porcius, Christophorus, ' Commentary on Institutes,' ed. Venice, 

1580. 
Pot, Philippe (Sieur de la Roche), in Masselin, ' Diarium,' cd. A. 

Bernier, in ' Collection des Documents In edits.' 

' Recueil des anciennes Lois Francaises,' ed. Jourdain. Decrusy et 

Isambert. 
'Recueil concernant la Tenu des Etats Generaux, 1560-1614,' ed. 

Paris, 1789. 
' Remonstrance aux Seigneurs, &c.,' in ' Memoires sur l'Estat de 

France,' ed. 1576. 
Richard, Archbishop of Armagh, ' De Pauperie Salvatoris,' in R. L. 

Poole edition of Wycliffe, ' De Dominio Divino.' 
' Rolls of Parliament,' Volumes II. and III. 
Rymer, ' Foedera.' 

Saliceto, Bartholomaeus de, ' Commentaries on Code,' ed. 1474. 
Seyssel, Claude de, ' La Grant Monarchic de France,' ed. Pa;-is, 1519. 
Smith, Sir Thomas, ' De Republica Anglorum,' ed. London, 1583. 
' Somnium Viridarii,' in Goldast, ' Monarchia,' ed. 1611, Vol. I. 
Soto, D., ' De Justitia et Jure,' ed. Venice, 1584. 
St Germans, C, ' Dialogus de Fundamentis Legum Augliae,' ed. 

1604. 
Starkey, T., ' Dialogue between Cardinal Pole and Thomas Lupset,' 

ed. ' Early English Text Society,' 1878. 
Statutes of the Realm. 
Suarez, ' De Legibus ac de Legislatore,' ed. Maintz, 1614. 



TEXTS OF AUTHORITIES REFERRED TO IN VOL VI. XIV 

Turrecremata, Joannes, ' Commentary on Gratian, Decretum,' ed. 

1578. 
Tyndale, William, ' Works,' ed. 1573. 

Vacarius, ' Liber Pauperum,' ed. F. de Zulueta. 

Vaisette, ' Histoire de Languedoc,' ed. 1730. 

Victoria, F., ' Relationes de Potestate Civili,' ed. Salamanca, 1565. 

Vigelius, N., ' Digestorum Juris Civilis, Libri Quinquaginta,' Basel, 

1584. 
' Vindiciae contra Tyramios,' ed. Edinburgh, 1579. 

Wesselius, Groningensis, ' De dignitate et potestate ecclesiastica,' in 

Goldast, ' Monarchia,' Vol. I. 
Wycliffe, John, ' De Dominio Divino,' ed. R. Lane Poole. 

' De Dominio Civili,' ed. R. Lane Poole. 

' De Officio Regis,' ed. Pollard and Sayle. 

Zabarella, F. (The Cardinal), ' Commentary on Decretals,' ed. 1602. 
Zasius, U., ' Opera Omnia,' ed. Frankfort, 1590. 



ERRATA. 



Page 4. For " 1310 " read " 1311." 
„ 39. For " Babenburg " read " Bebenburg." 
„ 161. For " viaegio " read " viagio." 
„ 169. Lines 8-10, omit marks of quotation and read " such ,1 

for " some." 
,, 188. Line 7 from bottom, omit " it.'' 
,, 210. Line 12 from bottom, omit " could.' 1 
„ 225, note 1. Omit " Super," read " Sopra." 
,, 284, note 2. In reference, read " note 1." 
,, 297, note 1. Omit comma after " credidit." 
,, 430. Line 15 from bottom, omit marks of quotation after 
" him." 



PART I. 

FOURTEENTH CENTURY. 



INTBODUCTION. 

We have seen in earlier volumes that the political principles 
of the Middle Ages were clear and intelligible, and that, 
though the forms of the organisations in which they expressed 
themselves were in many respects different from those of the 
present day, the principles themselves were really not very far 
removed from our own. The confusion about this which is still 
to be found in the minds of some people is simply a confused 
ignorance. The mediaeval world was a rational world ; indeed, 
as has sometimes been suggested, its defect was that it was 
somewhat too rational. The great schoolmen, especially, 
appear to us sometimes to have too great a confidence in the 
power of the human reason to analyse the complexity of 
human life. However this may be, the political thinkers of 
the twelfth and thirteenth centuries are to us intelligible and 
rational. 

It is very different when we come to some of the political 
ideas of the seventeenth century ; it is difficult to say which 
seems to us most irrational : the absurdity of the theory 
of the divine right of the monarch, or the absurdity of 
the theory of the absolute sovereignty of the State as 
represented by Hobbes. It is no doubt true that we can 
recognise behind both these absurdities some historical con- 
ditions which serve to explain their appearance, but they do 

VOL. VI. A 



INTRODUCTION. 



not justify them. To us these conceptions seem, and indeed 
they are, irrational and mischievous. The conception of the 
divine right of the monarch has happily, even if only in our 
days, disappeared, and the theory of the absolute sovereignty 
of the State only lingers on among politically uneducated 
people or societies. 

Our task, then, in this volume, is clear ; we have to con- 
sider, first, the continuity of political civilisation, and, 
secondly, the conditions or circumstances under which this 
continuity was in part interrupted by the reappearance of 
that confused orientalism of Gregory the Great, the theory of 
the divine right of the monarch, and by the appearance of 
the conception of the absolute power of the prince, in the 
State. 



CHAPTER I. 

THE SOURCE AND AUTHORITY OF LAW : CONSTITU- 
TIONAL PRACTICE AND GENERAL THEORY. 

We have seen that the most important political conception 
of the Middle Ages was the conception of the supremacy of 
law, the law which was the expression, not merely of the will 
of the ruler, but of the life of the community ; and this life, 
which expressed itself in the customs, and therefore the law 
of the community, was conceived of as itself the expression 
of moral principles. The law was supreme, because it was the 
expression of justice ; the unjust law was not law at all. 
This conception can, as we have shown, be traced through 
all mediaeval literature from the ninth century to the thirteenth. 
It is sometimes expressed in the technical terms of the deriva- 
tion of Jus from Justitia, or of the subordination of all positive 
law to the natural law, sometimes in the more popular terms 
of the distinction between the king and the tyrant. 

It is then these profound conceptions of the real nature of 
political authority which the Middle Ages handed down to 
the modern world, and our first task is to consider how far 
these conceptions may have been modified in the period with 
which we are now dealing. We begin, therefore, with the 
consideration of the conception of the immediate source of 
the authority of the positive law of a political community. 

As we have, in former volumes, endeavoured to show, there 
was from the twelfth century at least a divergence between 
what we have called the normal conceptions and practice of 
mediaeval society, and the theory of some at least of the 
students and teachers of the Koman law, and we shall have 



4 FOURTEENTH CENTURY. [PAST I. 

to consider this divergence carefully in the period with which 
we are now dealing, and shall have to ask how far the absolutist 
theory of some of the great civilians may have modified the 
traditional political principles of mediaeval society. 

We begin with some observations on the actual methods of 
legislation in the fourteenth century. 

There is a noteworthy phrase in the coronation oath of 
Edward II. and Edward III. of England, which will serve to 
express the constitutional procedure and theory of the time. 
They swear to hold and maintain, not only the laws and cus- 
toms granted by former kings, but also the laws and lawful 
customs which the community shall have chosen. 1 The words 
express both the place of custom in the system of mediaeval 
law, and also the recognition of the principle that laws derive 
their authority, not only from the consent of the king but 
from the determination of the community. The words in 
which the ordinances of 1310 were annulled in 1322 only 
add to this the statement of the method in which the deter- 
mination of the king, the barons, and the whole community 
was to be expressed — all those matters which are to be estab- 
lished for the kingdom and people are to be discussed, agreed 
upon, and established in Parliament by the king, with the 
assent of the prelates, counts, barons, and the community 
of the kingdom, as had heretofore been the custom. 2 

It is interesting to observe the parallel between these 
conceptions and those of the Cortes of Castile at Burgos in 1379, 
and at Bribiesca in 1387. At Burgos the Cortes complained 
that certain persons produced " Cartas ' : (briefs) annulling 
ordinances made by the king in the Cortes, and petitioned 



1 Rymer, ' Feeders,' vol. iii. p. 63 : p. 189 : " Mes les choses q. s'rount a 

" Sire, graunte vous a tenir et garder establir . . . pour lestat du roialnie 

les Loys et les custumes droitxireles, et du peuple, soient tretes, accordees, 

les quiels la Communauto de votre establies, en parlementz, par notre 

Roiaume aura esleu, et lea defendrez Seigneur le Roi, et par l'assent des 

et afforterez, al honur de Dieu, a Prelatz, Countes et Barouns, et la 

vostre poer. Jeo les graunte et pro- communalte du roialme ; auxint come 

mette." Cf. Id. id., vol. iv. p. 244. ad este accustume cea enarere." 



2 « 



The Statutes of the Realm,' vol. 



CHAP. I.] 



THE LAW : PRACTICE AND THEORY. 



the king that nothing done in the Cortes should be undone 
except by the Cortes. The king, Juan I., seems in his reply to 
be a little evasive and to reserve to himself some freedom of 
action 1 (of suspending or dispensing). 

At Bribiesca, however, Juan I. laid down in the most 
explicit terms that royal briefs (Cartas), which were contrary to 
custom or law, were not to be regarded, that the royal officials 
were not to seal any briefs which contained " non obstante " 
clauses, and that laws, customs and ordinances were not to be 
annulled except by ordinances made in the Cortes. 2 

These are statements of constitutional practice, and when 
we consider the actual methods or forms of legislation we find 
that there was no other method of legislation in Castile than 
that of the king acting with the advice, in earlier times, of his 
prelates, nobles and magnates, and as the representative 
system developed, of the prelates, nobles and delegates of the 



1 ' Cortes of Castile,' vol. ii. 22, 37 
(1379): " Otrosy nos pedieron por 
merced que por algunos omes de 
nuestros sennorios ganan cartas para 
desatar los ordinamientos que nos 
fezimos enlas Cortes e ayuntamientos 
por servicio de Dios et nuestro : e que 
mandasemos, quelas tales cartas que 
sean obdedecidas e non cunplydas, e lo 
que es fecho por Cortes o por ayunta- 
mientos que non se puede des fazer 
por los tales cartas, saluo por Cortes. 

A esto respondemos que nos auemos 
ordenado quelas cartas que fueren 
ganadas contra derecho que sean 
obedecidas e non cunplydas fasta que 
nos seamos rrequerido dello ; pero en 
rrazon de desatar los ordenamientos o 
delos dexar en su estado nos faromos 
en ello lo que entendieremos que 
cunple a nuestro servicio." 

2 ' Cortes of Castile,' ii. 28, Tercero 
Tractado, 9 (1387): " Et por que 
nuestra voluntad es quela ju-jticia 
florezca, e las cosas que contra ella 
podiesson venir non ayan poder dela 
contrariar, establescemos que si en 
nuestras cartas mandaremos alguna 



causa que sea contra ley fuero o derecho, 
quela tal carta ssea obedescida e non 
conplida, non enbargante que enla 
dicha carta faga mencion especial o 
general dela ley fuero o ordenamiento 
contra quien se de ; nin embargante 
otrosy que faga mencion especial desta 
ley nuestra nin delas clausulas derroga- 
torias enella contenidas ; ca nuestra 
voluntad es quelas tales cartas non 
ayan efecto. 

Et otrossy que les fueros ualedores e 
leyes e ordinamientos que non fueron 
rrevocatos por otras, non sean periu- 
dicados synon por ordinamientos fecbos 
en Cortes, maguer que enlas cartas 
ouiese las majores firmezas que pudi- 
esen ser puestas. 

E todo lo que en contrario desta 
ley se feziese, nos lo damos por ninguno, 
et mandamos alos de nuestro conseio e 
alos nuestros oydores e otros oficiales 
quales quier, so pena de perder los 
oficios, que non flrmen carta alguna o 
alcuala enque se contenga, ' non embar- 
gante ley o derecho o ordenamiento.' 

E essa mesma pena aya el escrivano 
quela tal carta o aluala firmare." 



6 FOURTEENTH CENTURY. [PABT I. 

cities. There is really no trace of any other system in Castile 
or England, and it is a curious misconception which has led 
some serious historical writers to speak as though the legis- 
lative authority in Castile belonged to the king alone. This 
has arisen partly from a hasty interpretation of the phrases 
which describe the law as the king's law, and such phrases 
as those used by Alfonso XI. of Castile in issuing a new law- 
book at the Cortes of Alcala de Henares in 1348 : " Et por 
que al Eey pertenesce el poder de f azer f ueros e leyes e delas 
entrepretar e declarar e emendar." x We have pointed out 
in the last volume that the similar phrase used by Alfonso X. 
in the ' Especulo ' cannot be taken to mean that he claimed an 
absolute or sole right to make or unmake law, but only that 
no law could be made without him, and that it was his part to 
promulgate or declare the law. 2 And it must be observed that 
in issuing the new law book at Alcala, Alfonso XL was acting 
with the counsel of the prelates and nobles and the good men 
of the cities, 3 and that it was in this same Cortes that the 
great law book of Alfonso X., the ' Siete Partidas,' was first 
formally recognised as having legal authority, for it had not 
hitherto been promulgated by the king or received as law. 4 

With regard to France it is more difficult to speak precisely ; 
while, as we shall see in a later chapter, there is frequent men- 
tion of the States general, and of the Provincial Estates, the 
former at least did not meet so regularly as Parliament in 
England, or the Cortes in Castile, and it is more difficult, 

1 ' Cortes of Castile,' i. 52, 64. Siete Partidas que el Rey Don Alfonso 

2 Cf. vol. v. pp. 56-58. nuestrovisauelomandoordenar, commo 

3 ' Cortes of Castile,' i. 52 : " Por quier que fasta aqui non se fabla que 
ende nos Don Alfonso . . . con conseio fuesen publicadas por mandado del 
delos perlados o rricos e caualleros, e Rey, nin fueron auidas, nin rescibidas 
ommes buenos qvie eon connusco en por leyes ; pero nos mandamos las 
estas Cortes quo mandamos fazer en rrequerir e concentar e emondar en 
Alcala de Honares . . . fazemos e algunas cosas que cunplia. Et asy 
establescemos estas leyes que se concertadas e omendadas porque fueron 
siguen." sacadae e tomadas delos dichos 

* Id. id., 52, 64: "E los pleitos e sanctos Padres o delos derechos e dichos 

contiendas que se non podieren librar do muchos sabios antiquos, e de fueros 

por las leyes deste libro e por los dichos e de costumbres antigos, de Espanna, 

fueros, mandamos que se libren per las damos las por neustras leyes." 
leyes contenidas enlos libros delas 



CHAP. I.] THE LAW : PRACTICE AND THEORY. 7 

therefore, to make precise statements about the methods of 
legislation ; but it seems, from examining the collection of 
Eoyal Ordinances, that, so far as these can be described as 
having the nature of law, they were promulgated under the 
same terms as those of the thirteenth century, by the great 
council, sometimes with reference to the barons and others, 
sometimes with the advice of the estates. 1 

The formulas of legislation in the Empire are more explicit, 
and seem to imply normally the presence of the members 
of the Diet. 2 

We can now turn to the general theory of the legislative 
authority in the fourteenth century. It seems hardly 
necessary to cite the opinions of the English writers, for it is 
obvious that they adhere to, and indeed frequently simply 
repeat, the opinions of Bracton. 

Britton represents the king as issuing a law book, and as 
commanding that it was to be obeyed in England and Ireland, 
but reserves the right to repeal or annul these laws with the 
consent of the barons and counts and the other members of 
his council. 3 Fleta restates almost literally the judgments of 
Bracton. The king has indeed no equal, but it is the law which 
has made him king, and it is therefore right that he should 
recognise the authority of the law. 4 The king can do nothing 
except that which he can do lawfully, and the saying that the 
prince's pleasure has the force of law must be understood 
under the terms of the statement that it was from the "lex 
regia" that he derived his authority, and that, therefore, it 
is to be understood that that only is law which has been made 
after due deliberation by the advice of the " magnates " and 



1 ' Recueil des anciennes Lois Fran- . . . Et volums et commandums qe par 
caises ' — e.g., vol. iii. p. 315 : vol. v. tut Engleterre et tut Hyrelaunde soient 
pp. 5, 156. issi usez et tenus en tous poyntz, sauve 

2 Cf. Introduction to the Golden a nous de repeler les et de enyter 
Bull of 1356. Senekenburg and et de amenuser et de amender a totes 
Schmaus, ' Neue Sammlung der Reich- les foiz, qe nous verums qe bon serra, 
abschiede,' vol. i. p. 46. par le assent de nos Countes et 

3 Britton, i. Prologue : " Edouard Barouns et autres de noster conseyl." 
par la gracei Deu Roi de Engleterre. * Fleta, i. 5, 4. 



8 



FOURTEENTH CENTURY. 



[PAET I. 



the authority of the king. The king must restrain his 
authority by the law which is the bridle of power, and must 
live according to law, for it is the principle of human law 
that laws bind the legislator. 1 This was evidently the normal 
opinion of English lawyers, and there is therefore nothing 
surprising in the terms used by that curious work, the 
' Mirror of Justices.' The worst of all abuses is that the 
king should be against the law, for he ought to be subject 
to it, as is expressed in his coronation oath. It is a grave 
abuse that ordinances should be made by the king and 
his clerks and others who would not venture to oppose the 
king, while laws ought to be made by the common consent of 
the king and his counts. 2 

It is, then, from this standpoint that we can understand 
the real significance of the treatment of the source of authority 
of law by Marsilius of Padua in the ' Defensor Pacis. 3 He 



1 Fleta, i. 17, 7 : " Nee obstat, quod 
dieitur. quod principi placet legis 
habet potestatem, quia sequitur, cum 
lege regia quae de ejus imperio lata est, 
quod est, non quicquid de voluntate 
regis, tantopere praesumptum est, 
sed quod magnatum suorum consilio. 
Rege auctoritatem praestaute, et 
habita super hoc deliberatione ot trac- 
tatu, recte fuerit definitum. ... 11. 
Temperent igitur reges potentiam suam 
per legem quae fraenum est potentiae, 
quod secundum leges vivant ; quia hoc 
eanxit lex humana, quod leges suam 
ligent latorem ; et alibi, digna vox 
majestate regnantis est, legibus alii 
gatum se principem profiteri." 

2 'Mirror of Justices,' V. 1. : "La 
premere e la soverain abusion est qe li 
Roi est eontre la loi, car il doist estre 
subject, 6icom est contenu en son sere- 
ment, 2. Abusion est qe ou les parle- 
mentz se duissent fere sur les sauvacions 
des almes des trespassoeurs e ceo a 
Londres e as deux f ois per an, la ne se 
font il ore forque rarement e a la 
volontie le roi sur eides e cueillettes 



de tresor. Et ou les ordenaunces se 
duissent fere de comun assent del roi 
e de ses countes, la ce funt ore par le 
roi e ses clers e par aliens e autres qi 
noseut contreriner le Roi, einz desirent 
del pi ere e de li conseiller as son proffit, 
tut ne soit mie lur conseil covenable al 
comun del people, sanz appeler les 
countes e saunz suire les riules de 
droit, e done plusours ordenaunces se 
fondent ore plus sur la voluntie qe 
sur droit." 

For a critical discuss.'on of the date 
and authorship of this work, cf. the 
edition of Whitaker and Maitland, 
published by the Selden Society in 
18U5. 

3 We desire to express the gratitude, 
which all students of Mediaeval Litera- 
ture must feel, to Mr Previte-Orton of 
St John's College, Cambridge, and to 
Professor R. Scholz of Halle, that we 
have dow in their editions of 1928 and 
1932 a masterly criticism of the text 
of the work of Marsilius. We have 
used them throughout in our citations, 
indicating any differences if they 



CHAP. I.] THE LAW : PRACTICE AND THEORY. 9 

is not, as appears to be thought by some writers who are not 
very well acquainted with mediaeval political literature, setting 
out some new and revolutionary democratic doctrine, but is 
rather expressing, even if in rather drastic and unqualified 
terms, the normal judgment and practice of the Middle Ages : 
he represents not the beginning of some modern and revolu- 
tionary doctrine, but the assertion of traditional principles. 
It is, however, true and not unimportant that the author 
derives his doctrines from various sources, that he combines 
the principles of the actual practice of the Middle Ages with 
conceptions derived, on the one side, from Aristotle, and 
on the other, to some extent from the Civilians. 

He lays down, for instance, the principle that there is no 
" politia " when the law is not supreme, and he cites in sup- 
port of this some words of Aristotle x ; but this doctrine 
had been implied in the Assizes of Jerusalem, and asserted by 
Bracton. 2 Again, he sets out with great emphasis the principle 
that the source of law is the " populus "or ' unfversitas 
civium " or its " valencior pars," and not either one man or a 
few men, for either the one or the few might make bad laws 
directed to their own advantage rather than to the common 
good. 3 Marsilius refers to Aristotle as having laid down this 

occur. We must refer the reader to cionem seu voluntatem in general! 

the admirable introductions to these civium congregacione per sermonem 

editions for a full discussion of the most expressam, precipientem seu deter - 

interesting textual questions, as well minantem aliquid fieri vel omitti circa 

as for those relating to the authorship civiles actus humanos, sub poena vel 

of this work. supplicio temporali ; valenciorem in- 

1 Marsilius, ' Defensor Pacis,' i. 11 quam partem, considerata quantitate 
(4). personarum et qualitato in com- 

2 ' Assizes of Jerusalem,' Assises munitate ilia super quam lex fertur ; 
de la Cour des Bourgeois, 26 : Bracton, sive id fecerit universitas predicta 
* De Legibus,' i. 8, 5. Cf. vol. iii. civium aut ejus pars valencior per se 
pp. 32, 67. ipsam immediate, sive id alicui vel 

8 Marsilius of Padua, ' Defensor aliquibus commiserit faciendum, qui 

Pacis,' i. 12, 3 : " Nos autem dicamus legislator simpliciter non sunt, nee 

secundum veritatem atque consilium esse possunt, sed solum ad aliquid et 

Aristotelis 3° Politico Cap. 6°, legis quandoque ac secundum primi legis- 

latorem seu causam legis eHectivam latoris auctoritatem." Id., i. 12, 8 : 

primam et propriam esse populum " Aut legum lacionis auctoritas ad 

seu civium universitatem, aut eius solam civium universitatem pertinet, 

valenciorem partem, per suam elec- ut diximus, vel ad hominem unicum 



10 FOURTEENTH CENTURY. [PAET I. 

doctrine that the universitas is the source of law, but the 
principle had been suggested by some of the earliest Civilians. 
We have drawn attention in the second volume to the words 
of works attributed to Irnerius and Bulgarus, that it is the 
" populus " or " universitas " which is the ultimate source 
of law, 1 and it is evident that they had learned this from the 
Roman law books. It seems reasonable to say that Marsilius 
is restating the doctrine of the ancient Roman law and of the 
mediaeval Civilians. 

But further, as we have seen, there is scarcely any trace 
whatever, either in the constitutional systems or in the 
writers on political theory of the Middle Ages, except in the 
mediaeval Civilians, of the conception that law could be made 
by any one person, even by the prince, except with the advice 
and consent of the community as a whole, or those who stood 
for it, whether they were the great and wise men, or the elected 
representatives of the community. Egidius Colonna stands 
practically alone in suggesting that the king should rule 
according to his own will and the laws which he had made, 
and not according to the laws which the citizens had made. 2 
So far, then, Marsilius was simply expressing in clear terms 
the normal conception of the Middle Ages, but there are some 
aspects of his statement which deserve further notice, and 
especially the emphatic phrase which he uses about the 

aut pauciores. Non ad solum unum, ciorem, de quibus est altera et 

propterea quae dicta sunt in 11" hujus opposita ratio." 

et in prima demonstracione quam in 1 Imerius, ' De Aquitate,' 2 : " Uni- 

hoc adduximus ; posset enim propter versitas id est populus, hoc habot 

ignoraneiam vel malitiam, aut utrum- officium singulis scilicet hominibas 

que legem pravam ferre, inspiciendo quasi membris providere. Huic de- 

Bcilicet magis proprium conferens quam scendit hoc ut legem condat." 

commune, unde tyrampnica foret. Bulgarus, ' Comm. on Digest,' 50, 

Propter candem vero causam non 17,176: " Vigor judiciarius ideo est in 

pcrtinet hoc ad pauciores : possent medio constitutus ne singuli jus sibi 

enim peccare in ferendo legem, ut dieant. Non enim competit singulis 

prius, ad quorundam, scilicet pau- quod permissum est tantum univer- 

corum, et non commune conferens, sitati, vel ei qui obtinet vicem universi- 

quaomadmodum videre est in olig- tatis, id est populi, qualis est magis- 

archiie. Pertinot hoc igitur ad civilian tratus." 

universitatem aut ejus partem valen- Cf. vol. ii. p. 57. 

s Cf. vol. v. p. 74. 



CHAP. I.] THE LAW: PRACTICE AND THEORY. 11 

" valencior pars " of the populus. It will be observed that 
he explains these words when he adds, " Valenciorem inquam 
partem, considerata quantitate personarum et qualitate in 
communitate ilia super quam lex fertur," for there seems to be 
no doubt that this is the correct reading. It seems clear that 
he does not mean simply the greater number. The history, 
however, of the development of the theory of the majority 
in the political and ecclesiastical organisations of the Middle 
Ages is one of great complexity, and we do not feel that we 
are competent to discuss this subject. 1 

It should also be observed that Marsilius sets out a very 
important defence of the authority of the whole people in 
making law. Men, he says, are more ready to maintain a law 
which they have imposed upon themselves, and it is therefore 
well that whatever may concern the common convenience 
should be known and heard by all 2 ; and, while he admits 
that the legislative power should not be entrusted to a base 
and incompetent authority, he meets the contention that 
the " universitas civium " is a body of this kind with a flat 
denial. For, he declares, the great mass of the citizens (civium 
pluralitas) are not normally or generally base or incompetent, 
rather they are all, or for the most part, of sound mind and 
reason, and have a right intention towards the Common- 

1 We desire to draw the attention of Maggioritario," ' Profilo Storico/ 

those who wish to study this subject Torino, Fratelli Bocca, 1927 (an ex- 

to the very careful and interesting cellent summary). 

monographs written by Dr E. Ruffini 2 Marsilius, 'Defensor Pacis,' i. 12, 6: 

Avondo : " H principio Maggiori- " Secundam propositionem probo : 

tario nelle elezioni dei re e imperatori quoniam lex ilia melius observatur a 

Romano-Germanici " in ' Atti della quocunque civium, quam sibi quilibet 

reale Academia delle Scienze di Torino,' imposuisse videtur ; talis est lex lata 

vol. 60 (1924-26). "II principio mag- ex auditu et precepto universe mul- 

gioritario nella storia del Diritto tudinis civium ... (i, 12, 7). Con- 

Canonico " in ' Archivio Giuridico,' venerunt enim homines ad civilem com- 

vol. 93, fasc. I. (Quarta Serie, vol. ix. municationem propter commodum et 

fasc. 1). "I systemi di deliberatione vite sufficienciam consequendam, et 

collettiva nel Medioevo Italiano " in opposita declinandum. Que igitur 

' Nuova Collezione di Opere Giuri- omnium possunt tangere commodum 

diche,' n. 243. Torino, Fratelli Bocca, et incommodum, ab omnibus sciri 

1927. "II Defensor Pacis di Marsilio debent et audiri, ut commodum assequi 

di Padova," in ' Rivista Storica Itali- et oppositum repellere possint." 
ana,' fasc. II., 1924. " 11 Principio 



12 FOURTEENTH CENTURY. [PAKT I. 

wealth and what is necessary for its maintenance. And, 
therefore, although every individual, or the greater multitude, 
is not capable of devising new laws, yet everyone can judge 
and determine as to that which is devised and proposed to him 
by others. 1 

It seems to us, then, to be clear that the constitutional pro- 
cedure and the general political theory of the fourteenth 
century represent the same principles as to the source and 
supremacy of the law which, as we have seen in former 
volumes, were characteristic of the Middle Ages. The law of 
the State is the expression of the custom and will of the whole 
community, and it is supreme over all members of the com- 
munity, even over the king and prince. We shall, however, have 
more to say about this in later chapters, when we deal directly 
with the conception of the nature and limitation of the 
authority of the prince in the fourteenth century. 

1 Id. id., i. 13, 3: "Cum ergo policiam et que necessaria sunt 

pritnum dicebatur, ' ad pravum et in propter eius permanenciam, quemad- 

pluribus indiscretum, non pertinet modum leges et alia statuta vel con- 

legumlacionis auctoritas,' conceditur. suetudines, sicut prius ostensum est. 

Et cum additur, universitatem civium Quamvis enim non quilibet aut 

esse hujus modi, negandum est. Nam maior multitudo civium sit legum in- 

civium pluralitas neque prava neque ventor, potest tamen quilibet de in- 

indiscreta est quantum ad pluralitatem ventis et ab alio sibi propositis iudicare, 

suppositorum, et in pluri tempore ; addendum vel minnendum aut mutan 

omnes enim, aut plurimi, sane mentis dum diecernere." 
et racionis sunt et recti appetitus ad 



13 



CHAPTER II. 

THE LAW, ITS SOURCE AND AUTHORITY. CIVILIANS. 

It remains, then, to consider the treatment of this subject by 
the Civilians and Canonists, for here if anywhere we may find 
some development of another kind. We have pointed out in 
earlier volumes that in the twelfth and thirteenth centuries 
there are clear traces of two and divergent movements of 
opinion : that some of the Civilians seem to think that the 
Eoman people had so completely transferred their original 
legislative authority to the emperor that they no longer 
possessed it at all, while others thought that though they had 
given the emperor this authority it still, also, remained with 
them, and could still be reclaimed and exercised. 1 We have 
now to consider how far the Civilians and Canonists of the 
fourteenth century can be said to adhere to the one or the 
other of these opinions. 

It is well to observe at the outset that there is no question 
in the minds of these Civilians that it was the people from whom 
the prince derived his authority. This is very clearly set out 
in a passage in the ' Commentary on the Digest ' by Cynus. 
(Cino of Pistoia ; one of the most important of the Civilians 
of the early fourteenth century.) Cynus maintains very 
dogmatically that the " imperium " is from God, but he holds 
that this is not inconsistent with the principle that the prince 
was created by the lex regia, the emperor derives his authority 
from the people, the " imperium " is from God. 2 

Having made ourselves clear on this point we can consider 

1 Cf. vol. ii. paxt i. chap. 7 ; vol. v. iv. Fol. viii. R. : " Not. Ex lege ista 
part i. chap. 6. quod iura reputant imperatorem Deum, 

2 Cynus, ' Comm. on Digest,' Rub. seu personam divinam, et hoc merito ; 



14 



FOURTEENTH CENTURY. 



|PART I. 



an important discussion of the whole question of the legislative 
authority of the people, by Cynus in his ' Commentary on the 
Code,' which indicates very clearly that he was well aware 
of the contention between the older Civilians about this 
question. He cites the opinion of " Joannes " and of " Hos- 
tiensis," that the Eoman people could not now make a law, but 
also the judgment of Hugolinus to the contrary, and says 
that some of the " moderni " (his contemporaries) held with 
Hugolinus. Cynus himself seems to be indifferent as to the 
question, but the reason he gives seems to imply that he is 
thinking not of the general authority of the people of the 
Eoman empire, but of the authority of the people of the city 
of Rome, which would have no reality outside of the city. 1 
We must, however, observe also the opinion of Cynus 



quia imperium est a Deo, ut in authen. 
quomodo oportet epi : in prinoip : De 
Fide instrum : § 1, et ab ipso Deo 
immediate processit, unde inter Im- 
peratorem et Deum non est ponere 
medium, ut in authent. constit, quae 
de dignitate § : illud. Nee obstat quod 
dicitur supra 1. i. quod lege regia 
dicitur Prineeps creatus ; quia hoc est 
permissione Divina ; sicut diximus, non 
est malum in civitate quod non fecerit 
Dominus : nee est absurdum, quod sic 
a populo est a Deo, tamquam ab 
agente universali, sicut aliter dicitur, 
homo hominem generat : et solu. Vel 
melius dico, quod imporator a populo 
est, sed imperium cujus praesidatur 
imperator dicitur divinum, a Deo." 

1 Cynus : Comm. on the Code, 
Rub. 14, Fol. 29 R. (Cod. I. 14. 
12). " Si imperial's . . . Item nota 
quod soli principi licet condere legem 
. . . Secundo opp. quod solus prineeps 
non potest facere legem, imo populus 
. . . item sonatus . . . item praefectus 
. . . Respondetur secundum quosdam. 
Primo ad 1. normam. Quia prefectus 
facit de auctoritate principis. Unde 
ipse facere videtur ; et idem in populo, 
et sic auctoritas pendet a principe, 
quod non est verum. Quid ergo dice- 



mus ? De hoc fuerunt dissensiones 
apud nostros antiquos patres, quae 
etiam et hodie vigent apud modernos. 
Dixit Joannes, quod non potest hodie 
populus Romanus facere legem, et hoc 
tenet Hostiensis, extra de constit. C. 
fin, in summa sua. Hugolinus dixit 
contrarium, Glossa approbat opinion- 
enem Joannis in d.c. ambigitur (Dig. I. 
3, 9). Quidam moderni tenent cum 
Hug. et probant inter alia argumenta. 
Nam certum est quod Ulpianus fuit 
tempore quo erat concessa Impera- 
toribus potestas condendi leges ; ut 
ff. de origine juris, 1. ultima parte. Et 
tamen Ulpianus dicit, Senatum posse 
facere legem (Dig. I. 3, 9), non dicit 
potuisse ; nee potest dici quod ibi 
loquatur in senatu, qui erat numero 
centum, quia jus totum remanet in 
uno . . . unde populus et Senatus qui 
regit populum potest legem facere. 
Et quaedam suo jure facit populus, et 
Senatus populi auctoritate, non Prin- 
cipis, quia Principis auctoritas pendet a 
populo, non econtra, ut dixi supra in 
L. 1. Quinimo dicunt quidam quod 
populus posset hodie deponere prin- 
i-ipem, causa subsistente, ut ff. de 
execut. tut. 1. sed et reprobari, in 
princip. Secundum ergo istos expone- 



CHAP. II.] 



THE LAW : CIVILIANS. 



15 



on two different but related questions. He discusses with 
some care the meaning of the famous passage in the Code, 
" Digna vox maiestate regnantis legibus alligatum se confi- 
teri " (Code I. 14, 4), and maintains that, while the emperor 
is not bound to observe the law " de necessitate," he feels 
himself bound " de honestate." x And he goes on to discuss 
a question whose importance we shall have to consider in 
relation to other writers, and even with regard to Bodin in 
the sixteenth century. The question is, whether the emperor 



mus hie literam ' soli ' (Cod. I. 14, 12) 
uno modo, prout dixit Glos. Vel 
secundum Petrum dicendum est, quod 
litera ' soli ' exponatur sic, quod nullus 
alius existens solus potest facere legem, 
nisi Imperator. Hoc non placet mihi, 
quia licet populus sunt plures, tamen 
pro uno reputatur. Praeterea Senatus 
potest esse in uno, ut supra dixi. Item 
praefectus unus est. Expone ergo, 
quod litera ' soli ' excludat solum 
alios inferiores. Non autem illos, qui 
possunt legem facere, sicut sunt pre- 
dict! ut exposuerunt Jacobus et etiam 
Petrus supra eo. 1., I. ; et haec vera 
secundum opinionem illam, quae se 
habet ut populus hodie possit facere 
legem. Sed secundum Joannem popu- 
lus hodie non potest legem facere, 
quod et quidam alii doctores moderni 
tenent, ut populus non possit legem 
facere sine principe, et tunc ponitur, 
quod nullus existens solus potest 
facere legem nisi Princeps ; unde solus 
princeps, id est, solus existens princeps 
potest facere legem, sed solus populus 
non : quia cum imperator est caput 
imperii . . . populus quantum ad regi- 
men imperii nihil sine eo facere potest, 
quia universitas sine capite suo nihil 
agit. . . . Ipse autem, solus potest 
facere, ut hie, et cum populo, et cum 
senatu, et cum concilio procerum . . . 
quod probat ilia littera humanum ut 
ibi dixi (i.e., his observations on Code I. 
14, 8, in this work. Fol. 28, v.). 
Quid ergo dicemus. Ad 1. ' non am- 



bigitur ' (Dig. I. 3, 9), dicendum quod 
hodie est immutata per legem istam, 
hoc non est verum, ut patet infra 
Tit : II. (Dig. I. 2) ; vel dicendum est 
quod Senatus potest facere legem, non 
tamen contrarium legi principis, sicut 
et prefectus ut 1. normam. Contra 
istam opinionem est manifesto lex ' de 
quibus ' (Dig. I. 3, 32), ubi dicitur, 
quod populus potest facere consuetu- 
dinem, quae legem tollit generaliter, 
ergo et legem, quia nihil refert, an 
verbis an factis, ut ibi. Nisi dicas quod 
hodie sit restricta potestas populi per 
hanc legem. 

De his opinionibus tene quae magis 
tibi placet quia ego non euro. Nam si 
populus Romanus faceret legem vel 
consuetudinem, de facto scio quod non 
servaretur extra urbem." (Confer 
Cynus, Comm. on Cod. 8, Rub. 53. 
Fol. 520.) 

1 Id. id., Rub. 14, Fol. 25, v. 
(Code I. 14, 4) : " Digna vox . . . 
dico ergo, quod imperator est solutus 
legibus, de necessitate : tamen de 
honestate ipse vult ligari legibus, quia 
honor reputatur vinculum sacri juris, 
et utilitas ipsius . . . contra hoc posses 
opponere quod ipse non bene facit hoc 
volendo ; quia quilibet suam debet 
auctoritatem augere. . . . Ad hoc 
respondet ipsemet imperator in hac 
lege, quia dignitatem suam ob hoc non 
minuit, immo auget, quia ' re vera ' 
etc., unde honor est in tali ligamine." 



16 FOURTEENTH CENTURY. [PABT I. 

and his successors are bound to observe an agreement (or 
contract, pactum) which he has made with any " ci vitas,'* 
or baron. The question, as he says, had been propounded by 
Guido de Suza, and it is not quite clear whether the discussion 
of the question is that of Oynus, or whether he is stating it in 
the terms of Guido, but the conclusion, at least of Guido, 
seems clearly to be that the emperor is bound by such a 
" pactum," and that the subjects may be entitled to resist 
any unjust and manifest violence. 1 

It is also important to observe that Cynus is clear that the 
authority of the prince does not include the right to take 
away a man's property without adequate cause. He can 
indeed take it " de facto," and his action must be assumed to 
be founded upon some just reason, but he cannot do this 
" de jure " without reason : the laws give him no such power, 
and if he does it, he commits a sin. 2 

We have given these somewhat detailed quotations from 
Cynus, because it appears to us that his position represents 

1 Id. id., Rub. 14 (Cod. I. 14, 21), justitia et dolus, ut primo casu valeat 

Fol. 26 R. : " Ultimo sciendum quod pactum et compositio, secundo non 

Guido de Suza forma vit hie questionem ; . . . et potest esse ex parte eubditorum 

utrum si imperator ineat aliqua pacta justitia resistendo, si ex parte domini 

cum aliqua civitate vel barone, teneatur sit injusta et notoria violentia, ut 

ea observare, tarn ipse quam ejus infra de jure fisc. 1. prohibitum, 1. x. 

successor ? Videtur quod non, ut 1. (Cod. X. 1, 5, 10)." 
princeps ff. eo (Dig. I. 3, 31) et ff. de 2 Id. id., Rub. 19 (Cod. I. 19, 6), 

Leg. 3, 1. si quis in prin., et Fol. 36, v. : " Secundo casu, scilicet, 

quia par in parem non habet imperium quando vult mihi tollere dominium rei 

. . . Ecoutra videtur quod sic ; nam meae, sine aliqua causa de mundo ; 

grave est fidem fallere . . . ot naturalia si queratur utrum possit de facto, non 

jura suadent pacta servari, et fides est dubium. Sed utrum possit de jure 

etiam hostibus est servanda ... et de potestate sibi per jura concessa, 

Praeterea, ad hoc facit haec lex : quia in veritate non potest. . . . Sed 

honestas ligat etiam principem ; ut tamen quantum ad observantiam, 

hie patet per ea quae supra dixi, et qualitercunque scribat debet servari. 

nihil magis debetur homini quam pacta Nam semper rcscriptum suum sup- 

servare. . . . Praeterea contractus ponimus ex justa causa interpositum. 

principis est lex. Ergo etc, ot hanc 1. Et talis presumptio est violenta in 

et hanc partem tenet ipse Guido ad persona principis ; ut sup : dixi in 

quod facit extra de probationibus. proxima questione. Negari tamen non 

c. I. Alii distinguunt : an erit ibi potest quod si mihi rem meam auferat 

justitia altera parte, an erat ibi in- sino causa, quod ipse peccat." 



CHAP. II.] 



THE LAW : CIVILIANS. 



17 



very fairly that of the fourteenth-century Civilians in 
general ; they were, like Cynus, aware of the divergent judg- 
ments of the older Civilians. In one important passage 
Bartolus comments on the well-known words of the Code 
VIII. (52, 2) in which Constantine said that while the authority 
of custom is not insignificant (vilis) it could not override 
reason or law, and he points out that Azo, John Bassianus, 
and the Gloss (i.e., the " Glossa Ordinaria " of Accursius) 
maintained that a local custom overrides the "lex com- 
munis " in that place, and a general custom overrides it 
everywhere, while Placentinus had contended that this had 
been true in ancient (pre-Imperial) times, but not in later. 
He also cites one of the earlier fourteenth-century Civilians, 
William of Cuneo, as maintaining that the custom of the 
Roman people retained its legislative authority, for this 
had never been transferred to the prince ; and a jurist of 
the thirteenth century, Martin Silimani, as maintaining 
that the Roman people still retained the power of making 
a general and written law (lex). 1 



1 Bartolus : Comm. on Code VIII. 
52 (53) (p. 806), R. : " Tertio sic summa 
secundum Azo. ; Jo. ; et Gl. : Con- 
suetudo specialis certi loci in eo loco 
vincit legem communem, et generalis 
generaliter, non autem specialis gener- 
aliter in quolibet loco ... (p. 807). Sol. : 
multis modis. Primo secundum Plac. 
q. d. 1. de quibus, loquitur secundum 
tempora antiqua, secundum quae 
populus Romanus poterat facere legem 
generalem, ergo consuetudinem gener- 
alem contrariam legi, et illam con- 
trariam legem tollentem ; haec lex 
loquitur secundum tempora moderna, 
secundum quae populus Romanus non 
potest legem generalem facere, ergo 
nee consuetudinem contrariam, illam 
vincentem. . . . Quod non videtur 
bene dictum quia secundum hoc d. 1. 
de quibus (D. I. 3, 32) esset derogatum 
seu abrogatum per 1. seq., quod in 
casu dubii dicere non debemus. . . . 
Praeterea Gul. de Cuneo d. 1. de quibus 

VOL. VI. 



(D. I. 3, 32) illud impugnat, et alitor 
fatetur quod in principem translata est 
potestas condendi legem expressam et 
scriptam, non autem consuetudinariam, 
quae in eum non potuit transferri, 
quum procedat ex tacito consensu . . . 
et sic dicit hodie populum Romanum 
posse facere consuetudinem generalem, 
quum potestas ipsius legis consue- 
tudinariae inducendae non sit trans- 
lata in principem. Et secundum hoc 
d. 1. de quibus (Dig. I. 3, 32) hodie 
remanet in suo statu ; quod placet 
Mar. Silimani, ubi dicit hodie populum 
Romanum posse facere generalem, 
scriptam et expressam ; de quo hie 
non insisto quia plene est tractatum in 
1. fi. s. de Leg. (i.e., his Commentary 
on Code I. 14, 12). Sed contra pre- 
dicta instatur, nam non debemus sequi 
quod populus Romanus fecit, s. 
utendo . . . moribus contra legem, sed 
quod facere debeat s. utendo lege 
communi. . . . Sed . . . (glossa) re- 



18 FOURTEENTH CENTURY. [PAUT I. 

When we compare these passages with others in his writings 
we may incline to the judgment that he accepts the dis- 
tinction of William of Cuneo between the continuing legal 
authority of the custom of the people, and their power to 
make law (lex) in the more strictly technical sense. In one 
place, indeed, he states clearly and dogmatically that the 
Eoman people have not the power of making law (lex) ; the 
reason he gives for this is, however, rather curious. So long, 
he says, as the Eoman people retained the right of electing 
and deposing the emperor, they kept the power of legislation, 
but this right had now passed to the princes of Germany, and 
the right of deposition had passed to the Pope. 1 

On the other hand, at the end of his discussion of the rescript 
of Constantine on custom, he says, dogmatically and in his 
own person, that, if custom is contrary to law, and the law is 
subsequent to the custom, the law annuls it ; if, on the other 
hand, the custom is " praeter legem," it is superior to the law. 
A general custom is superior to law everywhere, and a 
local custom, to law locally ; and it is perhaps worthy of 
note that here Bartolus refers to the highly important 
statement of Gregory IX. in the Decretals. 2 

epondit et bene, videlicet quod non abdicata ab eis. Jus enim eligendi 

debemus sequi quod populus Romanus habent principes de Alemannia, et jua 

facit, perperam et erroneam. . . . Sed privandi habet solus Papa, ut extra de 

bene sequi debemus illud quod populus re judicata c. Ad Apostolicae ; Cum 

Romanus ex certa scientia fecit con- enim nihil sit quod de imperio re- 

suetudinem inducendo. d. 1. de quibus mansisset eis non video quomodo possiut 

(Dig. I. 3, 32). Quia Roma est com- legem condere." 

munis patria . . . et est caput mundi, 2 Id., Comm. on Code VIII. 52 (3) 2 

sic aliae civitates debent sequi ipsius (p. 814) : " Ego autem sic dico ut s. 

consuetudines, non autem ipsa aliarum dixi, in opp. 2 quod aut dicta con- 

civitatum." suetudo est contra legem, et lex sequens 

1 Bartolus : Comm. on Code I. 14, contraria illi consuetudini tollit earn. 

12 (p. 81) : " Ego credo quod populus . . . Aut praeter legem, et tunc non, 

Romanus et senatus non possunt sed lex succumbit illi. . . . 

facere legem, ratio est, postquam Aut consuetudo est generalis, et 

populus Romanus transtulit potestatem vincit legem generaliter d. 1. de quibus 

in principem, adhuc apud eos remansit (D. 1, 3, 32) aut est specialis et localis 

potestas eligondi et privandi ut 1. 2, § et vincit earn specialiter in eo loco." 

exactis, de origine juris (Dig. I. 2, 2, 16) Cf. Decretals, I. 4, 1 1 : " Licet etiam 

et illo tempore potorat populus Ro- longaevae consuetudinis non sit vilis 

manus condere legom, et etiam senatus, auctoritas, non tamen est usque adeo 

sed hodie omnis potestas imperii, est valitura, ut vel iuri positivo debeat 



CHAP. II.] THE LAW : CIVILIANS. 19 

If we turn to his great contemporary Baldus, we find that 
his position is much the same as that of Bartolus on this 
question. In commenting on the Code (I. 14, 12) he says 
dogmatically that the Eoman people cannot make law (lex), 
for its general authority has been transferred to the prince ; 
on the other hand, commenting on Dig. I. 3, 32, he also 
seems to repudiate the contention of Placentinus, that 
custom does not now override the written law, and that, there- 
fore, no custom has authority unless it has been formed with 
the knowledge of the prince ; this, he says, is not required, 
at least with regard to local customs, and he refers to a Decretal 
of Boniface VIII., and also to Gratian's well-known doctrine 
that laws are abrogated by custom. 1 

Bartolus and Baldus again agree with Cynus about the 
binding nature of contracts or agreements between the prince 
and the people. 

Bartolus maintains that while the prince is "legibus 
solutus," it is " equum et dignum " that he should live 
according to law, though he does this of his free will, not of 
necessity ; but if he has made a " pactum " with any city, 
he is bound to keep this, for " pacta " belong to the " ius 
gentium." 2 

praejudicium generare, nisi fuerit ration^ on Gratian Decretum D. 8, 8). Sed 

alibis et legitime sit praescripta." ilia opinio est falsa, nam tempore hujus 

Cf. vol. ii. p. 158. legis ita erat Imperator sicut hodie ; 

1 Baldus : Comm. on Code I. 14, 12 unde in sua potestate nihil est additurn 

(fol. 60): " Queritur utrum hodie vel detractum. ... Et ideo non re- 

populus Ptomanus possit legem facere, quiritur scientia principis in consue- 

dicendum est quod non ; quia denu- tudine singularium locorum ; casus est 

datus est generali potestate, cum ilia in c. 1. De constit li. 6 (Sext. I. 2, 1), 

translata fuerit in principem." ubi dicit consuetudinem esse validam 

Id., Comm. on Digest I. 3, 32, 6 et tamen principem nescire, ut nota 4 

(fol. 20) : " Secundo opponitur et distin : c. leges (Gratian Decretum 

videtur quod consuetudo non possit D. iv. 3. Gratian's observations at the 

derogari legi scriptae. . . . Sol. dicit end)." 

Placentinus quod ilia corrigit istam, But cf. Baldus' Commentary on 

quia hodie solus princeps facit legem, Code VIII. 52 (fol. 172.) 

et ideo hodie nulla consuetudo valet 2 Bartolus : Comm. on Code I. 14, 4 : 

nisi sit inducta conscientia principis. " Sol. fateor quod ipse (princeps) est 

Secundum Plac : et hoc tangit glo. legibus solutus, tamen acquum et 

viii. Dist : c. frustra (i.e., Gloss : Ord : dignum est quod legibus vivat ; ita 



20 



FOURTEENTH CENTURY. 



[PART I. 



Baldus, commenting on the same passage of the Code, 
sets out the same opinion, that the prince should ohey the 
law, though he is not bound to do so " ex necessitate " ; and 
he adds a judgment of considerable significance, that there 
is a supreme authority in the prince, as well as an ordinary 
authority, and that this supreme authority is not under the 
law. He also, however, like Bartolus, quotes Cynus as main- 
taining that a pactum, made by the prince with his subjects, 
if it has natural justice and equity, and is made for the public 
good, is binding, not only on the prince but on his successors, 
and in his comment on ' Digest ' I. 3, 3 (Princeps legibus 
solutus), he sets out the principle again and seems to accept 
it for himself. 1 



loquitur hie ; unde ipse submittit se 
legibus de voluntate, non de necessi- 
tate. Ita debes intelligere hanc legem. 
Quaero, quid si imperator facit pactum 
cum aliqua civitate, utrum teneatur 
illud pactum servare. Videtur quod 
non quia est solutus a legibus. . . . 
Contrarium est Veritas. Nam pacta 
sunt de jure gentium 1. ex hoc fif. de 
just : et jure (Dig. I. 1, 5). Jura gen- 
tium sunt immutabilia ut Instit, de 
jure nat, § sed naturalia (Inst. I. 2, 11). 
ita tenent ibi Doc. ut Cynus hie refert." 
1 Baldus : Comm. on Code I. 14, 4 
(fol. 55) : " Princeps debet vivero 
secundum leges ; quia ox lege ejusdem 
pendet autoritas. Intollige quod istud 
verbum debet intelligi de debito hones- 
tatis, quae summa debet esse in prin- 
cipe, sed non intolligitur precise, quia 
suprema et absoluta potestas principis 
non est sub lege ; unde lex ista habet 
respectum ad potestatem ordinariam, 
non ad potestatem absolutam. . . . 
Nota quod imperator dicit se esse 
ulligutum, et hoc ex bonignitate non 
ex necessitate. Secundo nota quod 
auctoritas imporatoris pondet ex lego 
rogia, quae fuit nutu divino promulgata, 
et ideo imperium dicitur esse immediaio 
a Deo. . . . Quarto nota quod illo 
bene principatur qui vult principari 



Deum et leges, unde dicit imperator se 
submittere principatum suum legibus. 

Ultimo nota quod nemo potest im- 
ponere legem successori dignitatis vel 
officii vel imperii. . . . Modo juxta 
hoc doctores quaerunt de una, q. lex 
principis non ligat successorem ; quid 
in contractu. . . . Dominus Cynus 
dicit quod (si) istud pactum habet in se 
justitiam naturalem et equitatem, quod 
istud pactum est servandum ; si im- 
perator facit pacem vel capitulum cum 
subjectis propter generale et publicum 
bonum, quod ista non debent infringi 
per successorem, nisi ex parte sub- 
ditorum intervenisset dolus vel fraus." 

Id., Comm. on Digest I. 3, 31 (fol. 
20) : " Princeps non est sub lege 
fori, est tamen sub lege poli, nature et 
rationis, actus autem sui sunt, leg : 
de re iu. pastoralis, in cle. (Clementines, 
II. 11, 2) et die. ut no. c. eo. digna 
vox (Code I. xiv. 4) : Cyn. et ibi no. 
Cyn. quod princeps potest contrahere 
cum suis fidelibus, et tenetur ei de 
jure gentium et civili, quia civili 
rationi natura i, naturalis ratio com- 
paratur. . . . Nam si princeps non 
obligaretur alii, certe ncc alius obligare- 
tur ei, ex regula con-relativorum ; et sic 
esset inlordictum commercium, et esset 
tamquam exul qui omnium praesul." 



CHAP. II.] THE LAW : CIVILIANS. 21 

Here we have come upon an important point of contact 
between the Civilians and the system of Feudal law. We 
have, happily, an important work of Baldus upon the Feudal 
law, and when we turn to this we shall be led to think that 
the conception of the contract which is binding upon the 
prince is related to Feudal conceptions, and that this affects 
also the conception of customary law. 

The emperor, Baldus says, has, no doubt, the fulness of 
power (plenitudo potestatis), for God subjected the (leges) 
laws to him, but God has not subjected to him the agree- 
ments (contracta) by which he is bound, and he gives as an 
example of his meaning the grant by Frederick I. of the 
Countship and other territories to the community of Pavia on 
their taking the oath of fidelity to him : this grant neither 
Frederick nor his successors could revoke, except on the ground 
of some guilty action of Pavia. 1 

Good and natural consuetudines, Baldus says in the same 
work, bind the prince, for the "jus naturale " is stronger than 
the " principatus " : the prince is bound to maintain his 
" consuetudines," for customary law (jus consuetudinarium) 
has authority over the prince (concludit principi). 2 In his 
commentary on the Peace of Constance he sets out the same 
principle : if the prince had granted to any city the right to 
make any statutes for itself, he could not revoke the grant. 3 

1 Baldus: Super Feudis (fol. 19): sub juramento fidelitatis, quod nee 

" (De Natura feudi). Pone quod Imper- ipse concessor nee eius successor poterat 

ator vel Rex Francorum creat ali quern revocare sine culpa communis Papiae.'' 

ducem et investitur eum de ducatu, vel 2 Id. id. (fol. 9) : " (Notandum 

marchionem . . . vel comitem . . . vel est autem) . . . quaero nunquid im- 

baronem . . . numquid potest pro perator possit disvestire vassalum 

libito divestire eum. Respondetur sine convicta culpa ? Respondet glossa 

quod non, sed demum propter con- quod non est ratio : quia bonae et 

victam culpam vel feloniam. . . . naturales consuetudines ligant princi- 

Nec obstat quod imperator habeat pern, quia potentius est jus naturale 

plenitudinem potestatis, quia verum quam principatus." 

est quod Deus subjecit ei leges, sed Id. id. (fol. 19) : " Et nota hie 

non subjecit ei contractus ex quibus quod princeps tenetur servare suas 

obligatus est, ut nota in 1. digna vox consuetudines, et sic jus consuetudin- 

(Cod. I. 14, 4). . . . Et per hoc dice- arium concludit principi." 

bam quod imperator Fredericus Primus 8 Id. id. : ' Commentarium ejusdem 

qui fecerat commune Papise Comitem Baldi super Pace Constantiae.' (Fol. 

in certis castris et terris, ei ea conferendo 86) " Deinde quaero, pone quod prin- 



22 



FOURTEENTH CENTURY. 



[PART I. 



And in another place Baldus sets out as a general principle 
that custom is a tacit agreement of the citizens. 1 

We have dealt with the position of Cynus, Bartolus, and 
Baldus at length, for we think that they are in these matters 
representative of the Civilians of the fourteenth century, 
but we may notice a few points in others. 

Joannes Faber, one of an important group of French 
Civilians of the early fourteenth century, asserts very dog- 
matically, not only that the prince derives his authority from 
God, but through the people, but also that the people can 
for proper causes depose him. 2 He holds that the people can 
no longer make a general law (lex), for it has transferred the 
power to the prince, but it can, under proper conditions, make 
a municipal law. 3 Custom, however, he seems clearly to mean, 
still makes and unmakes law. 4 



cepa concessit civitati faeere statuta, 
virtute cuius concessionis civitas fecit 
etatuta sua. Quaero, numquid potest 
revocare ; et videtur quod non." 

1 Id., Super Feudis (fol. 31): 
" Illud non omitto quod consuetudo 
dicitur civium tacit a conventio." 

2 Joannes Faber : ' Super Institu- 
tionibus,' 1, 2 (fol. 6). " Populue 
ei et in eum. Et sic videtur quod 
princeps habet jurisdictionem a populo 
. . . sed contra, imo a Deo . . . Glo. 
ibi dieit quod imperium processit a 
Deo dispositive, quia eius dispositione 
factum est. Melius diceret Glo. si 
diceret quod processit a Deo permis- 
sive sed a populo dispositive, quia ita 
disposuit et voluit ex quadam neces- 
sitate. ... Si enim esset Dei dis- 
positione non fuissent prelati multi 
turpos, luxoriosi et fatui. . . . Sed 
an populus potest imperatorem de- 
ponere. Videtur quod sic, quia cum 
ad populum portinet ejus croatio, ut 
hie . . . et depositio. . . . Praeterea 
cum mandatum jurisdictionis sit re- 
vocable de sui natura . . . et im- 
perator jurisdictionem et potestatem 
habeat a populo. . . . Videtur quod 
populus revocare possit. Praeterea 



constat hoc factum fuisse antiquis 
temporibus. . . . Sed contra (various 
arguments stated). . . . Sed tamen 
6atis posset dici quod populus ex causa 
posset eum deslruere. . . . Hoc tamen 
attentare periculosum est." 

Cf. Id. : ' Breviarium in Codicem,' 
I. 1 (p. 1): "Populus enim ad quem 
de jure communi spectat electio 
et creatio principis, potest dare jus 
regibus quos creavit. . . . Unde 
quamvis imperium fuit a Deo institu- 
tum permissive, populus tamen fuit 
author et dispositor." 

3 Id., ' Super Institutionibus,' 1. 2 
(fol. 6) : " Sed an populus potest 
hodie legem faeere. Glo : dicit quod 
non, cum totam potestatem trans- 
tulerit, quod est verum, generalom, sed 
municipalem sic . . . dum tamen ha- 
beant collegium approbatum : alias 
non." 

4 Id. id., 1, 2 (fol. 7) : " Circa sextum, 
quae sunt ejus {i.e., Custom) virtutes 
seu vires, dicendum quod multae, nam 
per earn quandoque jus constituitur, 
quandoque arquiritur, ut satis dixi in 
precedontibus. Item per earn dero- 
gntur juri scripto, super quo die quod 
aut consuetudo precedit, et jus sub- 



CHAP. II.] 



THE LAW : CIVILIANS. 



23 



He also raises the question whether the prince was bound 
to consult the " Proceres " when making a law, as laid down 
in Cod. I. 14, 8 : he seems to think not. 1 

Jacobus Butrigarius, an important Bologna Jurist under 
whom Bartolus studied, 2 in an interesting passage discusses the 
question of the authority of custom, and suggests that both 
those who upheld the view that custom still makes and un- 
makes law, and Placentinus who denied this, were right, for 
the Boman people had transferred their authority to the prince 
and could not, therefore, make general laws, but they could 
revoke this grant to the prince and could then make any law. 3 
We shall have to return to this passage in the later chapters, 
when we discuss the theory of the prince or ruler, but in the 
meantime it is worth noticing for Butrigarius does not stand alone 
in the suggestion. It is suggested by Vacarius, 4 and by Azo. 5 



The Canonists of the time do not, as far as we have been 
able to see, deal with these questions to any great extent, 



sequit ; et tunc si condens jus earn 
non ignorat, quia forte generalis, vel 
alias constat earn non ignorare, con- 
suetudo tollitur . . . ubi autem jus 
precedit, consuetudo subsequens tollit 
ipsum, dum tamen sit rationabilis . . . 
non tamen omnino ; sed particulariter 
in loco in quo servatur. . . . Sed an 
ligat fiscum vel dominum terrae in 
qua consuetudo obtinet, non videtur, 
quum lex inferioris non liget euperio- 
rem, ut dixi, § sed quod principi. De 
hoc fuit quesitum in facto ducatus 
Britanniae. Tamen potest dici quod 
sic, non enim inferior ligat, sed jus ex 
consuetudine emanat." 

Cf . Id. : ' Breviarium in Codicem,' 
VIII. 52 (p. 222). 

1 Id., 'Super Institutionibus,' 1. 2. 
(fol. 6). Id. ' Breviarum in Codicem,' 
I. 14. 8 (p. 19). 

2 Cf . Woolf : ' Bartolus,' p. 2. 

3 Jacobus Butrigarius, ' Thesaurus 
Legum. . . In Primam et Secundam 
partem Veteris Digesti,' I. 3, 32 : 
" Opponitur primo ad casum legis, et 



videtur quod consuetudo non tollat 
legem, ut C. eod : 1. 3. in fin. Plac- 
entinus solvit uno modo, et glo. alio 
modo (Accursius : Gloss on Code VIII. 
52 (3) ' aut legem'; and Gloss on 
Digest I. 3, 32 ' abrogentur '), et tamen 
uterque bene dicit. . . . Ad propositum, 
ergo quum simpliciter disponat aliquid 
respublica Romanorum, videtur potius 
sibi specialiter, cum non possit gener- 
aliter, nisi revocata jurisdictione trana- 
lata in principem : et ideo ejus con- 
suetudo legem generalem tollere non 
posset ; et si sic intellexit Placentinus, 
bene dixit ; sed si populus Romanus 
revocaret jurisdictionem translatam 
in principem ; quod posset, ut dixi 
supra. 1. 9. ' non ambigitur (i.e., Comm. 
on Dig. I. 3. 9), turn posset legem 
condere generalem, et per consequens 
consuetudinem generalem inducere ; 
et sic legem generalem, specialem non.' " 

4 Cf . Vacarius, ' Liber Pauperum ' 
(ed. Zulueta), p. 15. 

5 Cf. vol. ii. p. 64. 



24 



FOURTEENTH CENTURY. 



[PART I. 



but it is worth while to notice that the great Canonist, 
who is generally known as the " Archdeacon," in his Com- 
mentary on Gratian's Decretum, while he does not express 
his own judgment, mentions that some said that the people 
could not now make a law ; but others maintained that they 
could take away from the emperor the authority they had 
given him, and he contrasts this with the position of the 
Pope. 1 The Archdeacon also reasserts the principle of Gratian, 
that all laws required to be approved and confirmed by the 
custom of those concerned, but he adds that if the subjects 
refuse to accept a reasonable constitution, the legislator can 
compel them to do this. 2 

Again, William Durandus the younger, in his important 
work on the mode of holding a general Council, written in the 
first decade, probably, of the fourteenth century, makes some 
important observations on the obligation of both Temporal 
and Spiritual rulers to obey the law, 3 and also maintains that 
the Pope should not make laws without the consent of the 



1 Guglielmus Baiiso (The Arch- 
deacon) : ' Apparatus ad Decretum,' 
D. 2 (fol. 5) : " Dicunt quidam 
quod hodie populus non potest legem 
condere . . . alii . . . dicunt contra, 
qui dixit quod populus potest auferre 
auctoritatem imperatori. Sed omnes 
ecclesiae non possunt Papae, quia 
non habet ab eis, sed ipsae ab eo. . . . 
Et dicunt ipsi quod populus potest 
revocare illam potestatem cum vult, 
sicut judex qui delegat, quia pro- 
prietas apud eum remansit." 

1 Id. id., D. 4 (folio 6, v.) : " Leges 
promulgantur, Id. ost de novo crean- 
tur, 'approbantur' id, in judicio populi 
recipiuntur, ff. de legibus, de qui bus 
§ inveterata (Dig. I. 3, 32). Ipsae 
fonfirmantur. Unde si const itutio non 
est moribus utentium approbata illi 
qui ei non observant non dicuntur 
transgressores. . . . Nam ad hoc ut 
constitutio suum habeat effeetum et 
confirmationem requiritur, quod sit 
moribus utentium approbata. . . . Sed 
si subditi nollent acceptaro rationabilem 



constitutionem, constituens eos ad 
hoc compellere potest, et sit factum 
fuit 23, q., 5. De Liguribus (Gratian 
Decretum, C. 23, 5, 43) ut ibi patet in 
casu, cum alias eius potestas esset 
delusoria. . . ." 

3 William Durandus, ' De modo 
generalis Concilii tenendi,' I. 3 : " Quod 
predictus modus correctionis et re- 
formationis ecclesiae et Christianitatis 
sit conveniens rationi et juri, maxime 
quantum ad presidentes spirituali et 
temporali potestati, et quod non 
debeant transgredi jura, 6ed se regere 
et limitare secundum ea. . . . De 
principibus autem secularibus nequa- 
quam dubium est, quin ipsi se velle 
fateantur vivere secundum leges eorum 
(Cod. 1. 14, 4) . . . Isidorus insuper 
scribit in 3 Li. ' De summo bono,' 
c. 52. (Isidore of Seville Sententiae, 
3, 51) et ponitur pro paloa in Decretis 
9. di (Gratian Decretum. D. 9). Quod 
justum est principem legibus obtem- 
perare suia." 



•CHAP. II.] 



THE LAW : CIVILIANS. 



25 



cardinals, nor kings and princes without the consent of the 
" Probi," for that which concerns all should be approved by- 
all. 1 

Joannes Andreae, another important Canonist of the first 
half of the fourteenth century, discusses the authority of 
custom, and denies that it can change the "lex communis," 
canonical or civil, but admits that it may " derogate " from it 
in some particular province or place, and create a " municipal " 
law, if this is permitted by the Pope or the prince. 2 



It will be, we think, evident that the Civilians and Canonists 
can hardly be said to express any very clear judgments upon 
the general question of legislative power. They are, in the 
main, rather endeavouring to expound the tenets of the 
Civil Law than stating the actual and working principles of 
the political society of the time. At times at least they are 
even thinking rather of the powers of the actual citizens of 
the city of Rome than of the people of the empire. This 



x Id. id., I. 4: "Verum cum scriba- 
tur Proverb 11, quod ibi salus ubi mult a 
consilia, et Innocens Papa scribit 
quod facilius invenitur illud, quod a 
pluribus senioribus quaeritur ; 20 di. 
de quibus (Gratian Dec. : D. 20, 3) 
. . . et exemplum habemus in vetere 
testamento de Moyse, qui ad consilium 
Jethro cognati sui, 72 Seniores secum 
assumpsit. . . . Videretur esse salubre 
pro republica et pro dictis adminis- 
tratoribus reipublicae, quod sic sub 
ratione, ut premissum est in rubricis 
proximis, limitaretur potestas eorun- 
dem, quod absque certo consilio domin- 
orum cardinalium, dominus papa, et 
reges ac principes absque aliorum 
proborum consilio, sicut hactenus in 
republica servabatur, non uterentur 
praerogativa hujusmodi potestatis, po- 
tissime aliquid concedendo contra 
concilia et contra jura approbata com- 
muniter. Et quod contra . . . 
concilia et jura nihil possunt de novo 
statuere, vel concedere, nisi generali 
concilio convocata ; quum illud quod 



omnes tangit, secundum juris utriusque 
regulam ab omnibus debeat com- 
muniter approbari." 

2 Joannes Andreae, ' Commentary on 
the Decretals," I. 4, 11 (fol. 61): 
" Quarto sic opponitur, illius est tollere 
legem positivam, cujus est inducere, vel 
sui majoris, minoris non. . . . Sed 
lex communis, canonica vel civilis, 
inducitur a Papa vel a Principe : con- 
suetudo insurgit ex actibus privatorum, 
qui sunt minores ; ergo ipsorum actus 
legem etiam positivam tollere non 
possunt. Sol. Fateor quod usus vel 
actus privatorum unius regni, vel pro- 
vinciae, vel loci, legem communem 
abrogare, i. ubique tollere, non possunt ; 
sed derogare possunt in eo regno, 
provincia, vel loco, ut sicut ibi legem 
municipalem facere, possunt, sic et 
consuetudinem inducere : et tamen. 
ad objectionis solutionem fateri oportet, 
quod nee in loco id possent, nisi quia 
Papa vel Princeps id expresse per- 
mittit." 



26 FOURTEENTH CENTURY. [PABT I. 

is in strong contrast with their judgments when they turn 
from the general principles of constitutional law to the con- 
ception of the municipal laws of the Italian cities. We have 
already, but only incidentally, observed some of the references 
to these : we must now very briefly consider them. 

We may begin by observing a general statement of Bartolus 
in his Comment on Gaius' famous phrase, as cited in Dig. I. 
1, 9 : " Omnes populi, qui legibus et moribus reguntur, partim 
suo proprio, partem communi omnium hominum iure utuntur." 
Some argue that only the emperor could make law, but this 
is an error : any people can make its own law, "jus civile 
proprium," while only the prince can make " jus civile 
commune." 1 

This, however, raises the question, what is the relation of 
these municipal laws or statutes to the general law. There 
is an important statement on this by Bartolus, in an opinion 
(consilium) which he gave on the question of the validity of 
a will by which a certain citizen of Arezzo had left his property 
to his illegitimate son, born of a concubine, while his wife was 
alive. We are not concerned with the merits of the case, 
but with the reason why Bartolus advised that the will was 
void. He cites, and seems to agree with, the opinion that only 
the prince could legitimatise, and that the " jus commune " 
prohibited the legitimisation of " spurii," in this case the child 
was born in adultery, and concludes with the judgment that 
the people only made laws by the permission of the prince, and 
cannot therefore make them contrary to his prohibition. 2 

1 Bartolus, Coram, on Digest I. 1, 9 st at utum eondere super eo quod Impera- 

(p. 16) : " Secundo opp. et videtur tor prohibet etiam sibi ipsi . . . ergo 

quod solus princops possit facere legem. dictum statutum non valet." 

. . . Hie autem dicitur, onirics populi ' Consilium ' 106 : " Quia soli principi 

qui legibus, etc., ergo male, cum competit restituere natalibus, non 

innuat quemlibet populum posse legem autem ordini civitatum. . . . Idem 

eondere. . . . Item jus civile proprium consuluit Do-Cynus . . . ergo vult 

potest constitui a populo, ut hie, sed quod per civitatem non posset legiti- 

jus civile commune constituit solus mari." 

princeps." Cf . Jo. Faber, Comm. on Bartolus also cites Jo. Butrigarius : 

Inst., I. 2 (fol. 6), and Albericus a " qui consuluit super isto puncto per 

Rosate, ' Comment, de Statutis,' I. 9, 3. rationem, quia in casu a jure communi 

2 Bartolus, ' Consiliorum,' Lib. II., prohibito statutum non valet. . . . 

' Consilium ' 105 : " Civitas non potest Sed legitimare spurium est prohibi- 



CHAP. II.] THE LAW : CIVILIANS. 27 

Albericus of Eosate discusses the question in general terms 
and asks whether, if the statute of the Civitas contradicted 
the "jus commune," it is valid ; he points out that there was 
much difference of opinion about the question, but he concludes 
that the general opinion was that the statute was valid for 
those who made it (inter statuentes) as long as it was not 
" specialiter derogatoria de statute" He adds, however, 
that a city could not make a statute to the prejudice of the 
empire, or of those who were not subject to it. 1 

It is important, also, to consider the form under which the 
Civitates made their statutes. Bartolus discusses the question 
in the later part of the passage of which we have before cited 
the first words. If, he says, the statutes are made by the 
" judices maiores " or the lords of the cities, it is well that 
this should be done with the consent of the wise men ; they 
can, however, do it " proprio motu." If the statutes are 
made by the people, this should be done by an assembly of 
the whole people, or of those who form the council of the 
people, and represent it, and the assembly should be called 
together by the Podesta, or some other magistrate. Another 
method is that some definite proposal should be put before the 
people, and the decision of the majority should become law. 2 

turn. . . . Praeterea populus non quod non teneretur ad tributa vel alia 

condit legem nisi autoritate principis, jura Imperialia, vel quod aliter esset in 

ergo non condit in casu prohibito a prejudicium non sibi subditorum, non 

principe." valeret, et ita possent intelligi jura 

1 Albericus a Rosate, ' Coram, de superius ad hoc deducta." 
Statutis,' I. 7, 1: " Sed quid si statutum 2 Bartolus, Comm. on Digest I. 1, 9 

civitatis contradicat juri communi, an (p. 18): " Quaero secundo principaliter, 

valeat. Communis opinio est quod sic, qualiter statuta fiant. Et ei quidem 

per praeallegatam, 1. omnes populi, ff. judices majores vel domini hoc faciant, 

De jure et justicia (Dig. I. 1, 9). . . . humanum est quod faciant consilio 

Quid in tanta varietate tenebimus ? sapientum. . . . Sed ei volunt, pos- 

. . . Communis opinio quam sequitur sunt hoc facere proprio motu. et hoc 

totus mundus, ut predixi, licet forte subditis divulgare. ... Si vero sta- 

predicta de stricto jure sit vera, est, tuta fiunt a populo, talis est ordo, quod 

quod statutum inter statuentes valeat, convocetur totus populus, seu homines 

etiam contra jus commune, dummodo qui sunt de consilio populi, qui repre- 

lex non sit spetialiter derogatoria de sentant populum. ... Et haec con- 

statuto, ut predixi. Non tamen potest vocatio Set auctoritate Potestatis, vel 

civitas vel populus statuere in pre- alterius magistratus, solemniter, hoc 

judicium Imperii, vel non sibi subdi- est sono tubae, vel pulsata campana, 

torum. Unde si civitas statuerit, vel voce praeconis. . . . Alius modus 



28 FOURTEENTH CENTURY. [pakt I. 

Albericus a Eosate also states three methods of making 
statutes. The first is by the authority of the whole people 
or " universitas " in a public " parliamentum," to whom the 
" Eector " or magistrate is to put the question whether they 
desire to make statutes, and what statutes, and by whom they 
are to be made ; and these questions are to be decided by the 
voice of the majority. This method, Albericus says, was now 
rarely used. The second method was that they should be 
made by the " decuriones," whose place was now taken by 
the Councillors of the city. The third method was that the 
" universitas," the "decuriones," or Councillors of the city 
should elect certain expert persons and give them power to 
make statutes, and these should be valid, as though they had 
been made by the " universitas." This method also, Albericus 
says, was now not much in use, and he seems thus to mean 
that normally in his time the statutes were made by the 
Council of the city. 1 

We regret that we cannot in this work discuss the constitu- 
tional forms developed in the Italian cities and their relations 
to the empire, nor the municipal constitutions of Northern 
Europe. The subject is of too great importance and complexity 
to be treated summarily, and it has a very large modern as 
well as mediaeval literature. 2 

est, quod fiat propositio certa et limi- quorum loco hodie successerunt con- 

tata, an placeat populo quod sit talis ciliarii . . . simul more solito convo- 

lex vel statutum . . . tunc quod centur, et inter eos fiat propositio, 

placuerit majori parti, illud erit consultatio et reformatio de statutis 

firmum." fiendis .... et iste modus magis 

1 Albericus a Rosate, 'Comment, de servatur ; et talis propositio fieri debet 

Statutis,' I. 4 : " Item, quaero qualitor cum authoritate vel presentia rectoris 

civitas facit statuta ? Die, quod civitatis vel universitatis. ... 5 

tribusmodis: primo, congregato populo Tertius modus est quod universitas, 

seu universitate civitatis in publico decuriones seu conciliarii eligant aliquos 

parliamento secundum morem civi- peritos, quibus dent potestatem statuta 

tatis, et ibi facta propositione per condendi, et quod statuta per eos 

rectorem seu magistratum civitatis, valoant, ac si statuta forent per uni- 

an velint statuta facore, et qualia, et versitatem. . . . Sed nequo iste modus 

per quos, et quod obtinebitur per mai- est magis in usu." 

crem partem, valebit. ... Et iste 2 It will be evident that we have 

modus raro servatur. . . . Socundus made no attempt in this work to deal 

modus est quod decuriones civitatis with the great and important history 

qui habent administrationem civitatis, of the development of the political inde- 



CHAP. II.] THE LAW : CIVILIANS. 29 

We have given what may seem to some of our readers a 
disproportionate space in this chapter to the political ideas 
expressed or implicit in the work of the Civilians and Canonists 
of the fourteenth century, for, as mil now be apparent, we do 
not think that those writers added much to the conceptions of 
the Civilians of the twelfth and thirteenth centuries. It is 
necessary, however, to consider to what extent and in what 
way the revived study of the Eoman Law may have ultimately 
contributed to the development of the monarchical as con- 
trasted with the constitutional conceptions of Western Europe, 
and we shall deal further with this when we come to the 
fifteenth and sixteenth centuries. We have therefore been 
compelled to examine the nature of the development of the 
political conception of the Civilians, even when they have 
little immediate relation to the actual conditions of Europe 
outside of Italy. 

As far as the fourteenth century is concerned, we do not 
think that there is any reason to say that they exercised any 
appreciable influence upon the political theory of the rest of 
Europe, except so far as it may be thought that they confirmed 
the judgment that all authority in the State was ultimately 
derived from the community. 

pendence of the Italian cities. This is and in the second place, because it has 

not because we think that this was of been treated with great learning and 

little importance, on the contrary, as care in a number of historical and legal 

we think it represents one of the most works. Among the most important 

important developments of the human of these in recent years have been 

spirit. We have not attempted to C. N. Woolf's ' Bartolus of Sasso- 

deal with it for two reasons : in the ferato ' and Professor Ercole's ' Da 

first place, because it is far too large Bartolo all' Althusio.' We desire to 

and complex a subject to be dealt express our great obligation to both 

with, except in detail and at length ; these admirable works. 



30 



CHAPTER III. 

THE SOURCE AND NATURE OF THE AUTHORITY 

OF THE RULER. 

We have in the last chapters discussed the theories of the 
source and authority of the law of the State. It is with these 
in our minds that we can now turn to the conceptions of the 
political theorists of this time with regard to the prince or 
ruler. 

We turn first to a group of English works of the later 
thirteenth and early fourteenth centuries — that is, to Fleta, 
Britton, the ' Mirror of Justice,' and the ' Modus tenendi 
Parliamentum.' 

The work of Fleta would be of the very first importance, 
if it were not that in most essentials it does little more than 
re-state the principles of Bracton, with which we have dealt 
in a previous volume, 1 but even so, it is important to observe 
that these principles were understood and reasserted; and 
there are a few points in which Fleta goes beyond the genuine 
text of Bracton. It is only necessary in these circumstances 
to summarise very briefly his statements. The king has no 
equal or superior in the kingdom, except God and the law ; 
but it is the law which has made him king, and he should 
therefore recognise the " dominium and potestas " of the law, 
and his rule is evil when it represents a will different from that 
of the law. 2 The king has in his hand all jurisdiction, but he 
is the Vicar of God and must give to every man what is his ; 

1 Cf. vol. iii. part i. chaps. 2, * Fleta, i. 5, 4 (cf. Bracton, ' De 

3, 4. Legibus,' i. 8, 5). 



CHAP. III.] THE AUTHORITY OF THE RULER. 31 

lie cannot do anything but that which he can do by law. 1 It is 
said that what is the prince's pleasure has the authority of 
law, but this does not mean that everything which the king 
wills has the force of law, but only that which has been laid 
down by the king's authority with the counsel of the magnates, 
and after due deliberation. 2 So far Fleta is only re-stating 
Bracton's position, of which the essence is that the law is 
not the arbitrary creation of the king, and that it is supreme 
over him. But now we come to an important deviation from 
the original text of Bracton. Fleta says that no one is to 
presume to dispute about the action of the king, and to go 
against it ; but he adds that the king has two superiors in 
ruling his people : the law, by which he has been made king, 
and his Curia — that is, his counts and barons. The counts 
are so-called " a comitiva," and if they see that the king is 
without a bridle, they are bound to impose a bridle on him. 
And, he adds, kings should moderate their power by the law, 
which is the bridle of power ; they should live according to 
law, for the human law declares that laws bind the legislator ; 
and elsewhere it is said (i.e., Cod. I. 14, 4) that it becomes 
the majesty of the ruler that the prince should profess that he 
is bound by the law. 3 

As we have pointed out in dealing with Bracton, it seems 
most probable that this passage was not in the original 
text of Bracton, but was interpolated by a later hand. It 
does not seem very probable that it has also been inter- 
polated in Fleta, though it must be observed that the text of 
Fleta has not been revised by any very modern editor. If, 
then, we assume that this passage does not belong to the 
original text of Bracton, it is very important to observe that 

1 Id., i. 17, 3 and 7 (cf. Bracton, dicuntur, qui cum viderint Regem 
iii. 9, 3). sine fraeno, fraenum sibi apponere 

2 Id., i. 17, 7 (cf. Bracton, iii. 9, 3). tenentur. ... 11. Temperent igitur 
' Fleta, i. 17, 9 : " Nemo enim de reges potentiam suam per legem, quod 

facto regis presumat disputare, neo fraenum est potentiae, quod secundum 

contra factum suum venire. Verum leges vivant, quia hoc sanxit lex 

tamen in populo regendo superiores humana, quod leges suum ligent 

habet, ut legem, per quam factus est latorem, et alibi, digna vox majestate 

Rex, et curiam suam, videlicet comites regnantis est, legibus alligatum se 

et barones ; comites enim a comitiva principem profiteri." 



32 FOURTEENTH CENTURY. [paet I. 

whether Fleta found it in his text of Bracton, or it was his 
own doctrine, it is obviously a principle of high import- 
ance, for it means that not only was the prince bound by the 
law, but that there was a legal process by which this could be 
enforced. 

The statement of the principle is sharp and clear, but it 
must not be considered as anomalous or eccentric. For, as 
we have pointed out, it was the judgment of all feudal law 
that a lord could not be judge in a question between himself 
and his vassal, and Bracton, in another passage whose genuine ■ 
ness has not so far been contested, says that some at least 
maintained that in the last resort, if the king refused to do 
justice, this should be done by the " universitas regni et 
baronagium suum in curia." x 

There is another passage in Fleta which, as far as we have 
seen, does not correspond precisely with anything in Bracton, 
and which is important. It is a passage in which he repeats 
Bracton's legal doctrine, that there is no remedy against the 
king by way of the Assize (of Novel Disseisin), but he goes on 
to say that the aggrieved person may have recourse to one 
of two remedies : he may proceed by way of a supplication 
addressed to the king, as Bracton had said, but he may also 
proceed directly against the " spoliator," but without bringing 
in the king's name. If the " spoliator " says that he cannot 
reply without the king, in whose name he acted, the process 
under the Assize is not to be postponed. If the " spoliator " 
has manifest grounds for his action, judgment is to be post- 
poned till the king has been consulted ; if not, the plaintiff 
is to receive seizin with double damages, both against the 
escheator, the sheriff, and the other royal officers, as well as 
against any private persons. 2 

1 Cf. vol. iii. p. 714. comprehendatur. Et si spoliator dixit 

2 Id., iv. 2, 20 : " Contra dominum quod sine Rege respondere non poterit, 
vero Regem non habetur rojaodium per cujus nomine fecit id quod fecit, non 
Assisam, quamvis in olectione spoliati propter hoc differatur Assiza, sed 
Mt , vel providere sibi persupplicationem capiatur. Et si spoliator evidentem 
versus ipsum Regem, vel quod omnino rationem et manifestam habeat, dif- 

dat Assisa vorsus spoliatorem, hoc feratur in judicium donee cum Reg© 
i to, quod ipso Rex in Assisa non fuerit inde tractatuin ; sin autem, seis- 



CHAP. III.] THE AUTHORITY OF THE RULER. 33 

The work of Britton contains some important statements 
on the nature and source of law, which we have already 
mentioned, and on the nature of the royal authority. The 
introductory statement which is put into the mouth of 
King Edward declares in the first place that there can be 
no peace among his people without law, and he has therefore 
caused the laws which have been in use in the kingdom to 
be written down. In the second place, he declares that the 
king has power to repeal or to annul these laws when he 
thinks this to be desirable, but only with the consent of 
his counts and barons and the other members of his 
council. 1 

In another passage Britton sets out the principle that the 
royal jurisdiction is over all other jurisdictions, but later he 
adds a very important passage, in which Edward is repre- 
sented as laying down the general doctrine that no man can 
be judge in his own cause, and adds that in cases where 
he (the king) is a party — that is in cases concerning felony or 
treason against the king — the court is to be the judge, and not 
the king. 2 

The curious tract called the ' Mirror of Justices ' has been 
carefully edited and criticised by Mr Westlake and Professor 
Maitland, and the circumstances of its origin discussed. The 

inam recuperet cum dampnis duplicates verums qe bon serra, par le assent de 

versus tam Escaetorem, Vicecomitem nos countes et barouns et autres de 

et alios ministros Regis, quam versus noster conseyl, sauve les usages a ceux 

quascunque privatas personas." qe par prescripcioun de tens ont autre- 

1 Britton, i., Introduction : " Eduard ment use en taunt qe lour usages ne 

par la grace Deu, roi de Engleterre, soynt mie descordauntz a dreiture." 
. . . Desirauntz pes entre le poeple qe 2 Id., i. 23, 8 : " Et quant a la juris- 

est en nostre proteccioun, par la suf- diccioun put-il dire, qe il n'est mie 

fraunce de Deu, la quele pes ne poet tenu a respoundre en place ou le juge 

mie ben estre sauntz leys, si avoms les est partie, disium nul jugement ne se 

leys, qe horn ad use en noster reaume put fere de meyns qe de III. porsones, 

avant ces hores, fet mettre en escrit ceo est a saver de un juge, de un 

solum ceo qe cy est ordeyne. Etvolums pleyntif, et de un defendaunts ; et en 

e commandums qe par tut Engleterre cas ou nous sums partie, voloms nous 

et tut Hyrelaunde soint issi usez et qe notre court soit juge, sicum countes 

tenus en touz poyntz, sauve a nous de et barouns en tens de Parlement." Cf. 

repeler les et de enoyter et de amenuser vol. iii. part i. chap. 4. 
et de amender a totes les foiz qe nous 

VOL. VI. C 



34 



FOURTEENTH CENTURY. 



[PART I. 



work undoubtedly represents a very individual and eccentric 
point of view. But it is not without value, when it agrees 
with other judgments of the time, even though it may express 
these in sharper terms than more careful writers would have 
done. 

In one Book the author discusses a series of what he 
calls " Abusions," and the first and chief of these is, as we 
have seen, that the king should be over the law, for he ought 
to be under it, in accordance with his oath. 1 The king, he 
says in another place, has to swear at his coronation that he 
will maintain the Christian Faith and that he will guide his 
people according to law, without regard of persons, and be 
liable to judgment in law, like any of his people. 2 And 
again, the king's court is open to all suitors against the king 
or the queen, as much as against other persons, except with 
regard to "vengeance" of life or limb. 3 In the Book on 
the "Abusions," he says that it is an " abusion'' that a 
man should not have remedy for a wrong inflicted by the 
king or queen, except by the will of the king. 4 

In another place, again, he asserts that, while the king 
should have no equal in his land, neither the king nor the 
king's commissioners can be judges in the case of a wrong 
(tort) done by the king to one of his subjects, and it is therefore 
law that the king should have companions who should hear 
and determine in the Parliament the complaints about such 
injuries done by the king or queen or their children, or 
" leur especiaus " ; these companions are, he says, called 



1 • Mirror of Justices,' s. v. 1 : " Abu- 
sion est desus ou mesus de droits usages, 

tournant en abusions 

1. La premere et la soverein abusion 
est qe li Roi est outre la lei ou il 
dois estre subject, sicom est contenu 
en son eerement." 

Cf. p. 8, and Bracton, ' De Logibus,' 
iii. 9, 2. 

2 Id., i. 2: "Al corounement le firent 
jurer q'il meintendreit la sainte foi 
cristiene a tut eon poer, o son poeple 
guieroit par droit, saunz regard a 
nule persone, e serreit obeissant a 



Soint Eglise, e justisiable a suffrir 
droit com autre de son poeple." 

3 Id., i. 3 : " Ordene fu qe la curt 
le Rei fust overte a touz pleintifs, 
par quei il usent sanz delai brefa 
remedials aussi sur le Roi ou sur la 
Reine comme sur autre del poeple, de 
chescun injurie, forpris en vengeance 
de vie ou de membre, ou pleint tient 
leu 6ans bref." 

4 Id., v. 1. 153: "Abusion est que 
nul ne ad recoverer dol tort le Rei 
ou de la Reine si non a la voluntie 
le Rei." 



CHAP. III.] THE AUTHORITY OF THE RULER. 35 

counts, from the Latin word " comites." 1 This is the general 
principle, and it is therefore of less significance that he asserts 
it also with regard to the relation of the king to his immediate 
vassals, the tenants-in-chief. 2 

He also denounces as an " abusion " the notion that " Parle- 
mentz " are only to be held rarely and at the king's will, 
while they ought to be held twice in the year. And when they 
meet, their function is not merely to provide aids for the king, 
but to make ordinances by the common consent of the king 
and the counts. These ought not to be made, as was being- 
done, without summoning the counts, and without considera- 
tion of the rules of law, by the king and his " clerks " and 
others who would not dare to go against the king, but only 
desire to please him. Such counsel was not directed to the 
wellbeing of the community of the people, and some of the 
ordinances which were being made were founded rather on 
will (volontie) than upon law. 3 

The principles of the writer are asserted very definitely 
and even contentiously, but that does not mean that they are 
abnormal or inconsistent with the general conceptions of the 
time. The principle, that the king is under the law, is, as we 
have so frequently said, the normal political principle of the 
Middle Ages, and no one had expressed it more definitely 
or emphatically than Bracton. The principle that the king, 

1 Id., i. 2 : " Et tut seit qe li Roi sauvacions les almes des trespassours, 
ne deut aver nul pier en sa terre, pur et ceo a Londres e as deux fois par an, 
ceo neqedent que le Rei de son tort, la ne se funt il ore forque rerement e 
s'il peeche vers ascun de son poeple, a la volontie le Roi sur eides e cueil- 
ne nul de ces commissaires, ne poet lettes de tresor. E ou les ordonnances 
estre juge e partie, convenist par dreit se duisent fere de comun assent del Roi 
que li Roi ust compaignouns pur oir et et de ses countes, la ce funt ore par le 
terminer as Parlementz trestuz les Roi e ces clercs e par aliens et autres qi 
brefs e les pleintes de torz le Roi, de n'osent contreriner le Roi, einz desirent 
la Reyne, e de leur enfanz, et de leur del plere et de li conseiller as son 
especiaus, de qi torz len ne poet aver promt, tut ne soit mie lur conseil 
autrement comun dreit. Ceus com- covenable al comun del poeple, sanz 
paignons sunt ore appollez contes apres appeler les countes e saunz suivre les 
le Latin de comites." riules de droit ; e done plusours orden- 

2 Id., iv. 11. aunces se fondent ore plus sur la 

3 Id., v. 1, 2: "Abusion est qe ou volontie qe sur droit." 
les parlementz se duissent fere sur les 



36 FOURTEENTH CENTURY. [PAUT I. 

in cases between himself and his subject, was " justiciable " 
— that is, that he was under the jurisdiction of a court, was 
clearly a matter of some complexity ; but it must be remem- 
bered that it was strictly in accordance with the general 
principles of feudal law, and probably, even, as has been 
recently urged by M. Ganshof, of pre-feudal law. 1 The 
1 Mirror of Justices ' is only expressing the same judgment 
as the interpolator of Bracton, as Fleta, and as Britton. The 
principle that laws were to be made, not by the king alone, 
but with the advice and consent of his great council, corre- 
sponds with the constitutional usage of the Middle Ages. The 
principle that Parliaments should be held frequently and 
regularly belongs to the question of constitutional usage, 
while the assertion that when they met they were not con- 
cerned solely with granting " aids," clearly corresponds with 
the facts. 

There is yet another English treatise of this time, the 
' Modus Tenendi Parliamentum,' which has considerable 
importance as representing opinions upon the nature of the 
constitution of the time, which must not be taken as univer- 
sally accepted, but are not therefore unimportant. 2 

In the first place, it is laid down in emphatic terms that 
when the king requires " aids," he must ask for these in full 
Parliament, they cannot be imposed without the consent 
of Parliament. 3 

What is perhaps more significant in the treatise is the 
assumption that all difficult and serious questions in the 

» Cf. Ganshof 's Essay in ' M61anges » ' Modus tenendi Parliamentum,' 

d'histoire offerts a Henri Pirenne.' Cf. page 41 : " Rox non solebat petere 

vol. v., page 111 of this work. auxilium de regno suo nisi pro guerra 

* For a discussion of the date and instante, vel filios suos milites faciendo, 

character of this work, we would refer vel filias suas maritando, et tunc 

the reader to the odition by Sir T. dobent hujusmodi auxilia peti in pleno 

Duffus Hardy, 1846. He dates the Parliamento, et in scriptis cuilibet 

work as probably written between gradui Parliament liberari et in 

1294 and 1327. Professor Pollard, in scriptis responderi ; et sciendum est 

his' Evolution of Parliament,' expresses quod si huiusmodi auxilia concedenda 

the opinion that it belongs to tho early oportet, quod omncs pares parliaments 

years of Edward III. consentiant." 



CHAP. III.] THE AUTHORITY OF THE RULER. 37 

government of the country should be brought before Parlia- 
ment, 1 and a description of what the writer conceived to 
be the proper order of business in Parliament. He puts first, 
questions of war and the affairs of the king and his family ; 
second, the common affairs of the kingdom, the amendment 
of laws, &c. ; and third, the affairs of private persons and 
petitions. 2 

Another passage of some importance is that in which the 
author declares that Parliament must not disperse until all 
petitions have been considered, and that if the king permits 
this, he is perjured. 3 

We may put beside these English works a treatise written 
evidently in France in the latter part of the fourteenth cen- 
tury, for it is addressed to Charles V. , the ' Somnium Viridarii.' 4 

In Book I., Chapter 134, the discussion turns upon the nature 
of the tyrant, but this part of the work corresponds so closely 
with Bartolus' tract, ' De Tyranno,' with which we deal in a 
later chapter, that it is unnecessary to consider it here. 5 

In Chapter 140, however, the discussion takes a new direc- 
tion, and raises important questions about the nature of the 
royal power and the rights of the community in regard to 
this. " Clericus " asks by what right the King of France 
imposes upon his subjects the " Gabella " and other intoler- 
able burdens. Is not this tyranny % " Miles " replies that 
the Bang of France has certainly the right to impose such 
taxation, but he is guilty of sin if he does this without cause. 
He can do it for the defence of the Commonwealth against the 
enemy, but if he uses the money thus raised for other purposes, 
the blood and sweat of his subjects will be demanded of him 
at the Day of Judgment. This leads him to the important 
distinction between the ordinary revenues of the crown and 
the extraordinary ; the prince should not normally demand of 
his subjects more than the former. Even with regard to 

1 Id., page 17: " De Casibus et * 'Somnium Viridarii,' ed. Goldast ; 
judiciis difBcilibus." ' Monarchia,' 1611, vol. i. p. 58, 

2 Id., page 23. * Cf. p. 80. 

3 Id., page 45. 



38 



FOURTEENTH CENTURY. 



[PABT I. 



these, however, it must be assumed that they were originally 
granted for such great purposes as the defence of the country 
and the administration of justice, and they must be used 
for the purposes for which they were granted ; if they were 
diverted to other purposes, they may justly be refused, the 
prince may justly be deposed, and the people may elect 
another prince. 1 

He repeats that the prince may impose talliages for the 
defence of the country, but he may not spend the money 
on his personal pleasures and vices ; if he does so, he must 
repay it. Except for public purposes, no king or prince may 
impose such taxes ; and if he does so, the subjects are not 
bound to obey, for he is exceeding the limits of his power. 2 
It is clear that the author has definite and dogmatic views 
about the limitations of the authority of the king in matters 
of taxation. 

The principle of the right of the subjects to resist and even 



' Somnium Viridarii,' I. 141 : 
" Miles : Credendum enim est, quod 
Justa de causa isti (ordinarii) redditus 
fuerunt principi concessi, scilicet, pro 
defensione patriae, pro justitia inter 
populum exercenda, et similibus de 
causis : ita tarnen quod dominus 
compleat illud, propter quod dicti 
redditus fuerunt instituti. 

Si enim princeps justitiam dene- 
garet subditis, utpote appellantes non 
reciperet, vel patriam non defenderet, 
tales redditus ordinarii, gabellae, im- 
positiones, foagia, et similia, si sint. in- 
ducti tales redditus extraordinarii justa 
de causa, scilicet pro defensione patriae, 
nee eomodo def endat ur quo possit et de - 
bet, nee redditus ad ilium ueum, sed in 
alium convertantur, tunc tales redditus 
ordinarii juste possent denegari.imo jure 
scripto, super dictamine rectae rationis 
fundato, morito a regimino tamquam 
indignus forot deponondus. Et si in 
regimine totius regni, sic negligeret, 
omnino doponendus : et liceret populo 
ftlium sili principem eligere : si in parte 
regni solum hoc negligeret, liceret 



populo illius loci alium sibi principem 
eligere, maxime quando talis esset 
princeps qui superiorem non recog- 
nosceret in terris." 

* Id. id. id. : " Si autem dominus 
velit ad aleas ludere, vel ultra vires in 
voluptatibus, vestibus, hospitibus, cas- 
tris non necessariis ad tuitionem 
reipublicae aedificandis expendere, non 
debet propterea a subditis aliquid 
extorquere, quodsi fecerit, ad restitu- 
tionem tenetur. ... Si sit rex, 
potest auctoritate sua propria pro 
utilitate boni communis do novo tallias 
imponcre, compensate subditorum 
facultate. . . Quod debet intelligi, 
nisi facultates sufficiant rcgi vel prin- 
cipi pro defensiono reipublicae. Si 
autem illae talliae nullo inodo sint ad 
utilitatem boni communis, nee rex, 
nee princeps potest eas imponere. 
Quod, si imposuerit, subditi non 
tenentur obedire, quia potestatis suae 
limites exit. . . Unde ergo, in tali 
causa, si ad hoc regi non sufficiunt 
facultates, potest a subditis auxilium 
moderatum implorare." 



CHAP. III.] THE AUTHORITY OF THE RULER. 39 

to depose the king who neglects his duty, or abuses his 
authority, is stated again very dogmatically in a later 
chapter, and is there brought into relation to the principle 
that it was from the people that the king had received his 
authority. If the emperor or king be guilty of destruction 
of the kingdom, or of damnable negligence, or of tyranny, 
or any other crime for which he deserves to be deposed, the 
people, from whom he received his authority, tacitly or 
expressly, are to depose him, and not the Pope, unless those 
who are responsible will not or cannot do this. He brushes 
aside the tradition that it was Pope Zacharias who had de- 
posed Chilperic ; the French at that time consulted him 
because, perhaps, they were not sure of their power, for at 
that time there was not yet the University of Paris, and there 
was not then in France the multitude of wise men that there 
is now. 1 

The greater part of the work is occupied with the dis- 
cussion of the relations of the temporal and spiritual powers, 
and with this we are not here concerned. 

We turn to a treatise written by Lupoid of Babenburg about 
the year 1338. Every people, he says, who are without a 
king can by the " jus gentium " elect a king for themselves ; 
and it is thus that the electors of the empire elect a king or 
emperor, as being the representatives of the princes and people 
of Germany, of Italy, and the other provinces of the kingdom 
and empire. They do this " vice omnium " ; they are acting, 
not as individuals, but as a " collegium," and as representing 
the " universitas " of the princes and people of the empire. 2 

1 Id., i. 163: "Ed ideo si impera- complementum. Non obstat c. Alius 

tor vel rex committit crimen dilapida- 15, q. 3. quia Gallici dubii forsitan de 

tionis vel destructionis imperii vel propria potestate Papam tanquam 

regni, aut damnabilis negligentiae sapientem duxerunt consulendum. Non- 

imperii vel regni, vel tyrannidis, seu dum, tunc temporis, vigebat studium 

quodcunque aliud propter quod non Parisius, nee Francia tot prudentibus, 

immerito deponi meruerit, Papa non prout nunc est adhuc, erat repleta." 
deberet eum deponere, sed populus, a 2 Lupoid of Bebenburg, ' De Jure 

quo suam recepit potestatem, tacite Regni et Imperii Romani,' v. (p. 179) : 

vel expresse, nisi illi, ad quos spectat, " Quilibet populus carens rege, potest 

nollent, aut non possent facere justitiae sibi regem eligere de jure gentium, ex 



40 



FOURTEENTH CENTURY. 



[PAKT I. 



Again, he says that some maintained that the translation of 
the empire received its authority, not from the Soman Church, 
but from the Eoman people. Again, in another place, he cites 
the opinion of some great Jurists, who held that the Eoman 
people could still make laws, especially during a vacancy of 
the empire, for the people was greater than the prince, and 
could, for just reason, depose the emperor. He is careful to 
explain that he means by the Eoman people the whole people 
of the empire, and that this people included the whole com- 
munity, the princes and nobles as well as the others. 1 



We can now consider the exact nature and importance of 
the contribution to this subject, made by Marsilius of Padua, 
in his treatise, ' Defensor Pacis.' 

Marsilius is anxious to show that his treatment of political 



quo jure rogna condita sunt. . . . Et 
principes electores ratione jam dictae 
institutionis, habent eligere regem 
seu imperatorem, represent antes in 
hoc omnes principes et populum Ger- 
maniae, Italiae, et aliarum provinciarum 
et terrarum, regni et imperii, quasi vice 
omnium eligendo. ... vi. (p. 181) : 
Hostiensis notat ext. de electione c. 
Venerabilem, in Glossa, haec alter- 
natio : quod electio pertinet ad prin- 
cipes electores, non tamen ad collegium, 
sed tamquam ad singulares porsonas. 
Scd ego salva revorentia tanti viri, non 
credo hoc verum. Credo enim quod 
ad e06 pertinet talis electio, tanquam 
ad collegium seu ad universitatem : 
cujus ratio est, si institutio principum 
electorum non esset facta, omnes prin- 
cipes et alii representantes populum 
subjectum Romano regno et imperio 
haberent eligere regem et imperatorem. 
Sed ipsi censentur eligoro vice et auctori- 
tato universitalis principum, et populi 
praedietorum." 

1 Id. id., xii. (p. 195) : Some main- 
tain " quod predicta tranlatio non ab 
ecclesia Romana, sed potius a populo 
Romano robur habuit ot vigorem." 

Id. id., xvii. (p. 206) : " Circa opposi- 



tiones istas earumque solutiones, scien- 
dum est quod quaedam solennis opinio 
magnorum legistorum, quae habet, quod 
populus Romani imperii posset hodie 
legem condere in absentia principis, vel 
vacante imperio : dicentium quod 
populus est major imperatore, ita quod 
ex causa justa possit imperatorem 
deponere . . . Et respondunt ad 1. 
fin. c. de legibus (Cod. i. 14, 12) in qua 
lege dicitur soli imperatori concessum 
esse leges condere, quod id quod dicitur 
ibi, soli, dicatur ad exclusionem inferi- 
orum, non ad exclusionem populi, qui 
major est principe secundum eos. Et sic 
intelligo populum Romani imperii, con- 
numeratis principibus electoribus ac 
etiam aliis principibus, comitibus et 
baronibus regni et imperii Romanorum. 
Nam appellatione populi continentur 
etiam patritii et senatores." 

Cf. Engelbert of Admont : ' De Ortu 
et Fine Romani Imperii.' (Ed : Offen- 
bach, 1610), xi. (p. 34). " Quod patet 
ex eo quod quamvis aliquis juste 
adoptus sit regnum, si non bene regit, 
aut intolerabilis esl in regondo, malitia 
ipsius juste dodicitur, et de regno 
deponitur." 



CHAP. III.] THE AUTHORITY OF THE RULER. 41 

theory is related to the Aristotelian " Politics." He therefore 
begins with a discussion of the origin of civil society, which is 
taken directly from Aristotle, 1 and he states the purpose 
and end of this also in the terms of Aristotle ; the end of the 
state is the good life. 2 

He cites from Aristotle the description of the various 
forms of government : the good forms, monarchy, aristocracy 
and the Commonwealth ; and the corrupt forms. 3 It is, 
however, when he comes to the discussion of the place of law 
in the State, and its source, that his discussion begins to have 
a substantial importance ; we have already, however, discussed 
this part of his work in the first chapter, and we are here 
concerned with his very important statements with regard 
to the ruler or " Principans." (If we may conjecture, we 
should say that he generally uses the term " Principans " 
instead of the more usual term " Princeps," because he does 
not conceive of the ruler as being necessarily one man, and 
this may possibly be due to the circumstance that he is think- 
ing of an Italian city, at least as much as of a northern 
monarchy.) 

Marsilius sets out very emphatically the principle that the 
" Principans " derives his authority, not at all from his 
personal qualities, but solely from the election of the legis- 
lator — that is, the " civium universitas," and that the correc- 
tion and, if necessary, the deposition of the ruler belongs to 
the same authority. 4 Marsilius appeals to Aristotle as con- 

1 Marsilius of Padua, ' Defensor auctoritate carentes, non sunt prin- 

Pacis,' i. 3. cipes nisi forte propinqua potencia. 

* Id., i. 1, 4. 2. Ad quaesitum ergo redeuntes, 

3 Id., i. 8. dicamus secundum veritatem et sen- 

4 Id. id., i. 15, 1 : " Consequenter tenciam Aristotelis 3° Politico Cap. 
autem dictis restat ostendere princi- 6° potestatem factivam institucionis 
pantis factivam causam, per quam principatus seu eleccionis ipsius ad 
videlicet alicui vel aliquibus datur legislatorem seu civium universitatem, 
auctoritas principatus, qui per elec- quemadmodum ad eandem legumla- 
cionem statuitur. Hac enim auctoritate cionem diximus pertinere, 12° huius, 
fit princeps secundum actum, non per principatus quoque correpcionem 
legum scienciam, prudenciam, aut quamlibet, eciam depositionem, si ex- 
moralem virtutem, licet sint hae quali- pediens fuerit propter commune con- 
tates principantis perfecti. Contingit ferens, eidem similiter convenire." 
enim has multos habere, qui tamen Cf. i. 10. 



42 FOURTEENTH CENTURY. [PART I. 

firming his judgment, but it really seems much more probable 
that his principle that it is the universitas which is the source 
of the authority of the ruler, is founded upon Eoman Law 
and upon the general mediaeval conception of the source of 
the authority of the ruler, which we have considered in former 
volumes. 1 

Marsilius goes on to discuss the nature of the functions of 
the " Pars Principans " as compared with those of the 
" universitas." It is the legislator, that is the " civium 
universitas," which is the primary source of the order of the 
State ; the " Pars Principans " is the secondary : it is instru- 
mental and executive under the terms of the authority en- 
trusted to it by the legislator, and in accordance with the law 
which controls its actions and dispositions. It is the legislator 
who determines who are to administer the various offices in 
the State, but the exercise of these is to be directed and con- 
trolled by the " Principans," for this can be more con- 
veniently done by one person or a few, than by the whole 
community. 2 

Marsilius is obviously making the distinction, familiar to 
us, but perhaps implied rather than explicit in mediaeval 
constitutions, between the executive and the legislative 
functions, and he is clear that the executive functions are 
delegated by and subordinate to the legislative. The explicit 
distinction is important, but it must be remembered that it 

1 Cf. vol. i. pp. 240-252 ; vol. iii. quantum potest, actus civiles, quemad- 
pp. 150-153 ; vol. v. pp. 86-90. modum ostensum est capitulo prece- 

2 Marsilius, ' Defensor 1'aei.s,' i. 15,4: dento. Quamvis enim legislator, tan- 
" Huius ergo partis efnciento mon- quam prima causa et appropriata, 
strato, habitum est dicere, secundum dctorminare debeat, quos qualia in 
proposita frequenter a nobis, causam civitate oporteat officia exercere, talium 
effectivam, instituentem et deter- tamen execucionem, sicuti et ceterorum 
minantem reliqua officiorum seu par- legalium, praecipit, et si oportoat 
cium civitatis. Hanc autem primam cohibet pars principans. Fit enim per 
dicimus legislatorem, secundariam vero ipsum conveniencius execucio legalium 
quasi instrumentalem seu executivam quam per universam civium multi- 
dicimus principantem per auctorita- tudinem, quoniam in hoc sufficit unus 
tem huius a legislatore sibi concessam, aut pauci principantes, in quo frustra 
secundum formam illi traditam ab occuparetur univorsa communitas, que 
eodem, legem videlicet, secundum etiam ab aliis operibus necessariis 
quam semper agere ac disponere debet, turbarctur." 



CHAP. III.] THE AUTHORITY OF THE RULER. 43 

is implicit in the whole nature of mediaeval political theory 
and constitutions. 

He adds, in a later chapter, that in any one state or 
kingdom there must be one only " principatus," that is, one 
" Principans " ; but whether this is to be one person or one 
body of persons, seems to him indifferent. 1 

In the same chapter Marsilius refers to the question whether 
there should be one supreme authority for the whole world, 
but says the question is not relevant to his present inquiry. 2 

Finally, Marsilius turns to the discussion of the question 
what is to be done if the " principans " should transgress 
against the law or wellbeing of the state. He lays down 
very explicitly the principle that it is for the legislator (i.e., 
the " universitas ") to deal with this, either itself or by such 
persons as it may appoint for the purpose. While the case is 
being considered, the authority of the " Principans " should 
be suspended and put into the hands of those who are to act 
as judges. He is careful to observe that the transgression of 
the " Principans," which is thus to be judged, may be against 
some provision of the law, but it may also be of a kind not 
provided for by the law ; and the judgment should therefore 
be in accordance with the law, if possible, but if this is not 
possible, then it is to be determined by the " sententia " of 
the legislator. 3 

1 Id. id., i. 17, 1 : "In civitate aut perversum desiderium vel utrum- 
unica seu regno unico esse oportet que, secumhim quas contingit ipsuni 
unicum tantummodo principatum, aut agere contraria eorum, quae lege deter- 
si plures numero vel specie, sieut in minata sunt, propterea secundum has 
magnis civitatibus expedire videtur actiones redditur principans mensura- 
et maxime in regno sumpto secundum bilis ab aliquo habente auctoritatem 
primam significationem, oportet inter mensurandi seu regulandi secundum 
ipsos unicum numero esse supremum legem aut ejus acciones legem trans- 
omnium, ad quern et per quem reliqui gressas ; alioquin despoticus fieret 
reducantur et regulentur, et contin- quilibet principatus, et civium vita 
gentes in ipsis errores per ipsum eciam servilis et insuffioiens ; quod est in- 
corrigantur." conveniens fugiendum, ut ex deter- 

Cf. the whole of this chapter. minatis a nobis apparuit, 5° et 11° 

2 Id. id., 17, 10. huius. 

3 Id. id., i. 18, 3: " Verum quia Debet autum iudicium, praeceptum, 
principans homo existens, habet intel- et execucio cuiuscumque correpcionis 
lectum et appetitum, potentes recipere principantis iuxta illius demeritum seu 
formas alias, ut falsam extimacionem transgressionem fieri per legislatorem, 



44 FOURTEENTH CENTURY. [PART I. 

The position of Marsilius is plain and dogmatic, but again 
we must not make the mistake of thinking that it was new 
and revolutionary. We cannot recapitulate our treatment of 
these questions in earlier volumes, where we have, as we think, 
made it sufficiently clear that the normal mediaeval tradition 
was, not only that the prince was bound by the law, and 
that he could not take any action against either the persons 
or the property of the subjects, except by process of law, 
but that in the last resort the community was entitled to take 
legal action against him and, if necessary, depose him. This 
was not the judgment only of writers like Manegold or John 
of Salisbury, who may be thought to represent an extreme or 
merely theoretical position, but also of so careful and measured 
a political thinker as St Thomas Aquinas. 1 

We turn to the political theory of William of Occam. He 
conceived of the authority of the emperor as being derived 
from God, but through men (per homines). 2 What does he 
then consider to be the nature of this authority ? In one 
important passage he draws out the same distinction, which 
we have already seen in some writers of the thirteenth century ; 
the distinction that is between the king who rules according 
to his own will and not according to the laws of the community, 
and the king who rules according to the law. 3 Like these 
writers, Occam draws a very sharp contrast between these. 

vel per aliquem aut aliquos logislatoris evenire frequenter, aut raro tantum- 

auctoritate statutos ad hoc, ut demon- modo. Amplius vel est de lege deter- 

stratum est 12° et 15° huius. Convenit minatis aut non 

eciam pro tempore aliquo, corrigendi Si quidem lege determinatus, se- 

principantis oflicium suspendere ad cunduin legem corrigendus, si vero 

ilium maxime aut illos, qui de ipsius non, secundum legislators sententiam ; 

transgressione debueriut judicare, ne et lege debet determinari, quantum 

propter tunc pluralitatem principatus possibilo fuerit, ut ostensum est a 

contingeret in communitate schisma, nobis 11° huius." 

concitatio et pugna, et quoniam non * Cf. vol. iii. part i. chap. 4 ; part ii. 

corrigitur in quantum prineipans sed chaps. 6 and 6 ; vol. v. part i. chaps, 

tanquam subditus transgressor legis. 7 and 8. 

Secundum haec itaque ingredientes : Occam, ' Dialogus,' Pars Tertia, 

ad quesitas dubitaciones dicamus, quod Tractatus Secundum, i. 26 (p. 899). 

oxcessus principantis vel gravis est aut * Cf. vol. v. part i. chap. 6. 
modicus, adhuc vel est de possibilibus 



CHAP. III.] 



THE AUTHORITY OF THE KULEE. 



45 



The first governs according to his own will, and is not 
bound by human law or custom, but only by natural law. 
Such a king does not swear to keep the human laws and cus- 
toms : he need only swear to observe the natural law and to 
pursue the common good. The second is bound to obey the 
laws and customs made by men, and must swear that he will 
do this. It is not very clear from this passage whether Occam 
intends to give a preference to the one form of kingship or the 
other ; but it is important to observe that he doubts whether in 
his time there was any monarchy of the first kind. 1 

Occam is here discussing the nature of monarchy in general. 
Another part of the ' Dialogus ' is entitled " De Iuribus 
Eomani Imperii " : he is here discussing the question of the 
political authority of the emperor, and the treatment is 
somewhat complex. The emperor, he says, and every king 
in his kingdom, is " solutus legibus," and is not bound to 
judge according to the law. The emperor is above all positive 
law, but not above "natural equity." 2 So far, Occam might 



1 Occam, ' Dialogus,' Pars Tertia, 
Primus Tractatus, 2, 6 (p.794) : " Hie 
dicitur principare et regnare secundum 
voluntatem suam, et non secundum 
legem, qui regnat propter commune 
bonum omnium et nullis legibus hu- 
manis pure positivis, vel consuetudini- 
bus alligatur, sed est supra hujusmodi 
leges, licet legibus naturalibus astrin- 
gatur. Et ideo talis rex non habet 
jurare et promittere se servaturum 
quascunque leges vel consuetudines 
humanas introductas, licet expediens 
sit ipsum jurare quod leges naturales 
pro utilitate communi servabit, et quod 
in omnibus quae spectant ad princi- 
patum assumptum, commune bonum 
intendat, non privatum. . . . Et talis 
principatus regalis dicitur secundum 
legem, quia, licet unus principetur, 
modo tamen principatur secundum 
voluntatem, sed quibusdam legibus 
et consuetudinibus, humanitus intro- 
duces astringitur, quas tenetur servare, 
et ipsas se servaturum jurare vel pro- 
mittere obligatur, et quant o plures 



tales leges et consuetudines servare 
tenetur, tanto magis recedit a memo- 
rato principatu regali ; et ideo forte 
his diebus non est in universo orbe talis 
principatus scilicet primus regalis. . . . 
Ex predictis colligi potest, quod princi- 
patui regali, praesertim potissimo, non 
solum tyrannis proprie dicta, sed etiam 
principatus despoticus aliquo modo 
opponitur, vel est principatus ita dis- 
paratus ut nullus unus principatus 
possit esse regalis et despoticus respectu 
eorundem : quod tamen aliquis domi- 
netur regaliter, et aliquis despotice, in- 
conveniens non videtur." 

2 Id. id., Pars Tertia, Tractatus 
Secundus, i. 15 (p. 884): "Quia enim 
imperator in imperio mundi, et rex 
in regno suo, solutus est legibus, nee 
tenetur de necessitate judicare secun- 
dum leges, quemadmodum judices 
inferiores secundum leges de necessi- 
tate judicare tenentur. . . . 16 (p. 886) 
Ita Imperator quia est supra positiva 
jura non est super aequitatem natura- 
lem." 



46 FOURTEENTH CENTURY. [PART I. 

seem to mean that the emperor is one of those who govern 
according to his own will, and not according to the laws or 
customs of the community. We must, however, observe that 
this does not give us a complete account of Occam's conception 
of the power of the emperor. A little further on, the question 
is raised whether men must obey the emperor in all lawful 
things (in omnibus licitis). The " Discipulus " asks whether 
men must obey the emperor in everything ; the " Magister " 
replies that we must not obey him in unlawful or unjust 
things, and that men are only bound to obey the emperor 
in matters which belong to the temporal rule. The dis- 
ciple asks whether this means that a man must obey the 
emperor rather than his immediate lord, and the master 
answers that he must do so, for the emperor is the imme- 
diate lord of all men in temporal things. The disciple urges 
that this would have " duo inconvenientes " ; first, that 
if all men are bound to obedience, they would all be slaves ; 
and, secondly, that those who follow their immediate lord in 
war against the emperor would be guilty of "laesae majestatis." 
The answer to both points is very significant. It does not 
follow, the " Magister " in the first place answers, from what 
has been said, that the subjects are bound to obey the emperor 
in all things, but only in those things which belong to the rule 
of the people ; and, therefore, if the emperor should command 
anything which is contrary to the utility of the people, they 
are not bound to obey. Subjects are not under the same 
obligation as slaves : slaves would have to surrender all their 
goods at the command of the lord, but freemen are not under 
that obligation ; the emperor cannot command this, except 
for the common utility or good, and this utility must be 
necessary and manifest. In the second place, he says, it is 
true that the man who follows his lord in an unjust war 
against the emperor is guilty of "lacsa majestas." 1 

1 Id. id., Fars Tertia, Tractatus iniustis nullus debet sibi obedire. 

Secundus, ii. 20 (p. 917) : " Discipulus. Discipulus : Numquid in omnibus 

Quesivimus, . . . utrum sibi omnes licitis omnos sibi dobent obedire, ita 

teneantur in omnibus obedire. Magis- ut peccent qui sibi recusaverint in 

ter. Respondetur quod in illicitae et licito quocuuquo obedire. Magister. 



CHAP. III.] THE AUTHORITY OF THE RULER. 47 

The treatment of these questions by Occam is as interesting 
as it is complex ; the necessity of obedience is at first stated 
very sharply, but it appears that Occam leaves a large amount 
of discretion to the subject to judge of what the emperor may 
legitimately require, and especially this passage suggests a 
reference to the questions of property and taxation, and to 
the very complex conditions of the Feudal Law with regard to 
the relations of vassal and lord. 

The question of the relation to private property is further 
developed in a survey of different opinions. There are some, 
Occam says, who maintain that the emperor is not " dominus 
omnium rerum temporalium," others that he is ; but there 
is also a third opinion that he is not lord of all property in 
such a sense that he can do what he likes with it, but he is 
lord in a certain sense, for he may use it for the public utility 
when he sees that this is to be preferred to the private. He 
may not do this arbitrarily, but only on account of the guilt 
of the owner, or for some common purpose, and he has, there- 
fore, no absolute rights over property in general. 1 

In his quae spectant ad regimen populi quibus non tenentur liberi, nam servi 

temporalis ad solum praeceptum imperatoris om- 

Discipulus : Numquid in hujusmodi nia bona quae tenent, tenentur sibi 

quilibet tenetur magis obedire impera- dimittere alsque hoc quod utilitatem 

tori, quam cuilibet alteri, puta regi communem praetendant, sed ad hoc 

suo, aut duci, aut marchioni, aut alteri liberi non tenentur, nee imperator 

domino suo immediato potest eis hoc praecipere absque 

Magister : Respondetur quod . . . utilitate boni communis, imo, etiam 

imperator est dominus in temporalibus neque absque manifesta utilitate et 

omnium immediatus, ita ut in his quae necessitate. . . . Ad secundum dicitur, 

spectant ad regnum mortal ium, magis quod quicunque venit cum quocunque 

sit obediendum imperatori quam cui- domino suo ad bellum iniustum contra 

cunque domino inferiori imperatorem incidit in crimen laesae 

Magister: Ad primum dicitur : quod majestatis." 

non sequitur ex predictis, quia, sicut 1 Id. id. id., ii. 23 (p. 920) : " Est 

dictum est prius, subditi imperatoris una opinio, quod imperator non est 

non in omnibus tenentur sibi obedire : dominus omnium rerum temporalium, 

sed in his tantum quae spectant ad quae etiam minime spectant ad eccle- 

regimen populi ; hoc est, in his quae siam, ut ad libitum suum liceat sibi 

sunt necessaria ad regendum juste et vel valeat, de omnibus hujusmodi rebus 

utiliter populum sibi subditum, et ideo quod voluerit ordinare ; est tamen 

si praeciperet aliquid, quod est contra dominus quodammodo omnium pro 

utilitatem populi sibi subjecto, non eo, quod omnibus hujus modi rebus, 

tenerentur sibi obedire. . . . sed in quocunque contradicente, potest uti 

multis tenentur sibi obedire servi, in et eas applicare ad utilitatem com- 



48 FOURTEENTH CENTURY. [PAKT I. 

This section of the ' Dialogus ' ends with the question 
whether the emperor has " plenitudo potestatis " in temporal 
things. He gives reasons for the view that he has, but other 
reasons against it. The emperor can only make law for the 
public good, not for his private convenience, for the Imperial 
Power is only established for the public good, and does not 
extend to things that do not concern this. The emperor is 
not bound by his own laws, but he is bound by the " jus 
gentium." * 

We must, however, turn to another work of Occam before 
we endeavour to sum up his position : this is the work entitled 
' Octo Questiones super potestate et dignitate Papali.' It is 
chiefly concerned with the position and authority of the Pope, 
but frequently refers to that of the emperor, and in some 
important passages it seems to be dealing rather with the 
general principles of royal authority than with the empire in 
particular. 

We begin by observing an important general statement. 
The king is superior in the kingdom, but in some cases ("in 
casu ") he is inferior in the kingdom, for in cases of necessity he 
may be deposed and held prisoner, and this by " jus naturale," 
for by this law violence may be resisted by violence. The 
words are strong, but they receive an additional significance 
when we observe that Occam goes on to say that if the emperor 
commits some great crime, such as the destruction of the 
empire, or is guilty of extreme negligence, the Eomans, or 
those to whom the Eomans have entrusted their power, ought 
to depose him. 2 

munom, quandocunquo viderit com- primis, quas potuit, sicut placuerit, 

munem utilitatem esse praeferendam sibi alienare ad libitum." 

utilitati privatae. . . . Rerum etiam 1 Id. id. id., ii. 26-28. 

spectantium ad alios habet dominium 2 Id. : ' Octo Questiones,' ii. 7 

ex causa et pro communi utilitato (p. 340) : " Rex enim superior est 

populi, et propter delictum possiden- toto rogno ; et tamen in casu est in 

tium potest ab eis auferre, et sibi ferior regno : quia in casu necessitatis 

appropriare, vel aliis donare. Quia potest regem doponere et in 08 

tamen hoc non potest pro suo arbitrio retinore, hoc enim habetur ex jure 

voluntatis, sed pro culpa possiden- naturali, sicut ex jure naturali habetur 

tium, vel ex causa, scilicet, pro utilitate quod vim vi repellere licet." 

communi ; idco non habet in eis II. 8 : " Et ideo si Imperator com- 

dominiuin ita pingue sicut in rebus mittat crimen dilapidationis vel des- 



CHAP. III.] THE AUTHORITY OF THE RULER. 49 

In another " Question " he deals with the nature of the 
authority of the ruler in more general terms ; terms the more 
significant because Occam begins by setting out his opinion 
that the best form of government is the monarchy. This 
does not mean that this authority should be absolute. The 
" principans " should not have that " plenitudo potestatis " 
which in an earlier " question " he had discussed — that is, 
that he could take from his subjects what he might will, for 
this would mean that his subjects were his slaves. 1 

In another " Question " he returns to the subject of the 
origin and nature of the power of the emperor, and discusses 
the question of the transference of the empire from the Greeks 
to Charlemagne. He argues that this was not done by the 
Pope, but by the Eoman people : it was to them that from 
the beginning the " Imperium " belonged, and it was from 
them that the emperor received it, for they transferred their 
authority to him for the common good ; but they did not 
give him authority to rule despotically, nor did they abdicate 
their power of disposing of the empire in certain cases (casu- 
aliter). Had they done this, they would have ceased to be free, 
and would have made themselves slaves, and the emperor 
would have possessed a despotic and not a royal authority. 2 

tructionis imperii aut darnnabilis negli- plenitudinem potestatis, quae descripta 

gentiae in periculum imperii tyTan- est supra q. i. cap. 6. ut scilicet de jure, 

nidis, vel quodcunque aliud deponere si voluerit, omnia possit percipere et 

dignissimum, Romani vel illi in quos imponere subditis, quae nee juri 

suam potestatem Romani dederunt, naturali indispensabili nee juri divino, 

debent ipsum deponere." ad quod omnes catholici obligantur, 

1 Id. id., iii. 5 (p. 350) : Secundo obviant vel repugnat ; nam omnes 

ad optimum principatum tarn generalem subditi, habenti hujusmodi plenitudi- 

respectu cunctorum mortalium, quam nem potestatis super eos, sunt servi 

specialem respectu quorundam, secun- ipsius, secundum strictissimam signi- 

dum opinionem prescriptam requiritur ficationem vocabuli servi. Nam hac 

quod princeps sit una persona . . . qua potestate nullus dominus super servos 

propter secundum philosophos princi- potest habere majorem de jure, ergo 

patus regalis, quo una persona refulget, optimo principatui repugnat, quod 

tam principatum aristocrat icum, quam omnes subiecti sint servi, ergo etiam 

politicum, quorum utrique praesident repugnat, quod habeat hujusmodi 

plures, superat et praeexcellit. . . . plenitudinem potestatis." 

Ex isto secundum opinionem prae- 2 Id. id., iv. 8 (p. 367) : " Hie (the 

fatam videtur principatui optimo re- contention that the Pope transferred 

pugnare, quod principans illam habeat the Empire from the Greeks to Charle- 

VOL. VI. D 



50 FOURTEENTH CENTURY. [PART I. 

It is interesting to compare the position of Occam with that 
of Marsilius, for there are obvious differences between them. 
Marsilius sets out in broad terms, which are related both to 
the general theory and to the constitutional practice of the 
Middle Ages, that the community itself is the ultimate source 
of all law and all authority, and remains the legislator, and 
that the ruler (principans) as he receives his authority from 
the community, so also remains subject to its authority and 
judgment. 

Occam appears to us to represent something more of the 
tradition of the Civilians. Like them, he recognises frankly 
that it is the community from which all authority ultimately 
comes, but he conceives of the community as having trans- 
ferred its authority to the ruler, including the legislative 
power, and he does not seem to think that the community 
had retained the power of legislation. On the other hand, 
he does dogmatically assert that the power of the ruler is 
not unlimited or absolute ; he can only exercise his authority 
for the public good, and the subject is not bound to obey when 
the ruler transgresses against this ; and he is very emphatic 
in his assertion that the people may in the last resort depose 
the ruler. The Eoman people had always retained the right 
" disponendi de imperio." We seem here to find again a 
parallel to that rather curious position of Vacarius x that the 
Eoman people cannot legislate unless they first depose the 
emperor, and thus resume the right of making laws. The 
formal terms of the conception of the nature of political 
authority in Marsilius and in Occam seem, at first sight, far 
apart, but the final results are not very different. The autho- 
rity of the ruler is a limited authority, not an absolute one ; 

magne) diversimode respondetur. Uno oranom potestatem casualiter dispon- 

modo, quod ilia translatio non fuit a endi de imperio. Si enim hoc fecissent, 

Papa, sed a Romanis, quorum ab initio servos se fecissent Imperatoris strictis- 

fuit imporium, ot a quibus Imperater sime accipiondo vocabulum servi, et 

primo accepit imporium ; qui omnem revera nullatenus libcri remansissent : 

suam potostatem regendi, propter et per consequens Imperator non 

bonum commune transtulerunt in Im- habuisset prineipatum regalem, sed 

peratorem ; non tamen in ipsum pure despoticum." 
potestatem dominandi sou regendi ' Cf. p. 23. 

despotice, nee a se abdicaverunt 



CHAP, ni.] THE AUTHORITY OF THE RULER. 51 

the community is the source of authority and retains the 
power of restraining it. 

There is another writer of the fourteenth century whose 
political theory we must examine — that is Wycliffe. We are 
not here concerned with his theological opinions or influence,' 
but only with such political theories as are set out in the 
treatises { De Civili Dominio,' ' De Dominio Divino,' and ' De 
Officio Eegis.' 1 We have endeavoured to put these together, 
but it must be remembered that Wycliff e is one of the most com- 
plicated of thinkers and writers, and it is difficult to feel entire 
confidence that we have done full justice to his conceptions, y 

For the sake of simplicity we begin, not, as he does himself, 
with the analysis and discussion of the nature of " Dominium," 
but with the discussion of the origin and purpose of govern- 
ment. We begin with a phrase, incidental indeed, but signifi- 
cant. "Civile dominium" (by which Wycliffe here means 
civil government) was created by the " Eitus Gentium," 
and coercive authority was accepted by the custom and con- 
sent of the people as being approved by reason, for, as St 
Paul says in Eomans xiii. 4, the ruler bears the sword not 
without a cause. 2 And again, civil law was introduced by 
men on account of sin, with respect to the goods of the body 
and of fortune. 3 These are, of course, traditional mediaeval 
conceptions, and lest we should misunderstand them, it is 
well to observe that Wycliffe also says in the next chapter 
that we must not think that because the civil law was insti- 
tuted by men on account of sin, it does not derive its authority 
from God. 4 

1 We wish to express our great obliga- tudine et consensu acceptata est a 
tions to the editions of the ' De Civili populo racionabiliter commendata, quia 
Dominio ' and ' De Dominio Divino ' Romans xiii. 4 quod non sine causa 
by Dr R. Lane Poole, and we would portat gladium." 

refer to his Preface to the ' De Dominio 3 Id. id., i. 18 (p. 125): "Jus 

Divino ' for the discussion of the sub- autem civile est jus occasione peccati 

jects and dates of both works. humanitus adinventum ad justifican- 

2 Wycliffe, ' De Civili Dominio,' i. 11 dam rempubhcam coactive quoad bona 
(p. 75) : " Ecce primo, quod civile corporis et fortune." 

dominium est ritu gencium introduc- * Id. id., i. 19 (p. 133) : " Nee 

turn, et potestas coactiva ex consue- credat aliquis quod lex civilis, que oc- 



52 FOURTEENTH CENTURY. [PAUT I. 

Having thus recognised that Wycliffe repeats the normal 
patristic and mediaeval conceptions about the origin of govern- 
ment as being a Divine remedy for sin, we can inquire what were 
Wycliffe's views about the best form of government and its 
conditions. He deals with this subject at length in the ' De 
Civili Dominio.' 

He first raises the question whether it is better to be 
governed according to the law of God by judges, or according 
to a civil law by kings. The first he calls an aristocracy, the 
second is monarchical or royal ; his conclusion is that it is 
probably better, in view of man's sinful nature, to be governed 
by kings. 1 In the next chapter he asks whether the Christian 
man should obey the tyrant, and seems to say that the Christian 
man should do so ; and he cites the example of Christ as having 
obeyed Herod and Pilate and the chief priests. 2 

He then discusses the relative advantages and disadvantages 
of hereditary and elective governments, but arrives at no 
certain conclusion. 3 The only observation Wycliffe makes, 
which might be thought to have some importance, is that the 
continuity of the hereditary succession might encourage 
tyranny, while the possibility of deposition would act as a 
check upon tyranny. 4 Those words, if pressed, might seem to 
mean that Wycliffe recognised the possibility of the deposition 
of an elective, but not of an hereditary ruler. In the thirtieth 
chapter, Wycliffe raises a difficulty which applies both to 
hereditary and elective kingship, and that is that there can 

casione peccati ost humanitus instituta, taraen facillime potuisset restitisse ; 

non sit a Deo principaliter ordinata, sed omnis Christi accio est nostra in- 

quia aliter non poterit esse justa nisi struccio ; ergo nos debemus eciam 

eiviliter ordinantes et adinvenientes tyrannizantibus quoad bona fortune 

legem hujusmodi forent organa Dei minus Valencia obedire. Et hinc dicitur 

principaliter ordinantis." 1 Peter ii. 18 : ' Servi subditi estote 

Cf. Wycliffe, ' De Officio Regis,' xi. in omni timore dominis ; non tantum 

1 Id., ' De Civili Dominio,' i. 26, bonis et modest is, sed eciam discolis.' " 
p. 185. Cf. i. 37, p. 271. 

2 Id. id., i. 28 (p. 199) : " Sed tercio s Id. id., i. 29. 

laicus dubitatur, si Cliristianus debet 4 Id. id., i. 29 (p. 208) : " Item 

potentatibus tyrannizantibus obedire, certitudo regis regnandi pro se et 

et videtur quod sic ; nam Sal vat or suis heredibus ost ut plurimum occasio 

obedivit quoad bona corporis, Herodi, tyrannizandi ubi frenum foret regis 

1 ilato et principibus sacerdotum, cum deposicio post delictum." 



CHAP. III.] 



THE AUTHORITY OF THE RULER. 



53 



be no true " dominium " without " caritas " ; and he argues 
that this is illustrated by the fact that the Christian Church 
would not suffer any unbaptised person to rule in the church, 
for he is in mortal sin. 1 We shall come back to this question 
presently. 

We have so far been dealing with the political conceptions 
of Wy cliff e as expressed in the treatise ' De Civili Doniinio,' 
but we must also take account of these as they appear in his 
work, ' De Officio Eegis.' In this work he says clearly that 
political authority was made necessary by sin, and that, in 
his opinion, monarchy was the best form of government. 2 
He also sets out in clear terms that the authority of the ruler 
is founded on the election of the community, and that this 
was the case both in England and in other kingdoms. 3 



1 Id. id., i. 30 (p. 212) : " Et patet 
ex sentencia Aristotelis, tercio Politi- 
corum, Capitulo 28 recitata, quod 
virtus super-excellens in rege est pre- 
cipua causa regnandi civiliter. Ipsa 
enim per se sufficit ad regnandum 
ewangolice, et est sufficiens cum ap- 
probacione populi ad regnandum civi- 
liter : unde sicut titulus acquirendi 
non per se sufficit (ex 21 Capitulo), 
sed oportet praecipue superaddere 
titulum caritatis, sic indubie nee suc- 
cessio hereditaria, nee popularis eleccio 
per se sufficit. 

De successione hereditaria sic pro- 
batur : non est possibile creaturam 
ahquam dominari sine titulo caritatis 
(ex 22 Capitulo) ; nullus post lapsum 
succedit ex traduce sine interrupcione 
caritatis (ut patet, de originali peccato 
incompossibili caritati) ; ergo nemo post 
lapsum sic procedit continuando do- 
minium : oportet ergo inniti alteri 
titulo pro habendo dorninio. Con- 
firmatur : Sit Petrus primogenitus 
regis, cujus ambo parentes sint mortui, 
nondum baptisatus, qui ex lege humana 
ex Christianismo debet jure hereditario 
succedere parentibus in regno ; et 
patet, cum Petrus sit infidelis in mortali 
peccato, caret vero dorninio, eciam 



juxta jura civilia non correcta, et 
habebit post baptismum ; ergo acquiret 
verum titulum ; et cum nullus quern 
non habet sufficiat, nullus est signandus 
nisi titulus partis gracie baptismatis ; 
ergo istum oportet addere ad lineam 
naturalis propagacionis, manentis con- 
tinue cum mortali. Cum ergo ecclesia 
Christiana non sineret de lege civili 
talem regnare intra ecclesiam, patet 
quod omne peccatum mortale actuale 
excludit dominium ; peccatum quidem 
originale est minimum mortalium, 
mitissime puniendum." 

2 Wyclifle, ' De Officio Regis,' xi. 
(pp. 246-248). 

3 Id. id., xi. (p. 249) : "Sed ter- 
cio . . . coneeditur quod continue in hu- 
mano genere viante est unum caput vel 
capitaneus per quem oportet residuum 
regulari, qui est totum genus capitan- 
eorum, quibus deus ad hoc excellenter 
dona sua distribuit. Sed non oportet 
continue esse unam personam simpli- 
cem ante eleccionem vel auctoritatem 
humanam, ad hoc a domino ordinatam. 
In civilitate autem auctorisat ad hoe 
humana eleccio sed non in priore 
regimine euangelico vel divino. . . . 
Sed limitate loquendo de communitate 
politica videtur mihi quod ratio dictat 



54 FOURTEENTH CENTURY. [PABT I. 

So far the position of Wycliffe is normal, but it is different 
with his conception of the extent of the royal authority and 
the relation of the subjects to this. In one set of passages 
he asserts the necessity of obedience to the king, as the 
Vicar of God, whether he is just or unjust. He begins the 
treatise by citing the First Epistle of Peter (ii. 13-17) as 
requiring obedience to kings for the Lord's sake, and St 
Paul's words, " Let every soul be subject to the higher 
powers, for there is no power but of God" (Bom., xiii. 1). 
For the king is the Vicar of God. And he even applies to the 
relation of subjects and kings, St Peter's words : " Servants, 
be in subjection to your masters with all fear, not only to the 
good and gentle but also to the froward " x (1 Peter, ii. 18). 

He draws out his conclusion in very precise terms. The 
authority, even of perverse rulers, is from God. We must 
indeed distinguish between the case where the injury which is 
inflicted affects us only personally, and that where the ruler's 
action is against God. In the first place, we must patiently 
submit, in the second we must resist even to death, but in 
patience and submission. The man who goes beyond this 
and resists by force or fraud, is guilty of a great sin. 2 

He admits, indeed, that it might be argued that such evil 
rulers are not really kings, for they have not " dominium ' ; 
(we shall discuss the meaning which Wycliffe attaches to this 



ut ipsi faciant sibi caput, neclum unum causam Dei. In primo easu post ex- 
genus in religiono politica, sed quod hortationem evangelicam pacientia est 
quilibet populus appropriat sibi sim- optima modicina. Si pure in causa 
plex caput, ut nos Anglice habemus Dei, Christianus debet, post correp- 
unum regom benedictum, cui secundum cionem evangelicam, proposito suo us- 
doctrinam evangelii detectam xxxiii. que ad mortem, si oportet, confidenter 
c. debemus impendere obsequium secu- et obedienter resistere. Et sic utrobique 
lare. Et ita est do rognis aliis, major- innitendum est pacienciae, commit- 
ibus et minoribus, usque ad imporium." tendo humiliter Doo judicium injuriam 

1 Id. id., i. pp. 1-6. vindicandi. Et qui excedit banc 

2 Id. id., i. (p. 8) : " Undo quod per- regulam resistit dampnabiliter potes- 
versorum potestas non sit nisi a Deo tati ot Dei ordinationi, ut faciunt hii 
patet Job. ii. . . . Sed quia contingit qui rebellant procipuo, id est affecione 
prepositum abuti sua potestate ideo commodi temporalis personalis. . . . 
secundum glossam est taliter distingu- (p. 9) : Ex quibus colligitur quod 
endum. Vel illata est injuria quo peccat graviter qui resistit regalio 
ad causam propriam, vel pure quoad principum vi vel dolo." 



CHAP. III.] 



THE AUTHORITY OF THE RULER. 



55 



word presently) , but he brushes this argument aside and says 
that we must honour even perverse kings, for their power has 
been given them by God. 1 He even extends this to tyrants ; 
they are indeed kings only in name, but they have a " potestas 
informis ' to rule, although their " potestas " is not 
" dominium." 2 

It is true that in one place he approaches the conception 
of the nature of the royal authority in a different manner. 
That is, when he discusses the functions or duty of the king. 
Wycliffe's words are indeed very general, but he says that the 
first duty of the king is to provide just laws for the kingdom, 
for Aristotle had said that law was more necessary for a com- 
munity than a king 3 ; and he maintains that the king trans- 
gresses against God and his people if he violates the law ; he 
has indeed the right to dispense with it in some cases, but only 
when this is reasonably required. Aristotle had said that wise 
philosophers maintained that the king should obey the law. 4 



1 Id. id., i. (p. 16): " Et iterum 
videtur quod non remanet in eis 
status dignatatis vel potestas regalis, 
quia non remanet eis dominium et per 
consequens non remanet eis quod sint 
reges ... (p. 17) : Et patet quod 
reges discoli sunt racione honorandi 
. . . secundo quia habent potestatem 
eis collatam a Deo ad proficiendum 
.suae ecclesiae, et sic ad adiuvandum 
Deum potestative, licet potestate sua 
dampnabiliter abutantur." 

2 Id. id., i. (p. 17): " Sed ulterius 
patet ex saepe dictis quod tales non re- 
manerent reges nisi equivoce, licet 
habent potestatem regalem abusivam, 
et sic realiter habent potestatem et 
dignitatem consequentem secundum 
quam regunt, licet demeritorie. Et 
sic tyranni, eciam presciti qui solum 
nominetenus sunt reges vel domini, 
habent potestatem informem ad regen- 
dum et dominandum, sed ilia potestas 
non est dominium." 

3 Id. id., iii. (p. 55) : " Stat autem 
regimen regni in paucarum et justarum 
legum institutione, in illarum sagaci 



et acuta execucione, et generaliter in 
status ac juris cujuscunque legis sui 
defensione. Oportet enim regnum cum 
vivit civiliter non solum rege sed lege 
taliter regulari, in tantum quod Aris- 
totelis videtur dicere quod lex est 
necessarior communitati quam rex." 

4 Id. id. id. (p. 57) : " Rex igitur qui 
debet scire legem suatn et ejus execu- 
tionem esse justam et racionabilem, 
impediendo ipsam facit contra Deum 
et populum proprium qui exinde 
haberet justiciae complementum. 
Quamvis autem rex dispensare potest 
in casu cum execucione legis tamquam 
superior lege sua, tamen nunquam nisi 
quando dispensabilitatis ratio hoc 
requirit. . . . Ideo dicit Aristoteles 
ubi supra quod sapientes pilosophi et 
divinitus loquentes dixerunt quod in- 
primis decet regiam majestatem obtem- 
perare legalibus institutes, non in ficta 
apparencia sed in facti evidencia, ut 
cognoscant omnes ipsum timere Deum 
excelsum et esse subjectum Divinae 
potenciae." 



56 FOURTEENTH CENTURY. [PART I . 

In a later chapter, however, Wycliffe contrasts the concep- 
tion that the king is subject to his own law, with that which 
he attributes to Aristotle, that the king as the maker of law 
is above law. Subjection to law may be understood in two 
ways : as due to the authority of law itself, or as due to a 
higher law. The first is called compulsory subjection, the 
second a voluntary. The king is subject to his law, in virtue 
of the authority of the Divine law, but not in virtue of the 
authority of his own law. The king, therefore, as head of 
the kingdom, serves his own law voluntarily, while the sub- 
jects must be compelled to obey it. 1 

It would seem, then, that there is no contradiction between 
Wycliffe's judgment about the relation of the king to the 
law, and his judgment that the king is the Vicar of God, 
and that his subjects must submit to him whether his actions 
are just or unjust. The king should indeed govern justly 
and according to law, but Wycliffe does not allow any legal 
right in the community as against the king. 

We must now, however, examine the meaning of the term 
" dominium " in these treatises. As we have seen, in the 
' De Civili Dorninio,' i. 30, Wycliffe says that if a man 
lacks " caritas," and is in mortal sin, he cannot have 
" dominium " : and in the ' De Officio Eegis,' i., that wicked 



1 Id. id., v. (p. 93) : " Sed secundo Sed lex contracta per civilitatem con- 

dicitur per hoc quod videtur regern esse liotat supra talom voritatem ordina- 

subjectum legi proprie, cum sit pre- cionem et promulgacionem humanam 

cipua pars regni et inferior sacerdoti, ad civile dominium regulandum, et sic 

regulatus per legem propriam, que est est rex principalis conditor legis suae, 

rege prostancior. Oppositum tamen Oportet secundo not are quomodo dupli- 

videtur ex hoc quod nemo rat ionabiliter citor potest intclligi legi subieccio, 

Htatucret legem ad tollendam ejus scilicet debita ex pura ligacione ejus- 

libortatem. Oportot ergo quod legis dom legis, vel debita ex obligacione 

conditor sit supra logcm, ut (licit Aris- legis superioris. Prima subjeccio dicitur 

tot^les de Rege, 3° Politicorum. Hie coaeta, et secunda voluntaria. Primo 

oportet notare quomodo lex cum sit modo omnis Christianus subicitur legi 

racio vol veritas supra hominum notes- Christ i et socundo modo ipse Christus 

tatem, obligat omnom hominem, eciam humanitus subicitur suae legi. Ex istis 

Christum humanitus, licet secundum patet tercio quod rex subicitur legi 

divinitatem sit supra omnem legem, proprie, imperio legis divinae, sed non 

quae non est Dcus, ut alias exposui. imperio legis proprie." 



CHAP. III.] THE AUTHORITY OF THE RULER. 57 

men are not really kings, for they have not " dominium.' ' 
What does Wycliffe mean by " dominium " ? It must first 
be observed that he sometimes uses it with reference to 
political authority, sometimes to property. 

Wycliffe begins the ' De Civili Dominio ' by laying down the 
general principles that all human "ius" presupposes as its 
cause (presupponit causaliter) the divine "ius," and, therefore, 
all " dominium " which is " justum ad homines " presupposes 
a "dominium" which is "justum quoad deum " ; but the 
man who is in mortal sin has not a " dominium " which is 
"justum quoad deum," and therefore " simpliciter " he has 
not " justum dominium." He confirms this by an appeal to 
the words of St Augustine : " Fideli homini totus mundus 
divitiarum est, infideli autem nee obolus." And he affirms 
again, in the next chapter, that God does not grant his gifts 
to anyone who is in mortal sin. 1 

This sounds as if it were a drastic criticism of property as it 
exists in the world, but we must observe that Wycliffe is 
careful to distinguish various senses of the conception of 
property. It is necessary, he says, to make some distinctions 
about "habicio " (property) and " justicia." There are three 
senses in which the word " habicio " may be used : " natural," 
: ' civil," and " evangelical." In the first sense sinners may 
possess natural goods, although they do this unjustly ; in 
the second sense, "habent potentates seculi bona fortunae, 
aut f ortuita " ; but in the third and most exalted sense, 

1 Id., 'De Civili Dominio,' i. 1 (p. 2) : tiarum est, infideli autem nee obolus; 

" Omne jus humanum presupponit nonne omnes qui sibi videntur gaudere 

causaliter jus divinum. . . . Ergo licite conquesitis, eisque uti nesciunt, 

omne dominium justum ad hominem aliena possidere convincimus 1 " 
presupponit justum dominium quoad Id., i. 2 (p. 8) : " Non est possibile 

Deum. Sed quilibet existensin peccato hominem juste simpliciter habere 

mortali caret, ut sic, justo dominio aliquod bonum sibi adiacens, nisi Deus 

quoad Deum ; ergo et simpliciter, donando id sibi praestiterit (ut patet 

justo dominio ... (p. 5). Quod si tractatu tercio de Dominio Divino) ; 

quaeris sanctorum testimonium, ecce sed Deus non praestat alicui, dum est 

magni Augustini sentencia, Epist. 37. in mortali peccato, aliquod donum 

Ad Macedonium de tyrannis, plane 6uum ; ergo nullus existens in mortali 

docet istam sentenciam : ' Ideo, inquit,' peccato habet protunc juste simpliciter 

si prudenter intueamur quod scriptum aliquod bonum." 
est, Fideli homini totus mundus divi- 



58 FOURTEENTH CENTURY. [PABT I. 

only those who are in " charity " or " grace " possess 
anything. 1 

Wycliffe develops these distinctions and their consequences 
at length, and especially brings out clearly the principle that 
the unjust (or unrighteous) man cannot properly be said to 
possess anything, for he abuses, he does not use, what he has, 
and he cites with approval some words of St Jerome, that the 
avaricious man does not really possess that which he has, 
any more than that which he has not ; and again, that, as 
"grace" is lacking to the unrighteous man, he has not 
"dominium"; and again, "grace" is needed for the true 
use of things, and, therefore, it is required for all true 
" dominium." 2 His whole conclusion is expressed in the 
last words of a later chapter. The unrighteous man has 
not " dominium," although he has " bona naturalia modo 
improprio." 3 

The meaning of Wy cliff e's conception of " dominium " is 
further elucidated when he goes on to maintain that the 
righteous man is lord of the whole " sensible " world, and that 
he should not be disturbed because he has not civil " domi- 
nium " in these things, for this might rather injure than benefit 

1 Id. id., i. 3 (p. 17): "Hie oportet tola ad Paulinum) : ' Avaro,' inquit, 

distinguere de habicione atque justicia. ' deest tam quod habet quam quod non 

Quamvis enim secundum Aristotelem habet.' Et patet in principali argu- 

et auctorem ' Sex principiorum ' multi- mento quod non sequitur quod injustus 

plices sunt modi, tres tamen sufficiunt sit univoce dominus cum iusto, licet 

pro prosenti : scilicet, habicio naturalis, univoce habeat bona naturalia cum 

civilis, acevangelica. . . . Primomodo illo ; set dominium dicit distincte 

habendi, habent peccatores bona natur- perfeccionem secundam fundatam in 

alia, et tamen non justo simpliciter (ut gracia, quae cum deest injusto, et 

patet suporius) sed injuste : secundo verum dominium sibi deest ... p. 25. 

rnodo habendi, secundum utrumquo Sic inquam gracia requiritur ad usum, 

membrum equivocum, habont poten- et per consequens ad omne verum 

tatus soculi bona fortunae aut fortuita. dominium." 

Sed tercio modo habendi, eccellentis- * Id. id., i. 6 (p. 46) : " Sed loquendo 

simo possibili, quoad genus, habent de habitudine que foret dominium, quia 

solum oxistcntes in caritate vel gracia non existit (licet deceptis appareat 

quidquid habent." ipsum esse), concedendum est simpli- 

* Id. id., i. 3 (p. 20) : " Sic injusto citer quod injustus non habet domi- 

deest quidquid babuit, dum non tunc nium, licet babeat bona naturalia, 

utitur eed abutitur quodcunque quia modo improprio, ut est dictum : et 

occupat : hinc vere et philosophice patet conclusio de carencia dominii 

dicit Ieronimus (Capitulo ultimo, Epis- peccatoris." 



CHAP. III.] THE AUTHORITY OF THE RULER. 59 

him. 1 His meaning is perhaps best illustrated by his comment 
on the saying of Christ : There is no man that has left house 
or brothers, &c, for my sake and for the gospel's sake, but 
he shall receive a thousandfold now in this time, &c. This, 
Wycliffe says, must be interpreted spiritually. 2 

It is from this standpoint that we must understand Wycliffe's 
treatment of the community of goods. His meaning is only 
understood when we observe his mode of stating it. Every 
man, he says, ought to be in grace, and if he is in grace, he 
is lord of the world and all that it contains ; therefore every 
man ought to be lord of all (universitatis) ; but this would 
be impossible with a multitude of men, unless they had all in 
common, therefore all things ought to be common. 3 Christ, 
in confirmation of this, rejected (individual) property, 
and had all temporal things in common with his disciples ; 
and after his ascension, all things were common to his 
disciples. 4 

That he does not mean by this that individual property 
was to be rejected in the world as it actually is, is evident from 
his account in another chapter of the origin of ' Dominium 
Civile.' In his judgment ' Dominium Civile ' was instituted 

1 Id. id., i. 7 (p. 47) : " Conse- ex tali commutacione, sequendo Chris- 
quenter ad dicta restat ostendere quod turn cencies tantum de fratibus, etc." 
quilibet Justus dominatur toti mundi 3 Id. id., i. 14 (p. 96) : " Pro cuius 
sensibili . . . nee turbetur Justus quod intellectu sunt tria dicenda per ordi- 
non habet civile dominium in hiis bonis, nem : primo quod omnia bona Dei 
quia revero non proficeret sed noceret." debent esse communia. Probatur sic : 

2 Id. id., i. 7 (p. 51) : "Nee dubium omnis homo debet esse in gracia, et si 
quin ista sit conclusio veritatis, quod est in gracia est dominus mundi cum 
omnis relinquens universitatem tern- suis contentis, ergo omnis homo debet 
poralium, propter Christum in affec- esse dominus universitatis : quod non 
cione debita debite preponendum, habet staret cum multitudine hominum, nisi 
ex adieccione consequent! omnia ilia omues illi deberent habere omnia in 
melius quam esset possibile habere ilia communi ; ergo omnia debent esse 
amore prepostero ; unde Marc, x. 29, communia." 

30 sic testatur : ' Amen dico vobis, * Id. id., i. 14 (p. 96) : " In cujus 

nemo est qui dimisit domum aut confirmacionem Veritas cum suis dis- 

fratres, etc. . . . qui non accipiet cipulis aufugit proprietatem sed habuit 

cencies tantum nunc in tempore hoc temporalia in communi (ut patet pos- 

domos, etc. . . . (p. 52). Unde quod terius), et post ejus ascensionem erant 

spiritualiter debet textus Marci intelligi, eius discipulis omnia communia, ' di- 

patet ex hoc quod nemo ambigit quin videbatur enim singulis pro ut cui- 

non coneequatur virum evangelicum cunque opus erat ' (Acta v. 35)." 



60 FOURTEENTH CENTURY. [PART I. 

by man on account of sin * ; and a little later he says that, 
assuming the fall of the human race, it was necessary to 
establish human laws and ordinances, lest a man should take 
of the goods of fortune whatever he might wish. 2 

It is therefore, we think, clear that when Wycliffe says of 
the man who is in mortal sin, or is not in " grace " or " charity," 
that he has not " dominium," he means that he has neither 
political authority nor property in the full and proper spiritual 
sense, but he does not mean that he cannot have these in the 
ordinary or legal sense. Political authority and private pro- 
perty are institutions which men have been compelled to 
create by the fall, by the corruption and vice of human nature, 
as it actually is. They are therefore to be regarded as con- 
ditions of man's sinfulness. 

It is interesting to observe that at first sight Wycliffe's 
doctrine of " dominium," as belonging only to men in a state 
of grace, seems closely parallel to the principles set out early 
in the fourteenth century by two extreme papalists, Egidius 
Colonna and James of Viterbo. Egidius maintained that no 
one could hold political authority, or private property, who 
was an infidel or outside of the communion of the Church. 
James of Viterbo mitigated Egidius' political doctrine, but 
held that no one could hold private property, " secundum ius 
divinum," who was not subject to the Spiritual Power. 3 
The contention of Egidius was extreme and revolutionary in 
character ; it was intended to support the most extreme 
doctrine of the supremacy of the Spiritual over the Temporal 
Power, even in Temporal things ; while the doctrine of 
Wycliffe had no such revolutionary character. 

It is evident that Wycliffe's treatment of " dominium " 
is in principle closely related to that of Eichard Fitz Ealph, 
the Archbishop of Armagh, in his treatise ' De Pauperie 

1 Id. id., i. 18 (p. 127): " Ideo satis precipue innitondi, necesse fuit leges 
signanter dicitur quod dominium civile vel ordinaciones humanas statuere, 
occasiono peccati humanitus institu- no quilibet lapsus do bonis fortunae 
turn." caperet quantumcunque voluntas in- 

2 Id. id., i. 18 (p. 128): " Unde, debite inclinaret." 
supposito lapsu bumani generis et * Cf. vol. v. pp. 402-417. 
cecitate proclivi bonis sensibilibus 



CHAP. III.] THE AUTHORITY OF THE RULER. 61 

Salvatoris.' This treatise was probably written between 
1350 and 1356, and arose out of the woik of a commission 
appointed by Pope Clement VI. to inquire into the disputes 
as to the nature of the poverty of our Lord. 1 The Archbishop, 
finding the discussion protracted and inconclusive, prepared 
a treatise on the whole subject, which includes a detailed 
discussion of the meaning of " dominium." He lays down the 
general principle that no one can be said to have " istud 
dominium " unless he is purged from sin and has received 
grace 2 ; but this does not mean that the sinner has lost his 
natural " titulus " to the use of things 3 ; and in later passages 
Eichard says that the right to the use of things needed to be 
safeguarded by " positive " law, and defines the " dominium 
positivum " as the right of a man to possess and to use rationally 
those things which are subjected to him by "positive" law. 4 
This seems to be substantiaUy the same position as that of 
Wycliffe. It appears to us that their conceptions of " domi- 
nium " added little or nothing to the mediaeval theory of 
political authority and of private property, that is that neither 
of these belonged to the state of innocence, but that they were 
the results of the fall, and remedies for it. 

1 Cf . Wycliffe : ' De Dominio rerum remanet in peccante, quamvis 
Divino.' Ed. R. L. Poolo. Preface, p. dominium per amissionem sui formalis 
xxxv. principii amittatur." 

2 Richard of Armagh : ' De Pau- * Id. id., ii. 25 (p. 369) : " Unde 
perie Salvatoris,' ii. 8 (p. 348). (Ed. primogenitus Adam, Cayn ex hac 
R. L. Poole, as above.) " Unde nullus cupiditate invidia stimulatus justum 
de stirpe ipsius primi parentis seminalis Abel fratrem suum occidit : propter 
filius, donee a peccato mundetur et quern et alios similes tunc futuros lex 
gratiam gratificantem reciperet, istud positiva necessaria extitit. . . . Ut alii 
dominium potest recipere seu habere." viam vite sequentes bonis propter eos 

3 Id. id., ii. 21 (p. 363) : " Verum est creatis liberius uti possent." Id. id., 
tamen quod, perdito isto originali iv. 3 (p. 440) : " Johannes : Jam peto 
dominio per peccatum. . . . Nihilo- ut ilia michi dominia positiva que in 
minus tamen materialis causa dominii primi libri principio nominasti in genere 
ipsius remanet in peccante, quoniam michi describas. Ricardus : Omnium 
quantumcunque homo delinquat semper dominorum adventiciorum generalis 
in ymagine pertransit (intelligo, crea- descripcio patet esse rationalis creature 
toris) : ymago vero cum indigencia mortalis jus sive radicalis auctoritas 
corporali (ut superius est expressum) acquisita civiliter possidendi res ill! lege 
est causa quasi materialis istius origi- possitiva subjectas et eis plene utendi, 
nalis dominii : et ob hoc quidam conformiter racioni." 

titulus naturalis licet deformis ad usum 



62 FOURTEENTH CENTURY. [PART I 

We have felt ourselves compelled to give a considerable 
space to the discussion of Wycliffe's political conceptions, 
because there has been much controversy about his real 
meaning. 

As we have just said, it seems to us that his conception of 
" dominium " had little real significance, at least in political 
theory, and there is nothing new in his conception of the source 
of political authority. He evidently accepted the normal 
principle of the Middle Ages, that political authority was 
derived ultimately from God, but immediately from the 
community. When, however, we turn to his conception of the 
nature of this authority we find that Wycliffe reasserted that 
conception of the duty of absolute obedience to the prince, 
and of the wickedness of resistance, which, as we have often 
pointed out, was dogmaticaUy stated by Gregory the Great, 
but had practically disappeared in the Middle Ages, being 
asserted only by a few writers like Gregory of Catino in the 
eleventh century. 1 Wycliffe in the ' De Officio Eegis ' states 
this dogmatically and without qualification. 2 He held, no 
doubt, that the prince ought to obey the law, but, like many 
of the Civilians, when they interpreted the " Digna Vox " of 
' Cod.' i. 14, 4, he thought that the obedience of the prince 
should be voluntary and was not compulsory. 

We shall have much to say in later chapters of this volume 
about the development of the conception of the " Divine 
Eight " ; in the meantime it is obviously important to observe it 
in Wycliffe. 

It is evident that the writers with whom we have dealt in 
this chapter approach the question of the nature of the 
authority of the ruler or prince from different points of view, 
and that they differ to a considerable extent in their judgment 
upon particular questions. If, however, we omit Wycliffe, 
whose work indeed cannot well be brought into line with that 
of the others, they seem clearly to agree with each other, and 

1 Cf. vol. i. p. 192; vol. iii. part i. 2 Cf. pp. 53-56. 

chup. 4. 



CHAP. III.J THE AUTHORITY OF THE RULER. 63 

with the normal character of mediaeval political thought, in 
holding that the authority of the prince was derived from the 
community, that it was limited by the law, and that, in the last 
resort, the community could resume the authority which it 
had given, and depose the prince who was incompetent or who 
wilfully and persistently disregarded the law. 



64 



CHAPTER IV. 

THE NATURE OF THE AUTHORITY OF THE RULER : 
CONSTITUTIONAL PRACTICE. 

We must turn to the question of the actual nature of the 
constitutional practice of Western Europe in the fourteenth 
century, and we shall do well to begin by reminding ourselves 
of the great importance of the feudal background of the 
development of the political constitutions in Western Europe, 
and especially of the great importance of the principle that 
the authority of the feudal lord was not only limited by law, 
but that, in cases of dispute between lord and vassal, the 
declaration of the law belonged not to the lord but to the 
court of the vassals. 1 

We may take one or two important examples of the con- 
tinuance of this principle in the history of France in the 
fourteenth century. The first is the case of Count Robert of 
Flanders in the year 1315. Proceedings were taken against 
him before the king's court in Paris, " afford " by the great 
nobles and bishops, and the judgment is represented as being 
that of the peers, "et de la cour garnie." 2 The other is 
the case of the Duke of Brittany in 1378. Proceedings were 
taken before the king and his " Parlement " in Paris, to which 
the peers of France were summoned, and as it is said, the 
peers protested that the judgment belonged not to the king 
but to themselves. 3 

We shall, however, recognise more fully the importance 
of the limitations of the prince's authority by the law, when 

1 Cf. vol. iii. part i. chap. iv. iii., No. 491 (pp. 98-102). 

1 ' Recuoil doa Auciennos Lois,' vol. s Id., vol. v. p. 493. 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 65 

we consider the frequent references to the principle that no 
proceedings can be taken against the person or property of 
the subject except by process of law. There is a significant 
statement of this in France in an ordinance of Louis X. of 
the year 1315. The king's " Baillis," " Prevoz," and other 
" Justiciers " are forbidden to seize or imprison any person 
or his goods until he has been condemned, and if he demands 
" droit " he is to receive this by the men of the " Chastellenie " 
in which he lives, according to the usages and customs of the 
country. 1 There is an example of this same principle in the 
" confirmatio privilegiorum " of Dauphine issued by Charles V. 
in 1367 ; no " inquisitio " is to be made against any of the 
inhabitants of Dauphine except in the case of notorious and 
grave crimes, unless there is a legal accuser, but even 
these grave crimes must be understood and declared in 
accordance with the laws. 2 

We find the same principle continually maintained by the 
Cortes, and recognised by the king in Castile. In the Cortes 
of Valladolid of 1325 the Cortes demanded that no "carta 
blanca " should be issued, and the king replied that he 
would not issue them, but adds that, if it should be 
necessary to do so, in order to seize some evildoers, the 
persons thus seized shall not be killed or injured, nor shall 
their property be taken until they have been heard and judged 
according to " fuero " and law. 3 In the Cortes of Valladolid 

1 Id., vol. iii. 484, 2 (p. 68) : legitimus accusator vel denuntiator ; 
" Nous voullons et octroions que noz et eo casu reddi debeant articuli in- 
bailliz, prevoz, et autres justiciers, de quisitionis predicto accusato, antequam 
leur volonte, ne de leur office, ne puis- respondere quomodolibet compellatur ; 
sent aucun approchier, sans aucun fait, exceptis tamen gravioribus criminibus, 
de tenir, ne emprisonner, ne faire in quibus possit quandocunque, contra 
execution en ses biens, devant que il quemcunque inquiri ex officio curiae 
eoit condampnez, mes que se il requiert Delphinalis ; quae quidem, graviora, 
droit, que tantost lui soit faiz, par les voluit ipse Dominus Delphinus, in- 
hommes de la Chastellenie, oil il serait telligi secundum leges et etiam de- 
couchant et levant, selon les us et clarari." 

coustumes du pays." 3 ' Cortes of Castile and Leon , ' i. 

2 Id., vol. v. 411, 16 (p. 287): 45, 3: " Pero ssi per auentura acaes- 
" Quod nulla inquisitio contra ipsos ciere que non pueda escusar de dar 
subditos Delphinatus aut aliarum ter- carta o aluala para prender algun 
rarum suarum, fieri debeat, neque fiat malffechor o malffechores, que aquel 
in non notoriis criminibus, nisi appareat o aquellos quae ffueren presos per 

VOL. VI. E 



66 FOURTEENTH CENTURY. [PAUT I. 

of 1351 the Cortes demanded that no man should be killed 
or taken prisoner without an inquiry, according to "fuero " 
and law ; and the king, Pedro I., assented and promised to 
instruct his officers that they were not to kill or injure anyone 
without " razon " and law. 1 This promise was emphatically 
renewed by Henry II. at the Cortes of Toro in 1371. The 
"merynos majores" and others are not to kill or imprison 
except by the judgment of the alcaldes, as was ordered by 
King Alfonso in the Cortes of Madrid, 2 and in another clause 
a similar provision was demanded by the Cortes and granted 
by the king, with regard to a man's property. 3 A similar 
condition was imposed by the Cortes of Madrid in 1391 upon 
the Eegency appointed for the minority of Henry III. 4 

It is hardly necessary to argue that the same principle was 
continually maintained in England. Bishop Stubbs has dealt 
with the matter carefully in his Constitutional History of 
England, and we only cite one or two of the passages in the 
Eolls of Parliament to which he refers, in order to illustrate 
the mode in which the subject was treated. 5 

tal carta o por tal aluala, que non est a ordonado por el Rey Don Alfonso 

ssean muertos nin lisiardos nin nuestro Padre, en las Cortes que fizo 

despechados, nin tornado ninguna en Madrit." 

cosa del suyo, fasta que sean ante 3 Id., ii. 14,26: " Alo que nos ped- 

oydos e librados por ffuero e por ieron por merced que non mandassemos 

derecho." prender nin matar nin lisiar nin des- 

1 Id., ii. 1, 21: "Nin maten, nin pechar nin tomar a ninguno, ninguna 

mandon pronder los omes non aviendo cosa delo suyo, sin ser ante llamados 

y pesquissa que sea ffecha con fuero e e oydos e vencidos por fuero e por 

con derecho contra ellos, o quorella, derecho, por querella nin por querellas 

o accusation cierta por que deuan ser que nos fuessen dadas segunt que esto 

prosos." (The king replies) : " Tengo estaua ordenado por el re Don Alfonso 

por bien e mando alos mis adelantados nuestro Padre, que Dios perdona, en 

e meryn.os, e alcalles e alos otros las cortes que fizo en Valladolid dospues 

officiales que non prendcn nin lisien, que fue de hedat." 

nin torrnonten, nin maten a ninguno A esto rospondemos que es grande 

esin razon e ssin derecho." nuostro eervicio et que nos plaze. 

* Id., ii. 13, 19 : " Otrosi quelos mery- * Id., ii. 39, 9 : " Otrossy non daran 

nos mayores et los merynos que por cartas para matar nin lisiar nin des- 

si posieren en el caso dicho es de ssuso terrar a ningund ome, mas que sea 

que non maten, nin ssuelten, nin judgado por bus alcalles." 

prendan los omes nin los cohechen nin ' ' Rolls of Parliament,' ii. 228, 

los manden prondar nin tomar nin 239, 270, 280 ; Statutes, i. 382. Stubbs, 

coherchan, sinon por juizio delos 'Constitutional History of England,' 

alcalles, seegunt dicho que todo esto ed. 1877. vol. ii. p. 007. 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 67 

The truth is that there was nothing new in this. We have 
pointed out in previous volumes that the principle that the 
authority of the king was limited by the law with respect to 
the property and person of his subjects was part of the normal 
conception of the Middle Ages, 1 and the constitutional prac- 
tice of the fourteenth century corresponds with this. That 
does not, of course, mean that the legal principles were not 
frequently violated by the rulers ; on the contrary, it was 
often their violation or neglect which was the occasion of 
their affirmation. 

The question of the limitation of the royal authority with 
regard to private property leads us to another and equally 
important aspect of the constitutional practice of the four- 
teenth century, and that is to the question of taxation. This 
subject is, however, so closely related to the development of 
representative institutions that we have thought it better to 
postpone our discussion of it to a later chapter (VI.), where 
we deal with it in detail. Here we need only say that it 
seems to us clear that the limitation of the authority of the 
king with regard to taxation was an essential part of the 
constitutional tradition and practice both of France and of 
Castile in the fourteenth century. 

We find some examples of the continuance of what we 
have called the contractual conception of the relation 
of the ruler and his subjects in the fourteenth century. 
We have dealt with this in earlier volumes, and have 
pointed out that this was really implied in the whole feudal 
structure of society. 2 The first of these is to be found 
in the detailed statement of the conditions under which the 
inhabitants of Dauphine were to accept the Dauphin on his 
accession. Charles V. of France in 1367 issued a charter 
confirming the privileges and liberties of the people of 
Dauphine, in terms which are significant and important. 
When the new Dauphin or his successor comes to assume 
the rule of Dauphin^, before he can compel any individual or 

1 Cf. especially vol. iii. part i. 2 Cf. vol. iii. part i. chaps. 2 and 4 ; 

chap. 4 ; vol. v. part i. chap. 7. part ii. chap. 6. 



68 



FOURTEENTH CENTURY. 



[PART I. 



" communitas " to do him homage or " recognition " he must 
swear that he will maintain inviolably all the franchises, 
liberties, and privileges which are mentioned in this docu- 
ment. The barons, nobles, and " communitates " of Dauphin^ 
are not bound to obey either him or any of his officials 
until he has taken the oath in a public form and manner. 1 
As though this were not sufficiently drastic, the next clause 
adds that all the "baillis," the judges, the procurators and 
" castellani " of Dauphine" must in like manner swear that 
they will maintain and observe all these liberties, &c, and 
if any of them refuse to do this no man need obey them. 
If any of them should violate these oaths, he is to be punished 
as a perjurer, and in addition must repay any expenses which 
the nobles, or communities, or individual persons have incurred 
in the measures they have taken against him. 2 



* Recueil, vol. v., No. 411, 52 
(p. 291) : " Quandocunque . . . novus 
Delphinus vel successor ejus, veniet 
ad successionem vel regimen Delphin- 
atus, antequam ad homagia seu re- 
cognitiones feudorum recipienda seu 
recipiendas quovismodo procedat, et 
antequam alitor compellere possit ali- 
quem singularem personam vel Uni- 
versitatem ad praostandum et facien- 
dum sibi homagia, fidelitates seu re- 
cognitions, juraro debet primitus. 
. . . Servare, custodire, et attendere 
inviolabiliter praemissas omnes et 
singulas declarationes, franchesias, 
libertates, ac gratias et privilegia 
supra scripta, in omnibus et singulis 
clausulis et capitalis oorundem : et si 
ita esset, quod in principio regiminis 
ut predicitur . . . praedictum sacra 
mentum facere recusaret, eo casu 
barones, nobiles ot universitates qui 
cunquo Delphinatus et cujuslibot ejus 
partis, et aliarum terrarum suarum, 
eidem novo Domino successori vel 
officialibus suis, obodiro minime 
teneantur, impuno, donee predictum 
sacramentum praostiterit ot fecerit 
publico et per publicum instrument um." 

» Id. id. id., 63 (p. 291): "Con- 



cessit, decrevit, et declaravit supra 
dictus dominus Delphinus, quod omnes 
et singuli ballivi, judiees, procuratores 
et castellani Delphinatus . . . tene- 
antur et debeant, ac efficaciter sint 
astricti jurare ad sancta dei Evangelia, 
praemissas libertates, franchesias, im- 
rnunitates et declarationes omnes et 
singulas . . . tenaciter custodire et 
inviolabiter observare : et si, modo 
debito requisiti, quilibet eorum dictum 
sacramentum facere et praestare pub- 
lice recusarent, impune non pareatur 
cuilibet recusant i : et si, quod absit, 
aliquis ex dictis officialibus predictis, 
libertates privilegia, concessiones vel 
declarationes in toto vel in parte 
quomodolibet violaret aut infringeret 
quoquomodo, ubi convictus erit dictus 
offifialis do violatione predicta, toneatur 
et dobeat expensas factas per barones- 
banneretes, vavassores, nobiles, uni 
versitates, seu singulares porsonas 
persequontes dictum officialem de 
dicta violatione resarcire et solvere 
et ad hoc, per suum superiorem 
viriliter compellatur ; et nihilominus 
idem officialis violator dictarum liberta 
dim, de poriurio puniatur." 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 69 

An almost precisely similar conception of the mutual 
obligations of ruler and subject is to be found in the Charter 
in which Charles VI. in 1381 confirmed the privileges which 
had been granted to the people of Briangon by the Dauphin 
Humbert II., and among other things it is provided that the 
Dauphin on his first visit to Briancon after his succession was 
to swear to observe all these privileges, and that the men 
of the " communities " were not under any obligation to do 
homage to him until he had done this. The officials of the 
Dauphin were to take the same oath, and until they had 
done this the people were not bound to obey them. 1 

The terms of these documents illustrate very clearly the 
contractual conception of the relations of prince and sub- 
jects, and it should be observed that this applies not merely 
to the relations between the prince and his nobles, but also 
to those between him and the communities or " Universitates." 

We find a similar principle expressed in the proceedings of 
the Castilian Cortes, not indeed with reference to the king 
himself, but with regard to the regents or council of regency 
who were appointed to administer the kingdom during the 
minority of the king. At the Cortes of Burgos in 1315 the 
" Tutores " (guardians or regents) confirm the " fueros " and 
liberties granted by former kings, and declare that if they 
violate these they will cease to be " Tutores " and will forfeit 
all claim to obedience, and that the Cortes may appoint other 
" Tutores." 2 At the Cortes of Valladolid in 1322 we find 

1 ' Ordonnances,' vol. viii. p. 719, Et ssi todos tres (the three guardians 
16: " Et quod non teneantur homines of the king) non uos lo guardassemos 
ipsarum universitatum ipsis nobis como dicho es, que iamos non sseamos 
dominis futuris homagia praestare, tutores del re, nin nos coiades en las 
donee ipsi domini quilibet, videlicet, villas, nin nos rrecudades con las 
in adventu suo, haec omnia juraverint rrentas del re, nin nos obedezcades 
et ratificaverint observanciam prae como a tutores, et que podades tomar 
dictorum." otro tutor qual quisieredes, que enten- 

2 ' Cortes,' vol. i., 39, 55 : " Otrossi dieredes que conplira mas para este 
nos otorgamos todos vuestros ffueros ffecho, et que seades quitos del pleito e 
e ffranquezas e libertades e buenos de la postura e del omenaie et dela 
usos e costumbres e privilleios e cartas jura que nos ffiziestes, ssalvo ssi nos 
que avedes del imperador e del buen los tutores o qual quier de nos a quien 
rey Don Alffonso . . . estas cossas ffueren aSrontadas o 

mostradas, commo dicho es, mostra- 



70 FOURTEENTH CENTURY. [PART I. 

the guardian of that time declaring that if any Alcalde or 
Alcaldes " que andodieren en la casa del Eey o en la mia 
casa " (that is, presumably, of the household of the king or 
the guardian) should incur any penalty, they were not to 
escape, even though they pleaded that they had acted under 
the orders of the guardian, and even though the guardian 
himself confirmed this. 1 He also adds a clause similar to that 
of the Cortes of Burgos, that he confirms all their liberties, 
&c, that all " Cartas " contrary to these are to be neglected, 
and that if he does not carry out this promise they are not to 
obey him and can elect another guardian. 2 

These examples of a contractual conception of the nature 
of political authority are in themselves no doubt of small 
importance, but when we put them alongside of the more 
general principle of the limitation of the authority of the ruler, 
they are not wholly insignificant. 

We must, however, now go on to observe a more drastic 
conception still with regard to the limitation of royal authority 
as represented in the theory and actual practice of the four- 
teenth century, and that is the conception that as the authority 
of the king was derived from the community, so also in the 
last resort the community could deprive him of that authority 
and depose him. 

In Volume V. of this work we have pointed out that mediaeval 
society not only assumed the limitation of the rights of the 
king, but also developed various methods of enforcing these 
limitations. The right to resist illegal action on his part, the 
determination of questions between the vassal and the king 
as feudal lord by the Court of the Vassals, the right to with- 
draw allegiance from a king who refuses to accept the judg- 
ment of the court, such were some of the practical forms which 
were recognised in the Middle Ages for this purpose. But 

remu8 escusa dorecha porque non en Casa del Rey, o en la mia, que non 

pudiemos ffazer daquellos que el ssean escusados della pona, si enella 

dorecho pone, que el que la mostrare cayeren, maguer diga que gelo yo 

por ssi quel vala." mande, et maguer yo digo que yo gelo 

» ' Cortes,' vol. i., 43, 12 : " Et mande." 

quel alcalle o los alcalles quo andodieren : 'Cortes,' vol. i., 43, 104. 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 71 

the resources of the mediaeval community were not conceived 
of as limited to these methods ; even such careful and moderate 
political thinkers as S. Thomas Aquinas were clear that in 
the last resort the ruler who persisted in unjust and illegal 
actions could rightfully be deposed, and the principle found 
a practical illustration in the last years of the thirteenth 
century in the deposition of the Emperor Adolf — a deposition 
which, as it was contended, was effected by due process of 
law. 1 

It is, then, with the recollection both of the theory and the 
historical circumstances of the thirteenth century, and of the 
principles represented in the political and legal literature of 
the fourteenth century, that we must approach the con- 
sideration of the deposition of Eichard II. of England. It 
is no doubt true that his deposition was the work in the main 
of a baronial faction, and that their motives had probably 
little, if anything, to do with the merits of the constitutional 
principles alleged. But this does not destroy the importance 
of the terms and forms of his deposition as expressing what 
was alleged to be the constitutional tradition of the English 
community as represented in Parliament. 

It was represented to Parliament that Eichard had resigned 
the Crown, and the first proceeding of Parliament was to 
accept the resignation ; 2 but not satisfied with this, it was 
agreed that a statement of the principal charges against 
Eichard should be read to the people. This begins with a 
statement of the terms of the oath which, as they said, Eichard 
had taken at his coronation. By this he promised to main- 
tain justice and the just laws and customs which the " vulgus ' : 
should have chosen. 3 (The word " vulgus " should be com- 

1 Cf . vol. v. part i. chaps. 7, 8. 3 ' Rolls of Parliament,' vol. iii. 

2 'Rolls of Parliament,' vol. iii. (p. 417), 17 : " Facies fieri in omnibus 
(p. 417), 13, 14. Cf . for an excellent judiciis tuis equam et rectam justiciam 
criticism of the circumstances of the et discretionem in misericordia et 
alleged resignation ' The Deposition of veritate, secundum vires tuas . . . 
Richard II.,' by Miss M. V. Clarke of concedis justas leges et consuetudines 
Somerville College, and V. H. Galbraith esse tenendas et promittis per te eas 
of Balliol College, Oxford ; reprinted esse protegendas, et ad honorem Dei 
from ' The Bulletin of the Rylands corroborandas quas vulgus eligeret, 
Library,' vol. 14, No. 1, Jan. 1930. secundum vires tuas." 



72 FOURTEENTH CENTURY. [PART I. 

pared with the terms of the coronation oath of Edward II. 
and III., which we have already cited, "les leys et les cus- 
tumes droituriers les quels la communaute de votre Reiaume 
aura esleu "). 

We need not enumerate all the charges ; it is, for our pur- 
pose, specially important to notice some of them, and these 
may be divided into two groups. The first group is concerned 
with the relation of the king to the law, and the administration 
of justice. It was alleged that the king, desiring not to 
maintain the just laws and customs of the kingdom, but to 
act according to his own will, frequently, when the laws of 
the kingdom had been set forth and declared to him by the 
Justices and others of his Council, said in express terms, and 
with a severe countenance, that the laws were in his mouth 
and in his heart, and that he could, by himself and alone, 
alter and make the laws of his kingdom. It was further 
alleged that the king, led astray by this opinion, had refused 
to allow justice to be done to many of his subjects, and by 
threats and terror had forced them to withdraw from the 
pursuit of justice. 1 

He was charged with having frequently declared, in the 
presence of various lords and others, that the life and property 
of his subjects were his and at his disposal " absque aliqua 
forisfactura " ; this was wholly contrary to the laws and cus- 
toms of the kingdom. 2 It was alleged that, in spite of the 

1 Id. id. (p. 419), 33: " I torn, idem ciam fieri non permisit ; sed per 

rex nolens justas leges et consuetudines minas et terrores quam plures a pro- 

regni sui servare sou protegero, sed secutione communis justiciae cessare 

secundum sue arbitrium voluntatis coegit." 

facere quicquid desideriis ejus occur- 2 Id. id. (p. 420), 43 : " Item licet 

rerit, quandoquo et frequentius, quando terrae et tenementa, bona et catalla 

si bi expositae et doelaratae f uerant legos cujuscunque liberi hominis, per leges 

rogni sui per justiciaries et alios de regni ab omnibus retroactis temporibus 

concilio suo, ut secundum leges illas usitatas, capi non debeant nisi fueriut 

petentibus justiciam exhiberot. Dixit forisfacta : nihilominus dictus rex 

expresse, vultu austero et protervo, proponens et satagens leges hujus 

quod leges suo erant in ore suo, et modi enervare, in praesentia quam 

aliquotiens in pectoro suo ; et quod plurium dominorum et aliorum de 

ipse 6olus posset mutare et condere communitate regni, frequenter dixit 

leges regni sui. Et opinione ilia seduc- et aflinnavit, 'quod vita cujuscunque 

tus, quam pluribus de ligeis suis justi- ligei sui, ac ipsius terrae, tonementa. 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 73 

provisions of Magna Carta, 39, which declared that the king 
could not seize or imprison any free man except " per legale 
iudicium parium suorum vel per legem terrae," many men had 
been seized and brought before the marshal or constable in 
a military court, on the ground that they had said something 
"ad vituperiun scandalum seu dedecus " of the king's person ; 
and that they could only defend themselves by trial of battle. 1 
It was alleged that he caused a number of the judges to come 
to him at Shrewsbury, and had compelled them by various 
threats to answer certain questions concerning the law of the 
country against their will, and otherwise than they would 
have done if they had been free and uncoerced. 2 

The second group of charges was concerned with the Parlia- 
ment and the king's relations to it. The first of these was the 
allegation that at the last Parliament the king, with the 
intention of oppressing his people, had by subtle means 
procured an arrangement that, with the consent of estates, 
the power of Parliament should be given to certain persons 
to deal with some petitions which had not been dealt with ; 
and that, under colour of this, these persons had, by the will 
of the king, dealt with other general matters concerning that 
Parliament. This was, it was alleged, a grave prejudice to 
the position of Parliament and the good of the kingdom, and 
a dangerous precedent. The king had also, in order to give 
colour and authority to these doings, caused various changes 

bona et catalla sunt sua ad volun- ducti coram Constabulario et Mares- 

tatem suam, absque aliqua forisfac- caleo in Curia militari." 
tura. Quod est omnino contra leges et 2 Id. id. (p. 418), 19 : " Item, idem 

consuetudines regni sui supradicti.' " rex nuper apud Salopiam coram se 

1 Id. id. id., 44: "Item quum et aliis sibi faventibus venire fecit 

statutum fuerit et ordinatum, ac quamplures et majorem partem justi- 

etiam confirmatum, ' Quod nullus ciarorum cameraliter, et eos per minas 

liber homo capiatur etc., nee quod et terrores varias ac etiam metus qui 

aliquo modo destruatur, nee quod rex possent cadere in constantes, induxit, 

super eum ibit, nee super eum mittet, fecit et compulit, singillatim ad res- 

nisi per legale judicium parium pondendum certis questionibus pro 

suorum vel per legem terrae ' ; tamen parte ipsius regis factis ibidem, tangen- 

de voluntate, mandato, et ordinatione tibus leges regni sui, praeter et contra 

dicti regis, quamplures ligium suorum voluntatem eorum, et alitor quam 

. . . fuerant capti et imprisonati, et respondissent si fuissent in libertate 

sua et non coacti." 



74 



FOURTEENTH CENTURY. 



[PAKT I. 



and omissions to be made in the Eolls of Parliament. 1 It 
was also alleged that while certain statutes had been made 
in Parliament which were binding unless they were revoked 
by the authority of another Parliament, the king had 
procured the presentation and acceptance of a petition to 
Parliament from the " Communitates Eegni," that the king 
should be as free as any of his ancestors. 2 Finally, it 
was alleged that kings had interfered with the freedom 
of election and had directed the sheriffs to secure the 
return of persons nominated by himself. 3 It was on the 
ground of these and other charges against Eichard, which 
were accepted by Parliament as notoriously true and as 
being sufficient to justify his deposition, that they decided to 
proceed to this, and appointed a Commission to carry it out. 4 



1 Id. id. (p. 418), 25 : " Item in 
Parliamento ultimo celebrato apud 
Salopiam, idem rex proponens oppri- 
mere populum suum, procuravit sub- 
tiliter et fecit concedi, quod potestas 
parliamenti de consensu omnium 
Statuum regni sui remaneret apud 
quasdam certas personas, ad termin- 
andum, dissoluto parliamento, certas 
petitiones in eodem parliamento por- 
rectas, protunc minime expeditas. 
Cnjus concessionis colore personae sic 
deputatae procosserint ad alia general- 
iter parliainontum illud tangent ia ; 
et hoc de voluntate regis ; in deroga- 
tionem status parliamenti, et in 
magnum incommodum totius regni, 
et perniciosum exemplum. Et ut 
super factis eorum hujusmodi aliquom 
colorem et auctoritatem viderontur 
habere, rex fecit Rotulos Parliamenti 
pro voto suo mutari et deleri, contra 
offectum concessionis predicte." 

2 Id. id. (p. 419), 34: "Item, quod 
postquam in parliamonto suo certa 
statuta erant odita, quae semper 
ligareut donee auctoritato alicujus 
alterius parliamenti fuorint specialiter 
revocata, idem Rex procuravit sub- 
tiliter talem petitionem in parliamento 
suo pro parte communitatis regni sui 



porrigi, et sibi concedi in genere, 
quod posset esse adeo liber sicut aliquis 
progenitorum suorum extitit ante 
eum." 

3 Id. id. (p. 420), 36 : " Item licet de 
statuto et consuetudinibus regni sui in 
convocatione cujuslibet Parliamenti, 
populus suus in singulis comitatibus 
regni deberet esse liber ad eligendum 
et deputandum milites pro hujusmodi 
comitatibus ad interessendum Parlia- 
mento et ad exponendum eorum grava- 
mina et ad prosequendum pro remediis 
superinde prout eis videbitur expodire ; 
tamen praefatus Rex, . . . direxit 
mandata sua frequentius Vicecomi- 
tibus sviis, ut certas personas per 
ipsum Regem nominatas ut Milites 
comitatum venire faciant ad Parlia- 
ment a sua." 

* Id. id. (p. 422), 61 : " Et quoniam 
videbatur omnibus Statibus illis super- 
inde singillatim ac etiam communiter 
interrogans quod illae cause criminum 
et dofectuum erant satis sufficientes 
et notoriae ad deponendum eundern 
regem, attonta etiam sua confessiono 
super ipsius insufficientia et aliis in 
dicta ronuntiatione et cessione contentis 
patenter emissa, omnes Status pre- 
dicti unanimiter concesserunt ut ex 



CHAP. IV.] THE RULER : CONSTITUTIONAL PRACTICE. 75 

The Commission, sitting as a Tribunal, after reciting his 
offences and his recognition of his incompetence for the rule 
and government of the kingdom, formally deposed him. 1 

It will, we hope, be clearly understood that we are not 
here discussing the truth of these charges : we are here only 
concerned with the constitutional conceptions and the prin- 
ciples of political authority which are implied in these, and in 
the formal act of deposition. When we consider them from 
this standpoint, it is obvious that they have a very great 
significance. In the first place, the charges against Eichard 
bring out very clearly the repudiation of the conception that 
the king was, by himself, the source of the law, and that he 
was above it. The law is conceived of clearly as something 
which draws its authority from the community, and not from 
the king alone ; he is not above it, but under it. The rights 
of his subjects are protected by the law, and the king could 
not be permitted to violate them. In the second place, they 
illustrate very clearly the development in England of the 
importance of the organised representation of the country in 
Parliament and of the relation of this to the royal authority. 

The circumstances of the deposition of Eichard II. are 
indeed for us important, primarily as illustrating in a highly 
dramatic fashion the principle of the fourteenth century, as 
well as of the Middle Ages, that the authority of the ruler 
was a limited and conditional authority, limited by the law. 
and conditional upon conformity to the law. 

habundanti ad depositionem domini Commissarii ad infra scripta specialiter 

regis procederetur, pro majore eecuri- deputati, pro tribunali sedentes. . . . 

tate et tranquillitate populi ac regni ipsum Rieardum . . . merito deponen- 

commodo faeiendam." dum pronunciamus, decernimus et 

1 Id. id., 52 : " Nos Joannes Episco- declaramus et ipsum simili cautela 

pus Assavensis . . . pro pares et proceres deponimus per nostram diffinitivam 

regni Angliae spirituales et temporales, sententiam in hiis scriptis omnibus 

et ejusdem regni communitates, omnes et singulis." 
status ejusdem regni representantes , 



76 



CHAPTER V. 

THE THEORY OF THE CIVILIANS WITH REGARD TO 
THE NATURE OF THE AUTHORITY OF THE RULER. 

We have, in a previous chapter, considered the opinion of 
the civilians on the subject of the source of law, how far they 
conceived of the legislative authority as having been trans- 
ferred to the prince in such a sense that the people now 
possessed no legislative authority, how far they conceived of 
this as still belonging at least to their custom. As we have 
said, they seem to us a little uncertain about the whole matter, 
but this uncertainty seems to us to be intelligible enough 
when we remember that they were endeavouring to apply 
the text of the Eoman law itself to the very different con- 
ditions of the fourteenth century. If they have doubts as 
to the legislative authority of the people of the empire they 
have no doubts as to the legislative authority of the com- 
munity in the cities of Italy, and with respect to constitutional 
conditions they are much more concerned with those of the 
Italian city than with those of the empire or the Northern 
National States. We must now consider their theory of the 
nature of the authority of the ruler or prince as distinct 
from the question of his legislative power. 

We may conveniently begin by observing some aspects of 
the theory of government in the treatise of Bartolus entitled 
' De Eegimine Civitatis.' He begins by enumerating the 
various forms of good and bad government as given by Aris- 
totle, and then asks which is the best of the good governments. 
This, he says, had been treated by Aristotle, but more clearly 
by Egidius Eomanus in his treatise ' De Eegimine Principum,' 



CHAP. V.] CIVILIANS AND THE AUTHORITY OF THE RULER. 77 

and he gives his opinion that the best form of government 
was the monarchy — that is, the government by one man. 
He points out, however, the distinction between the king who 
governs according to the laws and the king who makes the 
law as he will ; the first does not hold the " regalia " which 
belong to the State which he rules, or to some superior ; the 
"regimen regis " is properly that of the second, to whom all 
things belong. 1 

He asks, then, whether it is good to be governed by a king, 
and cites, first, the description by Samuel (1 Sam. viii) of the 
oppressive nature of the king's government, and next, the 
different terms in which it is described in Deuteronomy, and 
contends that Samuel described, not what the monarchy 
ought to be, but what might happen if the king became a 
tyrant. The proper character of the kingship is that which is 
described in Deuteronomy xvi., in which the subjects are not 
the slaves but the brothers of the king. 2 It would appear, 
however, that Bartolus felt that this did not give a sufficiently 
clear notion of what was the extent of the king's rights, and 
he therefore adds a brief but significant sentence. The king 
has the right to demand whatever is necessary for the royal 
expenses, " omnia tributa, vectigalia et census publicos." He 
can for sufficient reason impose " collectas," for kings have 
all power. 3 

1 Bartolus, ' De Regimine Civitatis ' : auetoritate (i.e., Samuel viii.) dictum 
" Praemitto quod non omne regimen est, non de vero rege sed tyranno 
ipsius unius dicitur regimen regis, intellexit. . . . Debet ergo bonus rex 
Nam, quandoque est unus qui regit, et esse fidelis, Christianus, Justus, non 
tantum est judex, ut praesides pro- pomposus, nee subditorum gravator, 
vinciarum et proconsules. . . . Isti non luxuriosus, non avarus, nee 
enim habent judicare secundum leges superbus." 

et tenent statum regium, s. competen- 3 Id. id., 12 : " Sed licet ibi ponatur 

tern ministris ; nee ad eos competunt quod rex facere debeat, et qualis in 

regalia, sed ad civitates quas regunt, se debeat esse, non tamen ibi ponitur 

vel ad alium superiorem vel fiscum. . . . quid a subditis posset exigere. 

Quandoque unus regit civitatem vel Resp : Quod expensas majestatis 

provinciam, qui facit leges prout vult ; regiae congruentes facere debeat, s. 

omnia ad eum pertinent et istud dicitur hoc habemus expressum 10 col. quae 

regimen regis." sunt regalia, c. 1., ubi dicitur quod ad 

2 Id. id., 11 : " Apparet ergo quod regem pertinent omnia tributa, vecti- 
subditi non sunt servi regis, sed galia et census publici, quae ibi special- 
fratres, et sic quod in precedente iter nominantur, et quod ad regem 



78 FOURTEENTH CENTURY. [PART I. 

He returns then to the question whether it is good for a 
" civitas " or " people " to be governed by a king, and, as 
we understand him, he thinks that this is the best form of 
government, and he also thinks that this was the opinion of 
Aristotle as well as of Egidius Eonianus. He observes, how- 
ever, that we must consider not only what is good, but also 
what is likely to happen, for the king or his descendants may 
become tyrants. 1 

This leads him to a discussion of the best form of govern- 
ment in relation to the different magnitude of different States. 
The small State or city is, he thinks, best governed by the 
multitude or whole people. The second grade of State in 
magnitude — and he gives as examples Florence and Venice 
— is best governed by a small number of men, that is, by 
the wealthy and honourable men. The third or great 
State should be governed by a king, and he cites, as 
illustrating his view, the statement of Pomponius in the 
' Digest ' (i. 2, 2), that when the Eoman Empire grew 
and conquered many provinces, the government was put into 
the hands of one ruler. He adds, however, that in such a 
great multitude there will be many good men, and the ruler 
should take counsel with them. 2 This monarchy, Bartolus 

etiam pertinet ex causa necessaria triplicem divisionem civitatum seu 

ponere collectas, ut ibi dicitur, et populorum, nam aliqua est civitas seu 

etiam jure Digestorum probatur, quia gens magna in primo grado magni- 

reges habeant omnem potestatem ut tudinis. Quaedam est civitas seu gens 

£f. de origine jur. 1. 2. § in initio. major, ot sic in secundo gradu magni- 

(' Dig.,' i. 2, 2)." tudinis. Quaedam est civitas, seu 

1 Id. id., 13 : " Viso ergo quid sit gens maxima, et sic in tertio gradu 
jus regis, redeamus ad questionem, an magnitudinis. 

expediat civitati vel populo regi per 16. Si loquamur de gente seu 

regem, prout bonus est ha bens dictas populo in primo gradu, tunc dico quod 

conditiones, optimum regimen est non expedit illi regi per regem . . . 

regnum regis per rationes s. factas. Et nee expedit tali populo regi per 

ita intelligo dictum Arist. et Egidii. Si paucos . . . expedit autem huic populo 

vero consideramus illud quod evenire . . . regi per multitudinem, quod 

potest, quia rex quandoque vertitur vocatur regimen ad populum. . . . 

in tyiaiinum, ipse vel descendentes 19. Quod autem dico, per multi- 

ab eo, tunc dico quod considerare tudem, intelligo, oxceptis vilissimis. . . 

debemus quid ovonire potest, quando item ab isto regimino possunt excludi 

illud de quo agitur ad hoc naturalitcr aliqui magnates, qui sunt ita poteutes 

et universaliter tendit." quod alios opprimerent. . . . 

2 Id. id., 15: "Hoc praomisso, facio 20. Secundo est videndum de gente 



CHAP, v.] CIVILIANS AND THE AUTHORITY OF THE RULER. 79 

says, may be either hereditary or elective, but the elective 
method is alone proper for the universal monarchy — that is, 
the Empire. 1 It is interesting to notice that while he 
has a great reverence for the empire, he admits that since 
it ceased to be held by Italians it had fallen in their esteem. 2 
Bartolus is clear that monarchy is not adapted to the small 
or even to the moderately large State. He evidently thinks 
that it is not suited to Italy ; the question of the relation 
of the city State to the Empire does not here seem to be in 
his mind. 

We must, however, be careful to observe that, like 
Egidius, 3 he very sharply distinguishes the true king from the 
tyrant. The monarchy which he thinks to be good is absolute, 
but it is directed to the common good of the community, while 
the tyrant pursues his own advantage. And here we can see 
that his judgment is quickened by his sense of the Italian 
conditions. 

For to Bartolus tyranny is not only a corrupt form of 
government, but it is the worst of all corrupt governments. 
The government of a few, or of the multitude, is corrupt 
when they pursue their own advantage, but it is not so far 
removed from a government for the common good as that of 

seu populo majori et in secundo gradu captis multis provinciis, deventum fuit 

magnitudinis, tunc istos non expedit ad unum s. ad principem. Hoc etiam 

regi per unum regem . . . nee expedit probant omnes rationes, factae per 

regi per multitudinem, esset enim dictum fratrum Egidium, hie cessant 

valde difficile et periculosum tantam rationes in oppositum. In tanta enim 

multitudinem congregari. Sed istis multitudine, de necessitate enim sunt 

expedit regi per paucos, hoc est, per multi boni, per quos oportebit se regem 

divites et bonos homines illius civitatis. consulere et in justitiae via se ponere ; 

. . . Sic enim regitur civitas Venetia- et sic de facto communiter videmus 

rum, sic civitas Florentiae. . . . quod tanto melius gens vel populus 

Tertio videndum est de gente vel regetur, quanto sub majore rege 

populo maximo, qui est in tertio gradu regitur." 

magnitudinis. Hoc autem fieri posset * Id. id., 23. 

contingere, in civitate una per se, - Id. id., 25 : " Et ideo imperium 

sed si esset civitas quae multis aliis Romanorum postquam fuit ab Italicis 

civitatibus et provinciis dominaretur, separatum, semper decrevit in oculis 

huic genti bonum est regi per uno. nostris, hoc tamen absque Dei judicio 

Hoc probatur ff. De Orig. Jur. 1. III. occulto factum non est." 

§. Novissime (' Dig.,' i. 2, 2), ubi, 3 Cf. vol. v. p. 76. 
.aucto multum imperio Romano et 



80 FOURTEENTH CENTURY. [PART I. 

the one man. 1 We may put it in concrete terms, the Italian 
oligarchy or democracy was not so really corrupt and evil a 
thing as the Italian tyranny. Bartolus adds that the corrupt 
oligarchy or democracy tends to develop into a tyranny, as 
they had seen in their own day, for " Italy is full of tyrants." 2 

This treatment of tyranny by Bartolus is of importance, 
and we must consider it not only in the ' De Begimine 
Civitatis,' but also in another treatise, entitled ' De Tyranno.' 

We have just seen that Bartolus derives from Egidius 
Colonna and Aristotle the conception of the tyrant as one 
who governs for his own profit and not for the good of the 
community. In the treatise, ' De Tyranno,' he derives from 
S. Isidore, directly or indirectly, the description of the tyrant 
as that wicked king who exercises a cruel rule over his sub- 
jects ; 3 from S. Gregory the Great he takes his description 
of the tyrant as one who governs the commonwealth but 
not lawfully (non jure), 4 and he applies this to the case of the 
King or Emperor of the Komans ; if any man seeks to obtain 
that place unjustly he is properly called a tyrant. 5 

1 Id. id., 27 : " Quaero enim de malis unita in deterius est deterior. Tyran- 

modis regendi, quisquis sit deterior : in nus autem est pessimus, hoc autem 

hoc omnes philosophi dicunt, quod ty- est ita manifestum quod demonstra- 

rannus est pessimus principatus, tenet tionem non eget." 

enim ultimum gradum malitiae. Item 2 Id. id., 29 : " Item advertendum 

predictus Egidius in dicto libro, dicit est quod regimon plurium malorum, 

enim ut dictum est, regimen ideo vel regnum populi perversi non diu 

dicitur bonum, quia per illud maxime durat, sed de facili in tyrannidem 

tenditur ad bonum commune. Sed unius deducitur, hoc enim de facto 

per tyrannum maximo ab intenlione saepius vidimus. Hoc etiam permissio 

communis boni roeeditur, unde tyran- divina est, quum scriptum sit, ' Qui 

nus pessimus principatus ; unde si regnare facit hypocritam propter pec- 

dominentur plures, quia divites vel cata populi ' ; et quia hodie Italia est 

boni creduntur, vel si dominetur plena tyrannis." 

multitudo, quamquam i 111 regentes 3 Bartolus, ' De Tyranno,' 1. 

tendant ad proprium, et non a Deo * Id. id., 2: " Proprie tyrannus is 

est, et sic est regimen malorum vel dicitur qui commuui reipublicae non 

populi perversi ; tamen non tantum jure principatur." 

reeeditur ab intentione communis * Id. id., 3 : " Sicut enim rex, seu 

boni, quia ex eo quod plures sunt, ali- imperator Romanorum est Justus et 

quid sapit de natura communis boni. verus et universalis : ita si quis ilium 

Sed si unus est tyrannus otiam rccedit locum vult injuste obtinere, appellatur 

a commuui bono. Praeterea, sicut proprie tyrannus." 
virtus unita in bonum est melior, ita 



CHAP. V.] CIVILIANS AND THE AUTHORITY OF THE RULER. 81 

In another place Bartolus says : " The tyrant may be either 
' manifest ' or ' veiled,' " but, what is more important, he 
may be a tyrant, " ex defectu tituli " or " ex parte exercitus." 
The distinction is important, though it was not new ; Aquinas 
had pointed it out in his commentary on the " Sentences." x 
When he comes to the question of tyranny " ex parte exer- 
citus," he first says in general terms that the tyrant is he 
who does tyrannical things — that is, things directed to his 
own advantage and not that of the community, 2 and then 
cites from a work, which he attributes to Plutarch, ' De 
Eegimine Principum,' an enumeration of such actions. 3 

What is the remedy against the tyrant. If he has a superior, 
it is for the superior to depose him ; but Bartolus interpolates 
the observation that there may be occasions when the emperor 
or Pope may maintain such tyrants in their position for 
some grave and sufficient reason. 4 In another work he seems 
clearly to indicate that the tyrant may rightfully be deposed, 
and he cites a passage from Aquinas, to which we have often 
referred, that it is not sedition to resist the tyrant. 5 

It is not easy from all this to form any veiy clear view 
as to the judgment of Bartolus with regard to the nature 
of the authority of the ruler. He is clear that monarchy 

1 Id. id., 12 : " Nam quidam est " Ad utilitatem publicam licitum est 
tyrannus manifestus, quidam quan- (i.e., tyrarmum deponere), et si per- 
doque velatus et tacitus. Item esse veniret ad actum ita quod rumor vel 
quem tyrannum manifesto contingit, tumultus irrepserit in civitate, non 
quandoque ex parte exercitus, quan- incidit in legem C. de seditione, quia 
doque ex defectu tituli." Cf. vol. v., licet faciat, ut dictum est ; pro hoc 
p. 91 (S. Thomas Aquinas, ' Com- induco Thomas de Aquino in 2, 2, Q. 
mentary on the "Sentences," ' II., D. 42, ad 2 in fi : (' Summa Theologica,' 
44, 2, 2). 2, 2, Q. 42, 2), ubi sic ait. ' Regnum 

2 Id. id., 27 : " Octavo quaero de tyrannicum non est justum, quia non 
tyranno ex parte exercitii licet habeat ordinatur ad bonum commune, sed ad 
justum titulum, minus proprie dicatur bonum privatum regentis, et ideo 
tyrannus. . . . Dico quod iste tyran- perturbatio hujus regni non habet 
nus ex parte ejus qui opera tyrannica rationem seditionis, nisi forte, quando 
facit, hie ex opere ejus non cedit ad sic inordinate perturbaretur tyranni 
bonum commune, sed ad proprium regnum, quod multitudo subjecta 
ipsius tyranni." majus damnum pateretur ex perturba- 

3 Id. id., 28, 29. tione sequente, quam ex tyranni 



5 ,» 



4 Id. id., 34. regimine. 

5 Id., ' De Guelfis et GebeUinis,' 9 : Cf . vol. v. p. 92. 

VOL. VI. 



82 FOURTEENTH CENTURY. [PAET I. 

is not proper to the Italian city, but lie seems to incline to 
the view, which he may have derived from Egidius Komanus, 
that it is suited to the great monarchies, that is to ^Northern 
and Western Europe ; his hatred of the tyrant may be 
interpreted as related to these as well as to Italy. 

We turn from Bartolus to his great contemporary Baldus. 
He says in one place, but merely incidentally, that a good 
king is better than a good law. 1 In another place he 
says that the emperor is called a king because he rules 
others, and is ruled by no one, though he rules himself by 
the advice of the wise men. All kings have supreme juris- 
diction in their kingdom, and there is no appeal from then* 
judgment, for their judgments are accepted as law ; their 
" bene placitum " is subject to no law. 2 

We may compare a passage in his Commentary on the 
Code in which he discusses the question whether the prince 
is bound by the law. Baldus says that the passage in 
the Code on which he is commenting means that he should 
live according to the law " de debito honestatis," but this 
must not be taken too precisely. The supreme and absolute 
power of the prince is not under the law ; the words of 
the Code must therefore be taken as referring to the 
ordinary power of the prince, not to his absolute power. 
While the emperor's authority is derived from the "lex 
regia," it must be borne in mind that this "lex regia " was 
promulgated by the divine will (nutu divino), and therefore 
the empire is said to be immediately from God. It should be 

1 Baldus, ' Commentary on Digest ' lege habetur, et sic nemo posset in 
(fol. 10, v.): " Et melius est bonus melius commutare. Item in regno suo 
rex quam bona lex." habet supremam jurisdictionem . . . 

2 Id. id.: ' 1'roemium ' (fol. 2, v.): cum manu omnia gubernet . . . bene- 
" Item nota quod imperator Caesar placitum nulli legi subiaceat . . . 
dicitur Rex . . . et a nomine regitur Etiam si unus rex teneat in feudum 

. . Conailio tamen prudentum se regnum suum alio rege. Nam eo ipso 

regit et gubornat. . . . Item nota quod intuulaUir rex, habot supremam 

quod hoc est commune jus omnium potestatom in subditos, nee enim 

regum quod a regia maiestat is sontentia minor est rex praefecto praetorio, a 

non appellatur ; nimirum quia ejus cujus sontentia non appollatur." 
definitiva sontentia in regno suo pro 



CHAP. V.] CIVILIANS AND THE AUTHORITY OF THE RULER. 83 

observed, however, that after all this Baldus adds that he is 
a good ruler who desires that God and the laws should rule, 
and this is why the emperor says that he subjects his " prin- 
cipals " to the laws. 1 

In a work of Jason de Mayno, an important civilian of 
the fifteenth century (' Comm. on Digest,' i. 4. 1), we have 
found an important reference to Baldus as having said that 
the Pope and the Prince can do anything "supra ius, et 
contra ius, et extra ius." Unfortunately Jason gives no 
indication of the place from which he cites this. 

What are we to understand by all this ? Baldus thinks that 
a good prince is better than a good law ; he admits, and indeed 
is clear, that a good prince should normally respect the law., 
but he is also clear that he is not, strictly speaking, under the 
law, and he suggests an important distinction between the 
ordinary and the absolute power of the prince. 

We might then incline to the conclusion that the theory of 
monarchy of these great civilians of the fourteenth century 
was very different from that of the normal theoretical and 
constitutional tradition of the Middle Ages and of the four- 
teenth century, but before we draw such a conclusion we must 
remember some other aspects of their theory which we have 
already considered. We have already dealt with their dis- 
cussion of the question whether indeed the prince was the 
sole source of law, and have seen that with respect to the 
custom of the people they are at least hesitating and 
uncertain, 2 and we must remember that other question 

1 Id. id., ' Commentary on Code,' i. perator dicit se esse legibus alligatum, 

14, 4 (fol. 55, v.) : " Princeps debet et hoc ex benignitate non ex necessi- 

vivere secundum leges, quia ex lege tate. Secundo, nota, quod auctoritas 

eiusdem pendit auctoritas. Intellige imperatoris pendit ex lege regia, quae 

quod istud verbum debet intelligi de fuit nutu Divino promulgata et ideo 

debit o honestatis quae summa debet imperium dicitur esse immediate a Deo 

esse in principe, sed non intelligitur . . . Quarto nota quod ille bene prin- 

precise ; quia suprema et absoluta cipatur qui vult principari Deum et 

potestas principis non est sub lege, leges, unde dicit imperator se submitters 

unde lex ista habet respectum ad principatum suum legibus." 
potestatem ordinariam, non ad postes- 2 Confer p. 16. 

tatem absolutam . . . nota quod im- 



84 FOURTEENTH CENTURY. [PART I. 

of the legal or quasi-legal relation of the prince to his sub- 
jects — that is, the conception that the prince may enter into 
relations with his subjects which are of a contractual nature, 
and that these are binding both on himself and on his 
successors. We have already discussed this question, 1 and 
here therefore we only cite again the words in which Baldus 
gives his interpretation of the passage in which Cynus had 
dealt with it. Cynus had said (but it is not really clear 
whether it is the opinion of Cynus or of Guido de Suza) 
that if the emperor had made peace or a " capitulum " with 
his subjects for the public good, this was binding even on his 
successor. 2 As we have pointed out, this is clearly related 
(by Baldus) to feudal principles. 

There is yet another very important limitation upon the 
authority of the prince which is discussed by these civilians. 
Cynus says, very dogmatically, that the prince cannot lawfully 
(de jure) take away a man's private property without cause, 
lie can undoubtedly do so " de facto," and his order should 
be obeyed, for it must always be supposed that he is acting 
for some just reason ; but it cannot be doubted that he com- 
mits a sin if he does it without cause. 3 Jac. Butrigarius sets 
out a somewhat curious view that the emperor can take away 
any man's property for proper reasons (ex causa), but not 
without reason ; but this is not due to a defect of authority, 
but because he had said that he would not do it. 4 

1 Confer pp. 15, 20. utrum possit de facto ? Non est 

* Baldus, 'Commentary on Code,' i., dubium. Sed utrum possit do jure et 

14, 4 (fol. 55, v.): " Dominus Cynus de potestate sibi per jura concessa, 

dicit quod si istud pactum habot in se in veritate non potest. . . . Sedtamen, 

justitiam naturalem et equitatem, quod quantum ad observantiam qualiter 

istud pactum est servandum, si im- cunque scribat, debet servari, nam 

porator facit pacem vel capitulum cum semper rescriptum suum supponimus 

subjectis, propter generalo et publicum ex justa causa interpositum. Et talis 

bonum, quod ista non debeant infrin^i presumptio est violenta in persona 

per successorem , nisi ex parte sub- principis ; ut supra dixi in proxirna 

ditorum intervcnisset dolus vel fraus." questione. Negari tamen non potest 

s Cynus, ' Commentary on Codo,' quod, si milii rem meam auferat sine 

Rubric i., 19 (fol. 36, 3) (Code, i., 19, 7) : causa, quod ipse poccat. 
" Socundo casu, scilicet, quando vult * Jacobus Butrigarius, ' Thesaurus 

milii tollere dominium rci meae, sine Legum,' i., 14, 3, 12: "Item opp : 

aliqua causa de raundo ; si quaoritur quod imperator non possit quern 



CHAP. V.] CIVILIANS AND THE AUTHORITY OF THE RULER. 85 

Bartolus, referring to some statement of Jo. Butrigarius 
that the prince could take away a man's property without 
cause, says flatly that this is not true. The prince cannot 
take away a man's property unjustly, for the prince holds his 
jurisdiction from God. God gave him jurisdiction, but not 
the power of taking away what belonged to another man 
without reason. 1 

Baldus cites the " Gloss " as saying that the prince cannot 
by his rescript take away a man's property without proper 
cause. 2 He seems to imply in this passage that private pro- 
perty belongs to the "jus gentium," but in commenting on 
the 'Digest ' he says that it really belongs to the "jus naturale," 
meaning by this that law which properly belongs to human 
nature. 3 When he deals with property under feudal law he is 
even more explicit. He asks whether the emperor can deprive 
a vassal of his fief without a definitely proved offence, and he 
cites the " Gloss " as saying that this is not " reason," for 
good and natural laws bind the prince and natural law is 
stronger than the " Principatus." 4 And in another place he 

privare de dominio rei suae. . . . ut 1. 11, ff. De Leg. Eodem modo, si 

Potest ex causa, ut hie, favore publicae vellet auferre mihi dominium rei 

utilitatis, sine causa non posset ut ibi ; meae injuste, non posset, quia princeps 

imo puto quod ubicunque princeps non habet jurisdictionem a Deo. . . . Sed 

errat in facto, et refert ibi contra jus Deus dedit ei jurisdictionem, non po- 

aliquid, quod valeat rescriptum ; nam testatem auforendi alienum indebite." 
quod ipse non possit aliquem privare re 2 Baldus, ' Commentary on Code,' 

sua, non est ex defectu potestatis suae, i., 19 (fol. 68, 2) : " Tertio querunt 

sed ideo quia dixit se nolle hoc facere." doctores nunquid imperator potest 

1 Bartolus, ' Commentary on Code,' rescribere contra jus gentium. GI : 

i., 25, 6, 2 : " Dominus Jo. But. dice- videtur dicere quod non : unde per 

bat simpliciter quod princeps potest rescriptum prinoipis non potest alicui 

auferre mihi dominium rei meae sine sine causa aufferri dominium ; sed 

aliqua causa. Nam ejus potestas, et cum aliquali bene potest." 
potestas istarum legum, quae hoc 3 Id., ' Commentary on Digest,' i., 

prohibent, procedit a pari potentia : 1, 5 (fol. 11, 2): " Opponitur tertio, 

ergo sicut potest istas leges tollere, dicitur hie quod dominia sunt distincta 

eodem modo possit dare alteri dominium de jure gentium. Contra, imo, de 

rei meae sine causa. jure naturali. . . . Sol : Hie ponitur 

Quod puto non esse verum, nam jus naturale pro jure propriae nature 

princeps non potest facere unam legem humane, i.e., pro jure gentium vel pro 

quae eontinet unum inhonestum vel lege Mosaica." 

injustum : nam est contra substantiam 4 Id., 'Super Feudis ' (fol. 9, 2): 

legis. Nam est lex sanctio sancta, " Quaero numquid imperator posset 

jubens honesta et prohibens contraria, disvestire vassallum sine convicta 



r" 



86 FOURTEENTH CENTURY. [PART I. 

even deals with this in relation to taxation, and, while he seems 
to think that the prince has the right to impose a " collecta " on 
his subjects and that they are bound by " natural obligation " 
to pay this if it is useful for the service and necessity of the 
commonwealth, they are not bound by " natural obligation " 
to do this if the tax is levied merely by the arbitrary will of 
the prince. 1 

Joannes Faber, an important French civilian, in one 
passage says that the prince can take away a man's property 
for some definite cause, but the person to whom he may 
give it has not a just title before God unless there was a 
just cause — i.e., for the action of the prince. 2 Finally, 
Angel o de Perusia, a civilian of the later part of the four- 
teenth century, says plainly that the prince cannot take 
away a man's property without cause, and he refers for a 
full discussion to the passage of Cynus just quoted. 3 

It may possibly appear that this is not a sufficiently im- 
portant point to deal with so fully, but that is a mistake. 
For it will be evident, on a little reflection, that the principle 
of the civilians is clearly related to, if not identical with, the 
more precisely stated principle that the king cannot proceed 
against a man's property except by process of law. 4 

We return to one very important question : What did the 

culpa ? Respondit glossa quod non possit tollere dominium, dum tamen 

est ratio: quia bonae et naturales faciat ex certa scientia. . . . Caveat 

consuetudines ligant principem, quia tamon de conscientia, ut forte sciens 

potontius est jus naturale quam et recipiens non habeat justum titulum 

principatus." quoad Deum : nisi subisset causa vera 

1 Id., 'Commentary on Digest,' i. justa : et princeps male informatus 
1, 5 (fol. 11, v.): " Decimo quaeritur debet revocare, facta informatione." 

si princeps imponit subditis collcctam ; 3 Angelo de Perusia, ' Super Codi- 

utrum ex hoc oritur obligatio naturulis ; cem,' ' De rei vindicationo,' Lex xii. (fol. 

et die quod si concernit reipublicae 62): " In tex. ibi, ex nostro rescript o; 

utilitatem et necessitatem, quod tunc et sic patet per principem non auforri 

.sic . . . sed solius principis effren- alteri dominium per rescriptum, cum 

atam voluntatem, tunc non oritur sit de jure gentium, nulla causa sub- 

obligatio naturalis." sistente, alias secus ; ut plene disputa- 

2 Joannes Fabor, ' In Quatuor Libros tur per Cynum in 1. Rescripta, s. si 
Institutionum ' i., 2 (fol. 8): "Quid contra jus vel uti. pub." 

si (princeps) rescribat in possessorio. * Cf. chap. 4. For the opinions of 

. . . Dico ergo quod princeps ex causa the earlier civilians, see vol. ii. p. 72. 



CHAP. V.] CIVILIANS AND THE AUTHORITY OF THE RULER. 87 

civilians of the fourteenth century think about the right of 
the community to depose the ruler ? Bartolus in his com- 
mentary on the ' Digest ' raises the question whether the 
Eoman people can revoke the authority which they had 
given to the emperor, and he says that two of his pre- 
decessors among the civilians, William of Cuneo and Cynus 
of Pistoia, maintained that they could do this, 1 and in his 
treatise 'De Guelfis et Gebellinis,' which we have already 
cited, he asserts that it is lawful for a proper cause to 
depose a tyrant. 2 

Baldus discusses the subject, but his own conclusion is, at 
least technically, adverse. He asks whether the subjects may 
expel their king on account of his intolerable injustice and 
tyranny, for an evil king is a tyrant. His answer is first in 
the affirmative, but then he says that the truth is the opposite, 
for subjects cannot derogate from the right of the superior. 
They may, in fact, expel him, but the superior does not lose 
his " dignitas." 3 Joannes Faber is confident in his assertion 
that the people could depose the emperor. The emperor 
receives his jurisdiction from the people, and it is reasonable 
to hold that the people have the power to revoke it ; besides, 



1 Bartolus, 'Commentary on Digest,' ing discussion of the treatment of 
i. 3, 8 : " Quaero numquid Romanus Tyranny in Bartolus, and also in 
populus possit revocare potestatem Coluccio Salutati's ' Tractatus de Ty- 
imperatoris, et videtur quod sic. . . . ranno,' which belonss to the last 
Gulielmus de Cuneo tenet quod populus years of the fourteenth century. 
Romanus posset revocare, maxime 3 Baldus, ' Commentary on Digest ' 
quum primus imperator, cui fuit data (fol. 10, v.) : Secundo queritur an 
ilia potestas, non potuit quaerere regem propter suas iniusticias intoler- 
successori, nam creatio imperatoris abiles, et facientem tyrannica, subditi 
non est ex successione, sed ex electione. possent expellere, et videtur quod sic 
Nam iste non est de casibus, in quibus . . . cum malus rex tyrannus sit. 
quaeritur per alium jus. . . . Imo Item unusquisque potest suam salutem 
dicit plus quod possit eum degradare, tueri. . . . Item a quo removetur 
Gl : C. i. De invest inter do : et vass : effectus nominis debet removere ipsum 
onod ita allegat hie etiam Cynus. nomen et dignitas, nam reatus omnem 
Item dicit ur quod hie equiparatur honorem excludit. . . . Contrarium 
imperatori." est verum, quia subditi non possunt 

2 ' De Guelfis et Gebellinis,' 9 (cf. p. derogare juri superioris. Unde licet 
84). We wish to refer our readers again de facto expellant, tamen superior non 
to Professor Ercole's ' Da Bartolo all' amittit dignitatem suam." 

Althusio ' for a very full and interest- 



88 



FOURTEENTH CENTURY. 



[PART I. 



he says, it is known that this had been done in former times. 
He adds, however, that this is a dangerous thing to do. 1 



1 Joannes Faber, 'In quatuor libros 
Institutionum,' i. 2 (fol. 6): "Sed 
an populus potest imperatorem de- 
ponere. Videtur quod sic, quia quum 
ad populum pertinet ejus creatio ut 
hie . . . et depositio sou restoratio 
. . . praeterea quum mandatum juris - 
dictionis sit revocabile de sui natura 
. . . et imperator jurisdictionem et 
potestatem habet a populo, ut hie 



concordatur, videtur quod populus re- 
vocare potest. Praeterea constat hoc 
factum fuisse antiquis temporibus." 
(He gives various arguments against 
this, but concludes) " sed tamen 
satis possit dici quod populus ex 
causa posset eum destruere, ut in 
contrariis, fi. De Excusa, tuto 1. sed 
et reprobari. Hoc tamen attentum 
periculosum est." 



89 



CHAPTER VI. 

THE DEVELOPMENT AND FUNCTIONS OF 
REPRESENTATIVE INSTITUTIONS. 

We have in the last volume given a short account of the 
beginnings of the system of representative assemblies in 
Western Europe in the twelfth and thirteenth centuries, and 
have pointed out that this was the natural and logical out- 
come of the character and principles of mediaeval society, 
and above all of that principle which lies behind all the 
complex forms of mediaeval civilisation, the principle that 
political authority is the expression of the character and 
life of the community. It is unfortunate that even well- 
informed persons should still sometimes seem unable to 
understand that mediaeval society was not irrational, or 
should seek to find its real quality in what seem to them 
its unintelligible superstitions. At any rate, the representa- 
tion of the community was evidently a highly rational expedient 
for obtaining some kind of method for the expression of the 
common judgment of the community — a judgment which 
was indeed liable to error and to confusion like that of any 
ruler, but which did impose some limitations upon the frequent 
stupidity or incapacity or caprice of the foolish ruler, and which 
also added greatly to the effectiveness and power of the 
capable ruler. 

We have in this chapter to examine very briefly the de- 
velopment of this system in the fourteenth century, and to 
consider the purposes for which it was used: very briefly 
indeed, for we are not writing the constitutional history of 
the European countries, but, as we hope, with sufficient 



90 FOURTEENTH CENTURY. [PART I. 

detail to render it reasonably clear what were its most signifi- 
cant features in this century. 

We begin with Spain, which, as we have pointed out, was 
the country in which the representative system was first 
developed. And we do this also in order once again to 
make it clear that the political civilisation of Western Europe 
in the Middle Ages was homogeneous, that, whatever may 
have been the cause of the later divergence of the political 
organisation of England from that of the Continental countries, 
the mediaeval political systems were in their origin similar — 
we would almost say identical — and the ideas or principles 
they embodied were the same. 

We have pointed out x that by the end of the thirteenth 
century the Cortes of Castile and Leon were meeting very fre- 
quently, and that they were regularly attended not only by the 
prelates and magnates, but by the representatives of cities. 
It is well therefore to begin by pointing out that this continued 
throughout the fourteenth century. It is clear that they 
had become a normal part of the machinery of government, 
and not only a normal but a very important part. 

During the minorities of the kings, and they were frequent, 
the Cortes assumed almost the form of a permanent Council 
of Government. We have pointed out that at the Cortes of 
Palencia in 1313 the guardians of the king undertook to 
call together the Cortes every second year, and agreed 
that if they should fail to do this, the Cortes was to be 
summoned by the prelates and sixteen knights and " good 
men " whom the Cortes had appointed to act as counsellors of 
the guardians. 2 In 1315, at the Cortes of Burgos the guardians 
confirmed all the "liberties," &c, of the cities, and it is 
clearly laid down that if they did not carry out their obliga- 
tions the Cortes were to elect others. 3 The Cortes of Valladolid 
in 1322 appointed Don Felipe as guardian of the king, and 
provided that there should always be with the king a council 

1 Cf. vol. v. pp. 134-136. 3 'Cortes of Castile,' vol. i. 39, 

• ' Cortes of Castile and Loon,' i. 55. 
41 and 71. Cf. vol. v. p. 136. 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 91 

of twenty-four " caualleros e ommes buenos," represent- 
ing the people of Castile, Leon, Estremadura, and Andalusia, 
to hear and determine all matters brought before the king, 
and that all officials of the household of the king or his 
guardian should be punished for any offence which they 
might commit, even if they pleaded that they had acted under 
the order of the guardian. 1 

Alfonso XI. attained his majority in 1325, and held the 
Cortes at Valladolid. This was composed of the prelates, 
magnates, and procurators of the cities, &c. The Cortes 
demanded, and the king promised, that he would not take 
any action against the person or property of any one till he 
had been heard and examined according to " ffuero e derecho." 2 

The Cortes of Madrid in 1329 complained that various 
officials had violated their privileges, and desired that the 
king should appoint others, and they asked, and the king 
promised, that no illegal taxation, either particular or general, 
should be raised without consultation with the Cortes ; they 
complained also that the Chancery was issuing illegal briefs 
(cartas desafforadas), which caused many imprisonments and 
deaths, and other violations of their " ffueros " and privi- 
leges, and they requested that instruction should be given to 
the officials of the cities that they should disregard such 
briefs. 3 The answer of the king to this was somewhat evasive, 

1 Id. id., 43, 4 : " Et estos caualleros e por derecho por querella nin por 
e ommes buenos que ssean en guardalo querellas que del den. 

nostro sennor el Rey. Et que ssean en A esto respondo que tengo por 

oyer e librar todos los ffechos que bien de non mandar nin lisiar nin 

veniesen ante el Rey. . . . despechar nin tomar aninguno, nin- 

guna cosa del suyo, sin sseer ante 

12. Et que alcalle o los alcalles que oydo e ven§ido por ffuero et por derecho. 

andodieren en casa del Rey o en la Otrossi de non mandar aningunos pren- 

mia, que non sean excusados de la pena, der ssin guardar ssu ffuero e su derecho 

si enella cayeren, maguer dija que gelo a cada uno, E juro delo guardar." 

yo mande, et maguer yo diga que yo 3 Id. id., 47, 68 : " Otrossi alo que me 

gelo mand6." pidieron por merced que tenga por 

2 Id. id., 45, 26 : " Otrossi alo que bien deles non echar nin mandar 
me pidieron por merced que non pagar pecho desafforado ninguno es- 
mande matar nin prender, nin lisiar, pecial nin general en todo la mia tierra 
nin despechar, nin tomar aninguno ssin sser llamados primeramiente a 
ninguno cosa delo suyo, sin sser ante Cortes. A esto respondo quelo tengo 
llamado e oydo e vencido por ffuero por bien e quelo otorgo." 



92 FOURTEENTH CENTURY. [PAKT I. 

but, as we have seen, the matter was dealt with more decisively 
at the Cortes of Bribiesca in 1387. x 

We do not, however, attempt here to give an account of 
all the important proceedings of the Cortes : what we are 
concerned to make clear is that the Cortes played an important 
part in all public affairs. There has been sometimes a ten- 
dency to think that these representative bodies had few 
functions except to provide the finance required by the 
ruler. This impression is curiously inconsistent with the 
varied character of the functions of the Cortes of Castile and 
Leon. 

Not, of course, that their financial power was unim- 
portant. From the beginning of the fourteenth century to 
the end it is clear that the Cortes constantly asserted that 
they, and they only, could grant the money required by the 
Crown beyond the normal and customary revenues. It was 
plainly asserted in the Cortes of Valladolid in 1307 that if 
any tax — i.e., any special tax — was needed, the king (or 
regent) must ask for it, and that he could in no other way 
impose it, 2 and the king assented. 

At the Cortes of Madrid in 1391 it was declared that the 
Council of Kegency just appointed for the minority of Henry 
III. should have no power to raise any tax unless it had been 
authorised by the Cortes, or in a case of special urgency, 
by the procurators of the cities who had been placed in 
the Council of Kegency. 3 In 1393 the Cortes of Madrid, 
after granting the king, who had just attained his majority, 
a tax of a " twentieth " for a year, demanded that he should 

1 Cf. p. 5. primeramionte a Cortes. 

2 Id. id., 34, 6: "A osto digo quclo A. esto respondo quelo tengo por 
tcngo por bien, pero si acaesciere quo bien e quelo otorgo." 

pecho avieso mester alguno, pedir gelos 3 Id., ii. 39, 8 : " Otrossi non echaran 

he, et in otra manera no echare pocho pecho ninguno mas delo que fuere 

ninguno enella tierra." otorgardo por Cortes e par ayunta- 

Cf. id. id., i. 47, 68 (Alfonso XI., monto del rregno ; pero sy fuere caso 

1329): "Otrossi alo que me pidieron muy noeessario de guerra, quelo 

por mercot quo tenga por bien delos pueden fazer con consejo e otroga- 

non echar, nin mandar pagar des- miento delos procuradores delas cib- 

afforado ninguno especial nin general dados e villas quo estovieren enel 

on toda la mi tierra, ssin ssoor llamados Consejo." 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 93 

take a solemn oath " in the hand " of one of the archbishops, 
that he would not impose any tax or loan upon the cities, or 
upon individuals, until he had called together the estates in 
Cortes, in accordance with the good and ancient custom ; 
and that, if any royal briefs or commands with regard to 
taxation were granted (without the consent of Cortes), they 
were to be disobeyed without incurring any penalty. 1 

This constitutional authority of the Cortes over taxation 
is clear, but it is a complete mistake to suppose that this was 
the only important aspect of their position. We must again 
insist upon the point with which we have already dealt in 
Chapter I., that while in Castile, as elsewhere in Western 
Europe, the king was the proper person to make law, he 
could not do this alone but only with the consent of the 
prelates, magnates, and the representatives of the cities 
assembled in Cortes. The king could neither legislate alone, 
nor could the legislature of the king in Cortes be abrogated 
except in Cortes. 2 Even when, however, we have recognised 
the powers of the Cortes in legislation and taxation, we have 
not yet adequately appreciated its functions. The Cortes of 
Madrid, for instance, was summoned in 1329 by Alfonso VT. 
for the purpose of dealing with the various abuses which had 
been prevalent in the kingdom since the death of his father. 3 
The Cortes constantly made representations to the king about 
ecclesiastical abuses, such as the interference of ecclesiastical 

1 Id., ii. 42 (p. 526) : " Et finalmente manera qual quier, alas dichas cibdades 

lo que ende concluymos es esto : e villas e lugares, nin personas singu- 

aceordemos de vos otorgar para este lares dellas, ne de alguna dellas, por 

primero anno, para con los vuestros mesteres que digados que vos rrecrecen, 

pechos e derechos ordinarios, la amenos de ser primeramente Uamados 

alcuala del mr. tres meajas, que es e ayuntados los tres estades que deuen 

llamada veyntena. ... (p. 527). La venir a vuestras Cortes e ayunta- 

tercera es que pues vos asi es e sera mientos, segunt se deue fazer e es de 

otorgado lo que abastare asaz para buena costumbre antigua ; e demos 

complir los vuestros menesteres. ... si algunas cartas o alcualas los fueren 

que nos prometades e jurades luego, mostradas o mandamientos fechos de 

en mano de uno delos dichos arco- vuestra parte sobre ello, que sean 

bispos, que non echaredes nin deman- obedicidas e non complidas, sin pena e 

daredes mas mr. nin otra cosa alguna sin error alguno." 

de alcualas nin de monedas, nin de 2 Cf. pp. 5, 6. 

servicio nin de enprestido, nin de otra 3 Id., i. 47. Preface. 



94 FOURTEENTH CENTURY. [PART I. 

courts in cases which did not belong to them ; x they protested 
against the presence of ecclesiastics in the Chancery on the 
ground that clerical officials could not be proceeded against 
like others, 2 and also against the abuse of excommunication. 3 
They made representations to the king about combinations 
of men in various employments. 4 It was in Cortes that the 
king made ordinances about the coinage and about debts 
contracted in the depreciated currency. 5 

We have already pointed out the important position occupied 
by the Cortes during the minority of the king, and we have 
another very important example of this in the proceedings 
of the Cortes of Madrid in 1391, on the accession of Henry 
III., who was still under age. While in the cases we have 
mentioned before, they had appointed one of the princes of 
the royal house as guardian, they now determined that the 
government of the kingdom during Henry's minority should 
be entrusted to a Council to be appointed by a Commission 
of eleven nobles and thirteen procurators of the cities. To 
this Council they entrusted all the powers of government 
except certain points, such as the making war and peace ; 
and the Cortes was careful to add that they could not impose 
any tax without the authority of the Cortes, or take pro- 
ceedings against anyone without due process of law. 6 

1 Id., i. 42, 2, and i. 54, 10. villas. Et que para escojer quales e 

2 Id., i. 43, 5. quant os fuesen del dicho consejo . . . 

* Id., i. 47, 61. que dauan e dieron todo su poder 
4 Id., ii. 1, 49. complido ahonze sennores e rriccos 
6 Id., ii. 27, 5. omes e caualleros, e a treze delos dichos 

• Id., ii. 39 (p. 485) : " (The procuradores. ... 1. Los del consejo 
members of tho Cortes) fueron llama- ayan poder de fazer todos los cosas e 
dos per cartas e mandamientos de cada una dollas que fueren a servicio 
maestro Sonnor el Rey, Don Enrique, del re, e provecho de sus rregnos, saluo 
quo Dios mantenga, para ordenar ol las cosas que aqui se contienen, en 
rregimiento del dicho Sennor Rey, e quelos non dan potior. ... 7. Otrossi 
delos dichos sus rregnos . . . per non moueran guerra a ningund Rey 
rxazon dalla menor hedat del dicho vezino, sin consejo o mandamionto del 
Sennor Roy (they decide that the best rregno. ... 8. Otrossi non eeharan 
course) era e es quel dicho Sennor pecho ninguno mas delo que fuere 
Rey e los dichos sus regnos, se rregiesen otorgado por Cortes. ... 9. Otrossi 
o gouernasen por Consejo, en la qual non daran cartas para matar, nin 
fuesen delos grandcs del rregno . . . lisiar, nin desterrar a ningund ome, 
e otrosi delos vezinos dclas cibdades e mas que sea judgado por sus alcalles." 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 95 

This is important, but perhaps more significant still is the 
fact that in the second half of the century we find the 
Cortes demanding that there should be a certain number 
of citizens on the King's Council. In 1367 the Cortes of 
Burgos demanded that twelve good men of the cities should 
be chosen to serve with the King's Council for the special 
purpose of seeing that the customs and " fueros " of the cities 
of the kingdom should be better kept and maintained. The 
king, Henry II., assented. 1 At the Cortes of Toro in 1371 
Henry II. announced that he would appoint certain good men 
of the cities to go through the provinces of the kingdom to 
report on the administration of law ; and the king assented 
to the request of the same Cortes that he should appoint 
some prudent men of the cities to serve on his council. 2 
The same demand was put forward to Juan I. by the Cortes 
of Burgos in 1379. 3 

The Cortes of Castile and Leon was in the fourteenth century 
not merely a body which the king might from time to time 
consult, to whom he might turn for advice in legislation, 
or for financial assistance in emergencies, but it repre- 
sented the claim that the community as a whole should 
exercise some control over every aspect of the national 
affairs. 

1 Id., ii. 9, 6: " Otrossi alo que per totos los logares, a ver . . . eommo 
nos dixieron que porque los usos e fazen complimiento de derecho alas 
las costumbres e ffueros delos cibdades partes." 

e villas e logares de nuestros rregnos Id., ii. 14, 13 : " Alo que pedieron 

puedan ser mejor guardados e mante- que fuese nuestra merced que tomare- 

nidos, que nos pedien por merced que mos e excogiesemos delos cibdadanos 

mandasemos tomar doze omes bonos nuestros naturales delos cibdades e 

que ffuesen del nuestro consejo. (Two villas e logares delos nuestros rregnos, 

from Castile, two from Leon, two from omes buenos entendidos e pertines- 

Galicia, two from Toledo, two from eientes que fuesen del nuestro con- 

Estremadura, and two from Andalusia). sejo." 

... A esto respondemus que nos plaze 3 Id. id., 22, 4 : " Otrossi nos pedie- 

e lo tenemos por bien." ron por merced que quisiesemos tomar 

2 Id., ii. 13, 24: "Tenemos por omes bonos delos cibdades e villas e 
bien de ordenar, et ordenamos de dar logares delos nuestros rregnos, para 
omes buenos de cibdades e villas e que con los del nuestro consejo nos 
logares quantos e quales la nuestra consejasen lo que cunple a nuestro 
merced fuere, para que anden per las servicio." 

provincias delos nuestros rregnos e 



96 FOURTEENTH CENTURY. [PART I. 

We must now examine the development of the States 
General and of the Provincial Estates in France, and, while 
this is not the same as that of the Castilian Cortes, it does 
also illustrate very clearly the growth and development of 
the representative element in government. 

In the first place, the States General or analogous bodies 
met frequently. The proceedings of these meetings have not 
been preserved for us in the same form as those of Castile, 
and it is not possible always to say whether all these meetings 
can be described as technically meetings of the States General . 
This, however, is a question which belongs to the detailed 
constitutional history of France ; for our purpose it is enough 
to observe that they have a representative character. We 
have in addition frequent references to the meetings of the 
representatives of particular provinces (Provincial Estates), 
and sometimes even of particular towns. It must be remem- 
bered that the kingdom of France was not unified in 
the same sense as that of Castile and Leon, or that of 
England. 

When we now attempt to consider the powers and functions 
of the States General, we shall find that they were not unlike 
those of the Cortes in Spain — that is, that they were manifold, 
in some respects clear and determined, in others vague and 
undetermined ; but the history of the fourteenth century 
shows very clearly that they were summoned not only to 
deal with taxation, but rather that any question of general 
national importance might and did come before them. 

In the last volume we have dealt with the first meeting 
of the States General, which was called together by Philip 
the Fair in 1302 to deal with the situation produced by the 
conflict with Boniface VIII., 1 and it is noticeable that their 
second meeting was also called to deal with a great ecclesiastical 
matter — that is, the question of the Templars. 

It is important to observe the terms in which the summons 
to the " communitates " is expressed. Philip the Fair calls 
them to take part in what he calls the " sacred task," and bids 
each of them to send two men who, in the name of the " com- 

1 Cf. vol. v. p. 139 and p. 388. 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 97 

munities," are to assist him in carrying out what was required. 1 
At the end of the century again it was in the name and with 
the advice and consent of an assembly which was taken to 
represent the whole people, as well as of the Church of France, 
that Charles VI. renounced the allegiance of France to Pope 
Benedict XIII. 2 

We are not here concerned with the motives or the merits 
of these actions with regard either to the Templars or to 
Benedict XIII., but it is obviously highly significant that the 
Crown should have felt it to be proper and desirable that the 
whole community should, through its representatives, share 
the responsibility of the Crown. It is scarcely less significant 
that on some occasions at least during the great war with 
England the Crown summoned assemblies which had at least 
the character of States General to deliberate upon questions 
of war and peace. In 1359 the terms of peace demanded 
by England were laid before the Estates ; they are reported 
as being indignant, as demanding the continuance of the 
war, and as offering a subsidy for the purpose. 3 In 1363 
John I. issued an ordinance after a meeting of many prelates 
and clergy, the princes of the blood, many other nobles, and 
many of the good cities of the kingdom, assembled at Amiens, 
at which he had taken counsel with them on the business 
of the war. 4 And in 1385 it was with the advice of the 

1 ' Documents relatifs aux F^tats universitaturn, plurium sacre paginae, 
Generaux et Assemblees sous Philippe et utriusque iuris doctorum, religio- 
le Bel,' No. 660 (ed. G. Picot.) : " Cujus sorumque devotorum, et aliorum pro. 
operis sancti vos volumus esse par- cerum regni nostri ... (p. 821). Nos 
ticipes, qui participes estis et fidelis- ecclesia, clerus, et populus regni nostri 
simi zelatores fidei Christianae ; vobis- ac Delphinatus, de predictorum con- 
que precipimus quatinus de singulis silio et assensu recedimus, nuncia- 
villis predictis insignibus duos viros musque auctoritate presencium reees- 
fidei fervore vigentes, Turonis, ad sisse " (i.e., from the obedience of 
tres Septimanas instantis feste Pas- Benedict XIII.). 

chalis, nobis mittere non tardetis, qui 3 Id., vol. v. p. 55. 

nobis assistant in premissis, com- « Id., vol. v. No. 353 (p. 156) : 

munitatum vestrarum nomine, ad ea " Jehan, par la grace de Dieu, Roi de 

quae sint dictis negotiis opportuna." France ; scavoir faisons a tous presens 

2 ' Receuil General des Anciens et a venir, que but plusieurs requestes a 
Lois Francaises,' vol. vi. p. 809 : nous faites par plusieurs prelaz et 
" Nos . . . convocavimus concilium autres gens d'eglise, plusieurs nobles 
prelatorum, capitulorum, nobilium, tant de nostre sang come autres, et 

VOL. VI. G 



98 FOURTEENTH CENTURY. [PART I. 

council, at which were present many princes of the blood, 
prelates, nobles, and citizens, that it was decided to send an 
army to Scotland. 1 

Again it is not unimportant to observe that it was with 
the counsel and advice of the cities that Charles IV. issued an 
ordinance in 1322 for the reform of the currency, 2 and Philip 
of Valois did the same in 1329 and 1332, with the advice of 
the prelates, barons, and cities. 3 

It is time, however, that we should turn to the question of 
taxation, for it is no doubt true that we find here one of the 
best illustrations of the principle of the limitation of the royal 
authority and of the development of the representative 
system. It is clear that normally the Crown procured the 
money which it required, over and above that which formed 
its normal revenue, by grants, either from particular provinces 
or towns or from assemblies which represented the whole 
country. This is well illustrated in a letter of Philip V. in 
1318, in which he recognised that a grant of a fifteenth made 
to him by the nobles of Berri was made by their free will 
and liberality, and that neither he nor his successors could 
claim that it had conferred upon him any rights which they 



plusieurs bonnes villcs de notre voullons sur ce pourvenir convenable- 

royaume, qui darrainement ont ete a ment, eu avis, et pleine deliberation 

Amiens a notre mandement, pour avec nos bonnes villes, lesquelles nous 

avoir avis et deliberation avec eux sur avons mand6s sur ce, avec notre grand 

le fait de la guerre et provision de conseil, appellez a ce plusieurs sage 

deffence de notre royaume, nous par conoissons e experts . . . avous or- 

la deliberacion de notre grant conseil donn6 et ordonnons en la maniere qui 

avons ordonn6 et ordonnons en la s'ensuit." 

matiere qui s'ensuit." 3 ' Ordonnances,' vol. ii. page 3-4 : 

1 Id., vol. vii. p. 59 : " Charles ... " Philippus . . . ordinamus, habita 
commo par grand avis e meure deliber- plenaria nostri magni concilii delibera- 
ation de Conseil, ou quels estoient tione, cum prelatis, baronibus et com- 
plusieurs de notre sang, pr<51atz, munitatibus regni nostri, de faciendo 
noblos, bourgeois et autres, ayons bonam monetam." 

nagueres ordonne une armee . . . pour ' Recueil,' vol. iv. page 404 : "... 

passer et descendre au pays d'E^cosse par deliberation de notre grand 

. . . nous avons de nouvcl ordonne Conseil, mandomes e feismes assemblez 

estre mis sus, cueillez o lev6 outre ce a Orliens, plusieurs de nos prelaz, 

que dit est . . . certaines sommes barons, e bonnes villes, et autres 

de deniers." saiges et cognoisseurs au fait des dites 

2 Id., vol. iii. p. 296 : " Xous monoies." 



CHAP. VI.] 



REPRESENTATIVE INSTITUTIONS. 



99 



did not possess before. 1 In 1349 Philip VI. says that he 
had asked the inhabitants of Paris for an aid and subsidy 
for the war with Edward III., and that they had liberally 
granted him for the period of one year an imposition on the 
merchandise sold in the city. 2 

In 1350 John I. asked for aid of the nobles, communes, 
and cities of Vermandois towards the expenses of the war 
with England, and says that they had of their good will 
granted him this. 3 In the case of a similar grant from Nor- 
mandy in the same year there are some additional and impor- 
tant details ; the prelates, barons, and communities had met 
in Paris, and had agreed in principle on the grant of an aid 
to the king, but the representatives of the communities were 
not clear that they had sufficient authority to grant the aid 
in the name of the cities, and they were therefore sent back 
to deliberate and consult with them, and to receive authority 
to make this aid and subsidy. 4 It is worth observing how 



1 ' Ordonnances,' vol. i. page 677 : 
" Nous, voullons que leur dictes 
liberalites ne leur puisse, ne dois estre 
a euls, ne a leurs hoirs, prejudicial, ne 
domaigeus en temps a venir. Voulons, 
ordonnons, et leur octroions, que nous, 
ne nos successeurs, ne puisent dire que 
par cette grace, et ce service quils 
nous ont fait et donne, aucun droit 
nouvel, autre que nous n'avions avant 
cette grace, nous soit acquis contre 
euls, aux temps a venir, ne que nous, 
ne nos successeurs, pour raison de 
cette grace, leur doiens demander 
aucun service on aucune relevance, 
ausquels ils n'etaient tenuz a nous 
avant la dite grace." 

2 ' Recueil,' vol. iv. 154 (p. 559) : 
" Philippe . . . Scavoir faisons que 
euls consideranz les choses dessusdites, 
pour et en nom de subside, ont liberale- 
ment voulu et accorde pour toute leur 
communite, entant comme il leur 
touehe et appartient et puet toucher 
et appartenir : eue sur ce premiere- 
ment bonne deliberation et advis, que 
pour l'espace d'un an entierement 



accomply, soit levee, et a nous payee, 
une imposition ou assise sur toutes les 
marchandises et denrees qui serout 
vendues en notre dit6 ville de Paris." 

Cf. id. id., p. 628, for Carcassonne 
and Narbonne, and p. 654 for Amiens. 

3 ' Recueil,' vol. iv. 168 (p. 631) : 
" Lesquiex (i.e., the burden of the 
War) ne porriens souffrir, ne soustenir 
sans l'aide de nos subgiez, ayons pour 
ce, fait requierir par notre ame et feal 
conseiller l'evesque de Laon, nos bien 
amez les nobles, communes, eschevin- 
ages, et autres gens des villes de notre 
bailliage de Vermandois, que a ce 
nous voulsissent faire aide con vena ble ; 
et de leur bonne volente, ils nous 
ayent gratieusement octroi6 et accorde 
en aide, pour le fait de nosdites guerres, 
une imposition de six deniers pour 
livre." 

« Id. id. (p. 635) : " Mais pour ce 
que lesdites communautez n'estoient 
pas fondees pour le dit aide accorder 
au nom des dites villes, ils furent 
renvoyees aux dites villes, pour avoir 
collation, deliberation et avis aux 



100 FOURTEENTH CENTURY. [PART I. 

carefully guarded were the rights of the communities to tax 
themselves. 

We do not for the moment deal with the important con- 
stitutional movements of the years from 1355 to 1358 : these 
are so important that they need a separate treatment. It 
must not, however, be imagined that the victory of the Crown 
meant that it had established any constitutional right to 
impose taxation at its pleasure. In 1363 the estates of 
Beaucaire and Nimes while continuing the gabelle on salt for 
the year, and promising that, if this should prove insufficient, 
they would with the king's authority impose other " imposi- 
tions et gabelles," protest energetically that no royal justiciary, 
whatever his rank or dignity, should interfere in any way 
in raising these taxes, but only those who had been chosen 
by the representatives or those deputed by them ; that if 
the king himself or his representative, or any of the royal 
officials, were to do this, all the impositions should fall to the 
ground, and the inhabitants should be free from them. 1 

In 1364 the king, Charles V., says that the burgesses of 
Paris were disposed to make him aids and subsidies for the 
conduct of the war. 2 In 1367 the prelates, barons, 
ecclesiastics, and communities of Dauphine, in return for 
the confirmation of their liberties and franchises, made a 

gens d'icelles, et pooir dudit aide et aliqualiter intromittere, nee etiam 

subside accorder et octroyer." impedire ; sed ill! duntaxat qui per 

Cf. id. id. (p. 709) for Axijou and ipsos seu deputatos aut deputandos ab 

Maine. " Que autrefoiz aide semblable eis fuerint super hoc oleeti. . . . Quod 

no puisse estre levee esdiz pais au temps si dominus noster Rex, seu ejus locum- 

a venir, si ce n'estoit par 1'accort et tenens, aut quivis alius justitiarius et 

de rassentement expres des dites officialis cujuseunque conditionis et 

gens d'eglise, desdiz nobles et des dites preeminentiae existat, contrarium 

communes." faceret, extunc omnis impositio et 

1 ' Recueil,' vol. v. 345, 40 (p. 142) : gabella ipso facto cessit, et quod ipsi 

" Quod nullus justitiarius regius, cujus et omnes habitantes et subditi in 

cunque status seu dignitatis existat, dicta senescallia, ad praemissorum 

de dicta gabella ot aliis impositionibus, observantiam minime teneantur, sed 

nee etiam do dictis pecuniis inde levan- ab omnibus et singulis supra dictis 

dis et exigendis, custodiendis seu oneribus sint quitti, liberi penitus et 

erogandis, et in stipondiariis et aliis immunes, et quod impune possint 

usibus neeessariis convertendis, nee desistere a predictis." 

etiam super compotis audiendis par- s 'Recueil,' vol. v. 364 (p. 212), 
ticularium receptorum, so habeant 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 101 

" gracious gift " of thirty thousand florins to the king and 
dauphin. 1 In the same year the nobles and cities of 
Artois, the " Boulenois," and S. Pol granted an aid to the 
king, but with the express condition that this was not to 
prejudice their liberties and freedom ; and we find this par- 
ticular grant constantly repeated to the end of the century. 2 
In 1369 we find Charles V. promising the towns and other 
"lieux" of Ponthieu that for the future no aid or subsidy 
was to be imposed on them without their consent, and we 
find the same promise made to the towns of Crotroy and 
Ehodez. 3 The ' Grand Chronique ' refers to a meeting 
of estates in 1369, which voted a subsidy. 4 In 1372, 
Charles V. gave authority to the Bishop of Limoges to impose 
" tailles et subsides " in the diocese and viscounty of Limoges 
" se la plus saine partie d'icelle pais s'y accorde." 5 

In 1381 we come to the very important ordinance by which 
the regent, in the name of the king, Charles VI., during his 
minority, abolished the aids, &c, imposed in the time of 
his father and his predecessors since the time of Philip the 
Fair. This ordinance was issued after an assembly, held at 
Paris, of the ecclesiastics, nobles, and citizens of the towns of 
Languedoyl. It has been disputed whether the meeting was 
formally a States General or not, 6 but the question is not of 
much importance from our point of view. It cannot be doubted 
that it had a representative character ; and it was these repre- 
sentatives who presented the complaints against the subsidies 
and subventions as having been contrary to their immunities, 
liberties, privileges, constitutions, and customs, and also 
against the ancient royal ordinances. The king therefore 
orders that all such aids, &c, of whatever kind they were, 
which had been imposed since the time of Philip the Fair, 
should be annulled and abolished ; and he adds that the fact 
that they had been imposed should not be taken as having 

1 ' Recueil,' vol. v. 421 (p. 298). ' Grand Chronique,' vol. vi. p. 321. 

2 ' Ordonnances,' vol. v. p. 82. 6 ' Ordonnances,' vol. v. p. 719. 

3 ' Ordonnances,' vol. v. pp. 82, • Cf. especially Picot : ' Histoire 
176, 257, 410. des Etats Generaux,' vol. i. p. 229, 

4 Cf. Picot : ' Histoire des E"tats &c. 
Generaux,' vol. i. p. 194. From the 



102 



FOURTEENTH CENTURY. 



[PAKT I. 



given either himself or his predecessors or his successors any- 
new rights, or as having in any way prejudiced the immunities, 
liberties, customs, &c, of his people. He reserves only " noz 
rentes, yssues, travers, et prouffiz des vivres et denrees menees 
hors de notre royaume " and the "redevances" of the 
Genoese, Lombards, " Tresmontains," and other aliens. 1 
It seems to us clear that this represents the admission by the 
regent that such taxation had been and was illegal, and he 
not only annulled it, but also emphatically assented to the 



1 'Recueil,' vol. vi. 14 (p. 553): 
" Savoir faisons a tous presens et a 
venir, que comme a la la convocation 
et assemblee generale que nous avons 
fait faire et tenir a Paris, des gens 
d'eglise, nobles, bourgeois et habitants 
des bonnes villes de notre royaume 
de la Languedoyl, pour avoir advis 
sur la deffence et provision d'icellui, ils 
se fussent complains des aides, sub- 
sides et eubvencions que feu notre 
tres chier seigneur et pere . . . faisait 
et avoit fait imposer et lever sur eulz, 
et aussi de plusieurs autres choses 
qu'ils disoient avoir est6 faiz en leur 
prejudice du temps de notre dit seig- 
neur et pere et ses predecesseurs, par 
leurs gens et officiers, contre leurs 
immunitez, nobleces, franchises, liber- 
tez, privileges, constitucions, usaiges et 
coustumes des pays, et contre les or- 
donnnnoes aneiennes ; requerans leur 
etre sur ce pourveu de remede conven- 
able — nous voulans noz dictes gens et 
subgiez en leur dictes immunitez, 
nobleces, franchises, libertez, privileges, 
constitucions, usaiges et coustumes 
aneiennes rernettre, ressaisir, ro.stituer, 
maintenir et garder, et les relever a 
tout notre pouvoir, de tous griefs, 
charges, et oppressions quelconques . . . 
Voulons, ordonnons et octroyons de 
notre pleine puissance, certaine science 
et auctorit6 royale. 

Que les aides, subsides, imposicions, 
et subvencions quelconques, de quelque 
nom ou condicion qui soient, et par 
quelque maniero ils aient est6 imposez 



sur nos dites gens et peuples, qui aient 
eu cours en notre dicte royaume du 
temps de notre dit seigneur et autres 
nos predecesseurs, depuis le temps du 
roi Philippe le Bel notre predecesseur, 
soient cassees, ostees et abolies, et ycelle 
ostons, cassons et abolissons, et mettons 
au neant du tout par la teneur de ces 
presentes ; 

Et voulons et decernons que par le 
cours que ycelles imposicions, subsides, 
et subvencions ont eu en notre dit 
royaume, nous, nos predecesseurs, 
successeurs, ou aucun de nous, ne en 
puissions avoir acquis aucun droit, ne 
aucun prejudice etre engendrez a noz 
dictes gens et peuple, ne a leurs im- 
munit6z, nobleces, franchises, libertez, 
privileges, constitucions, usaiges et 
coustumes dessus dictes, ne a aucune 
d'icelles en quelque maniere que ce 
soit 

Voulons et d6cernons que se a 
l'encontre de ce aucune chose a est§ 
faiete depuis ycellui temps jusques a 
ores, nous, ne noz successeurs ne nous 
en puissions aidier aucunement, mais 
les mettons du tout au neant par ces 
mesmes presentes. . . . 

(The King reserves) " nos rentes, 
ysseiis, travers, ot prouffiz des vivres 
et denrees menees hors de notre 
royaume, qui nous demeurent. . . . 
Et aussi sanz y comprondre les 
redevances des Gennevois, Lombars, 
et Tresmontains, et nez hors notre 
royaume, et de leur denrees." 

Cf. ' Ordonnances,' vol. vi. p. 564. 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 103 

principle that such illegal action should not be taken as a 
precedent. It is true that there is no statement of how 
such taxation could legally be imposed ; but it is implied 
that it could only be made legally by the consent of those 
who were to pay the taxes, and that this implied some 
system of representation, either local or general. 

It may be urged that this concession was only made in 
view of the particular circumstances of the regency, and 
there is probably some truth in this, but it must be observed 
that from this time down to the end of the century the refer- 
ences which we can find to taxation seem in almost all cases 
to imply that the Crown was careful to pay at least a formal 
deference to the principle of taxation by consent. In 1384 
the " Universitates " of Briangon made of their free will a 
grant of 12,000 florins to the Dauphin. 1 In 1384 a letter of 
Charles VI. speaks of " certaines aides a nous accordees 
par les gens d'lSglise, nobles, bourgeois et habitans " of the 
province of Eouen. 2 In 1382, Juvenal des Ursins says that 
an assembly which had the nature of a " States General " had 
been called together at Compiegne, and had been asked to 
sanction an aid, but the representatives of the cities said 
that they had no power to act. 3 In 1383 the instructions to 
the royal officers about the levy of a new aid speak of this as 
having been imposed with the advice of several of the princes 
of the blood, prelates, nobles, and others. 4 Another ordinance 
of 1383 mentions that in the previous year the citizens of 
Paris had granted various aids. 5 In 1385 Charles VI. refers 
to a decision to make an expedition into Scotland, and says 
that this had been done by the advice and after long delibera- 
tion of his council, at which there were present several of the 
princes of the blood, prelates, nobles, citizens, and others, 
and that in view of this he had ordered the levy of a certain 
sum of money. 6 In 1388 we find a reference which might 



1 ' Ordonnances,' vol. vii. p. 719 Picot : vol. i. p. 235). 

(41). * ' Ordonnances,' vol. vi. p. 705. 

2 Id., vi. p. 659. 5 ' Reeueil,' vol. vi. 41 (p. 570). 

3 Juvenal des Ursins, ' Histoire de 6 ' Ordonnances,' vol. vii. p. 759. 
Charles VI.' (ed. 1614, p. 25). Cf. 



104 FOURTEENTH CENTURY. [PAKT I. 

be interpreted in a contrary sense : a tax is imposed " par 
maniere de taille," with the advice of some of the princes of 
the blood and the great council — no other persons are men- 
tioned. 1 In 1393 Charles VI. writes to the Governor of 
Dauphine" instructing him to summon the assembly of the 
prelates, clergy, nobles, and "communes " of Dauphine, and 
to request them to grant an aid, as they had done before when 
he was in Languedoc. 2 In 1395 we find an aid being levied 
for the marriage of the king's daughter to the King of England ; 
there is no reference to any assembly as granting this, but this 
would have been one of the normal feudal dues, except that 
it was apparently not being levied on the nobles. 3 In the 
same year we find Charles appointing a Commission to call 
together the clergy, nobles, and other persons of Dauphin^, 
and instructing them to ask for an aid for the same purpose. 4 
In 1398 Charles announces that he had determined to levy 
an aid on all the clergy, and that he had done this by the 
order of the princes and the great Council and the consent of 
the prelates and clergy. 5 

It would seem to be clear that throughout the fourteenth 
century it was assumed in France that the king had normally 
no arbitrary right of taxation, that if he needed money beyond 
the ordinary revenues of the Crown he had to ask for it, and 
that it could only properly be granted by the local or national 
community. It is also obvious, if only from the provisions 
of the Ordinance of 1381, that the kings had often exceeded 
their constitutional rights and had imposed and levied taxes 
by their own authority. It is possible that we can find an 
illustration of this in an ordinance issued by John I. in 1360 
on his return from captivity in England, when with the advice 
of his Council, and no other body or persons are mentioned, 
he imposed a tax upon all sales throughout the Languedoyl. 6 
We may perhaps conjecture that the Crown might have 
justified itself for its action under the terms of an ordinance 
of Louis X. addressed to Normandy in 1315. Louis recognised 

1 ' Recueil,' vol. vi. 207 (p. 630). • ' Ordonnances,* vol. viii. (p. 67.) 

= Id., vol. vi. 185 (p. 734). 6 Id., vol. viii. p. 289. 

8 Id., vol. vi. 214 (p. 759). • ' Recueil,' vol. v. 310 (p. 108, 9). 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 105 

without reserve that he was not entitled to impose tallages, 
exactions, subventions, or impositions on the people of Nor- 
mandy beyond the " redditus communes et servitia nobis 
debita," but he added an important qualification — that is, 
" nisi evidens utilitas vel emergens necessitas id exposcat." 1 

This does not, however, affect the fact that it was recog- 
nised in France throughout the fourteenth century as clearly 
as in England and Spain that taxes could not be imposed 
without the consent of the community. 

We have not yet, however, exhausted the subject of the 
development of the representative system in France. We 
have still to observe that as in England and in Spain the 
representative bodies sometimes claimed a share in the 
control not only of taxation, but also of administration, as 
we should now call it. 

We cannot here enter into any detailed discussion of what 
may be called the constitutional crisis in France of the years 
1355-1358 : this has indeed been described by many historians. 
We must, however, for our purpose draw attention to some 
aspects of it, and the first point to which we must draw 
attention is the claim of the Estates not merely to make grants 
to the Crown, but to control the expenditure of these grants. 
The first example we have found of this is in the proceedings 
of an assembly of the prelates, barons, and communities of 
Anjou and Maine in July 1355. After protesting that aids 
were not to be levied without their consent, they proceeded 
to appoint a Commission of two bishops, two nobles, and two 
burgesses, who were to appoint persons to collect the aid, 
and to whom the collectors were to render account ; and, not 
satisfied with this, the money thus raised was appropriated 
to the defence of the country, and was only to be spent 
(distribute et convertie) with the consent and advice of the 
six commissioners. 2 

These principles — control of levy, appropriation, and control 
of expenditure — are the first and most fundamental aspects 
of the regulations laid down by the great meeting of the 

1 ' Recueil,' vol. iii. 476, 5 (p. 50). * ' Recueil,' vol. iv. 215, 1-4 (p. 709). 



106 FOURTEENTH CENTURY. [PAUT I. 

States General of the Languedoyl in December of the same 
year, 1355. They also granted taxation on a large scale for 
one year, and they laid down the same conditions. They 
appointed a Commission of nine, three from each estate, to 
superintend the levy, and they appropriated the money to the 
purposes of the war ; in addition they provided that the 
estates should meet again on St Andrew's Day in the following 
year to consider how the money had been spent, and, if they 
thought proper, to grant a new aid. The king, in his reply 
to the estates, promised that he would appoint proper persons 
to deal with the money with the counsel of the Commission 
of nine elected by the estates, and that that Commission was 
to see the troops and only to pay the money for those who 
were actually present. Even this, however, did not represent 
the whole of the concessions made to the estates. The king 
assured them that no one should have power to call out the 
" arriere ban " of the kingdom except the king himself or 
his eldest son, and that he would do this with the advice of 
the members of the three estates, if he could conveniently 
meet them. 1 

The estates met again in March 1556, and, finding that 
the form of taxation authorised in 1555 had caused much 
discontent, imposed another. 2 They met again in October 
1556, after the king had been taken prisoner by the English. 
They then complained of exactions and misappropriation 
of subsidies, and demanded the removal of the evil coun- 
cillors of the Crown, and that the regent should appoint, 
with the advice of the estates, certain wise and notable men 
of the clergy, nobles, and burgesses, who should be constantly 
with him and advise him. 3 

The estates of Languedoc met in September 1355 and 
voted a subsidy. When they met again in February 1357 

1 ' Recueil,' iv. 221, 1-7, 19 (pp. 738, anciens, loyaux, et meurs, qui continu- 

757), elloment pres de lui fussent, et par 

* ' Recueil,' vol. iv. 225 (p. 763). qui il so conseillast, et que rien par 

3 ' Recueil,' vol. iv. 232, 2 (p. 782) : les jeunes, simples et ignorants du faict 

" Qu'il esleut par le conseil des Trois du gouvornemont d'un royaume et de 

Estats aucuns grands, sages et notables la justice il ne ordonnast." 
du clerg6, des nobles et bourgeois, 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 107 

they determined that the money which was raised was to be 
held by four treasurers whom they elected, and that the 
treasurers themselves should pay the soldiers and should 
render account of the expenditure, not to the royal officer, 
but to the estates ; and that the king and his " locum tenens " 
and his officers should have nothing to do with this. If they 
interfered, the treasurer of the estates was to notify the 
people, who would then be at liberty to refuse to pay the 
subsidy. They also determined that the subsidy was only 
to be renewed by the estates, which should meet to consider 
this. 1 

It is noticeable that in the letter of the Dauphin of March 
1358 announcing his assumption of the office of regent, he 
says that he had done this after mature deliberation with the 
members of the Council and other prelates, barons, and citizens 
of the great cities. He does not describe this as a States 
General," but it seems reasonable to say that it had some 
kind of representative character. 2 

In the States General which met at Compiegne in May 
1358 it was laid down that the subsidies and aids were to be 
administered by persons elected by the estates, and that the 
regent was to act in important matters only with the advice 
of three members of the Council. 3 The estates of Languedoc 
at their meeting in July 1358, in granting a subsidy for the 
ransom of King John, laid down regulations of the same 
kind as in 1357. 4 

When the regent had gained the upper hand it is true 
that he annulled the condemnation and expulsion of the 
royal officials, which had been enacted by the earlier States 
General, but it should be observed that he was careful to 
state that this was done after careful deliberation, "en la 

1 ' Ordonnances,' vol. ii. p. 99, &c. pour l'evident necessity et profit du dit 

2 ' Recueil,' vol. v. 268 (p. 1): royaume, le nom de Regent, et le 
" Comme par meure et grant delibera- gouvernement d'icelli, jusques a tant 
tion que nous avons eu avec les gens qu'il plaise a Dieu que Monseigneur 
du Grant Conseil de Monseigneur et puisse retourner en icelli. . . . 

de nous, et plusieurs autres prelaz, * 'Recueil,' vol. v. 272, 411 (pp. 9 

barons, et bourgeois de bonnes villes and 14). 

du royaume de France, nous aions pris * * Recueil,' vol. v. 276, 1-5 (p. 28). 



108 FOURTEENTH CENTURY. [PART I. 

grant chambre de parlement a Paris," at which there were 
present not only the princes, prelates, and nobles, but also men 
of the " great towns." x 

It seems to us that it is a serious error to look upon the 
failure of the movements of 1355 to 1358 as implying that 
the representative system and its limitation of the arbitrary 
royal authority had ceased to be important in France. We 
shall presently consider its place in the fifteenth century in 
detail ; for the moment we have seen enough to recognise 
that its history in the fourteenth century is not indeed the 
same as that in England and Spain, but that it is at least 
closely parallel to it. 

It is not necessary to deal at length with the development 
of the representative system in England, for this has been 
fully treated by the constitutional historians like Bishop 
Stubbs, and, though it may be that some modification of this 
treatment is necessary in detail, its substantial correctness 
cannot be seriously impugned. It is only necessary from our 
point of view to put together a few illustrations of its character. 

We cannot, it seems to us, do better than begin by citing 
again the famous phrase of the revocation of the Ordinances 
of 1310-11 in the Parliament of 1322. Those things which 
are to be established for the kingdom and the people are to be 
discussed, agreed upon, and determined in Parliament by our 
lord the king with the assent of the prelates, counts, barons, 
and the commonalty of the kingdom, as had been the former 
custom. 2 We do not feel that it is necessary to enter into 
any account of the complex antecedents of this statement, 
for it seems to us to be important primarily as laying down 
shortly but distinctly the general principle which lay behind 
the whole constitutional development of the country. If 
these words may be taken as a general statement of the con- 



1 * Recuoil,' vol. v. 291 (p. 58). trestes, accordees, establies, en parle- 

2 ' Statutes of the Roalm,' vol. i. raentz par notre seigneur le roi, et par 
p. 189 (Edward II., 1322): " Mes lea l'assent des prelatz, countes et barouns, 
choses q'srount a establir, . . . pour et la communalte du roialme ; auscint 
l'estat du roialme et du peuple, eoient como ad eate acuetume cea enarere." 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 109 

stitutional position of the representative assembly, we can 
also find some very significant illustrations of the tendency 
of Parliament to claim a certain control over the administra- 
tion of government. 

In May 1341 the Commons appointed a Commission to 
audit the accounts of the royal officers who had received money 
for the king, and they demanded that for the future any 
vacant office was to be filled by the king with the consent of 
the magnates, and that those appointed were to be sworn 
in Parliament to obey the laws ; they even went so far as to 
demand that at the meeting of each Parliament these offices 
were to be taken " into the hand " of the king, and the Ministers 
were to be required to answer the complaints which might be 
made against them. If complaint was made against any 
Minister of any " misprision," " et de ce soit atteint en Parle- 
ment," he was to be deprived of his office and punished by 
the judgment of the peers. 1 It is true that Edward III. in 
October revoked his consent to these measures, and that 
Parliament in 1343 formally annulled them, 2 but the demand 
remains of great significance. 

The proceedings of the Parliament of 1376 were of equal 
importance, as illustrating the tendencies of the times ; for 
it proceeded to a formal examination of the conduct of 
some of the king's Ministers and agents ; Lord Latimer, the 
Chamberlain, was condemned to imprisonment and to be 
fined at the king's discretion, and Parliament prayed the 
king to remove him from his office and from the Council ; 
and Eichard Lyons, one of the king's agents, was condemned 
to imprisonment and forfeiture. 3 

The Commons also demanded that the council of the king 
should be " afforced " with ten or twelve lords, prelates, and 
others, and that no important business should be done without 
the consent of all of these, or in the case of less important 
business, of at least four. 4 

1 Stubbs, ' Constitutional History,' 3 Stubbs, ' Constitutional History,' 
vol. ii. pp. 387-391 (ed. 1877). vol. iii. pp. 428 seq. (ed. 1877). 

2 ' Rolls of Parliament,' vol. ii. pp. 4 ' Rolls of Parliament,' vol. ii. 
126, 289 (Edward III., 1341), Clause p. 322 (Edward III., 1376), Clause 10 : 
38, Clause 41. " Item les communes considerant les 



110 



FOURTEENTH CENTURY. 



[PART I. 



It is not necessary to multiply illustrations of the develop- 
ment of the representative system in England, but it should 
be observed how closely parallel this was to what we have 
already considered in relation to Castile and France. 



meschiefs la terre . . . pourquoi ils 
prient, que le Conseil, notre Seigneur le 
Roi, soit enforcez de Seigneurs de la 
Terre, Prelatz et autres, a demurrer 
continuellement tant que au nombre de 
dys ou xii. selonc la volunte du roi ; 
par maniere tielle, que nulle gros 
besoigne y passe ou soit delivre sans 
l'assent et advis de touz : et autres 
meyndres besoignes par l'advis et 
assent de sys ou quatre au meyns, 
selonc ce que le cas requert. Issint 
au meins, que six ou quatre des tielx 
conseillers soient continuellement resi- 



dentz du Conseil du Roi, et notre 
Seigneur le roi entendant la dite 
requeste estre honurables et bien 
profltables a luy et a tout son royaume, 
l'ad obtroie. Pourveuz toutes voies, 
que chancellor, tresorer, et gardein de 
Prive Seal et tous autres officers du 
roi, purrant faire et esploiter les 
busoignes qui touchent leurs offices 
sanz la presence des ditz conseillers, 
les queux le roi ad assignez et assignera 
de temps en temps de tieux come luy 
plerra." 



Ill 



CHAPTER VII. 

THE CONCEPTION OF POLITICAL UNITY IN EUROPE. 

The idea of a universal monarchy of the Western Christian 
world ceased to be effective in Europe generally after the 
break-up of the Carolingian empire ; and after the death of 
Frederick II. the empire was no longer even the greatest 
Power in Western Europe. There were, however, two coun- 
tries, Italy and Germany, where the empire was still actually 
or potentially a power to be reckoned with, and in these 
countries at least the idea of a world monarchy still survived. 
In Italy, after the death of Frederick, there was no effective 
central control over the city states outside of the Neapolitan 
kingdom, and internecine conflicts in the towns gave occasion, 
even before the close of the thirteenth century, to the rise of 
the tyrants. The majority of the cities, however, had not 
yet lost their freedom, the nobles had generally been deprived 
of power, and city life was still vigorous but turbulent. In 
the ' Purgatorio ' Dante thus apostrophises Italy : — 

" Ahi serva Italia, di dolore ostello, 

Nave senza nocchiere in gran tempesta, 
Non donna di provincie, ma bordello ! 



Ed ora in te non stanno senza guerra 
Li vivi tuoi, e Fun l'altro si rode 
Di quei che un muro ed una fossa serra." 



and he invites the German Emperor to come — 

" Vieni, crudel, e vedi la pressura 
De' tuoi gentili, e cura lor magagne." 



112 FOURTEENTH CENTURY. [PABT I. 

" Che le citta d'ltalia tutte piene 

Son di tiranni, ed un Marcel diventa 
Ogni villan che parteggiando viene." 

Like Marsiglius of Padua a few years later, Dante attri- 
butes the blame for this largely to the Church : — 

" Ahi gente, che dovresti esser devota, 
E lasciar seder Cesare in la sella, 
Se bene intendi ci6 che Dio ti nota ! 
Guarda come esta fiera e fatta fella, 
Per non esser corretta dagli sproni, 
Poi che ponesti mano alia predella." x 

Dante was himself a victim, and though in the ' Convivio * 
or in the ' De Monarchia ' he may discuss Church and Empire 
as a philosopher, in the ' Commedia ' he shows his burning 
sense of wrongs inflicted because there was no peace nor 
justice in the country in the absence of a strong ruler standing 
above and aloof from local jealousies. 

Dante was by birth a member of a Guelf family which had 
suffered in the cause after the battle of Montaperti ; not one 
of the great houses, but not to be despised, even by such a 
haughty Ghibelline as Farinata degli Uberti. At thirty-five 
years of age he was elected one of the Priors. The Pope, 
Boniface VIII. , summoned Charles of Valois to support him, 
especially in Tuscany and the Eomagna ; and Charles, once 
admitted to Florence, despite his vows of impartial justice, 
allowed the extreme party of the Neri to oust the Bianchi. 
Dante was one of the excluded party, and with others of his 
former associates in the Government he was condemned to 
death, and went into exile. For a short time Dante joined with 
other exiles, Guelf and Ghibelline, in attempts to force his way 
back to Florence ; but the attempts failed, and Dante, equally 
dissatisfied with both parties, ceased his efforts. Later on 
he refused to avail himself of opportunities for pardon, on 
account of the indignities involved in making his submission 
to the Florentine Government. 2 He enthusiastically welcomed 

1 Dante, ' Purgatorio,' vi. * Epistola lx. 



CHAP. VII.] POLITICAL UNITY IN EUROPE. 113 

Henry VII. on his arrival in Italy in 1311, x and looked for the 
condign punishment of Florence, 2 but Henry died in 1313 
without taking the city. There is in the ' Commedia ' a 
magnificent testimony to Henry VII., for whom a throne 
is set apart in heaven, where — 

" Sedera 1'alma, che fia gia agosta, 

Dell'alto Enrico, ch' a drizzare Italia 
Verra in prima che ella sia disposta." 3 

There is not a line in the ' Commedia ' to indicate that 
Dante had abandoned hope of the " veltro," the future 
emperor, who would come at a more opportune time to 
restore Dante's beloved Italy, the " giardino dell' impero." 

Dante was not a mere theorist, the false prophet of a dead 
empire. He had everything in his experience to open his 
eyes to the need of a strong ruler in Italy, to control a turbulent 
people. It is easy for us now looking back to see that the 
time for a world monarchy was over ; but in Dante's lifetime 
the Papacy, in outward appearance at the height of its power, 
had been mastered by the ruler of France, and now that the 
papacy had been so much weakened by Philip the Fair it 
was difficult to set limits to the power of a renovated Roman 
empire. There was nothing intrinsically absurd in the vision 
of a great emperor ruling the world in temporal matters hand 
in hand with a reformed and chastened papacy governing 
in spiritual matters. 

The earliest statement of Dante's political theories is con- 
tained in the i Convivio,' and was probably written not later 
than 1308. The ' Convivio ' is a fragment, and Dante wrote 
only four out of the fifteen books he had projected. In the 
last book of the [ Convivio ' he discusses the question of 
what constitutes true nobility, and as he quotes and disagrees 
with the dictum on this subject of Frederick II., he digresses 
into the question of the nature of imperial authority. His 
two chapters on the subject contain in a condensed form 
some of his arguments in the [ De Monarchia.' 4 Between 

1 Epistola v. s ' Paradiso,' xxx. 

* Epistola vi. * Dante, ' Convivio,' iv. 8. 

VOL. VI. TT 



114 FOURTEENTH CENTURY. [PART I. 

the I Convivio ' and the * De Monarchia ' come his letters 
to the kings and other rulers of Italy, to the Florentines, 
and to Henry VII., written in connection with Henry's 
expedition to Italy. The last of his political letters was 
addressed, to the Italian cardinals, some time (probably early) 
during the long interregnum between the death of Clement V. 
and the election of John XXII. 

Eeferences to the empire and the papacy occur throughout 
the ' Commedia.' In the first canto of the ' Inferno,' Virgil, 
the poet of the empire, is sent to guide Dante through hell 
and purgatory, and it is not till they arrive at the terrestrial 
paradise that he leaves him in the charge of Beatrice. The 
thirtieth canto of the ' Paradiso ' ends with the stern de- 
nunciation by Beatrice of Clement V. : — 

" E fia prefetto nel foro divino 

Allora tal, che palese e coperto 
Non andera con lui per un cammino. 

Ma poco poi sara de Dio sofferto 

Nel santo offizio ; ch'ei sara' detruso 
La' dove Simon mago e per suo merto 

E fara quel d'Anagna entrar piu giuso." x 

While Dante makes no attempt in the ' Commedia ' to 
moderate his language in order to conciliate his opponents, 
there is a studied moderation in the [ De Monarchia,' which 
would fit in well with an attempt on his part, to write a 
defence of the empire and an assertion of its complete freedom, 
on the temporal side, from papal control, without exasperating 
the Curia. 

According to Dante, man's end is twofold, in the first place 
happiness in this life, consisting in the unchecked develop- 
ment of his special " virtus." The other end of man is to 
secure the happiness of life eternal, to which man can only 
attain by the help of the divine light. 2 Inasmuch, however, 

1 ' Paradiso,' Canto xxx., 142-148. et per terrestren Paradisum figuratur ; 

2 ' De Monarchia,' iii. 16: "Duos et beatitudinom vitae aeternae, quae 
igitur fines Providentia ilia inenarra- consist it in fruitione divini aspectus ad 
bilis homini proposuit intendendos ; quam propria virtus ascendere non po- 
beatitudinem scilicet huius vitae, quae test, nisi lumino divino adiuta, quae per 
in operatione propriae virtutis consistit, Paradisum coelostem intolligi datur." 



CHAP. VII.] POLITICAL UNITY IN EUEOPE. 115 

as man's happiness in this life is in some measure ordered 
for immortal felicity the emperor, who provides for man's 
temporal welfare, should show Peter that reverence which is 
due from a first-born son to his father, so that illuminated 
by the light of paternal favour he may the better rule this 
world, to whose government he has been appointed by God, 
to whom are subject all things alike, temporal and spiritual. 1 

Dante points out that just as nature produces the thumb 
for one purpose and the whole hand for another and so on, 
in like manner we come finally to an end for which God has 
created the whole human race. Now the special capacity of 
man is apprehension by means of the potential (" possibilis ") 
intellect, and to make this capacity operative, many men are 
needed, for the work could not be done by one man or by 
some limited association of men. The function proper to the 
human race is to put into operation the whole of this capacity, 
not only for speculation but also for action. And just as each 
individual requires peace and quietness if he is to attain 
to perfection in knowledge (prudentia) and in wisdom, so 
too it is peace that enables the human race as a whole best 
to achieve its almost divine work. Universal peace is thus 
the best of those things which are ordered for our happiness. 

We have it on the authority of the great philosopher 
in his Politics, and we can also prove that when several 
things are ordered for one end, one of them must direct the 
others. This is true of the home, of the village, and so on, 
up to the kingdom, and it applies also to the whole human 
race, since it also is ordered to one end. It is therefore clear 
that a monarchy or empire is necessary for the wellbeing of 
the world. 2 

Dante gives other reasons for holding that the whole 

1 ' De Monarchia,' iii. 16: "Quae qui- genitus filius debeat uti ad patrem ; ut 

dem veritas ultimae quaestionis non luce paternae gratiae illustratus, vir- 

eic stricte recipienda est, ut Romanus tuosius orbem terrae irradiet, cui ab 

princeps in aliquo Romano Pontifici non Illo solo praefectus est qui est omnium 

subiaceat ; quum rnortalis ista felicitas spiritualium et temporalium guber- 

quodammodo ad immortalem felici- nator." 

tatem ordinetur. Ilia igitur reverentia 2 ' De Monarchia,' i. 3-7. 
Caesar utatur ad Petrum, qua primo- 



116 FOURTEENTH CENTURY. [PAST I. 

human race should be under one ruler ; as, for instance, that 
it is the purpose of God that every created being should 
be in the divine likeness, so far as his nature will permit, 
and that therefore the human race is best disposed when it 
is most like to God ; and as the essence of unity (" vera ratio 
unius ") is in the Deity, it is likest Him when it is most one, 
and this can only be when it is subject to one ruler (" princeps "). 
Wherever disputes occur a judge is required, and as disputes 
are possible, where there are rulers not subject to one another, 
it is necessary to have a third person with an ampler juris- 
diction who includes both in his government. A monarch 
is necessary for the whole world. The world is best ordered 
when justice is most powerful, and this can only be when it 
is under a monarch, who is more powerful than any other 
ruler and can thus most effectively do justice. He is also 
free from greed, the chief enemy of justice, as there is nothing 
left for him to desire. He is also in closer connection in every 
respect with his subjects than any other ruler, for their rela- 
tions with their subjects are only partial. Moreover, other 
rulers derive their power from the monarch, while the monarch 
has his power over the subjects directly and prior to all 
others. The monarch, therefore, being closer to his subjects 
than any other ruler will beyond all others seek their good. 
That the monarch has more power than anyone else to do 
justice is clear, for he can have no enemies. 1 

The human race is also at its best when it is most free, and 
this according to Dante is another argument in favour of mon- 
archy, for it is under a monarch that it is most free. Freedom 
is the greatest gift conferred by God on man, and as only 
that is free which exists for its own sake, it can only be attained 
under a monarchy ; for it is only under a monarchy that 
perverted forms of government can be corrected, and the 
monarch, who beyond all others loves mankind, although 
the master as regards the means, is the servant of all as regards 
the end of his government. 2 Dante is careful to explain that 

1 Id., i. 8, 10, 11. Hoc erit manifest urn, si principium 

1 Id., i. 12 : " Et humanum genus, pateat libortatis. Propter quod scien- 

potissimo liberum, optime se habet. dum est, quod primum principium 



chap. vn.J 



POLITICAL UNITY IN EUROPE. 



117 



nations, kingdoms, and states have their own special con- 
ditions, which ought to be regulated by special laws. It is 
only as regards things which are common to all, that men 
should be governed by the one ruler. 1 

In concluding his arguments to show that a monarch is 
required for the wellbeing of the world, Dante sees them 
confirmed by the state of the world when the Son of God 
became man. At no other time since the fall of our first 
parents was the whole world at peace, as was the case under 
the perfect monarchy of " divus Augustus." 2 



nostrae libertatis est libertas arbitrii, 
quam multi habent in ore, in intellectu 
vero pauci . . . iterum manifest urn 
esse potest, quod haee libertas, sive 
principium hoc totius libertatis nostrae, 
est maximum donum humanae naturae 
a Deo collatum . . . quia per ipsum 
hie felicitamur ut homines, per 
ipsum alibi felicitamur ut Dii. Quod 
si ita est, quis erit qui humanum genus 
optime se habere non dicat, quum 
potissime hoc principio possit uti ? 
Sed existens sub monarcha, est potis- 
sime liberum. Propter quod sciendum, 
quod illud est liberum quod suimet et 
non alterius gratia est . . . Genus 
humanum, solum imperante monarcha, 
sui et non alterius gratia est ; tunc 
enim solum politiae diriguntur obliquae, 
democraticae scilicet, oligarchiae atque 
tyrannides, quae in servitutem cogunt 
genus humanum. . . . Hinc enim 
patet, quod quamvis consul sive Rex 
respectu viae sint domini aliorum ; 
respectu autem termini, aliorum min- 
istri sunt, et maxime Monarcha, qui 
minister omnium procul dubio haben- 
dus est." 

1 Id., i. 14: "Propter quod adver- 
tendum sane quod quum dicitur, 
humanum genus potest regi per unum 
supremum Principem, non sic intelli- 
gendum est, ut minima iudicia cuius- 
cumque municipii ab illo uno immediate 
prodire possint • quum etiam leges muni- 
cipales quandoque deficiant, et opus 
habeant directivo, ut patet per Philoso- 



phum in quinto ad Nichomachum, 
eirieiKeiav commendantem. Habent 
namque nationes, regna et civitates 
inter se proprietates, quas legibus dif- 
ferentibus regulari oportet. . . . Sed sic 
intelligendum est, ut humanum gemis 
secundum sua communia, quae omnibus 
competunt, ab eo regatur, et communi 
regula gubernetur ad pacem. Quam 
quidem regulam, sive legem, particu- 
lares principes ab eo recipere debent, 
tanquam intellectus practicus ad con- 
clusionem operativam recipit maiorem 
propositionem ab intellectu speculativo 
. . . Et hoc non solum possibile est uni, 
sed necesse est ab uno procedere, ut 
omnis confusio de principiis univer- 
salibus auferatur." 

2 Id., i. 16: " Rati oni bus omnibus 
supra positis, experientia memorabilis 
attestatur ; status videlicet illius mor- 
talium, quern Dei Filius in salutem 
hominis hominem adsumpturus, vel 
expectavit, vel quum voluit ipse 
disposuit. Nam si a lapsu primorum 
parentum, qui diverticulum fuit totius 
nostrae deviationis, diepositiones horn 
inum et tempore recolamus ; non in 
veniemus nisi sub divo Augusto Mon 
archa, existente Monarchia perfecta 
mundum undique fuisse quietum 
. . . (Since then) O genus humanum 
quantis procellis atque iacturis 
quantisque naufragiis agitari te necesse 
est, dum bellua multorum capitum 
factum, in diversa conaris." 



118 FOURTEENTH CENTURY. [PART I. 

Dante devotes the second book of the ' De Monarchia ' to 
proving that the Eoman people acquired lawfully the empire 
over all mankind. At one time, like many others, he be- 
lieved that they had gained it unlawfully by violence. Later 
on the conviction was forced on him by most manifest signs 
that they owed the " imperium " to divine providence. He 
now deplored the grievous sight of kings and princes, agreeing 
only in this, to oppose their Lord and His anointed, the 
Eoman Prince. 1 Dante accordingly sought to prove by 
divine authority, and by the light of human reason, that the 
Roman empire existed " de jure." 2 During its progress the 
Eoman empire was supported by miracles which showed it 
was willed by God, and consequently that it was " de jure." 3 
The Eomans showed in their history their devotion to the 
common good of the Eepublic, and therefore to what was 
just ; they gave the world universal peace and liberty, 
and it has been well said that the Eoman empire sprang 
from the fount of religion (" de fonte nascitur pietatis"). 
He gives a number of instances of the devotion to the 
common good of Eoman citizens, such as Cincinnatus, the 
Decii, Fabricius, and others. 4 Nature always acts with a 
view to its final goal, and this cannot be attained by one 
man working alone, but only by a multitude ordained for 
divers operations. There are not only individuals but also 
whole nations with an aptitude for government, while other 
nations are only fit to be subjects and to serve, and for such 
it is not only expedient but just that they should be ruled, 

1 Id., ii. 1 : " Admirabar equidem meditantes, ut ipse solebam, quum 

aliquando, Romanum populum in insuper doleam, Reges et Principes in 

Orbe terrarum sine ulla resistontia hoc vitio concordantes, ut adversentur 

fuisse praefectum ; quum tamen super- Domino suo, et unico suo Romano 

rkialiter intuens, ilium nullo hire, principi. Propter quod derisive, non 

sed armorum tantummodo violontia, sine dolore quodam, cum illo clamare 

obtinuisse arbitrabar. Sed postquam possum pro populo glorioso et pro 

medullitus oculos mentis infixi, et Caesare, qui pro Principe Coeli clama- 

per efficacissima signa divinam provi- bat : ' Quare fremuerunt gentes, et 

dentiam hoc effocisse cognovi, admira- populi meditati sunt mania.' ' 

tione cedente, derisiva quaedam super- ' Id., ii. 1. 

venit despectio, quum gentes noverim 3 Id., ii. 4. 

contra Romani populi praeeminontiam * Id., ii. 5. 
fremuisse, quum videam populos vana 



CHAP. VII.] 



POLITICAL UNITY IN EUROPE. 



119 



even under compulsion. 1 Now clearly the Romans were the 
people ordained by nature for command. That this was the 
judgment of God appears clear from the fact that it was the 
Eoman people which prevailed when all were striving for the 
empire of the world. Dante appeals to history for evidence 
of this. Among other witnesses Luke, the scribe of Christ, 
writes that " there went out an edict from Augustus that 
the whole world should be enrolled," thus showing that the 
Romans at that time held universal sway. 2 This empire was 
acquired as in single combat by the ordeal of battle, and 
whatever is so acquired is rightly acquired, for it is obtained 
by divine judgment. 3 

The ' Commedia ' breathes the same spirit in every reference 
to the empire, from the beginning of the \ Inferno ' right 
through to the vision of the throne set apart for Henry VII. 
in the empyrean. Dante's guide through hell and purgatory 
Is Virgil, the great poet of the empire. In limbo we find 
Caesar, " Cesare armato con gli occhi grifagni," and many 
of his great predecessors in Eoman story. 4 Ulysses and Diomed 
groan in the flames for the horse, " che fe' la porta Ond' usci 
de' Eomani il gentil seme." 5 One of the lowest subdivisions 
of the i Inferno ' is named after the Trojan traitor Antenor, 6 
and in the very lowest depths of all Judas Iscariot has as 
his fellow sufferers Brutus and Cassius, the murderers of 
Julius Caesar. 7 

In the ' Purgatorio ' we have the magnificent lines, partly 
quoted above, in which Dante deplores the fate of Italy 
enslaved and full of woes, because it has no emperor to guide 
it, and he attacks the " German Albert " and his father 
Rudolf for neglecting Italy, the garden of the empire. 8 

In the sixteenth canto Dante places in the mouth of a 
Lombard (Marco Lombardo) a violent attack on the papacy 
for combining the temporal with the spiritual power. 9 In 
another canto we are told how the good Titus, with the help 



1 Id., ii. 7. 

2 Id., ii. 9. 

3 Id., ii. 10. 

* ' Commedia,' Inferno, 4. 

» Id. id., 26. 



• Id. id., 32. 

' Id. id., 34. 

8 Id., Purgatorio, vi. 76. 

9 Id. id., xvi. 46. 



120 FOURTEENTH CENTURY. [PART I. 

of the Deity, revenged the treachery of Judas. 1 Finally, in 
the earthly paradise, on the summit of the mountain of 
purgatory, we have the symbolical vision of Christ, under the 
form of a gryphon. We cannot enter into details of the vision 
and its symbolical meaning, but it shows how throughout 
this canto Dante has constantly in mind the empire and its 
importance to the world in connection with the divine scheme 
for its wellbeing. 2 The last canto of the ' Paradiso ' shows no 
change in Dante's conception of the importance of the empire 
in the government of this world. One of the first human 
beings on whom Dante sets eyes in heaven is Constance : — 

" Che del seeondo vento di Suave 
genero il terzo, e l'ultima possanza," 

the wife of Henry VI. and the mother of Frederick II. 3 This 
is in the circle of the moon. In the next circle, that of Mercury, 
Justinian sets forth the praises of the Roman empire and of 
its great exploits, and tells how under Augustus it gave peace 
to the whole world, so that the gates of the temple of Janus 
were closed. He refers to the great crime done under Tiberius 
and to the vengeance on the Jews under Titus. He tells of 
Charlemagne and how he saved the Church from the Lom- 
bards. The Guelfs and Ghibellines sin alike, the one party 
by its opposition to the empire and the other by seeking to 
annex it to a faction ; by their sins they are the cause of the 
ills of Italy. 4 In the sphere of Jupiter the spirits, before Dante 
leaves, form themselves into the shape of an eagle's head 
and neck (the Eoman symbol), 5 and the eagle tells how 
Constantino now knows how grievously the world has 
suffered from his well-intentioned act (the donation). 6 

There is one more reference to the empire when Dante, 
still accompanied by Beatrice, has reached the empyrean, 
the heaven which is pure light, where he sees the whole com- 
pany of heaven, and where there is neither far nor near. 
Beatrice points out to our poet the great throne reserved for 

1 Id. id., xxi. * Id. id., vi. 

» Id. id., xxxii. s Id. id., xviii. 

3 Id., ' Paradise* iii. ' Id- id., xx. 



CHAP. VII.] POLITICAL UNITY IN EUROPE. 121 

the exalted Henry, who will come to govern Italy before it 
is ready for his rule. The Pope, on the other hand, his secret 
and open opponent, will shortly thereafter be thrust down 
where Simon Magus has his place. 1 Thus we find in the 
' Commedia ! from first to last the same exalted view of the 
empire as in the ' Convivio ' and in ' De Monarchia,' and 
throughout it is the one government that can secure justice 
and liberty, and therewith peace. 

But the emperor was to be no mere faineant. In his letter 
to the Florentines he warns them of the dreadful consequences 
if they do not submit to the Roman Prince, and reminds 
them of the destruction by Frederick I. of Spoleto and 
Milan, and he prophesies that their city will be taken, the 
greater part of the inhabitants slain or made prisoners, and 
that they will endure the same sufferings for their perfidy as 
the glorious city of Saguntum bore voluntarily in its faithful 
struggle for liberty. The guardian of the Eoman state, the 
" divus," and triumphant Henry has come thirsting not for 
his own but the public weal. 2 

Similarly in his letter addressed to the princes and rulers 
of Italy, Dante gives them the glorious news of the coming 
of Henry, who will release Italy from bondage and show 
mercy to all who seek it, while avenging the crimes of back- 
sliders. He calls on them not only to arise, but to stand 
in awe, before one whose waters they drink, on whose 
seas they sail, and who possess whatever they hold, by 
virtue of his law. The Eoman Prince is predestined 
by God. 3 

1 Id. id., xxx. : E fia prefetto nel foro divino 

" In quel gran seggio, a che tu gli occhi Allora tal, che palese e coperto 

tieni Non andera con lui per un cammino. 

Per la corona che gia' v'e su posta, Ma poco poi sara de Dio sofferto 

Prima che tu a queste nozze ceni, Nel santo offizio ; ch'ei sara 

Sedera 1'alma, che fia giu agosta. detruso 

Dell' alto Arrigo, ch'a drizzare La dove Simon mago e' per suo 

Italia merto, 

Verra in prima che ella sia disposta. E fara quel d'Anagna entrar piu 

La cieca cupidigia che vi ammalia, giuso." 

Sinuli' fatti v'ha al fantolino, 2 Id., Ep. vi. 

Che muor di fame e caccia via la 9 Id., Ep. v. 
bah a ; 



122 FOURTEENTH CENTURY. [PART I. 

Dante throughout his writings treats the empire of his 
time as one with the old Eoman empire, divinely conferred 
on the Eomans on account of their capacity for righteousness. 
Of Eome he says that he firmly holds that the very stones 
of its walls are worthy of reverence, and that the ground on 
which she is built is excellent beyond all that man can utter. 1 
As regards the German electors, he looked on them as merely 
the heralds of the divine providence. 2 

Dante devotes the third book of the i De Monarchia ' to 
proving that the emperor receives his power directly from 
God, and that the Church is not qualified to exercise temporal 
power. There were three classes with whom he had to deal 
in proving that the emperor did not derive his power from the 
Church. First came the Pope and certain of the clergy and 
others, whom he believed to be moved entirely by zeal 
and not by pride. Next came those influenced by 
greed, and last of all the Deeretalists, who maintained that 
the traditions of the Church were the foundations of the faith. 3 
He contends that the temporal power does not derive its 
being, nor its authority, from the spiritual, though it operates 
more efficiently when aided by the light of grace imparted 
on earth by the blessing of the supreme Pontiff. 4 It is un- 
necessary to follow Dante in his answers to the ordinary 
arguments on behalf of the Church, such as that the sun repre- 
sents the Church, and the moon, with its borrowed light, the 
empire. 5 As regards Constantine's donation, he does not 
dispute the historical fact, but maintains it was invalid, as 
no one has the right as holder of an office to do things incon- 
sistent with that office (" contra illud officium "). Constantine 
had no power to make such a gift, and the Church had no 
authority to receive it, for it was inconsistent with the express 
commands in the Gospels that the Church should not possess 
gold and silver. This would not, however, prevent the 
emperor from granting a patrimony to the Church, so long 
as he retained " the superior dominion." The Pope might 

1 Id., ' Convivio,' iv. 5. * Id. id., iii. 4. 

* Id., ' De Mon.,* iii. 16. ' Id. id., iii. 4. See also following 

> Id. id., iii. 3. chapters for other common arguments. 



CHAP. VII.] POLITICAL UNITY IN EUROPE. 123 

also receive gifts, not as a proprietor but as a steward on behalf 
of the poor. 1 

Thus Dante derives the temporal power directly from God 
and not, as we have already said, from the Church, 
which has not even the right to exercise such power, but the 
very last words of the ' De Monarchia ' are a warning to the 
temporal ruler to show such reverence to Peter as is due 
from the first-born to his father, so that enlightened by 
this paternal grace he may better rule the world, over 
which he has been set by God, who is the supreme Euler of 
all things, spiritual and temporal. 2 

Dante's conception of the need of a universal monarchy 
arose, no doubt, primarily from the lamentable political 
condition of Italy, the violent intestine quarrels in the cities, 
and the continual conflicts between these, but it also had 
reference to the need of some system of international peace 
for Europe. It has been contended by Professor Ercole in 
an important and learned work that, while Dante urges with 
such eloquence the need of the universal empire to give 
justice and peace to the world, he does not conceive of this 
authority as implying a continual interference with the 
internal laws and conditions of particular states ; as indeed 
is indicated in a passage of the \ De Monarchia,' which we 
have cited. 3 Professor Ercole has also drawn attention to 
some very important passages in Engelbert of Admont's 
work, l De Ortu et Fine Eomani Imperii,' which seem to express 
the same conception. 4 He also points out that while Bartolus 
maintained the independence or autonomy of the great Italian 
cities as being " universitates superiorem non recognoscentes," 
when his position is more closely examined we find that he 
thought of the imperial authority as still continuing, not as 
exercising a direct control over those and other states, but 
as a supra-national power whose function it was to maintain 
justice and peace in the world. 5 

1 Id. id., iii. 10. Althusio,' pp. 134-137. 

* Id. id., iii. 16. « Id. id., pp. 131-134. 

3 F. Ercole, 'Da Bartolo all' * IdTid., pp.Tl8-130. 



124 FOURTEENTH CENTURY. [PAKT I. 

Dante was not then alone in the fourteenth century in the 
conception of some system of authority and order which 
should give peace to the world, and it is this which gives 
some real interest to the work of Pierre Dubois' i De Becupera- 
tione Terrae Sanctae.' There is indeed in this much which 
is fantastic and much which merely expresses the national 
ambition of some Frenchmen ; but at the same time there is 
not a little which is significant. 1 

Dubois had not indeed anything of the imaginative magni- 
ficence of the great poet : he was a man of pedestrian and 
even in some respects of confused mind, but, in some ways 
at least, his conceptions were perhaps nearer to the actual 
conditions of the time than those of Dante. 

The nominal subject of the work is the recovery of the 
Holy Land from the infidel ; but this is only a starting-point 
for the expression of the urgent need of peace among the 
Christian people, who were obedient to Borne. 2 Obedient, 
that is, in spiritual things, not in temporal, for, as in the 
controversial pamphlets of the conflict between Boniface VIII. 
and Philip the Fair, he denounces the attempt of Borne to 
assert a temporal authority over the French kingdom. 3 

We shall return presently to the question of the creation of 
a universal authority which should maintain peace among 
Christian people. In the meantime we must observe what 
Dubois says about the causes of the divisions and conflicts 
in Europe. The prelates of the Church and the Pope himself 
were, in Dubois' opinion, among the principal causes of these ; 
and it is to the Pope that Dubois specially addresses himself. 
He begs him to consider how many and how great have been 
the wars in which he has been involved for the defence of the 
patrimony of St Peter. 4 He therefore suggests that the 
Pope should divest himself of the charge of his temporal 
dominions, and, while retaining the right to the revenues 
derived from them, should hand them over to some king 

1 For a careful discussion of the date Schonen und Bonifaz VIII.' 
and authorship of this work, we * P. Dubois' ' De Recuperatione 

should refer to the edition by C. V. Terrae Sanctae,' 3. 
Langlois, and to R. Scholz, ' Die * Id. id., iii. 

Publizistik zur Zeit Philipp3 dea * Id. id., 33. 



CHAP. VII.] POLITICAL UNITY IN EUROPE. 125 

or prince to be held in a perpetual " amphiteosis." If he would 
do this he would not be the cause of war and of men's deaths, 
but would be able to give himself to prayer and contempla- 
tion and the care of spiritual things. 1 He proposes that the 
bishops and abbots should do the same, that they should 
resign their feudal domains and receive in their place a fixed 
revenue. 2 

This may seem very extravagant, but it should be remem- 
bered that a proposal of much the same kind had been made 
by Puschal II., in his negotiations about the Investiture 
question with the Emperor Henry V. in 1111, with regard 
to the feudal domain of the bishops ; and it is clear that 
while the proposal was then repudiated by the bishops, there 
had been devoted churchmen like Gerhoh of Eeichersberg who 
felt that there was much to commend such proposals. 3 

No doubt when Dubois speaks of the Pope surrendering his 
temporal dominions to some king, he was really thinking 
of the King of France, as indeed he makes plain in a later 
chapter. 4 It would seem that there is some evidence that 
such a proposal had actually been made by Philip III. to 
Pope Gregory X. in 1273, 5 and such a proposal is intelligible 
in view of the Angevin occupation of the Sicilian kingdoms, 
which were fiefs of the papacy. 

We return to Dubois' proposals for the creation of some 
system for the establishment and maintenance of peace among 
the Catholic peoples of Europe. In order to do this he pro- 
poses that a Council should be called together, and that the 

1 Id. id., 40: "Que reformatio perpetuam amphiteosin." 

status propter has fines taliter devotis- 2 Id. id., 45 and 50. 

sime postuletur, videlicet quod sum- 3 Cf. vol. iv. part iv. chap. 3. 

mus pontifex, qui circa masimam * Id. id., Ill : " Verisimile plurimum 

spiritualium curam plurimum est est, quod dominus papa, guerris sedatis 

honeratus et occupatus, ita quod secundum modosprescriptos.etregimine 

sine spiritualium prejudicio regimini suorum temperalium, possessione et 

suorum temporalium sufficienter vacare districtione, pro certa annua pensione 

non posse creditur, inspectis que super perpetua domino regi Franciae com- 

fructibus, proventibus et exitibus, missis, per fratres suos et filios, prout 

impensis deductis, et honeribus solitis, expedire viderit, gubernandis poterit ? " 

ad ipsum pervenire sibique remanere 5 Cf. Note by M. Langlois on p. 48 

consueverunt, alicui magno regi seu of his edition, 
principi, vel aliquibus, tradantur in 



126 



FOURTEENTH CENTURY. 



[PART I. 



king should invite the Pope to secure an agreement among 
the princes and prelates for the establishment of a Court 
to which the complaints of those who said that they had been 
injured might be referred. The Council should appoint a 
body of wise and competent men, who should in their turn 
appoint three clerical and three lay judges to inquire into 
and deal with these complaints. If either party were not 
satisfied with their decision the judges should transmit the 
case and their judgment to the supreme Pontiff, to be amended 
or confirmed by him. 1 Dubois also proposes that obedience 
to these judgments should be enforced by coercive measures, 
to be applied if necessary by the other states. 2 

These are far-reaching proposals, but they are not unin- 
telligible under the conditions of those times. The conception 
of a General Council, which should represent all Christendom 
for spiritual purposes, was familiar to the Middle Ages, and 
was about to receive a great development in the fourteenth 
century ; and it is therefore intelligible that men might 
conceive of such a Council as a body which could also be used 
for the settlement of political disputes. It is also true that 
both Innocent III. and Boniface VIII. had actually inter- 
vened in the disputes between England and France. But 



1 Id. id., 3 : " Convocato concilio, 
propter ordinem salutis Terre Sanctae, 
summa rogalis experiencia petere 
poterit per dominum papam, principes 
et prelatos concordari et statui taliter 
quod quibuscunque dicentibus se passos 
iniurias seundum leges et consuetudines 
regnorum et regionum, per iudices in eis 
etatutos, et ubi statuti non sunt, in- 
frascripto modo statuendos, fiat cele- 
rius quam solitum est iusticiao com- 
plementum. Nullus catholicus currat 
ad arma, nullus sanguinom baptiza- 
torum effundat." 

Id. id., 12 : " Responderi potest quod 
concilium statuat arbitros religiosos ad 
alios eligendos viros prudentes et 
expertes ac fideles, qui jurati tres 
judices prelatos et tres alios pro 
utraque parte, locupletes, et tales 



quod sit verisimile ipsos non posse 
corrumpi amore, odio, timore, concu- 
piscentia, vel alias ; qui convenientes in 
loco ad hoc aptiore, iurati strictissime, 
datis antequam conveniant articulos 
petitionum et defensorum singulorum, 
summarie et de pleno, rejectis primo 
superfluis et ineptis, testes et instru- 
menta recipiant, diligent issime exami 
nent. ... Si altera pars de ipsorum 
sentencia non est contenta ipsi iudices 
pro omni lite processus cum sentenciis 
mittunt ad apostolicam sedem, per 
summum pontificem, pro tempore 
existentem, emendandas et mutandas, 
prout et si iustum fuerit ; vel si non, 
salubriter ad perpetuam rei memoriam 
confirmandas et in cronicis sancte 
Romane ecclesie inregistrandas." 
2 Id. id., 4, 5. 



CHAP. VII.] POLITICAL UNITY IN EUROPE. 127 

certainly both Philip Augustus and Philip the Fair had very 
emphatically and successfully refused to allow any such 
official action on the part of the Pope ; and it is certainly 
remarkable that Dubois, who had, as we have seen, repudiated 
very emphatically the real or supposed claim of Boniface VIII. 
to temporal superiority, should have been prepared to recog- 
nise the Papal See as the final arbitrator in international 
political disputes. 1 

It is difficult to judge what importance exactly we can 
attach to this work, but it seems reasonable to us that when 
we put it beside that of Dante and of Bartolus and of 
Engelbert of Admont, it receives a new significance. It seems 
clear to us that the general trend of mediaeval society was 
towards the disintegration of political unity in the West 
and the development of the independent political societies of 
modern Europe ; but the conception of a larger political 
unity was not wholly lost, and we in the modern world are 
only taking up again the necessary task of civilisation. 

i Cf. vol. v. pp. 165-171; p. 387. 



128 



CHAPTER VIII. 

SUMMARY OF THE POLITICAL THEORY OF THE 
FOURTEENTH CENTURY. 

We have endeavoured to set out the political principles of 
Western Europe in the fourteenth century as expressed by 
the writers whom we may call political thinkers or theorists, 
as implied or expressed in constitutional documents and 
practice, and as set out by the Civilians. It is, we think, 
clear that the conceptions of the political thinkers were, 
speaking broadly, closely related to constitutional practice, 
while those of the Civilians were not, and that thus the latter 
had little influence on the development of political conceptions 
in the fourteenth century in Northern and Western Europe. 
There was indeed no difference between the theorists and 
the Civilians on the question of the source of political authority ; 
they were all agreed that political authority was derived from 
the community, from God indeed ultimately, but from God 
through the community. There is no trace in the Civilians, 
any more than in the other political writers, with the excep- 
tion of Wycliffe, of that fantastic orientalism of Gregory the 
Great, which had practically died out in the Middle Ages, but 
was revived in the sixteenth and seventeenth centuries, the 
theory of what is traditionally called the Divine Eight of Kings. 
The community, the universitas, the populus was the im- 
mediate source of all political authority. 

There were, however, also profound differences between 
the Civilians and the political theorists and constitutional 
practice of Western Europe. 



CHAP. VIII.] SUMMARY. 129 

We have pointed out in previous volumes that, as it seems 
to us, the fundamental political conception of the Middle 
Ages was that of the supremacy of law, and that law was 
primarily the custom which expressed the habit of life of the 
community — habit and custom rather than deliberate will. 
This conception continues to have an important place in the 
fourteenth century. When, however, as perhaps in the ninth 
century, and certainly in the thirteenth, the rapid develop- 
ment of mediaeval civilisation made something like direct 
legislation sometimes necessary, this was conceived of as 
expressing the consent and will of the whole community. 
This is the principle which was normally expressed in the 
fourteenth century in the constitutional methods of Western 
Europe and in the political theory. 

It is here that we find the first important divergence 
between the Civilians and the normal mediseval conceptions and 
practice. The Civilians of the fourteenth century, as we have 
said, always and frankly recognised that the original lawgiver 
was the community, and that, whatever was the authority of 
the prince, it was from the community that he derived it, but 
they also, and naturally, for they were interpreting the 
" Corpus Juris Civilis," conceive of the community as having 
transferred its authority to the prince. To them therefore 
the prince had become the legislator, the source of law ; 
and it is impossible to overrate the importance of the appear- 
ance of this conception, not indeed in relation to the four- 
teenth century, but to later periods. 

We must not, however, imagine that the Civilians were 
thoroughgoing in their affirmation of this. As we have 
pointed out at length in earlier volumes, while some of the 
Civilians of the twelfth and thirteenth centuries held that 
the Roman people had transferred their authority to the 
emperor so completely that even their custom had ceased to 
have any legislative authority, others maintained that this 
was not so ; the people had indeed given their authority to 
the prince, but they could resume it, and their custom still 
made and abrogated law. 1 

1 Cf. vol. ii. part i. chap. 7 j vol. v. part i. chap. 6, pp. 664-667. 
VOL. VI. I 



130 FOURTEENTH CENTURY. [PART I. 

In the fourteenth century, as far as we can judge, the 
most important Civilians, while refusing to allow that the 
people possessed the formal legislative authority, seem to 
allow that their custom still made and unmade law. 1 

The second divergence is equally, perhaps even more, 
important. The prince, no doubt, in the political constitution 
and theory of the Middle Ages, was the head of the com- 
munity, and had his share, a very important one, in making 
the law ; but his authority was a limited one. He was limited 
by the law, by the custom and habit of life of the community ; 
the property and persons of the members of the community 
were not subject to his arbitrary authority, but were protected 
by the law. This principle evidently was generally main- 
tained in the fourteenth century. 

To the Civilians the prince was normally the source of the 
law, and, no doubt, mainly because he was the source of the 
law, he was thought of as being above it. They were indeed 
perplexed by an apparent inconsistency in the texts of the 
Eoman law books. In some of these the prince was described 
as " legibus solutus." (We do not, of course, here or elsewhere, 
pretend to interpret the original meaning of these words.) In 
other places, and especially in the famous words of ' Cod. i., 
14, 4,' the prince appears as saying that it was seemly that 
he should acknowledge that he was bound by the law : " Digna 
vox maiestate regnantis legibus alligatum se principem 
profit eri." (Again we are not interpreting the original meaning.) 
Tbe Civilians were indeed perplexed, but, on the whole, they 
tended in the fourteenth century to the judgment, that while 
the prince was not formally bound by the law, he should 
habitually respect it. It is in this connection that the 
distinction, perhaps incidental rather than deliberate, made 
by Baldus between the ordinary and the absolute power of 
the prince is significant. 

Here then we have a revolutionary conception intruded into 
the system of mediaeval life and thought. It must, however, be 
observed that we find in the Civilians of the fourteenth century 
two principles which in a considerable measure modified 

1 Cf. pp. 16-19. 



CHAP. Vlll.] SUMMARY. 131 

their tendency to think of the prince as possessing an authority 
unlimited by law. In the first place, they recognised that the 
prince might enter into contractual relations with his subjects, 
and that such contracts were binding upon him. As Baldus 
says, God had subjected the lawto the xjrince but not contracts ; 
by these he was bound. It appears to us from the contest 
of many of these statements that their primary reference was 
to treaties which various emperors had made with cities 
in Italy, but the principle is stated in general terms, and 
sometimes is related to the contractual system of feudal law. 
The Civilians were also clear that the extra-legal powers of the 
prince do not entitle him to deal at his pleasure with private 
property ; he cannot do this " de iure," whatever he might 
do " de facto." 

There is, however, another aspect of the political theory 
of the fourteenth century where we find, rather unexpectedly, 
that some of the Civilians were in agreement with the theorists. 
This is the principle that in the last resort it was lawful for 
the community to resist and even to depose the unjust and 
tyrannical prince. This was affirmed by Marsilius of Padua, 
by William of Occam, by the author of the ' Somnium Viridarii,' 
and is cited as the opinion of great jurists by Leopold of 
Babenberg ; and the century ended with the deposition of 
Bichard II. There was indeed nothing new in this ; as we 
hope we have made clear in former volumes, it was the normal 
principle of the Middle Ages that resistance to unlawful 
authority, and even the deposition of tyrannical princes, was 
legitimate. 1 It is, however, interesting to observe that some 
at least of the Civilians, notably Bartolus, Joannes Faber and 
Jacobus Butrigarius, seem clearly to maintain that in the 
last resort subjects might lawfully resist and even depose 
an unjust and tyrannical ruler. 

We have dealt at some length with the political opinions 
of the Civilians, for we are in this volume concerned 
with the question how far we can trace in these centuries 

1 Cf. vol. v. part i; chaps. 7, 8, 



132 



FOURTEENTH CENTURY. 



[part I. 



the beginnings of that conception of the absolute authority 
of the prince which is characteristic of the seventeenth 
century. It is, however, evident that there is very little 
trace of this in the fourteenth century outside of the 
Civilians, and there is very little to indicate that these 
exercised any great practical influence on the political theory 
and institutions of the time outside of Italy. 1 

It seems to us that in the fourteenth century political 
theory continued to be very much the same as that of the 
thirteenth, while the constitutional forms and methods 
represented the more or less normal development of those 
which the political genius of the Middle Ages had slowly 
created. 



1 We wish, however, to draw the 
attention of students of Politics to the 
very interesting and important studies 
by Professor F. Ercole, primarily on 
Bartolus, but also on the relations be- 
tween the political theories of Italian 
and French Civilians with regard to 



the French King as possessing in his 
own country all the powers of the 
Emperor. These studies, originally 
published in various Reviews in 1915 
and 1917, are now republished, along 
with others, in the volume entitled 
' Da Bartolo all' Althusio.' 



PAET II. 

FIFTEENTH CENTURY. 



CHAPTER I. 

THE SOURCE AND AUTHORITY OF LAW. CONSTI- 
TUTIONAL PRACTICE AND THEORY. 

We again begin with the consideration of this subject, for it 
seems to us clear that in the fourteenth century as in the 
Middle Ages the principle that the authority of law was 
derived from the community, and that the law was supreme, 
not only over subjects but over rulers, was still the foundation 
of all the normal political thought of Western Europe. We 
have now to enquire how far this principle continued to 
prevail in the fifteenth century. 

It appears to us that some of the best illustrations of the 
constitutional conceptions of the fifteenth century are to be 
found in the proceedings of the Cortes of Castile and Leon. 

Juan II. had, apparently, at the Cortes of Palencia in 1431, 
repudiated the constitutional provisions of the Cortes of 
Bribiesca (1387), by which laws were not to be annulled except 
by ordinances made in Cortes, and royal Briefs contrary to the 
laws were to be disregarded. 1 At Valladolid, however, in 

1 Cortes iii. 9, 19, p. Ill (Palencia, derogo, e especialmente las leyes que 

1431) : " Non embargantes quales dizen quelas cartas dadas contra ley 

quier leyes f ueres et dereeb.es ordina- o fueno o derecbo deuen ser obedescidas 

mientos e constituciones . . . ca en e non conplidas, aunque contengan 

quanto deato atanna yo lo abrogo e quales quier clausulas derogatorias, e 



134 FIFTEENTH CENTURY. [part II. 

1440, the Cortes asked the King to give orders that any Briefs 
issued in his name, which were contrary to the laws, should be 
disregarded, and the King assented. 1 A more detailed state- 
ment of this constitutional principle was made at Valladolid 
in 1442. The Cortes complained that the King (Juan II.) 
was permitting Briefs to be issued which contained " non 
obstante " clauses, and in which he appeared as issuing com- 
mands " of his certain knowledge and absolute royal power," 
and they request that such extravagant phrases should not 
appear in the royal Briefs, and that if they did so appear, the 
Briefs should be held as null and void, and that the secretary 
who inserted them should be deprived of his office. The 
King replied that the law made at Bribiesca should be 
observed, and that it was his will to command that in all cases 
between " partes e privadas personas " justice should be done 
according to law, notwithstanding any Briefs which con- 
tained abrogations or dispensations, general or particular, 
professing that they were issued " proprio motu," and with 
certain knowledge, and by the King's absolute power ; and 
he ordered that none of his secretaries were to issue Briefs 
containing such extravagant phrases, on pain of losing their 
offices, and that if they did so, such Briefs should have no 
force. 2 

quolas lcyes e f ueros e derechos e pena alguna dclos quelas non cunplieren, 

ordinamientos non pueden ser rreno- e los que por vertud dellas fueron 

cados saluo por Cortes. enplazados non soan tenudos de seguir 

Cf. p. 5. los emplazaniientos, e que por ello non 

1 Cortes iii. 15, 14 (Valladolid, 1440) : incurran en pena alguna. . . . Aesto 

" Fazemos avuestra muy alta sennoria vos rrespondo ... en caso que sean 

. . . dos peticiones ... la secunda, dadas mis cartas e sobre cartas ... en 

que mande que en caso que soan dadas rrouocamiento o en quebramiento delas 

cartas o sobro cartas de vuestra alteza cosas suso dicbas por mi rrespondidas, 

o se den de aqui adolante motu proprio o en algunt amenguamionto dellas per 

o a instancia de otras personas quales primerae segunda e tercera jusion e mas 

quier en rreuocamiento o en quebranta- con quales quier claunsulas derogato- 

mionto delas cosas 6obre dicbas por rias que en ella se contongan, que sean 

vuostra sennoria rrespondidas, o en obedescidas e non complidas sin pena 

algunt amenguamiento delas por pri- algiina dclos quelas non conplieren." 

mera e segunda o tercera jusion o mas, 3 Cortes iii. 16, 11 (Valladolid, 1442) : 

o con quales quier clausulas doroga- " Otrosy muy eccellente rrey e sennor 

torias que enellas se contengan, que por quanto enlas cartas que emanan de 

sean obedescidas e non complidas sin vuestra alteza se ponen muchas ex- 



CHAP. I.] 



THE LAW : PRACTICE AND THEORY. 



135 



The same principle was affirmed in the Cortes at Valladolid 
in 1451 x ; and soon after the accession of Henry IV. we find 
the Cortes at Cordova in 1455 requesting that nothing should 
be done contrary to the laws and ordinances of the former 
kings, unless these had been revoked by the Cortes on the 
supplication of the representatives of the Kingdom. 2 

It is clear that the Cortes of Castile and Leon in the fifteenth 



orbitancias de derecho, enlas quales se 
dize, non obstantes leyes e ordinamien- 
tos e otros derechos, que se cunpla e f aga 
lo que vuestra sennoria manda, e quelo 
manda de cierta sciencia e sabiduria e 
poderio rreal absoluto, e que rrevoca e 
cassa e annulla las dichas leyes que 
contra aquello fazen o fazer pueden, por 
lo qual non aprouechan a vuestra 
mercet fazer leyes nin ordenanancas 
pues esta enpoderio del que ordena las 
dichas cartas rreuocar a quellas. Por 
ende muy virtuoso rrey e sennor, sup- 
plicamos avuestra sennoria que le plega 
quelas tales exorbitancias non se 
pongan enlas dichas cartas, e qual quier 
secretario o escrivano de camara quelas 
pusiere, por ese mesmo fecho sea falso 
e prinado del dicho officio, e quelas tales 
cartas non sean conplidas e sean nin- 
gunas e de ningunt valor. 

A esto vos rrespondo que mi mercet 
e voluntad es de mandar e mando que 
se guarde enesta parte la ley de Briui- 
esca fecha por el Rey Don Juan mi 
avuelo . . . que fabla en esta rrazon, 
en qual quier eosa que sea o tanga entre 
partes e priuadas personas, non em- 
bargante que sobre ello se di segunda 
jusion nin otras quales quier cartas, e 
sobre cartas con quales quier penas e 
clausulas derogatorias e otras firmezas 
e abrogaciones et derogaciones o dis- 
pensaciones generates o especiales, e 
aunque que se digan proceder de mi 
proprio motu e cierta sciencia e poderio 
rreal absoluto, por que syn embargo de 
todo ello ; toda via es mi mercet e volun- 
tad quela justicia fioresca, e sea guar- 
dado enteramente su derecho acada uno 



e non rresgiba agraio nin perjuyzio 
alguno en su justicia, para lo qual 
mando e ordeno que ningund mi 
segretorio o escriuano de camara non 
sea osado de poner enlas tales nin seme- 
jantes cartas exorbitancias nin clausulas 
derogatorias, nin abrogaciones nin dero- 
gaciones de leyes nin fueros nin derechos 
nin ordinamientos nin desta mi ley nin 
dela dicha ley de Briuiesca, nin pongan 
enellas que proceden nin las yo do de mi 
proprio motu, nin de mi cierta ciencia 
nin de mi podere rreal absoluto . . . e 
el escrivano que firmare o librare contra 
esto qual quier carta o aluala o preuil- 
legio que cayga enla pena dela dicha ley 
de Briuiesca, que manda que pierda el 
oficio e quela tale carta o alcuala o pre- 
uillegio en quanto ala tal exorbitacion 
o abrogacion o derogation o otra qual 
quier cosa que contenga por donde 
se quite el derecho e justicia dela parte, 
non vala nin aya fuerca nin vigor alguno 
bien asy commo si nunca fuese dado nin 
ganado." 

i Id., hi. 20, 13. 

2 Id., iii. 22, 21 (Cordoba, 1455) : 
" Suplicamos a vuestra merged quele 
plega mandar e ordinar que todas e 
quales quier leyes e ordenamientos 
quelos rreyes pasados dieren a vuestras 
cibdades e villas, que sean usadas e 
quardadas commo sy nuevamente 
fuesen ordenados, e que contra ellas non 
pueda ser alegado que en algund tiempo 
no fueren usadas e guardadas, saluo 
contra aquellas que fueren rrevocadas 
por cortes a suplicaciones delos pro- 
curadores del rreyno." 



136 FIFTEENTH CENTURY. [PART II. 

century maintained as strictly as those of the fourteenth, 
that the law was not the expression of the mere will of the 
King, but that, while it was the King's law, it required also the 
authority of the great men and of the representatives of the 
cities. The proper form of legislation is well illustrated in the 
first clause of the proceedings of the Cortes at Madrid in ]435. 
They refer to the laws and ordinances made by the King at 
Zamora, with the advice and consent of the great men of the 
Council, and of the procurators of the cities and villas of his 
kingdom. 1 We shall return to the nature and authority of the 
Cortes in a later chapter, but we think we have said enough 
to make clear the constitutional conception of the source and 
authority of law in Castile and Leon in the fifteenth century. 

When we turn to the German Empire it is hardly necessary 
to say anything about the constitutional principles of legis- 
lation. We have, however, a very interesting and important 
general treatment of the source and nature of the authority 
of law by Cardinal Nicolas of Cusa, one of the most important 
thinkers of the fifteenth century. 

In the Preface to the third Book of his treatise, ' De Con- 
cordantia Catholica,' he says that legislation belongs properly 
to those who are bound by the law, or to the greater part of 
them ; for that which concerns all should be approved by all, 
and a man cannot excuse his disobedience to the law when he 
himself has made it. How much better it is that the Common- 
wealth should be ruled by laws than even by the best man 
or King ; as Aristotle had said, when the laws are not supreme 
there is no " Politia." The Prince must therefore rule 
according to the laws, and is supreme only with respect to 

1 Id., iii. 12, 1 (Madrid, 1435): villas de vuestros rregnos que se acaes- 

" Muy alto sennor, bien sabe vuostra cieren enel dicho ayuntamiento, vuestra 

alleza como en las leyes e ordinamientos merced fizo e ordeno ciertas leyes e 

que vuestra sennoria fizo en la cibdad ordenancas para bien e pro comun e 

de £amora . . . con acuerdo e consejo buen rregimiento e gouornacion dela 

delos grandes e muy honorrados sen- vuestra justicia e dela rrepublica delos 

noros del vuestro muy alto consejo, e vuestros rregnos e sennorias." 

con los procuradores delas cibdades e Cf. Id., iii. 14, 1. 



CHAP. I.] 



THE LAW : PRACTICE AND THEORY. 



137 



those matters which are not clearly denned by the laws. Any 
form of government, therefore, is just and " temperatus " 
whether Monarchical or Aristocratic, or controlled by all the 
citizens, if it is directed to the common good, and is in accord- 
ance with the will of the subjects ; but it is " intemperatus " 
when it is directed to the good of the ruler, and is contrary to 
the will of the subjects. 1 

In another place Nicolas says that it is the general opinion 
of all experienced men that the power of making the laws of 
the Eoman people could be taken away from the Emperor, as 
it was from the Eoman people that he received this power. 
And, in yet another place, while he admits that the King has 
the right to interpret and to dispense with the law in doubtful 
cases, for the public good and to secure justice, he insists that 
this does not mean that he can annul the law without that 



1 Nicolas of Cusa : ' De Concor- 
dantia Catholics,' III., Preface (p. 354) : 
" Legis autem latio, per eos omnes 
qui per earn stringi debent, aut majorem 
partem, aliorum electione fieri debet ; 
quoniam ad commune conferre debet. 
Et quod omnes tangit, ab omnibus 
approbari debet : et communis de- 
finitio, ex omnium consensu, aut 
majoris partis, solum elicitur. Nee pot- 
est excusatio de obedientia legum sibi 
tunc locum vendicare, quando quisque 
sibi ipsi legem condidit : non est enim 
bona dispositio, bene leges poni, non 
obedire autem, ut dicit Aristoteles, 
quarto Poiiticorum, Cap. 7. Est 
itaque etiam eorum interpretari, quor- 
um condere. His enim legibus regnum 
gubernare necesse est ; amare enim et 
obedire omnibus insunt. Quare etiam 
melius pro republica extitit, legibus 
quam optimo viri regi, ut ex intentione 
tertio Politicae, 9 Cap., hoc Aristo- 
teles perquirens concludit, ac I. Rhe- 
torice Cap. 1. Ubi enim non prin- 
cipantur leges ibi non est politia, ut 
quarto Politicae 4 Cap. Statui autem 
oportet leges cum gravitate magna, ac 
digestae multum per prudentiam, longa 



experientia suffultam, ut, secundo 
Politicae 2 Cap. dicitur. Oportet dein- 
ceps principantes esse pro legum 
observatione, quos primo secundum 
ipsas leges dominare oportet. . . . Et 
quanquam secundum leges princeps 
dominare debeat ; tamen quia de his 
est dominus de quibus secundum leges 
nihit dicitur certitudinaliter, ut tertio 
Politicae Cap. 6., ideo oportet eum esse 
prudentem, ut tertio Politicae Cap. 
secundo, et quinto Ethicorum tractatu 
de justitia, ut epikeizare recte valeat 
per directionem legis ubi deficit propter 
particulare. Et tunc ipse omnis prin- 
cipatus, sive Monarchicus per unum, 
sive Aristocraticus plurium sapient um, 
sive Politicus omnium civium simul, et 
cujuslibet secundum suum gradum, 
quando secundum voluntatem sub- 
jectorum existit, ad communem tendens 
utilitatem, temperatus et Justus dicitur, 
ut haec per Aristotelem tertio et 
quarto Poiiticorum. Si autem praeter 
voluntatem subjectorum, ad proprium 
tendens utilitatem principatus existit, 
intemperatus existit, ut tertio Poiiti- 
corum capite quinto." 



138 FIFTEENTH CENTURY. [PART II. 

counsel with which it was issued, but only that he can declare 
the " ratio legis " in relation to some particular case. 1 We 
shall have occasion to discuss the principles of Mcolas of Cusa 
when we deal with the position of the ruler, and the source 
of his authority, but in the meanwhile it is important to 
observe that he is clear and emphatic in asserting that the 
authority of the law is derived from the community, and 
that it is the law which should be supreme, and not the 
Prince ; his authority is related properly to those matters 
which are not determined by the law. 

If we turn now to France, it must be acknowledged that it is 
difficult to find much direct evidence in the constitutional 
documents, about the theory of legislation. As we shall see 
later, we have a great deal of information about the representa- 
tive assemblies of the whole kingdom, the States General, 
and the Estates of the various provinces, and the authority 
which they claimed or possessed, but we have not found 
much direct evidence about the formal methods of legislation. 
There is, however, one great legislative enactment, about the 
method of which we have direct evidence, that is the Ordon- 
nance establishing the new military organisation of the 
" Gens d'Armes." 

This Ordonnance was issued by the King at a meeting of the 
States General at Orleans in 1439, after representations made to 
the King by the members of all the three Estates of the King- 
dom ; and it was made with the deliberation and " advis " of 
the Princes of the Blood Eoyal, many Prelates and great 
Lords, and of the nobles and the men of the good cities. 

We are not here properly concerned with the purpose and 
details of the Ordonnance, it is sufficient to notice its general 

1 Id. id., iii. 4 (p. 361) : " Et hoc est finom justitiae, pos^it, per iirieiKiav 

commune omnium pcritorum dictum, virtutem : tamen hoc suo modo, sicut 

potestatem condendi leges populi in Romano pontifice et cancnibus supra 

Romani ab imperatore tollere posse, dictum est, intelligi debet. Non quod 

quoniam ab ipsis potestatem habet." rex tollere legem sic editam possit 

Id. id., iii. 12 : " Et licet rex dis- absque Concilio, quae cum Concilio 

pensare aut intorpretarc, nihilominus, edita est, sed declarare rationem legis 

ipsam sic conditam legem, in dubiis in occurrente ca*u. 
occurrentibus, pro bono publico, et ad 



CHAP. I.] THE LAW : PRACTICE AND THEORY. 139 

character. Its immediate purpose was the disbandment of 
the companies of soldiers raised by many different persons, and 
the substitution for these of a body of soldiers raised by the 
command of the King, and under the command of officers 
appointed by the King. Its ostensible object, and no doubt a 
real one, was the prevention of the pillage of the people of 
France by the creation of a body of disciplined troops under the 
control of the Crown. We cannot here deal with the results of 
the creation of what was apparently intended to be a perma- 
nent royal military force. We are here concerned to observe 
that this highly important statute was issued by the King, 
not simply on his own authority, but after a meeting of, 
and representations from the States General. 1 

While, however, we may not be able to find many clear 
illustrations of the forms of legislation in France in the 
fifteenth century, we have, in the works of John Gerson, at one 
time Chancellor of the University of Paris, and the most im- 
portant representative of the French Church at the Council of 
Constance, some very important statements of his conception 

1 ' Ordonnances,' vol. xiii. p. 306. general, perpetuel e non revocable, par 

Orleans, Nov. 2, 1439 : " Pour obvier forme de Pragmatique Sanction, les 

et donner remede a faire cesser les edicts, lois, statuts, e ordonnances qui 

grands excez et pilleries faites et com- s'ensuyvent. 

mises par les gens de guerre, qui par (1) Premieremait. Pour ce que 

longtemps ont vescue et vivent sur le grands multitudes de capitaines ce sont 

peuple sans ordre de justice, ainsi que mis sus de leur auctorite et ont as- 

bien au long a este dit e remonstre semble grand nombre de gens d'armes et 

au Roi par les geus des trois estats de de traict, sans conge et license du Roi, 

son Royaume, de present estant dont grands maux et inconveniens sont 

assemblez en cette ville d'Orleans : le advenus, le roi voulant bon ordre et 

Roi par 1'advis et deliberation des discipline etre mises au fait de la guerre, 

seigneurs de son sang . . . plusieurs et restraindre teilles voyes, a ordonne 

prelats et autres seigneurs notables, que certain nombre de Capitaines de 

barons et autres, gens d'eglise, nobles gens d'armes et de traict, sera ordonne 

et gens des bonnes villes, considerant la pour la conduite de la guerre, les quels 

pauvrete, oppression et destruction, de capitaines seront nommez e esleuz par 

son peuple ainsi detruit et foullie par le Roi, prudens et sages gens ; et a 

lesdits pilleries . . . et n'est pas son chacun capitaine sera bailie certain 

intention de les plus tolerer, ne soustenir nombre de gens qui par lui seront esleuz 

en aucune maniere, mais en ce, bon de fait ou office de capitaine de gens 

ordre et provision y estre mis et don- d'armes et de guerre ; et leur deffend 

nees, par le moyen et aide de Dieu nostre de plus eux nommer ne porter le nom de 

Createur, a faict, constitu6, ordonne et capitaine, sur les peines cy — apres 

establiz, fait et establit pour loi et edict declarees." 



140 FIFTEENTH CENTURY. [PAST II. 

of the source and authority of law, and the relation of the King 
of France to it. 

In the Tract entitled ' Eegulae Moralis ' we find him re- 
stating the important doctrine of Gratian that law is not 
instituted until it is promulgated, and that it has no force 
unless it is approved by the custom of those who are concerned 
(moribus utentium). 1 The same principle is repeated in a Tract, 
' Liber de Via Spirituali Animae,' and Gerson points out that 
this means that the people have much authority in making and 
abrogating laws. 2 

More important, however, are Gerson's statements about the 
relation of the King to the Law when established. In the 
Treatise ' De Potestate Ecclesiastica,' he enumerates the 
forms of Government, which, according to Aristotle, are good, 
and he describes them all, the monarchy, the aristocracy, and 
the " Politia," as ruling according to Law. 3 In another place 
he says that the King of France had created the " Parlement," 
and did not hesitate to submit to its judgment. 4 In yet 
another place he maintains that even the King cannot slay 
any man except by process of law. 5 And again, in terms 

1 Gerson : ' Regulae Moralis,' Opera, communitatis perfectae sub uno, secun- 
vol. i., Part II., col. 10 : " Lex non dum leges suas bonas pro republics 
instituitur nisi etiam promulgatur, . . . Describitur aristocratia quod est 
neque vigorem habet nisi cum moribus politia sub paucis bonis, vel expressius 
utentium approbatur." quod est congregatio communitatis 

2 Id. : ' Libor de Via Spirituali perfectae sub paucis bonis republicae 
Animae,' Opera, vol. ii. part ii. col. per leges suas principaliter intenden- 
209 : " Praetorea positum est in tibus, ut senatus. Describitur politia 
decretis di iv. (Gratian Decretum appropriato nomine seu Timocratia 
D. 4) quod leges instituuntur cum quod est congregatio communitatis 
promulgantur, firmaiitur cum mori- perfectae eub plurimis utilitati rei- 
bus utentium approbantur. Igitur publicae per leges suas principaliter 
per argumentum a contrario sensu : intendentibus. 

si moribus utentium nequaquam appro- * Id., ' Sermo pro viagio Regis 

bantur, illae nullum habont firmamen- Romanerum,' Opera, vol. i. part i. 

turn, et ita populus habet multum in col. 152 : " Ubi rex instituit parla- 

sua potestate dare robur legibus aut mentum, a que iudicare non refugit." 

tollere, praesertim ab initio. 6 Id., ' Summa Eiusdem contra 

» Id., ' De Potestate Ecclesiastica,' Mag. Ioannem Parisienem,' Opera, 

Opera, vol. i. part i., Consideratio vol. i. part i. col. 399 : " Sicut est 

xiii. col. 138 : " Describitur regnum rex, qui quidem non posset sine iuris 

quod est politia sub uno bono. ordine, non monitum, non vocatum, 

Vel expressius quod est congregatio non convictum interficere. 



CHAP. I.] THE LAW : PRACTICE AND THEORY. 141 

which remind us of Bracton, Gerson urges upon every Prince 
and Prelate that even if he is said to be " legibus solutus," he 
should follow the example of Jesus, who accepted the Law of 
Circumcision, and should submit to the laws which he had 
made, both as an example to his subjects, and as showing his 
reverence to God. 1 

We find that the same principle, of the relation of the King 
of France to the Courts of Law, is expressed by Gerson's great 
contemporary, Peter d'Ailly, the Archbishop of Cambrai. In 
discussing the question whether the Pope should submit to the 
judgment of a General Council, and the saying " Major non 
judicatur a minore," he continues that this was not always 
true, for the King of France, who was " major et superior " in 
his kingdom, was frequently in certain cases judged by his own 
" Parlement," and judgment given against him. 2 

We shall have more to say about Gerson's conception of the 
nature of Kingship in a later chapter, but we think that his 
statements about the relation of the King of France to the law, 
and his great Court of Law, the Parlement of Paris, are very 
important. 

It is hardly necessary to set out again the evidence as to the 
genera] constitutional principles of the source and authority 
of law in England in the fifteenth century. 3 We must, how- 
ever, consider briefly the treatment of this subject by Sir John 
Fortescue, for his works are important not only in themselves, 
but as illustrating the continuity of political thought. We 
must not indeed assume that his judgments corresponded 

1 ' Sermo in die circumcisiones iii. cap. iv. col. 931 : " Ad hanc 
Domini,' Opera, vol. i. part i. col. autem rationem respondetur primo 
240, 41 : " Ad apparentem gratiana quod major rationis, licet regulariter 
Dei in circumcisione humilis pneri Bit vera, tamen quandoque fallit. 
Iesu, princeps et prelatus quilibet, et Nam Rex Franciae, qui est major et 
si dicatur solutus legibus, pati debet superior in toto regno saepe in aliquibus 
legem quam ipse tulerit, turn pro sub- casis judicatur, et contra eum fertur 
ditorum exemplo, turn pro reverentia sententia in suo Parliamento." 
praestanda Deo, ut appareat gratia 8 Bishop Stubbs has discussed this 
Dei in eo, et non secularia desideria with great care in his ' Constitutional 
videantur dominari." History.' Cf. especially, vol. iii. edi- 

2 Peter d'Ailly: ' De Ecclesiae tion 1891, sections 364, 365, 439-441. 
et Cardinalium auctoritate,' part 



142 FIFTEENTH CENTURY. [PART II. 

completely with all the actual conditions, in England or 
elsewhere, but it is even further from the historical reality to 
imagine that they express an eccentric opinion. 

We have three important treatises by Fortescue : ' De 
Natura Legis Naturae,' ' De Laudibus Legis Angliae,' and the 
' Governance (or Monarchy) of England,' and they represent 
the same general principles. 

Fortescue cites as from St Thomas Aquinas' ' De Eegimine 
Principum,' ii. 8, 19 (but this part of the work is not by St 
Thomas, but probably by Ptolemy of Lucca x ), and from 
Egidius Eomanus, the description of the two forms of govern- 
ment, the " dominium regale " and the " dominium politicum." 
The ruler who has the " dominium regale " governs according 
to laws which he has himself made, while the ruler who has the 
" dominium politicum " governs according to laws made by 
the citizens. 2 

Fortescue, however, adds that there is a third form of 
" dominium " which is " politicum et regale," and he gives as 
an example of this, the Kingdom of England, where the King 
cannot make laws without the consent of his three Estates, and 
the judges are bound by their oaths to give judgment according 
to the law of the land, even if the King were to command the 
contrary ; while on the other hand the people cannot make 
laws without the authority of the kings, who succeed each other 
by hereditary right. 3 

1 Cf. vol. v. p. 24. omnes suis constringuntur sacramentis. 

2 Fortescue, ' De Xatura Legis Xumquid tunc hoc dominium politi- 
Naturae,' i. 16. cum, id est plurium dispensatione 

3 Id., ' De Natura Legis Naturae,' regulatus dici posset, verura etiam et 
i. 16: " Sed et tertium esse DorLinium regale dominium nominari mereatur, 
non minus his dignitate et laude, quod cum nee ipsi subditi sine regia auetori- 
politicum et regale nominatur, nedum tate leges condere valeant, et cum 
experientia et veterum historiis edoce- regnum illud, regiae diguitati supposi- 
mur, sed et dicti Sanct Thomae doc- turn, per reges et eorum heredes suc- 
trina edoctum esse cognoscimus. In cessive bereditario jure possideatur, 
regno namque Angliae reges sine qualiter non possidentur dominia aliqua 
trium Statuum rogni illius consensu politico tantum regulata." 

leges non condunt, noc subsidia im- Cf. for the position of the judges 

ponunt subditis suis ; Bed et judices ' De Laudibus Legum Angliae,' 51 : 

regni illius, no ipsi contra leges terrae, " Justiciarius iste inter cetera tunc 

quamvis mandata principis ad con- jurabit, quod justiciam ministrabit 

trariam audierint, judicia reddant, indifforenter omnibus hominibus coram 



CHAP. I.] 



THE LAW : PRACTICE AND THEORY. 



143 



Fortescue deals with this subject again in other terms in the 
treatise ' De Laudibus,' and contrasts the character of English 
Constitutional Law with that of the Eoman Law, and its 
doctrine, " Quod Principi placuit legis habit vigorem," and 
with the " Begimen Eegale" of the King of France 1 ; and 
again, in the " Governance of England," where he suggests that 
the earliest kings possessed the " Dominium Eegale," and that 
such a government might have been good under good Princes, 
but when men grew more civilised (mansuete) and more dis- 
posed to virtue, great communities grew up such as that of 
those who came to England with Brutus, and incorporated 
and united themselves into a realm which should be governed 
by such laws as they should agree upon. 2 



We have thus so far found nothing to suggest that the 
conception of the source and authority of law was different in 
the fifteenth century from that of the fourteenth century. 
The law proceeded from the Prince, no doubt, but it was from 
the Prince acting with the community. We have indeed 
observed in the proceedings of the Cortes of Castile and Leon 
reference to the use by the kings of such phrases as " motu 
proprio," or " of his certain knowledge and absolute power," 
but we have also seen that the Cortes emphatically and 
repeatedly protested against the use of such extravagant 
phrases, and that the kings repeatedly agreed that they were 
not to be used in the royal Briefs. The law, not the King, 
was supreme. 



eo placitantibus, inimicis et amicis, 
nee sic facere differet etiamsi rex per 
literas suas, aut oretenus, contrarium 
jusserit." 

Cf . for relation of Parliament to legis- 
lation, ' De Laudibus,' 18. 

1 Id., ' De Laudibus,' 9, 34. 

2 Id., Governance of England II. : 
" But afterwards when mankynd was 
more mansuete and better disposed to 
virtue, grete comunaltes, as was the 
felowshippe that came into this lande 
with Brute, wyllynge to be united and 



made a body politike called a Reaume 
havynge an hed to govern it . . . than 
they chese the same Brute to be their 
hed and kynge. And thai and he upon 
this incorporation and institution, 
and onynge of themselves into a 
Reaume ordeyned the same Reaume 
to be ruled and justified by suche 
lawes as thai all wolde assent unto : 
which lawe therefore is called ' Politi- 
cum.' And because it is ministred by 
a kyng, it is called ' Regale.' " 



144 



CHAPTER II. 

THE SOURCE AND AUTHORITY OF LAW. 
CIVILIANS AND CANONISTS. 

We have so far considered this subject as it is illustrated in 
the constitutional documents, and in some of the political 
writers of the fifteenth century. We must now, however, turn 
to a body of literature whose traditions were very differeDt, 
that is, to the work of the Civilians. 

They, indeed, like the Constitutional lawyers, accepted 
the principle that it was from the community that all legis- 
lative authority was immediately derived. The Civilians, 
however, also, and naturally, as they were interpreting the 
law of the Eoman Empire, conceived of this legislative 
authority as having been conferred by the Koman people 
upon the Emperor. This conception, as we hope we have 
made clear, was wholly alien to the normal political theory 
of the Middle Ages. 

We must, however, always bear in mind that, while all the 
Civilians had accepted the principle that the Eoman people 
had conferred the legislative authority on the Emperor, the 
Civilians of the twelfth and thirteenth centuries had been 
sharply divided on the question whether, in doing this, they had 
completely and permanently alienated the legislative power 
from themselves, or whether they could, if they wished, still 
resume it. And especially they were divided upon the ques- 
tion whether, and how far, the custom of the people retained 
its authority. 1 

We have considered the position of the Civilians of the 

1 Cf. vol. ii. pp. 59-67, and vol. v. p. 66. 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 145 

fourteenth century with regard to these questions in the first 
Part of this Volume, we must now consider how far there was 
any important development in the Civilians of the fifteenth 
century. 

The first question we have to discuss is whether these fifteenth 
century Civilians thought that the Koman people had conferred 
its legislative power upon the Emperor in such a sense that 
they had finally and completely lost this, or whether they 
thought that the Eoman people still retained their power of 
legislation or could resume it. 

There is an interesting and important passage in a Commen- 
tary on the Institutes, written by Christophorus Porcius, a 
Jurist of the middle of the fifteenth century, which raises the 
question very sharply. He is commenting on the words, 
" Sed et quod Principi placuit legis habit vigorem," &c, and 
points out that the gloss indicated that there were two opinions 
among the Civilians, the one, that the Roman people could not 
now establish a " general law," the other that it could still 
do so. The first opinion was held, Porcius says, by Bartolus, 
and commonly by the " Citra Montani," the second by the 
" Ultra Montani." The latter was the opinion which Porcius 
himself preferred, and he gives reasons for this. He cites 
various texts from the Corpus Juris, and especially urges that 
the Eoman people could create a " general custom," and could 
therefore establish a " general law," and that the Eoman 
people had not transferred (non transtulit) its jurisdiction to 
the Emperor, but had only granted (concessit) this to him ; 
the word " concessit " signifies the " translatio usus " ; not 
" dominium," and the people can revoke this. He adds that 
while they had granted jurisdiction to the first Emperor, this 
did not mean that it went necessarily to his successor, and 
the fact that the Emperor was now elected by the German 
Princes, and confirmed by the Pope, did not destroy the right 
of the Eoman people to revoke the election of the Emperor. 1 

1 Christophorus Porcius : Comm. non possit condere legem generalem, et 

on Institutes, i. 2, 6 : " Sed et quod hanc sententiam tenuit gl. in 1. non 

principi. . . . In fi. glos. in verb. ambigitur fT. De Legibus (Dig. i. 3, 9). 

concessit, colligitis duplicem opinionem. Quam opinionem sequuntur Bartolus 

Primam, quod populus Romanus hodie et communiter citra montaDi. . . . 

VOL. VI. K 



146 FIFTEENTH CENTURY. [PART II. 

Whatever may be the more immediate source of the opinion 
of Porcius, it is clear that it represents the survival of the 
conceptions of Azo and Hugolinus and Odofridus, which we 
have discussed in earlier volumes. 1 

His reference to the " Ultramontani " as having held this 
opinion and the " Citramontani " as maintaining the other is 
very interesting, but presents us with considerable difficulty. In 
the meanwhile we must consider what light may be thrown upon 
it by an examination of other Civilians of the fifteenth century. 
We begin with the conception of the legislative authority of 
the Eoman people. Bartholomew de Saliceto, a Civilian of the 
last years of the fourteenth and the early years of the fifteenth 
century, cites Jacobus Butrigarius, an important Civilian of 
the fourteenth century, as maintaining that the Eoman 
people could still revoke the authority which they had con- 
ferred upon the Emperor, and that they thus possessed the 
power of legislation. Saliceto himself does not agree with 
Butrigarius, for the election of the Emperor, he says, now 
belongs to the German Princes, and his deposition to the Pope, 
and therefore the Eoman people could not now make a 
" general law," even during the vacancy of the Empire, for 

Contrariam sentontiam, s. quod popu- tionein usus, non dominium . . . ergo 
Jus Romanus hodio possit condere potest quemcunque revocare . . . Doni- 
legem generalem, videtur hie tenere gl. que quia licet populus Romauus coll- 
et aptius, in 1. fi. c. De Legibus (Cod. I. cessit primo imperatori jurisdictionem, 
14, 12), et banc sentontiam tenuerunt eo inortuo non est acquisitum suo 
ultra montani, quorum opinio mihi successore. . . . Vel responditur ut in 
placere consuevit, et in earn sum glo. non obstat, quod populus transtu- 
proclivior. Primo per tex. rotundum torit, quia respondoo quod ilia verba 
in 1. non ambigitur ff. De Legi (Dig. sunt exponenda, i. concessit, per hunc 
i. 3, 9). Socundo per 1. nova c. de textum in 1. i. de constitulionibus 
Of. Praetoris, Tertio, rationom, nam principum (Inst. i. 2, 6), . . . non 
populus Koiniuui imliK-ore con- obstat quod eligitur a dominis de Ale- 
suetudinen. generalem, 1. de quibus ff. mannia et confirmetur per Papam, 
de legibus (Dig. i. 3, 32) ergo et statuere quia huiusraodi electio, et Papae con- 
legem generalem, arg. 1. cii. quid, ff. firmatio facta in jure communi, non 
c. cer. pet. (I). Quarto quia populus videtur tollere jus alterius xii. Dist. c. 

Kniiiiimi.^ ii"ii Iran lulil omnii lam praecrpt is (Grut ian Docretum D. xii. 2) 

jurisdictionem in imperatorem, sod unde non videtur tollere jus populi 

illam sibi concessit, ut in d. 1. i. ff. de Romani rovocandi imperatorem." 
const, principum (Inst. I. 2, 6), quod ' Cf. vol. ii. pp. 59-67, vol. v. p. 66. 

vorbum, concessit, significat trunsla- 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 



147 



the power of doing this had passed to the Church or the 
Pope. 1 

Paulus de' Castro, one of the most important Civilians of 
the fifteenth century, interprets the action of the Roman 
people in conferring the authority upon the Emperor by the 
" lex regia," in the same way as Porcius, that is, he describes 
it as a " concessio " rather than a " translatio," and therefore, 
he says, the Roman people could, before the coming of Christ, 
have revoked the " lex regia " and deposed the Emperor. But, 
with the coming of Christ, this was all changed, for the Empire 
was then transferred to the Church, and only the Pope could 
confirm and crown the Emperor, or depose him, for the Church 
holds the Temporal as well as the Spiritual sword. It is evident 
that Paulus is stating the extreme Papalist theory, but we 
are not here concerned with this. In another passage he sets 
out his principle in direct terms : the Roman people cannot 
now make a law or create a " general custom." 2 It is possible 



1 Bartholomaeus De Saliceto : Comm. 
on Code I. 14, 12 : " Opp. quod non 
soli imperatori liceat legem condere, 
quia etiam populus Romanus potest 
. . . item, non obstat, videlicet, quod 
hie non dicitur solum per adverbium 
sed etiam per nomen, ad denotandum 
quod nullus alius potest nisi solus 
princeps : nam populus constat ex 
personis pluribus . . . item non obstat 
quod populus non possit hodie quia 
omnem potestatem populus transtulit 
in principem . . . Jac. Butrigarius 
videtur velle quod posset, potestatem 
principi concessum revocando, quod 
assert posse, quia per viam 1. s. regiae 
transtulit . . . igitur per contrariam 
legem revocare posset . . . concludit, 
quod imperium ad se populus Romanus 
revocare posset. Haec opinio forte 
olim tolerari poterat, sed hodie non 
toleratur, cum electio imperatoris 
spectat ad principes de Alamania, et 
jus privandi eum spectat ad Papam, 
ut extra de re judicata C. ut apostolicae, 
et sic cum populus imperio et potestate 
imperatoris non babeat se impedire, 



videtur, quod nee legem generalem 
possit condere, et etiam vacante im- 
perio, quia tunc donee electio sit facta, 
succedit ecclesia, seu papa." 

Cf. Joannes de Imola : Comm. on 
Decretals i. 7, 1. 

2 Paulus de Castro : Comm. on 
Digest i. 3, 9 (" Non ambigitur ") : 
" Ex quo patet quod ilia (lex regia) 
fuit magis concessio quam translatio ; 
ut patet in I. 1. 1. ti. in verb, concessit 
(Inst. i. 2, 6) ; per quam non abdicatur 
substantia, ut in concedente, sed 
transfertur usus. . . . Sed expone, 
quantum ad usum non quantum ad 
substantiam. Et ideo dico quod popu- 
lus Romanus ante adventum Christi 
poterat revocare legem regiam, et 
ea revocata privare imperatorem ; quia 
lion poterit sibi imponere legem a qua 
recedere non potuerit. . . . Secundo, 
potest intelligi post adventum Christi, et 
tunc dico quod imperium Romanum 
fuit a populo Romano translatum in 
ecclesiam et non remansit nisi nomen, 
et dicitur imperium Christi vel ecclesie, 
et solus Papa potest ipsum privare, 



148 FIFTEENTH CENTURY. [PAKT II. 

that in this last passage he is referring to the actual people 
of the city of Rome. These Jurists then seem clearly to hold 
that the Eoman people had no longer any general legislative 
authority. 

We turn to the question of the nature of the legislative 
authority of the Prince. Paulus de Castro, commenting on the 
words " Quod Principi placuit," &c, says that though the 
Prince, when making laws, ought to consult the " periti," his 
laws are valid even though he has not done so, and in his 
Commentary on the Code he repeats emphatically that the 
Prince can make laws by his own authority, and without 
the Counsel of the " Proceres," and he explains the terms of 
that rescript of Theodosius and Valentinian which seemed 
to require some consultation of the Senate, as expressing, not 
necessity but " humanitas." x Jason de Mayno, one of the 
most important Civilians of the later part of the fifteenth 
century, says the same. 2 We have pointed out that some of 
the great Civilians of the twelfth and thirteenth centuries, 

sicut confirmare et coronare . . . Et populo sed a Papa. Solus ergo im- 

iurat sibi fidelitatem ; nam apud perator habet potestatem legis univer- 

ecelesiam est uterque gladius temporalis salis condendae, populus autem non, 

et spiritualis. . . . Nihil concludo vel senatus, nisi quatenus permitteret 

potest hodie populus Romanus in princeps." 
imperio." ' Paulus de Castro : Comm. on Digest 

Cf. Paulus : Comm. on Digest i. 3, 32 : i. 4, 1: "Quod principi placuit. 

" Hodie secus, quia imperium non est Nota hie in verbo placuit quod licet in 

apud populum Romanum nee ab eo legibus coniendis debet adhiberi con- 

recognoscitur ; et sic hodie non potest silium peritorum, ut in 1. humanum 

legem facere sed est apud Romanam Cod. De Leg. (Cod. I. 14, 8). . . . 

ecclesiam. Et ideo non potest intro- Si tamen non requiritur, valet, quia 

ducere generalem consuetudinem.'" sufficit quod ita placuit legislatori." 

Cf. also Antonius de Butrio, a Canon- Id., Comm. on Code I. 14, 12 : " Im- 

ist of the late fourteenth century, porialis. (2) Nota quod imperator solus 

Commentary on Decretals i. 2, 3 (fol. etiam sine consilio procerum potest 

xii.) : "Sicut originaliter princeps legem condere et sic illud quod dicitur 

reciperet potestatem a populo Romano, in 1. humanum (Code I. 14, 8), non est 

tamen hodie potestatem jurisdictiona- necessitatis sed humanitatis ut debeat 

lem recognoscit a Papa . . . quia in eo adhibere consilium procerum." 
vera erat habita potestas utriusque Cf. Bertaehinus Repertorium Juris, 

juris. . . . Romanus populus non vol. iii. fol. 10. 

posset revocare potestatem imperii, - Jason de Mayno : Comm. on Digest 

quia non habet potestatem illam a i. 21 (fol. 25). 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 149 

and specially the author of the Summa Trecensis (Irerius ?), 
Eoger and Azo, had maintained that the Emperor must, 
when making laws, follow the method prescribed in Code I. 
14, 8, while Bulgarus maintained the opposite. 1 

More important, however, are some statements of Jason de 
Mayno, with regard to the relation of the Prince to the laws 
when made. In his Commentary on the Digest he cites Baldus 
as having said in his treatise on Feudal Law, that the Prince 
has " plenitudo potestatis," and that when he wills anything 
" ex certa scientia " no one can ask him why he does it, and in 
another place again he cites Baldus, as having said that the 
Pope and the Prince can do anything " supra jus et contra jus, 
et extra jus." In his Commentary on the Code, Jason cites 
Bartolus, as having said in one of his " Consilia " that when 
the Prince does anything " ex certa scientia " he removes all 
legal obstacles. 2 The impression produced by these passages 
is only confirmed by Jason's observation on the well-known 
rescript of Theodosius and Valentinian, " Bescripta contra 
jus elicita a iudicibus praescribimus refutari " (Cod. I. 19, 7). 
This does not mean, Jason says, that the Prince had not 
authority to issue such rescripts, but only that, as there might 
be a doubt whether they had not been obtained from him 
" per importunitatem," when the Prince issues such a rescript, 
he should add a " non obstante " clause. 3 It is, however, true 
that the effect of these passages is to some extent modified by 

1 Vol. ii. pp. 67-70. erini." 

2 Jason de Mayno : Comm. on Digest 3 Id., Comm. on Code I. 1 9, 7 : " Re- 
1.4, 1 : " Et dicit Baldus in Prelud. scripta. . . . No. primo regulam, 
Feud, in xiii. col. : ' Quod in principe quod rescripta, contra jus impetrata, 
est plenitudo potestatis et postquam non debent per judices observari. . . . 
aliquid vult ex certa scientia nemo Sed numquid ista regula procedat ex 
potest ei dicere, cur facis ista. . . . defectu potestatis principis, quia non 
Alibi dicit Baldus, quod Papa et Prin- possit, vel ex defectu voluntatis. 

ceps ex certa scientia super jus et contra Baldus . . . et Paulus . . . dicunt 

jus et extra jus omnia possunt.' ' quia ex defectu voluntatis, quia non 

Id., Comm. on Cod. I. 19, 1 (fol. 40, presumitur principem aliquid velle, 

v.) : " Licet servilis . . . quinto . . . quod sit contra jus ; et si aliquid eon- 

confirmo quia quum princeps aliquid cessit, presumitur per importunitatem 

faeit ex certa scientia, tollit omne ob- concessisse et ideo si princeps vellet, 

etaculuin juris, secundum Bartolum, posset rescribere contra jus, adiecta 

in consilio quod incipit Civitati Cam- clausula non obstante." 



150 FIFTEENTH CENTURY. [PART II. 

another citation which Jason makes from Baldus : it is sacri- 
legious to dispute about the authority of the Prince, but it is 
lawful to discuss his knowledge and intention, for the Prince 
sometimes errs ; it is always to be presumed that the Prince 
desires what is just and true, and he wishes his actions to be 
controlled by the justice of heaven and the Courts of Law 
(poli et fori). 1 It would seem then that these Civilians were 
clear that the Roman people had no longer any legislative 
authority in the formal sense, while the Emperor had an abso- 
lute and unconditional authority in relation to positive law. 

There are, however, certain aspects of the relation of the 
Prince to Law, which require a separate treatment and 
first, we must consider his relation to Custom, and here we 
must take account of the Canonists as well as of the Civilians. 

John of Imola, who was both Civilian and Canonist, says first 
that " Consuetudo " may be called that form of law which is 
established by the " mores " of him who has the power of 
making law, and that it does not require the knowledge or 
consent of the Prince ; but he adds that this was so because the 
Pope permitted the development of a custom even if contrary 
to the law, if it were reasonable, and had a sufficient prescrip- 
tion, and he refers to the terms of the Decretal of Gregory IX. 
on which he is commenting. He adds that the Emperor had 
also permitted this by the law " omnes populi " (Digest i. 1, 9), 
and, therefore, custom did not require the knowledge or consent 
of either Pope or Emperor, in order to be valid. 2 

1 Id., Comm. on Digest i. 4, 1 (fol. Jo, quod consuetudo est jus quoddam 
25): " Tamen adverte quod licet de moribus illius inductum qui jus con- 
potestate principle sacrilegium sit ut dere potest, habens vim legis. . . . 
di.vi, disputare, do scientia et voluntate Nam non videtur requiri consensus 
principis licitum est disputare, quia vel scientia principis. Nam Papa hie 
princeps quandoquo errat, 1. 2. ff. permittit consuetudinem induci etiam 
Do Sup. leg. secundum Baldum hie : contra jus, dummodo sit rationabilis et 
qui etiam subdit quod in principo nun- prescripta, et sic non requiritur alitcr 
quam aliquid presumilur placore, nisi consensus vel scientia ejus. Et simi- 
quod justum et verum sit : et princeps liter imperator concedit potestatem 
vuh actus suos regulari a justitia poli condendi statuta, et consequenter 
ot fori." consuetudines in 1. omnes populi 

2 John of Imola : Comm. on Deere- (Dig. i. 1, 9) et ideo non requiritur ejus 
tals i. 4, 11: "Potest diccre ut hie consensus vel scientia." 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 151 

Bertachinus, in his ' Repertorium ' or Dictionary of Law, 
of the later fifteenth century, cites various emphatic phrases 
about the authority of custom. Custom and statute have 
equal authority, a general custom creates the " Jus Commune," 
a custom of such antiquity, that there is no memory to the 
contrary, has the force of a " Privilegium " of the Prince ; 
the Emperor is " solutus legibus," but he is not " solutus 
moribus et ratione," he is bound to maintain the " con- 
suetudines." 1 

That great Canonist of the early fifteenth century, Zabarella 
(generally referred to as " the Cardinal ") treats the subject 
of the source and authority of Custom at some length, but 
with such caution that it is difficult to arrive at any certain 
conclusion. He is commenting upon the Decretal of Pope 
Gregory IX. (Decretals i. 4, 11). Some people had maintained 
that it was only in former times that custom could make or 
abrogate law, while others maintained that it did not follow 
because the people could not now make " law " that they could 
not make custom. He cites Gul. de Cuneo as maintaining that 
while the power of making " law " had been transferred to the 
Prince, the power of making custom neither had been, nor 
could be transferred. Zabarella does not indeed agree with 
this last contention, but he is convinced that at least in the 
case of Canon Law, custom would in some cases prevail against 
a canon without the consent of the Prince (i.e. the Pope). 2 

1 Bertachinus, ' Repertorium Juris,' habebat hanc auctoritatem olim quum 
vol. i. fol. 471, v.: " Consuetudo et populus eondebat legem . . . nam cum 
statutum aequiparantur. . . . Con- legislators suffragio leges scribantur, 
suetudo generalis facit jus commune. ejus etiam tacito consensu abrogantur. 
. . . Consuetudo tanti temporis quod . . . Hanc opinionem aliquiiroprobant, 
non sit memoria in contrarium habet quia etiam, praesupposita ilia opinione, 
vim privilegii principis. . . . Con- quod hodie populus Romanus non 
suetudo habet vim constitutionis." possit legem condere, non per hoc 

Vol. iii. fol. 10, r. : " Imperator est infertur, idem esse de consuetudine, 

solutus legibus . . . sed de equitate nam de permissione legis procedit, quod 

debet vivere legibus . . . non tamen consuetudo valeat etiam ad tollendam 

est solutus moribus et ratione." . . . legem, si consuetudo est rationabilis 

Fol. 12, r. : " Imperator tenetur ser- et prescripta, ut hie inde dicit Gul. do 

vare consuetudines suas." Cuneo in 1. de quibus (Dig. i. 3, 32) 

2 F. Zabarella : Comm. on Deere- quod licet in principem sit trarslata 
tals I. iv. 11 (fol. 86) : " Quidam ergo, potestas condendi legem, non est 
ut refert Inno. dicunt quod consuetudo translata potestas inducendi con- 



152 



FIFTEENTH CENTURY. 



[PART II. 



Another great Canonist of the fifteenth century, Nicolas de 
Tudeschis, who is generally known as Panormitanus, sets out 
very clearly the superiority of custom over Positive Law, 
if it has prescription and is " rational," while it is invalid if it 
lacks " reason." He maintains that it was thought (by some) 
that custom could only be created with the knowledge of him 
who can make law, but he cites the opinion of John (?) as main- 
taining that the knowledge or counsel of the Pope was not 
necessary for the creation of custom, otherwise it would rarely 
or never come into being. 1 

Yet another very important Canonist of the same century, 
Turrecremata, deals in considerable detail with the whole 
question of the nature and authority of law, in his Commentary 
on the Decretals of Gratian. It is natural that his treatment 
of the nature of law has something of the breadth and scope 
of Gratian's treatment of the subject. He was also greatly 



suetudinem ; nee transferri potuit, 
quum surgit ex tacito consensu, quod 
tenet Bart. I. quae sit longa consue- 
tudo, 1. secunda in repotitione (Cod. viii. 
52). 

Haee ratio non urget, quoniam 
poterit hodio induci consuetudo, inter - 
veniente tacito consensu principis ; 
nee potest esse translata jurisdictio 
in principem, quin etiam sit translata 
potostas consuetudinis inducendae, 
quum sit jus ex quo legantur subditi, 
et pro lege servare ut in diffinitione 
consuetudinis. . . . 

Secundo, solvit Inno, quia leges, 
quae dicunt quod consuetudo est abro- 
gatrix legum etc. loquuntur de legibus 
municipalibus, quae sibi quisque popu- 
lus statuit, quas etiam contraria lege 
vel consuetudine potest tollere ; secus in 
lege inoperiali quae solum lege imporiali 
tollitur. . . . Tertio solvit Inno quod 
leges primae loquuntur de consuetudine 
generali, quae ex corta scientia legis- 
latoris s. principis induci lur. . . 
Quinto, solvit Inno, distinguondo, an 
consuetudo praecesserit legem, et tunc 
lex ei derogat, an e contrario, et tunc 
ipsa derogat legi, nisi lex consuetu- 



dinem prohibeat, ut in usuris et re- 
verentia. . . . (fol. 87). Ex hoc 
infortur quod consuetudo ecclesiaetica 
non potest induci contra legem canoni- 
eam, sine tacito consensu Papae, sicut 
et nemo citra Papam potest statuere 
contra canones. . . . Die verius quod 
aliquo casu contra canonem potest 
valere consuetudo, sine consensu tacito 
principis." 

1 Panormitanus : Comm. on Decre- 
tals I. iv. 11 (vol. i. fol. 103) : " Nota 
in § licet, quod consuetudo praevalet 
juri positivo, si est rationabilis et 
praescripta, e contrario consuetudo 
ratione carens non derogat juri, et 
ratio est quia consuetudo, cum sit 
quoddam lex, debet habere rationem 
in se, alias non est lex. ... Si ergo 
amittit substantialia legis, non potest 
pracjudicare legi. . . . (fol. 105). 
Quarto, requiritur, quod consuetude 
sit inducta sciento illo qui potest con- 
dere. Sod Joannes . . . tenet quod 
consensus Papae seu sciencia non 
requiritur ad consuetudinem inducen- 
dam ; alias raro vel nunquam induce- 
retur consuetudo." 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 153 

influenced by the profound treatment of the subject by St 
Thomas Aquinas. We shall discuss his general conception of 
political authority in another place, here we are concerned 
with an important passage in which he treats the relation of 
law to custom. 

We may, he says, consider the authority of law from two 
points of view, the " firmitas authoritatis " and the " firmitas 
stabilitatis." Laws derive the first from the authority of the 
legislator, the second from its correspondence with the con- 
ditions and customs of those who are subject to it ; and laws 
are therefore void unless are confirmed by their custom. 1 
We must, however, observe that in a later passage he seems 
to maintain that, even when the multitude has not the power 
of making law, its custom obtains the force of law, but subject 
to the condition that this is allowed by those who have the 
authority of imposing laws on the multitude. 2 

We have considered these references to the relation of law 
and custom, because the subject is one of great importance, but 
we think that while the jurists are conscious of the great 
importance of the question it is not easy to derive from 
them clear and complete conclusions. 

There is, however, another conception of the relation of the 
Prince to the Law, of which we must take account, and with 
regard to which there is a general agreement among the 

1 Turrecremata : Comm. on Gratian loco temporique conveniens ; dicimus 

Decretum D. iv. part iii. (p. 64) : quod leges firmantur firmitate stabili- 

" Leges instituuntur . . . Respondeo tatis et permanenciae, quum moribus 

notandum, quod dupliciter possumus utentium approbantur, sive cum 

de firmitate legum loqui, aut de moribus subditorum leges adaptantur. 

firmitate auctoritatis, aut de firmitate Deficiunt autem, tolluntur et abro- 

stabilitatis. Si de firmitate auctori- gantur quum utentium moribus non 

tatis, istam habet lex ab instituente, conformantur." 

aquoroburetauctoritatemsuscipit. Si 2 Id. id., D. xi. 1 (p. 121): "Si 

vero loquamur de firmitate stabilitatis, vero multitudo non habeat liberam 

istam habet lex ex convenientia et potestatem condendi sibi legem . . . 

aptatione ad mores subditorum. Quia nihilominus tamen ipsa consuetudo in 

enim ut dictum est in C. erit autem lex. tali multitudine prevalens optinet vim 

(Gratian Decretum D. iv. 2.) ; oportet legis, in quantum tolleratur per eos ad 

quod lex sit possibilis secundum quos pertinet multitudini legem im- 

naturam, secundum consuetudinem, ponere." 



154 FIFTEENTH CENTURY. [PART II. 

Civilians. This is the conception that the Prince is bound 
by any contract which he has made with his subjects. We have 
dealt with this as it appears in the Civilians of the fourteenth 
century, but it has also an important place in the fifteenth 
century. 

John of Imola, in one place, says that while the Emperor and 
the Pope are not bound by " positive " laws, they are bound by 
the divine and natural law, and therefore by their " Contract," 
for this is founded upon natural law. And in another place 
the Prince is bound by a contract with his subjects, " natur- 
aliter," though not " civiliter." 1 

Paulus de Castro, also, sets out the same general principle, 
and cites Cynus as having said that if the Prince makes any 
contract with his subjects he is bound to keep it, just like any 
private person, and that this also applies to his successor; 
and he also cites Bartolus as having said that when a Statute 
passes into a contract, it cannot be revoked by those who 
made it. 2 

Franciscus Accoltis, while asserting in the same way that 
the Prince was bound by his contract with his subjects, re- 
pudiates emphatically the opinion which he attributes to the 
" Doctors " (we have just seen that it was held by John of 
Imola) that the Prince was only bound " naturaliter " and not 
" civiliter," and he cites Baldus as having maintained the 
same opinion as himself. 3 

1 John of Imola : Commentary on istam legem determinantur duo. Primo 
Decretals i. 2, 2 (fol. 13): "Item secundum Cynum quod si princeps facit 
advert* quia licet Papa t Imperator aliquem contractum cum subditis, 
non ligantur suis legibus positivis . . . debet illud observare et non rumpere, 
tamen ligantur lego Divina et naturali. vel frangere, vel contravenire, sicut 
. . . Et per predicta patet quod Papa quilibot alius privatus, et eodem modo 
et Imperator etiam suo contractu eius successor observare tenetur, quum 
ligantur : quia etiam jure naturali id afficit ipsam dignitatem cujus ipse est 
proceditur." administrator. 

Id. id.,ii. 19, 1 (Ex Epistola), fol. 54: Per hoc etiam determinat Bartolus 

" Notn quod ex contractu principis cum in 1. omnes populi (Dig. i. 1. 9) quod 

Kubjecto, princeps obligatur saltim quum statutum transit in contractu 

naturaliter. Civiliter eum obligari non potest a statuentibus revocari." 

non videtur quum ilia descendat ex Cf. pp. 15 and 19. 

legibus quibus est solutus." 3 Franciscus Accoltis : Comm. on 

2 Paulus de Castro: Coram, on Decretals ii. 19 (fol. 49): "Ex Epis- 
Cod. i. 14, 4 (fol. 26): "Ultimo, per tola. Nota primo secundum Doc: 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 155 

Bertachinus says simply, the Emperor can revoke a " Privi- 
legium " given by his predecessors, unless he received money 
for it, but he cannot revoke his contract, and cites Cynus and 
Bartolus. 1 

Jason de Mayno sets out the same principle with some 
important distinctions. He treats the making of a con- 
tract by the Prince as one of the modes of legislation, for 
his contract has the force of law ; and he cites Bartolus and 
Paulus, as holding that it has even more force than the Law, 
for though the Prince is not bound by the Law, he is bound 
by agreement and contract, which belong to the "jus gen- 
tium " ; and he cites Baldus as saying that the Pope and the 
Emperor are bound by the agreements (pacta) which they have 
made with the " Civitates." He then cites Bartolus as main- 
taining that while contracts are binding on the Prince who 
made them, they do not bind his successors, unless they 
belonged to the nature and custom of his office, as in feudal 
matters. He himself distinguishes, he agrees with Bartolus 
in the case of the Emperor and Pope, for they succeeded by 
election and not by inheritance, but when the King, or other 
Prince, succeeded by inheritance the successor was bound 
to maintain all the contracts of his predecessors. 2 

quod imperator faciens contractum cum x Bertachinus, ' Repertorium Juris,' 

subdito, obligatur saltern naturaliter vol. iii. fol. 10, r. : " Imperator potest 

ad observantium pacti, et sic sentiunt revocare privilegum sui antecessoris . . . 

in dictis suis, quod princeps subdito nisi receperit pecuniam pro eo ; sed 

non obligatur civiliter, sed naturaliter contractum suum non potest revocare." 

tantum per 1. digna vox (Code i. 14, 4). Id. id. id., fol. 12, r. : " Imperator 

. . . Nam quum obligatio civilis oriatur tenetur servare conventiones et pacta 

a lege civili ... si lex civilis non ligat et contracta. Cy. et Bar. in D. 1. 

principem, ergo non potest obligari digna vox " (Cod. i. 14, 4). 

civiliter ; naturaliter autem obligatur 2 Jason de Mayno : Comm. on 

quia ipsa naturnalis obligatio sumit Digest i. iv. 1 (fol. 25 v.) : " Adde 

originem a jure naturali. . . . Jus quintum modum (of making laws by the 

autem naturale non potest tolli per Prince) ; s. per viam contractus, quia 

principem, nee limitari sine causa. . . . contractus principis habent vim legis. 

Tu, autem, adverte, ad primum dictum, . . . Imo fortius secundum Baldum et 

quia Baldus in 1. princeps ff. De Legibus Paulum hie, licet princeps non ligetur 

(Dig. i. 3, 31) dicit quod princeps obli- lege . . . tamen ligatur lege conven- 

gatur non solum naturaliter sed civiliter tionis et contractus quae sunt de jure 

ex contractu. . . . Ego autem dico gentium. . . . Ubi Baldus de natura 

indubitanter quod princeps contra- Feudi, ubi etiam per eum, an princeps 

hendo obligatur civiliter et naturaliter." teneatur suas consuetudines obsorvare, 



156 FIFTEENTH CENTURY. [PART II. 

Philip Deems, a Civilian of the later years of the fifteenth 
century and the early years of the sixteenth century, asserts 
that the Prince is bound by his contract, and cannot violate 
it even " de plenitudine potestatis " ; and he cites Baldus and 
Paulus and Peter de Anchorano. 1 

It may appear to some that these discussions of the binding 
nature of the " Contract " of the Prince are of little more than 
technical significance, but that is hardly true. The conception 
was not new in the fifteenth century, but had a considerable 
place in the work of the great Civilians of the fourteenth century, 
and it reappears in the sixteenth century in the theory of 
Bodin. We venture to suggest that the question arose natur- 
ally in Italy, in connection with the great treaties which deter- 
mined the relation of the Emperor to the Italian cities, but 
it has also a more general significance, as indicating a limit to 
the theory of the unrestrained authority of the Prince. 

We began this chapter by drawing attention to the sharp 
distinction which was made by Christopher Porcius between 
the opinions of the " Citra Montani " and the " Ultra Montani " 

nam licet Deus subjecit principi leges, similibus, quum regna deferantur per 

tamen non subjecit contractus. . . . successionem quia prirnogenitus suc- 

Et dicit Baldus . . . quod pacta que cedit in regno ducato vel comitatu . . . 

faciunt Papa et Imperator cum civitati- saltern attenta generali consuetudine, 

bus sunt servanda. Subdit autem credo quod successor teneatur 6ervare 

Baldus hie, quod licet pacta et con- omnem contractum et quamcunque 

tracta principis ligent principem, non conventionem sicut quilibet successor 

tamonligentejussuccessorem : . . . et privati." 

quia jus non transit ad sucessorem sed ' Philippus Decius, ' Consilium * (in 

de novo creatur per electionen. . . . Goldast, Monarchia, vol. iii., edition 

Nisi essent de natura vel consuetudine 1621), C. xix. : " Et hoc bene facit, quia 

sue dignitatis, prout est in feudo. . . . quum princeps ex contractu obligatur, 

Puto, licet alii non tangant, quod ista otiani de plenitudine potestatis con- 

distinctio sic indistincte non sit vera; travenire non potest, ut notanter dicit 

verum intelligo dictum Baldi procedere Paulus de Castro in 1. Digna vox. 

in lmporatore vel Papa, quia tales Cod. de legibus et idem Baldus in C. i. 

dignitates non deforuntur successione § ad hoc, col. 6 in ver. item natalia, ex 

sed per electionem. . . . Tunc quum Gl. de pace juramento hrmata, idem 

successor non habeat dignitatem a pre- tenet Paulus de Castro in Consil, 420, 

decessore, sed nova electione conse- ' Videtur in antiquis,' et hoc idem in 

quatur, puto verum esse quod dicit termine hujus questionis tradit Petrus 

Baldus, quod non teneatur pactis. Sed de Anch. in Consil. 65, pro declarationo 

in regibus, ducibus, marchionibus, et dubiorum col. 2." 



CHAP. II.] THE LAW : CIVILIANS AND CANONISTS. 157 

on the question of the continuing authority of the Roman 
people in making laws. We have, however, not been able to 
find much which illustrates this distinction. This may be due 
to the fact that the Civilians whose work we have been able to 
examine, are all of them Italian ; that is what Porcius pre- 
sumably means by " Citra Montani." It is true, however, that 
if we take account not merely of Civilians or even Canonists, 
but of the great political writers of other European countries, 
such as John Gerson in France, Mcolas of Cusa in Germany, 
or Sir John Fortescue in England, we should find that they held 
that legislative authority belonged properly and normally 
not to the Prince alone, but to the whole community. How 
far we may think that Porcius is referring to this, we are, how- 
ever, quite unable to say. 

If we endeavour to summarise our conclusions about the 
position of those Civilians with whom we have dealt here, it 
seems to us true to say that they were clear that the Eoman 
Emperor had an absolute and unconditional authority in 
making " positive " law and that the people of the Empire had 
no legislative authority in the general sense, and that even if 
they recognised a certain authority in their custom, this rested 
upon the sanction of the Prince or Pope. (We are, it must be 
carefully observed, not dealing with the powers of the great 
Italian cities to establish municipal laws for themselves ; this 
is a great and complex subject and has been dealt with in 
detail by many learned writers.) 

Whether they would all have accepted the somewhat ex- 
treme terms cited by Jason de Mayno from Baldus, that the 
Pope and the Prince could do anything " supra jus et contra 
jus, et extra jus," may possibly be doubted. They are all, 
including Jason himself, clear that when the Prince has entered 
into a " contract " with his subjects, his authority is limited 
by the " contract." 

It is evident that there was a very sharp contrast between 
the political theory of most of the writers we have dealt with 
in this chapter and the general tendencies of the fifteenth 
century. 



158 



CHAPTER III. 

THE AUTHORITY OF THE PRINCE : ITS SOURCE 
AND NATURE. POLITICAL WRITERS. 

We turn from the conception of the authority of the law to 
that of the authority of the Prince or Ruler, and we find a 
number of important writers, who in different countries deal 
with the subject in some detail ; and as we shall see, they 
show a remarkable agreement in their judgments. 



We begin with Gerson, for he was earliest in time and cer- 
tainly was not less representative than the others. We cannot 
here discuss his place in the great conciliar movement, but it 
seems to us reasonable to say that his attitude to political 
authority is related to his conception of the authority of 
General Councils. 

In one treatise ascribed to Gerson there is a discussion of 
the origin of political society, which is interesting as illustrating 
his relation to the Patristic and Stoic tradition. In the state 
of innocence man had no laws or coercive justice, it was sin 
which compelled men to submit to these, and he enumerates 
in technical language the causes of coercive authority. 1 
Gerson, however, adds, a little further on, that man is by 



1 J. Gerscm : ' Sermo pro Justitia ad 
Regem ' (Opera, vol. iv. col. 855) : 
" Meditemur ctiam hominem creaturn 
fnisse sine peccato, et in justitia pro 
statu innocentiao. Foeit Deus hominem 
rectum eto. Homo in illo statu non 
indigebat legibus aut justitia activa 
coerciva ut ad bonum converteretur. 
Non igitur requirebatur dominatio dominationis et coercivi dominii." 



civilis aut politica. . . . Accidit autem 
quod propter transgressionem legis 
quae imposita erat homini et denun- 
ciata, et propter inobedientiam, mox 
regnum hominis et dominium in tyran- 
nidem et subjectionem versum sit, ac 
omino veluti inhrmatum ot perversum. 
. . . Et hie radicem habemus et cauaa ^ 



CHAP. III.] POLITICAL WRITERS. 159 

nature " Civilis," and needs the help of his fellow men, and 
was therefore driven to the life of society. The Commonwealth 
is a society in which men have to command and to obey to 
the end that they may live in peace and sufficiency, and as the 
principles of Natural Law are not sufficient for the government 
of the temporal life, human laws were established ; but these 
must not be contrary to the Natural Law. 1 

This is interesting, as illustrating what we have before 
suggested, that in spite of the great authority of St Thomas 
Aquinas, the Aristotelian conceptions had not made any very 
profound impression. 

We turn to Gerson's treatment of our immediate subject, the 
source and nature of the authority of the King or Prince. 

In a work described as ' Sermo ad Eegem Franciae nomine 
Universitatis Parisiensis,' which is obviously a short treatise 
on the nature of Kingship, Gerson describes the monarchy as 
having been originally created by the common consent of men, 
and for the good of the whole community. 2 And, he goes on, 
it is an error and contrary to natural equity and the true 
character of lordship to say that the lord is not bound by any 
obligation to his subjects ; as the subjects owe their lord help 
and service, he owes them his protection and defence. 3 The 

1 Id. id., vol. iv. col. 856 : " Adji- sive temporalis sit sive spiritualis. Et 

ciamus insuper et dicamus quod postea- quoniam principia juris aut naturalis 

quam homo natura sua civilis est et ordinationis non sufficiunt ad tempora- 

communicativus, et talem habet indi- lem vitam gubernandam, ordinatae 

gentiam cui convenienter succurrere fuere et institutae humanae quaedam 

non potest absque alterius subsidio, ordinationes et veluti voluntariae, 

homo inductus fuit et veluti compulsus naturali juri minime obviantes." 

in communi vivere cum aliis, et opus 2 Id. : ' Sermo ad Regem Franciae 

fuit instituere ac ordinare aliquas nomine universitatis Parisiensis.' 

convivendi modos. Et virtus justitiae, (Opera, vol. iv. col. 798) : " Propterea 

quae ad hoc faciendum inclinat, nomi- rex aliquis persona privata non est, sed 

natur civilis aut politica. Politia (ut est una potestas publica ordinata pro 

dictum est) est hominum societas ad totius communitatis salute. Sicuti ab 

bonum ordinata, ad recte praecipien- uno capite descendit, et dependit 

dum et obediendum, ut in pace vivatur totius corporis vita, et ad hoc reges 

et tranquillitate et sufficientia, aut ordinati fuerunt, et principes in prin- 

quoad vitam hanc temporalem, aut cipio per communem hominum consen- 

quoad spiritualem. Justitia politica sum, et eo modo perseverare debent." 

est virtus quae inclinat reddere uni- 3 Id. id. id., col. 799 : " Haec Veritas 

cuique quod suum est secundum ordi- est contra horum errorem qui dicere 

nationesetfinem politiaeubi ipsafuerit, ausi sunt dominum in nullo subjectis 



160 FIFTEENTH CENTURY. [PART II. 

words seem to be reminiscent of the principle of the mutual 
obligations of feudal law. 

Gerson's conception of monarchy is clearly that of an autho- 
rity derived from the community, and limited by obligations 
to the community. He repudiates very emphatically the error 
of those who said that all things belonged to the lord and that 
he could do whatever he pleased, 1 and the contention of those 
who misapplied the description of the conduct of the King 
by Samuel, and neglected the principles of Kingship set out 
in Deuteronomy, and the sound judgment of natural reason 
which is never contradicted by the divine law. 2 

This brings Gerson to a discussion of tyranny, which he 
describes as a poison which tends to destroy all political life ; 
men ought, according to their position, to resist it. He warns 
them indeed against unreasonable and unjustifiable sedition 
which may produce results worse than tyranny itself, but he 
asserts that the tyrant has lost all right to his authority, that he 
is hated by God and by man, and rarely dies a natural death. 3 
He therefore argues that it would be well that the royal 
authority should be limited and restrained ; and he cites the 
reply of Theopompus to his wife when she complained that he 
was leaving a diminished authority to his children ; that it 
might be diminished but it would be more permanent. It 
would bo more permanent, because it would be more reasonable 

suis teneri aut obligari, quod est contra vol. i. part ii. col. 22) : " Omnia sunt 

jus divinura et naturalem aequitatem, principis, non quidem proprietario jure 

et voram dominii fldem ; quemadmo- nee pro se, sed pro necessitate roipub 

dum subditi fidom, subsidium et servi- licao." 

tium eorum superiori debent, sic 2 Id., ' Sermo ad Regem Franciae 

superior fidem, protectionem et defen- (vol. iv. col. 800) : " Hie apparet ulte 

sionern suis debet subjectis ; bonitas rius, quod devius ille perperam et 

una aliam roquirit." perverse intilligoret textum Bibliae, qui 

1 Id. id. id., col. 799 : " Hie mani- contra veritatom vertere vellet verba 
festum est hos errare qui dicunt scripta, 1 Reg. viii. cap. ' Hoc est jus 
dominia omnia ad ipsos spectare, et regis,' quia verus sensus literalis alibi 
quod agero possunt ad eorum arbitrium est et specialiter, Deut. xviii., omnino 
et voluntatem, omnia quao subjectorum his contrarius ; et etiam omne bonum 
sunt absque ullo titulo ad se trahondo, rationis naturalis judicium, cui nun- 
quid hoc sibi vult." quam contrariatur ius Divinum." 

Cf. id. : " Kegulao Moralis." (Opera, 3 Id. id. id., col. 801. 



CHAP. III.] 



POLITICAL WRITERS. 



161 



and more honourable, for true authority is a reasonable 
authority. 1 

The principle which Gerson sets out here, that the royal 
authority should be limited and restrained, corresponds very 
closely with that which he expresses in other works. In the 
' Sermo in viaegio Eegis Romanorum ' of July 1415 he cites the 
usual definitions of Monarchy, Aristocracy and Democracy, 
but adds that it would be better still to have a constitution 
composed of more than one element, as for instance, of 
Monarchy and Aristocracy, as in France, where the king does 
not disdain to be judged by the Parliament ; while it would 
be best of all that it should contain all the elements, Monarchy, 
Aristocracy and " Timocracy." 2 In another work he says that 
it is intolerable that the judgment of one man should be able 
to direct the Commonwealth at his pleasure, for the " canon " 
says most truly that what concerns all should be approved by 
all, that is by the greater and wiser judgment of all. 3 In 
another place again Gerson puts this conception into concrete 



1 Id. id. id., col. 802 : " Estque 
multo eligibilius ut minus habeant (reges 
aut prineipes) dominium, quod sit 
rationabile sanctum et durans, dando 
aliqua reetringentia. . . . Tale re- 
sponsum dedit Theopompus uxori suae 
quae conquerebatur de hoc quod certis 
legibus potentiam suam restrinxisset, 
sicut rex se subest in multis casibus jus- 
titiae parlamenti. Verecundia est, dice- 
bat foemina ilia, liberis tuis potentiam 
diminui sinere quam non conquisisti. 
Respondit ipse : Sino eis minorem 
potentiam sed durabiliorem. Quare 
durabiliorem ? Quia rationabiliorem. 
Sed dices : est autem minus honorabilis. 
Scias quod non, sed magis honorabilis, 
quia habere subjectos secundum ratio- 
nem est singulare dominium, singularis 
dignitas, honor, nobilitas et ingenuitas. 
Et in hoc dominus non se subjecit sub- 
jectis sed rationi, cui jure divino et 
naturali unusquisque dominus et alius 
quilibet obedientiam debet et subjec- 



tionem. De his Seneca : ' Si vis omnia 
subijcere tibi, subijce te rationi.' " 

2 Id., 'Sermo in viagioRegisRomano- 
rum ' (Opera, vol. i. col. 152) : " Esset 
autem inter istas politias ilia melior 
quam aliqua singularis quae ex regali 
et aristocratia componeretur, ut in regno 
Franciae, ubi rex instituit parlamen- 
tum, a quo judicari non ref ugit. Esset 
vero omnium optima et saluberrima 
politia quae triplicem hane bonam 
complecteretur, regalem, aristocratiam, 
et timocratiam. 

3 Id., ' De considerationibus quas 
debet habere princeps ' (Opera, vol. ii. 
col. 850) : " Quidenim minus tolerabile, 
quam si universam rempublicam una 
unius sententia presumet pro libito 
versare reversareque, cum verissime 
dicit canon, ' Quod omnes tangit ab 
omnibus debet approbari.' Ab omni- 
bus intellige, vel a majore omnium 
sanioreque consilio." 



VOL. VI. 



162 FIFTEENTH CENTURY. [PART II. 

terms, and says it would be well that the nobles, clergy and 
citizens should be called together from the different parts of 
France, who know and could set out the miserable conditions of 
their various provinces. 1 Gerson, that is, preferred a mixed 
constitution, and this not only in the State but in the Church. 
In one of his most important works, which was related to the 
Council of Constance, and in which he discusses at length the 
nature of authority in the Church, he speaks of the best form 
of constitution for the Church as being like that of Israel under 
Moses, a mixed authority, royal, aristocratic, and " timo- 
cratic." 2 It is indeed evident that the constitutional con- 
ceptions of Gerson about the proper organisation of political 
authority are closely related to his parallel conceptions about 
the constitution of the Church. 

In other passages to which we have referred in a former 
chapter Gerson expresses the principle that the royal authority 
should be limited and restrained, under the terms of the King's 
relation to the law. In the treatise we have just cited " De 
Potestate Ecclesiastica " when enumerating the forms of 
government which, according to Aristotle are good, he describes 
them all, the monarchy, the aristocracy and the " timocracy ' 
as being according to law ; 3 and again in another place, 

1 Id., ' Sermo ad regem ' (Opera, dum de populo et singulis tribubus sub 
vol. iv. eol. 807) : " Tales ad consilia Moyse, rectores sumebantur." 

vocari deberent qui timereut Deum et 3 Id., ' De Potestate Ecclesiastica,' 

poriculum propriae eorum conscientiae, Consideratio xiii. (Opera, vol. i. col. 138) : 

et qui bonum commune privatae et " Describitur regnum, quod est politia 

propriae preponerent utilitati. . . . sub uno bono. Vel expressius quod est 

Juxta hanc considerationem valde congregatio communitatis perfectae 

videretur expedient, ut de princi- sub uno, secundum leges suas bonas pro 

palioribus regni partibus nonnulli republica. . . . Describitur aristo- 

vocarentur et audirentur, tam nobiles, cratia quod est politia sub paucis bonis, 

quam clerici et cives, qui libere misera- vel expressius quod est congregatio 

bilem statum patriarum suarum ex- communitatis perfectae sub paucis, 

ponerent." reipublicae per legos suas principaliter 

2 Id., ' De Potestate Ecclesiastica ' intendentibus ut senatus. Describitur 
(Opera, vol. i. col. 123): "Consideratio politia appropriato nomine seu timo- 
viii. Maneat ecclesiastica politia cratia . . . quod est congregatio 
optimo regimine ; quale fuit sub Moyse communitatis perfectae sub plurimis 
gubernata, quoniam mixta fuit ac utilitatem reipublicae per leges suas 
triplici politia. Regali, Moyse, aristo- principaliter intendentibus." 

cratica in 72 senioribus, et timocratica 



CHAP. III.] 



POLITICAL WRITERS. 



163 



every Prince and Prelate should follow the example of the 
humility of Jesus in submitting to the law of circumcision ; even 
if the Prince is said to be " legibus solutus," he should submit 
to the law which he has made, both as an example to his 
subjects and to show his reverence to God. 1 In another 
place again, in a discourse against John of Paris' assertion of 
the right of tyrannicide, he says that even the King cannot 
slay any man without due process of law 2 ; and in another 
place in words which we have already cited, that the King 
of France submits in many cases to the judgment of the 
Parliament. 3 

Finally, in one passage incidental to his discussion of the 
authority of the Church in the last resort to depose the Pope, 
Gerson cites Aristotle as teaching that the community has the 
power to correct, and even to depose the Prince if he is in- 
corrigible. And he adds, this power cannot either be taken 
away from or abdicated by a free community, which has the 
power to determine its own affairs. 4 

We may put beside these judgments of Gerson those of Peter 
d'Ailly, the Archbishop of Cambrai, as expressed in an im- 
portant tract which he wrote in connection with the Council 
of Constance. He contends that it is not expedient that the 
Church should be governed by a purely regal constitution, 
and, turning to the State, he admits that the Monarchy in 



1 Id., ' Sermo in Die Circumcinonis ' 
(Opera, vol. i. col. 240) : " Ad apparen- 
tem gratiam Dei in circumcisione 
humilis pueri Jesu, princeps et prelatus 
quilibet, et Bi dicatur solutus legibus 
pati debet legem quam ipse tulerit, turn 
pro subditorum exemplo, turn pro 
reverentia praestanda Deo, ut appareat 
gratia Dei in eo, et non secularia de- 
sideria videantur dominari." 

2 Id., ' Sermo contra assertionem 
Mag. Joannes Paris ' (Opera, vol. i. col. 
399) : " Sicut est rex, qui quidem rex 
non posset sine juris ordine non moni- 
tum, non vocatum, non convictum in- 
terficere." 

3 Id., ' Sermo, ad Regem ' (Opera, 
vol. ii. col. 802) : " Sicut rex se subdit 



in multis casibus justitiae parlamenti.' ' 
Cf. id., ' Sermo pro Viagio Regis 
Romanorum ' (vol. i. col. 152) -. " Ut in 
regno Franciae ubi rex instiluit parla- 
mentum a quo judicari non refugit." 

4 Id., ' De auferribilitate Papae ab 
Ecclesia ' (Opera, vol. i. col. 161) : 
" Sicut enim tradit Arist. V. Poli. 
quod ad communitatem totam spectat 
principis vel correctio, vel totalis 
destitutio, si irremediabilis perseveret. 
Et haec potestas inauferabilis vel in- 
abdicabilis est a communitate libera, 
quae de rebus suis facere potest ad 
libitum, nee per appropriationem vel 
aliquam legem potest suspendi ; quanto 
magis hoc habebit ecclesia." 



164 FIFTEENTH CENTURY. [PART II. 

which one man rules according to virtue is the best of all 
simple forms of government, but a mixed government, in 
which Aristocratic and Democratic elements are combined 
with Monarchy is better, for in such a government all have 
some part, 1 and he maintains as St Thomas and Gerson had 
done, that this was the nature of the government of Israel as 
originally instituted by God. 2 

It is also interesting to observe that, in discussing the 
question whether the Pope was subject to the government of 
a General Council, he says that the principle that the greater 
is not judged by the less is not always true, for the King of 
France, though he is greater than any other in the Kingdom is 
often, in some cases, judged by the Parliament, and judgment 
is given against him. 3 

We put beside these theories of the authority of the ruler in 
Gerson and Peter d'Ailly, those of some of the most important 
Canonists of the fifteenth century, Zabarella, " Panormitanus," 
and Turrecremata, for their opinions correspond rather with 
those of Gerson and d'Ailly than with those of the Civilians. 

We may begin by observing that " Panormitanus " is clear 
that political authority is the result of sin ; if it were not for 
this, all men would be equal. 4 This does not mean that 

x Peter D'Ailly, ' De Ecclesiao et Car- rege perfecta virtus, quae raro et in 

dinalium auctoritate ' (Gerson, Opera, paucis reperitur." 

vol. i. col. 918) : " Sciendum est, quod - Id. id. id. 

licet regimen regium, in quo unus 3 Id. id. (Gerson, Opera, vol. i. col. 

singulariter principatur multitudini 931) : " Ad hanc autern rationem, 

secundum virtutem, sit melius quolibot respondetur priino, quod rnaior rationis 

alio rogimino simplici, ut ostendit licet regulariter sit vera, tamen quan- 

philosophus III. Politicorum, tamen si doque fallit. Nam rex Franciae, qui 

fiat mixtum cum aristocrat ia, in qua est major et superior in toto regno, 

plures dominantur secundum virtutem, saepe in aliquibus casis judicatur, et 

et cum democrat ia in qua populus contra eum fertur sententia in suo 

principatur, tale regimen molius est, in parlamento." 

quantum in regimine mixto omnes * Panormitanus : Comm. on Decre- 

aliquam partem habent in principatu : tals i. 33, 6 (vol. i. part ii. fol. 125) : 

et etiam quia, licet regimon regis sit " Fatendum est quod exercitium juris- 

optimum in se, si non corrumpatur, dictionis non competit contra bonos ; 

tamen propter magnam potestatem, unde si non esset peccatum non opor- 

quae regi conceditur, do facile regimen teret habere superiorem, sed omnes 

dogenerot in tyrannidem, nisi sit in humanitus essent aoquales." 



CHAP. III.] POLITICAL WRITERS. 165 

these Canonists conceived of government as coming directly 
from God. On the contrary, Zabarella, at least, emphatically 
maintained that normally it was derived immediately from the 
community. He cites the " philosophers " as saying that 
the rule (regimen) of the State (civitas) belonged to the con- 
gregation of the citizens or its " valentior pars," and he infers 
that it may therefore be said that the rule of the world be- 
longed to the congregation of the men of the whole world, 
or their " valentior pars." x He refers to the authority of 
Aristotle for the first part of his statement, but his reference 
to the " valentior pars " suggests rather a reference to Mar- 
silius. In another place Zabarella says that a kingdom may 
arise in one of three ways : by the revealed will of God, by the 
consent of those who are ruled, or by violence ; the third, he 
says, is not to be justified, it is merely " de facto." The usual 
method, he evidently means, is by consent. 2 

He applies this principle to the Eoman Empire, for the whole 
" Plenitudo Potestatis " was in the first " universitas," and 
thus it has been said that the Eoman people, while transferring 
its authority to the Prince, also retained it, for it could not 
make a law which it could not revoke. 3 Again he says that 
the Eoman people had transferred their authority to the 
Prince by the Lex Eegia, and mentions that he had seen in 
the Church of the Lateran a brazen tablet which described 
the powers given by the Eoman Senate and people to Ves- 

1 Zabarella: Coram, on Decretals I. expedit justificare, quia ilia est de 
vi. 6 (fol. 107) : Sic enim dicunt philo- facto." 

sophi quod regimen civitatis consistit 3 Id., I. vi. 6 (fol. 110, v.): "Nam in 

penes congregationem civium, vel ipsius prima universitate est totalis plenitudo 

congregationis partem valentiorem, potestatis tamquam in fundamento, 

quae sententia colligitur Aristotele, ut ibi per hoc quod dicitur quod populus 

tertio politicorum, c. viii., et confor- Romanus transferendo jurisdictionem 

miter dicendum est quod regimen orbis in principem, etiam in se retinuit, quia 

penes congregationem hominum totius non potuit a se abdicare, statuendo 

orbis, vel ipsius partem valentiorem legem a qua non posset recedere. . . . 

consistat." Et colligitur quod major est potestas 

2 Id. id., I. vi. 34 (fol. 149, v.) : populi quam magistrates ipsius. Ex 
" Regnum in terris surgit tribus modis, hoc dicit Gulielmus de Cuneo, ff . 
primo per Dei voluntatem aliquo modo de legi. non ambigitur (Dig. i. 3, 9) 
revelatum hominibus, secundo modo per populum Romanum posse revocare 
consensum eortim qui reguntur, tertio, potestatem datum principi." 

per violentiam. . . . Tertio modo non 



166 



FIFTEENTH CENTURY. 



[PART II. 



pasian, and he says that it was clear from this tablet that the 
people had not transferred all their power to the Prince, but 
had retained the power of making laws ; but he adds, that 
however this might have been once, all power had come to be 
in the hands of the Prince. 1 Government then, while it 
arose from the Divine institution, is conceived of by him 
as normally taking its origin from the community ; it is there- 
fore valid and legitimate even among the infidels, and he cites 
the authority of Innocent IV. 2 

These are significant principles, about the nature and source 
of government, but it is also important to observe that 
Zabarella held that the Electors of the Emperor acted not in 
their own names, or as individuals, but as Lupoid of Babenberg 
had said, as a Collegium, that is they elected the Emperor 
by a process which represented the " universitas " of the 
Eoman people. The Electors were " surrogati populo Eomano," 
and thus they had the same power as the Eoman people had 
exercised in the case of Nero, of deposing the Emperor, especi- 
ally with the tacit consent of the Pope. 3 



1 Id. id., I. vi. 34 : " Vidi tamen 
aeneam tabulam, quae adhuc est 
Romae in Ecclesia sancti Jo : Lateran : 
in qua descripta est potostas per sen- 
atum et populum Romanum tradita 
Vespasiano. Et ex ilia tabula constat 
non omnem potestatem ab initio fuisso 
translatam in principem, sed sub istis 
capitulis, ita quod etiam post transla- 
tionem remansit potostas Romano 
populo condendarum legum, quod vult 
ita § et quod principi, et § lex quae 
precedit (Inst. i. 2, 4-6). Et ff. de leg. 1. 
de quibus (Dig. i. 3, 32). Quicquid 
autem tunc fuerit, postea sic invaluit, 
quod omnes potestas esset in principe." 

J Id. id., iii. 34, 8 (fol. 201, v.) : 
" Dicit Innocentius quod dominia, 
possessiones et jurisdictiones licite sino 
peccato possunt esse apud infideles, 
haec enim non tantura pro infldelibus 
(fidolibus ?) sed pro qualibot rationabili 
creatura facta sunt." 

Cf. Panormitanus: Coram, on Decre- 
tals ii. 34, 8, fol. 177. 



Cf. also vol. v. p. 33. 

3 Id. id., I. vi. 34 (fol. 150, r.); "Ad 
secundum, de forma electionis, dico, 
quod haec questio presupponit aliam, 
an isti eligant tanquam collegium, an 
tanquam singuli ; et quod tamquam 
singuii tenet Hostiensis hie, sed quod 
tanquam collegium tenet Leopoldus in 
tractatu De Juribus Regni et Imperii 
Romanorum c. vi. . . . et movotur 
quia isti oligunt jure populi Romani ; 
et qui surrogatur alteri censetur eodem 
jure : populus autem Romanus per 
exercilium represent antem universi- 
tatem populi Romani eligebat, . . . 
et hoc videtur consonum veritati. . . . 
Si haec praesapponimus quod in hoc 
sunt surrogati populo Romano, dicen- 
dum est, quod sicut populus Romanus 
ox causa poterit imperatorem deponere, 
sicuti dicitur factum de Nerono, qui, 
fuit a senatu judicatus et depositus, ut 
est in historiis, ita et isti ex causa hoc 
possunt, precipue tacite approbante 
Fapa." 



CHAP. III.] POLITICAL WRITERS. 167 

Zabarella, however, discusses this question further and 
says that there was a difference of opinion about the power of 
revoking the authority granted to the Prince. He cites 
Gul. de Cuneo as maintaining this could be done, and Baldus 
as maintaining the opposite, because the jurisdiction of the 
Eoman people had been transferred by Constantine to the 
Pope. He seems himself to agree with Gul. de Cuneo, for 
the donation only related to the jurisdiction of the Roman 
people over the City of Eome, not over the world. The 
Electors, as " surrogati " of the Eoman people, can therefore 
for just cause depose the Emperor. This at least is the case 
when the Emperor Elect has not yet been crowned and 
approved by the Pope. This is, Zabarella says, his own 
opinion, but he submits his opinion to the judgment of those 
who might be more competent. 1 

These general principles of government, and of the authority 
of the ruler, are also developed by Turrecremata, and it is worth 
while, at the risk of a little repetition, to put his views together. 
Turrecremata was commenting, not on the Decretals like the 
majority of the Canonists of the time, but on the Decretum of 
Gratian, and this gives him occasion for a more systematic 
exposition of the theory of law and government. It is also 
obvious that he wrote under the influence of St Thomas 
Aquinas, rather than that of the Canonists. 

We may begin with his observation, drawn directly from 
St Thomas (Summa Theologica I. 2, 90, 3), that the ordering 

1 Id. id., i. 6, 34 (fol. 150) : " De hoc populi Romani quoad orbem ; et, dato 

tamen anpopulus Romanus possit revo- quod sit sublata, taman representatur 

care potestatem datam principi varie in istis electoribus, qui, ut predixi sur- 

scribitur. . . . Sed quod possit, no, ibi rogantur populo Romano, et sic videtur 

Gul. de Cuneo, et pro hoc quia populus procedere, quod predixi, quod possint 

non potuit sibi legem imponere, a qua imperatorem ex causa deponere. Et 

non possit recedere, ff. De Legi, si quis saltern hoc videtur procedere, quando 

in prin, testamenti. . . . Sed bene facit electus in Imperatorem nondum est 

illud c. ibi a cuncto populo, ex quo coronatus et sic non approbatus per 

colligitur, quod major est potestas Papam, quia non habet jus nisi ab 

populi quam magistratus ; et de hoc electoribus. In hoc autem, quia forte 

ibi per Baldum in contrarium . . . quia pendet infacto.nonpretendosermonem, 

jurisdictio populi Romani quoad urbem paratus etiam in premissis acquiescere 

per Constantinum translata in Papam ; sententiis melius sentientium." 
sed per hoc non tollitur jurisdictio 



168 FIFTEENTH CENTURY. [PART II. 

of things for the common good belongs either to the whole 
multitude, or to one who holds authority in the place of the 
whole multitude, and has the care of the whole multitude. 1 
Again he takes from St Thomas the description of the various 
forms of government, the monarchy, the aristocracy, and 
the democracy, and the statement that the best form of 
government is that which is composed of all these elements, 
and in which the law is made by the " majores natu cum 
plebibus." 2 In another place he discusses the question 
whether it is better to be governed by the law or by the best 
king, and he replies dogmatically that it is better that all things 
should be ordered by the law, than by the will of any one 
person. 3 Turrecremata is really touching upon that distinction 
between the " regimen politicum " and the " regimen regale " 
with which we have already dealt. 4 He also sets out the 
general distinction between the king and the tyrant. The king 
is one who governs rightly and for the common good, while 
the tyrant rules perversely and for his own profit. 5 It is, 
however, more important to observe that he follows St Thomas 
in maintaining that men are only bound to obey their princes as 
far as the order of justice requires, and therefore subjects are 
not bound to obey them if their authority is usurped or if they 
issue unjust commands. 6 In another place and in some detail 

1 Turrecremata: Coram, on Gratian viro, sive quam dimittere judicis arbi- 
Docretum, D. 2, 4 (p. 52) : "Respondeo trio. . . . Respondeo, quod melius eat 
dicondum, quod non cujuslibet hominis omnia ordinari lege, quam arbitrio 
est ieges condere, sed aut principis aut quorumcunque committere." 

totius multitudinis. Probatur ista * Cf. vol. v. pp. 71-70 and p. 142 of 

conclusio sic, quod lex proprie et princi- the volume, 

paliter respicit ordinem ad bonum com- 6 Id. id., D. 4 (p. GO), 

mune. Ordinare aliquid in bonum 6 Id. id., D. 8 (p. 85) : " Ad ter- 

communo est vol totius multitudinis, tium dicendum quod principibus secu- 

vol alicujus gerentis vicem totius multi- laribus in tantum homo obedire tenetur 

tudinis, ergo condere legem vol pertinet in quantum ordo justitiao requirit, et 

ad totam multitudinem, vel ad perso- ideo si non habent justum principatum 

nam publicam, quae toiius multitudinis sed usurpatum, vel siinjustaprecipiant, 

curam habot, quia et in omnibus aliis non tenentur eis subditi obedire, nisi 

ordinare in finem est ejus cujus est forte per accidens propter vitandum 

proprie ille finis." scandalum vel periculum." 

2 Id. id., D. 2 (p. 51). (This is a direct quotation from St 

3 Id. id., D. 4 (p. 58) : " Quarto Thomas Aquinas' Summa Theologica 
quaerobatur. Utrum melius esset ii. 2, 104, 6.) 

omnia lege ordinari, quam regi optimo 



CHAP. III.] POLITICAL WRITERS. 169 

he follows St Thomas in the discussion of the nature and limita- 
tion of men's obligation to obey the law. Laws may be unjust 
for various reasons, because they are contrary to human well- 
being, or because the ruler imposes burdensome laws on his 
subjects, not for the common good, but to satisfy his own greed, 
or because the legislator exceeds the authority which has been 
given him. Such commands should be called acts of violence, 
rather than laws, as St Augustine had said, " that is not law 
which is not just, and therefore some laws are not binding on 
the conscience." x 

There is little or nothing in the passages on which Gratian 
is commenting to suggest this particular mode of dealing with 
the authority of the ruler and the law ; and Turrecremata 
may have intended to correct an impression which might be 
derived from these passages in Gratian if taken alone, that 
obedience was always binding. It is important to observe 
that the political theory of St Thomas was still understood 
and treated as having great authority. 

We can now turn to Germany and some very significant 
observations of Nicolas of Cusa. 

Every ordered empire or kingdom, he says, takes its origin 
from election ; it is thus that it can be conceived of as set up 
by the providence of God ; and, more broadly still, all ordered 
superiority arises from an ' ' elective agreement of free submis- 
sion " ; and all authority is recognised as Divine when it 
arises from a common agreement by the subjects. 2 We are 

1 Id. id., D. 10 (p. 102) : " Tertio 2 Nicolas of Cusa, ' De Concordantia 

leges humanae frequenter ingerunt Catholiea,' iii. 4 (p. 360) : "Omneenim 

calumniam et injuriam hominibus ordinatum imperium vel regnum (ut 

secundum illud Isa. x., ' Vae qui con- superius quodam loco dictum est) ex 

dunt leges iniquas.' . . . Sed licitum electione ortum capit et tunc vera Dei 

est unicuique oppressionem et violen- providentia censetur praelatum. . . . 

tiam evitare, ergo leges humanae non Ecce, si ea quae superius habentur ad 

imponunt homini necessitatem quan- mentem revoces, quomodo omnis supe- 

tum ad conscientiam. . . . Respondeo rioritas ordinata, ex electiva concor- 

dicendum tamen juxta St Thomas in I. dantiaspontaneaesubjectionisexoritur: 

Secundae, q. 96, Art. iv. Quod leges et quod populo illud Divinum Semina- 

positae humanitus vel sunt justae vel rium, per communem omnium homi- 

injustae, &c. (Quoted directly from num aequalem necessitatem et aequalia 

St Thomas Aquinas.) jura inest, ut omnis potestas quae 



170 FIFTEENTH CENTURY. [PAUT II. 

reminded of the sweeping phrase of the Sachsenspiegel " al 
werlik gerichte hevet begin von kore." x 

Again, the principle of free election does not arise from 
positive law or from the authority of any one man, but from 
the Natural and Divine Law. The Electors, therefore, who 
were created with the common consent of all the German and 
other subjects of the Empire in the time of Henry II. have their 
authority fundamentally (radicalem vim) from the common 
consent of all those who could by Natural law have created the 
Emperor, and not from the Eoman Pontiff, who has no power 
to appoint a King or Emperor over any country without its 
consent. 2 

In another place Nicolas lays down the same conclusion, 
but with even greater breadth ; every political order, he says, 
is founded on the law of Nature, and if it contradicts this, it 
has no validity. He admits that the wiser and better men 
should be elected to make laws and to rule according to them, 
for they are naturally the rulers of other men ; but they have 
no coercive power over the unwilling. For all men are by 
nature free, and therefore all government (principatus) arises 
only from agreement and the consent of the subjects (consensu 
subjectiva) ; it cannot be created except by election and 
consent. 3 

principaliter a Deo est, sicut et ipse regem et imperatorem, cujus esse et 

homo, tunc divina censeatur, quando posse ab uno homine non dependit. 

per concordantiam communem a sub- Unde electores qui communi consensu 

jectis exoritur." omnium Alemannorum et aliorum qui 

1 Cf. vol. iii. p. 153. imperio subjecti orant, tempore secundi 

2 Nicolas of Cusa. Id., iii. 4 (p. 360): Henrici constituti sunt, radicalem vim 
" Hoc est illud ordinatum spritualis habont ab ipso communi omnium 
colligantiao divinum matrimonium, in consensu, qui sibi naturali jure Impera- 
radice durativae concordantiae collo- torem constituore poterant : non ab 
catum, per quod ista respublica, optime ipso Romano pontifice, in cujus potes- 
ad finem eternae foelicitatis summa tate non est dare cuicunque provinciae 
pace dirigitur. Et quia hujus radices per mundum rogem vel imperatorem, 
divini et humani juris superius haben- ipsa non consentiento." 

tur, non replico idem; sufficit scire 3 Id. id., ii. 14 (p. 319): " Omnis 

quod electio libera, a naturali et divino constitutio radicatur in jure naturali, 

jure dependons, non habet ortum a et si ei contradicit, constututio valida 

positivo jure, aut homine quoounque, esse noquit. . . . Undo cum jus nat- 

ut in "jus arbitrio existat, quoad hoc, uralo, naturalitor rationi insit, tunc 

validitas electionis, maxime in eligendo cognata est omnis lex homini in radice 



CHAP. III.] 



POLITICAL WRITERS. 



171 



In the Preface to Book III. Mcolas expressed his preference 
for monarchy, but he prefers an elective monarchy to one 
which had originally been created by election, and was trans- 
mitted by hereditary succession. 1 And he goes on to contend 
that it was right that every human government should corre- 
spond to the type of Christ Himself ; he was both God and man, 
and every government has both a human and a Divine origin. 
All " majestas " is sacred and spiritual: it comes from God, 
but also from man ; Christ was born both God and Man of 
the Virgin and with her free consent, and thus all government 
should arise from the Church or Congregation of men by pure 
consent, not by violence or ambition or corruption. For 
Christ was under the law, and came not to destroy but to 
fulfil it. 2 



sua. Ideo sapientiores et prestantiores 
aliis rectores eliguntur, ut ipsi e sua 
naturali clara ratione sapientia et 
prudentia praediti, justas leges eliciant, 
et per eas alios regant, et caussas 
discutiant, ut pax servetur, sicut sunt 
responsa prudentum, 2 Dist. Ex quo 
evenit, quod ratione vigentes, sunt 
naturaliter alioruru domini et rectores : 
sed non per legem coercivain, aut judi- 
cium quod redditur in invitum. Unde 
cum natura omnes sunt liberi tunc 
omnis principatus, sive consistat in 
lege scripta, sive viva apud principem, 
per quern principatum coercentur a 
malis subditi, et eorum regulatur liber- 
tas ad bonum metu poenarum, est a 
sola concordantia et consensu subjec- 
ts va. Nam si natura aeque potentes et 
aeque liberi homines sunt, vera et ordi- 
nata potestas unius communis aeque 
potentis naturaliter, non nisi electione 
et consensu aliorum constitui potest, 
sicut etiam lex ex consensu constituitur. 
2 Dist. i. lex 8, Dist. quae cortra 
(Gratian Decretum, D. viii. 2, 8), ubi 
dicit pactum inter se gentis aut civi- 
tatis. Generale pactum societatis 
humanae est obtemperare regibus suis. 
Ecce quia pacto generali convenit 
humana societas, velle regibus obedire ; 



tunc quia in vera regiminis ordine, 
ipsius rectoris electio fieri debet, per 
quam electionem constituatur rector, 
judex eligentium : tunc ordinata et 
recta dominia et presidentia per elec- 
tionem constituuntur." 

1 Id. id., iii. Preface (p. 355) : 
" Inter autem omnia temperati princi- 
patus genera, monarchicus prae-eminet. 
Inter autem species hujus, principatus 
temporalis, monarchicus, qui per elec- 
tionem constituitur, absque successori- 
bus, praefertur ei qui per electionem 
constituitur cum ipsis successoribus." 

2 Id. id., iii. Preface (p. 356) : " Sed 
haec radix ad omnia cum his premissis 
pufficit, quod quemlibet principatum 
inter Christi fideles, oportet Christo, 
cujus figuram et successionem gestat, 
in typo conformari. 

Respiciat itaque ad Christum, qui 
est ipsa Veritas, et primo consideret 
quoniam ipse est dominus et magister, 
Deus et homo : ita omnis principatus 
ex quodam divino et humano exurgit. 
. . . Sacra est omnis majestas et spiritu- 
alis et a Deo ; est etiam ab homine, ut 
Christus verus virginis Mariae filius. 
Unde ex incorrupta et intemerata 
virgine, ejus liberali consensu inter- 
veniente, dum diceret, fiat mihi secun- 



172 FIFTEENTH CENTURY. [PART II. 

From Germany we turn to England, and to the work of 
Sir John Fortescue. As we shall see, his political principles 
are developed with special reference to England, but this does 
not mean that they are not also related to those of the writers 
whom we have just been considering and to the political 
tradition of writers like St Thomas Aquinas. 

In what seems to have been his earliest work he takes from 
St Thomas the definition of the Natural Law as " participate 
lesis aeternae in rationali creatura," and it is from the natural 
law that all just kingship is derived. 1 By this law alone can 
be determined the "jus regnandi " in any kingdom. This law 
is the source of all human laws, and they cannot properly be 
called laws if they depart from it. 2 He repudiates the notion 
that Kingship could be taken as defined in such terms as are 
used by Samuel (1 Sam. viii.) ; this was not a statement of the 
" Jus Eegis " in general but of the King whom Israel had 
demanded. 3 

So far Fortescue has been dealing with the general principle 
that all political authority is founded upon justice and the 
Law of Nature, but he then turns to the distinction between 
the " dominium regale," the " dominium politicum," and the 
" dominium politicum et regale." 

We have already dealt with this in an earlier chapter, 4 
with reference to the supremacy of the law, made by the whole 
community, and above the King, and we need not go into this 
again. We may, however, cite a passage from the ' De Laudi- 
bus Legum Angliae,' which draws out very emphatically 
the nature of the authority of the " Dominium Politicum 

dum verbam tuum, Christus nascitur mansuetissimus." 

Deus et homo. Ad modura hujus, ex 1 Fortescue, ' De Natura Legis 

unica incorrupta ecclesia sive congre- Naturae,' i. 5, 

gatione hominum, ex purissimo con- 2 Id. id., i. 10 : " Et per earn (Lex 

sensu prodiro debet verus principatus ; Naturae) solam discuti potest omne jus 

non ex aliqua violontia, nun ex ambi- regnandi in quocunque regno quod 

tione, aut pravitate simoniaca, sed ex superiorem nescit. . . . Haec lex 

puritate qua Christus in mundum namquo mater est omnium legum 

propter amorem salutis populi dignatus humanarum, a qua si ipsae degenerant 

est venire. . . . Christus enim sub lege indigne vocantur leges." 

erat, non venit solvere legem, Bed ad- 3 Id. id., i. 12, 16. 

implere, humilis et mitis corde, medicus 4 Cf. pp. 141-143. 



CHAP. III.] 



POLITICAL WELTERS. 



173 



et Regale," as it existed, in Fortescue's judgment, in 
England. 

This work is in the form of a dialogue between the Chan- 
cellor and the Prince of Wales. The Prince had asked 
whether it was the Civil Law or the Law of England which 
he should study, and the Chancellor rebukes him for such 



an " evagatio 



for the King of England cannot change 



the law at his pleasure, his authority is not simply " regale " 
but " regale et politicum " ; if it were simply " regale " he 
could change the Laws, and could impose taUiages and other 
burdens on his people at his pleasure. This was the meaning 
of the doctrine of the Civil Law, " Quod principi placuit," 
but the authority of the Prince who governs " politice " is 
very different. The people indeed approve the government 
of the king, so long as he does not become a tyrant, but it was 
to avoid this danger that St Thomas had desired that the 
kingdom should be so ordered that the royal power should be 
restrained by the Law. 1 

Fortescue was, however, well aware of the fact that there had 
been kings of England who had been impatient of these re- 
straints, and he represents the Prince as asking why some of 
his ancestors had endeavoured to bring in the Civil Law. 
Fortescue answers in the person of the Chancellor. The law 



1 Id., ' De Laudibus Legum Angliae,' 
ix. : " Dubitas nempe, an Anglorum 
legum vel civilium te conferas. . . . 
Non te conturbet, Fili Regis, haec 
mentis evagatio : Nam non potest Rex 
Angliae ad libitum suum legem mutare 
regni sui, principatu nedum regali, 
sed et politico, ipse suo populo domin- 
atur. Si regali tantum ipse praesset 
eis, leges regni sui mutare ille posset ; 
tallagia quoque et cetera onera eis 
imponere ipsis inconsultis, quale domi- 
nium denotant leges Civiles, cum 
dicant, ' quod Principi placuit leges 
habet vigorem.' Sed longe aliter 
potest rex politice imperans genti 
suae, quia nee leges ipse sine subdi- 
torum assensu mutare poterit, nee 
subjectum populum renitentam onerare 



imposicionibus peregrinis, quia populus 
ejus libere fruetur bonis suis, legibus 
quas cupit regulatus, nee per regem 
suum, aut quemvis alium depilatur ; 
consimiliter tamen plaudit populus, 
sub rege regaliter tantum principante, 
dummodo in tyrannidem ipse non 
labatur. De quali rege dixit Philoso- 
phus III. Politicorum quod melius est 
civitatem regi viro optimo quam lege 
optima. Sed quia non semper con- 
tingit presidentem populo hujusmodi 
esse virum, Sanctus Thomas, in libro 
quem regi Cypri scripsit, de Regimine 
Principum, optare censetur regnum sic 
institui, ut rex non valeat populum 
suum tirannide gubernare ; quod solum 
sit, dum potestas regia lege politica 
cohibetur." 



174 FIFTEENTH CENTURY. [PART II. 

of England did not sanction the maxim of the Civil Law, 
" Quod principi placuit," for the King of England was boimd 
by his coronation oath to observe the Law. Some English 
kings had been impatient of this, for they thought that they 
had not that freedom of government possessed by those who 
ruled according to this maxim, who could at their pleasure make 
and unmake laws, inliict punishments, impose taxes, and even 
at their pleasure interfere in the Law Courts. Some English 
kinas had therefore endeavoured to shake off the " iugum 
politicum," not understanding that the real power of both 
kinds of kings was the same, and that it was not a " yoke," but 
" liberty," to rule the people " politice," a security to the people 
and a relief to the king. 1 In order to make this clear to the 
Prince, he draws out some of the effects of a " regimen tantum 
regale," as they could be seen in France. He points out how 
the French people were preyed upon by the gens d'armes, were 
oppressed by ordinary and special taxation, by the burden of 
the Gabelle on salt, which they were compelled to buy, and 
their consequent poverty, their miserable food and clothing. 
The nobles indeed were not liable to taxation, but they 
were liable to be punished and even executed without any 
proper trial before the ordinary Judges, but in the King's 
" Camera." 2 In England, on the contrary, no one, not even 
the King, could take a man's possessions without payment ; 
he could not impose talliages, subsidies or any other taxes 

1 Id., ' De Laudibus,' xxxiv. : "Au- turn jura mutant, nova condunt, penas 

disti namque superius quomodo inter infligunt, et onera imponunt subditis 

leges civdes praocipua sententia est, suis, propriis quoque arbitriis conten- 

maxima, sive rogula, ilia quae sic canit, doncium cum velint dirimunt lites ; 

'Quod principi placuit, legishabet vigor- quam moliti sunt ipsi progenitores tui 

em,' qualiternon sanciunt leges Angliae, hoc jugum politicum obiicere, ut con- 

dum nedum regaliter, sed ot politice similiter et ipsi in subjectum populum 

rex ejusdem dominatur in populum regaliter tantum dominari, sed pocius 

suum, quo ipse in coronacione sua ad debacchari queant ; non attendentes 

legis sue observanciam astringitur quod oqualis est utriusque regis poten- 

sacramento ; quod roges quidam Ang- cia, ut in predicto tractatu de Natura 

liae egre ferontes, putantes proinde se Legis Naturae docetur, ot quod non 

non libere dominare in subditos, ut jugum, sed libertas est, politice regere 

faciunt reges regaliter tantum princi- populum, securitas quoque maxima, 

pantes, qui lege civili, et potissime nodum plebi, sed et ipsi regi ; allevacio 

predicta legis illius maxima, regulant etiam non minima sollecitudinis suae." 

plebem suam, quo ipsi ad eorum libi- : Id. id., xxxiv., xxxv. 



CHAP. III.] POLITICAL WRITERS. 175 

without the consent of the Kingdom in Parliament, nor 
could anyone be brought before any court, except that of 
the Ordinary Judge ; and the people were well clothed and 
well fed. 1 

The contrast which Fortescue makes between the happy 
condition of England under a monarchy limited and controlled 
by law and the miserable circumstances of France is indeed 
very emphatic, but it is important to observe that Fortescue 
did not think that this arbitrary and uncontrolled monarchy 
had always existed in France ; in another treatise he speaks of it 
as the unhappy result of the long war with England. Saint 
Louis, he says, and indeed the other kings of France, did not 
impose taxes upon the people without the consent of the three 
Estates, which had the same character as the Parliament in 
England. 2 We shall see presently that Fortescue's conception 
of the actual contemporary constitutional condition of France 
was very far from adequate. 

It is interesting to compare Fortescue's conception of the 
nature of the French Monarchy with that which was expressed 
by an important and almost contemporary Frenchman, that 
is by Philippe Pot, the Sieur de la Roche, as reported by Jean 
Masselin in his " Diarium " of the States General which met at 
Tours in 1484. We do not suppose that Masselin's report of 
de la Roche's speech to the Estates can be accepted as repre- 
senting in precise terms what he said, but it may be properly 
taken as expressing the general conceptions of that important 
section of the Estates to which Masselin and de la Roche 
belonged. 

Jean Masselin was a Canon of the Cathedral, and a repre- 
sentative of the " Bailliage " of Rouen, and he put together 

1 Id. id., xxxvi. land, without the assent of the three 

2 Id., ' Governance of England,' iii. : Estates, wich, when thai be assembled, 
"And how so be it that the French be the like to the Courte of Parlement in 
kynge reyneth uppon his people, Ingelende. And this ordre kepte many 
' dominio regali,' yet Scynt Lowes of his successours into late dayis, that 
sometyme kynge there, nor any of his Ingelende men made such warre in 
progenitors sette never tayles or other Fraunce that the III. Estates durst 
imposicions uppon the peple of that not come togedre." 



176 FIFTEENTH CENTLTtY. [PAKT II. 

in the form of a " Diarium,'' or Journal, an account of the 
proceedings of the Estates. There was much discussion, he 
says, of the powers of the Estates, especially with regard to 
the appointment of the Council of Eegency during the minority 
of the King (Charles VIII.), and he then gives an account of 
the speech made by the Sieur de la Eoche. 

De la Eoche begins by contending that the decision on this 
question belonged not to the Princes of the Blood, but to the 
Estates. 1 The Kingdom was a " dignitas," not an " heredi- 
tas," and when the Commonwealth was left without a ruler, 
the care of it belonged to the States General, not that they 
should themselves govern, but that they should appoint those 
most worthy to do this. 2 This leads him to a discussion of the 
origin and nature of kingship. He had learned, he says, from 
history and from his ancestors, that in the beginning kings were 
created by the will of the people, and that they appointed 
those who were pre-eminent in virtue and industry. Princes 
do not rule for their own benefit, but. forgetting their own 
concerns, they should set forward the good of the Common- 
wealth ; those who act otherwise are tyrants. It is of the 
greatest importance to the people by what law and by what 
ruler the Commonwealth is to be guided. The " Eespublica " 
is the " res populi " as they had often read. 3 

1 Jehan Ma.sselin : " Diarium Sta- majoribus meis accepi, initio domini 
tuum Generalium Franciae, habitorum reruni populi suffragio reges fuisse 
Turonibus anno 1484," od. ' Collection creatos, et eos maxime prelatos, qui 
des Documents Inedits,' A. Bernier, virtute et industria reliquos anteirent. 
Paris, 1835, p. 140. Ad utilitatem enim suam sibi quisque 

2 Id. id., p. 246 : " Ad quod accedit populus rcctores eligebat. Siquidem 
quod regnum dignitas est, non hereditas, principes non ideo pruesunt tit ex 
quae nequaquam debeat, instar haere- populo lucrum capiant ac ditentur, sed 
ditatem, ad naturales tutores sanguine ut, suorum obliti commodorum, rem- 
scilicet propinquos, continuo devenire. publicam ditont et provehant in melius. 
Quid ergo ? Num respublica absque Quod si alitor quandoque faciunt, pro- 
rectore vacua, et omnibus exposita fecto tyranni sunt et nequam pastores. 
manebit ? Minime profecto : sed ad ... Populi ergo maxime interest qua 
statuum generalium examen primum lege, quove rectore ducatur respublico, 
defertur : non quod earn per se ipsi cujus si optimus rex, est optima res est, 
procurent, sed quod ei preficiantur si secus, deformiset inops. Nonnecrebro 
dignissimi quiquo statuum judicio." legistis rempublicam rem populi esse ? 

3 Id. id., p. 146: " Et ut res pati- Quod si res ejus sit, quomodo rem suam 
ficiamus, historiao predicant, et id a negliget aut non curabit." 



CHAP. III.] POLITICAL WRITERS. 177 

A little later he appeals to Eoman History against those 
who wished to attribute all power to the Prince, for in Rome 
the magistrate was created by the election of the people, and 
no law was promulgated until it had been submitted to the 
people, and approved by them. He did not . however, here wish 
to discuss the power of the Prince who lawfully administered 
the Commonwealth, being of full age. The case before them 
was that where the King, on account of his minority, or for 
other reasons, could not take hold of the government. 1 

He had shown then that the " Eespublica " was " Ees 
populi," and had been entrusted by the people to the King ; 
those who hold it by other means and without the consent 
of the people are tyrants, and " alienae rei invasores." It 
was evident that the King (on account of his minority) could 
not himself rule the Commonwealth, and it was necessary to 
provide for its care by others. This responsibility did not 
pass to any one prince, nor to several, nor to all of them. 
It must return to the people who originally granted the 
authority ; the people must resume it, for it was the people 
who would suffer from the absence of government or from 
its bad administration. He does not suggest that the 
" habitus regnandi " or lordship should go to any one but 
the King ; but the guardianship of the kingdom, for the time 
being, belonged to the people and those elected by them : by 
the people, " populus," he did not mean the " plebs " alone, 
but all men, of all conditions, for under the name of the States 
General were included the princes and all the inhabitants of the 
kingdom. 2 

1 Id., id., pp. 148, 9 : " Quomodo ab concludatur, cum rex ob minoritatem 

assentatoribus tota principi tribuitur vel alias impeditur a regimine capes- 

potestas, a populo ex parte facto. Nam sendo." 

apud Romanos quisque magistratus 2 Id. id., p. 148 : " Et imprimis 

electione populi fiebat, nee aliqua lex vobis probatum esse velim rempubli- 

promulgatur nisi primum populo relata cam rem populi esse, et regibus ab eo 

ab eo probata fuisset. Adhuc quoque traditam, eosque qui, vi vel alias, nullo 

multis in terris veteri more rex elec- populi consensu, earn habuere, tyrannos 

tione quoritur. Sed nolo nunc discu- creditos, et alienae rei invasores. Con- 

tere de potestate principis, qui per stat autem regem nostrum rem- 

aetatem jure rempublicam administrat. publicam per se disponere non posse. 

Tantum in proposito nostro questio Igitur earn aliorum cura ac ministerio 

VOL. VI. M 



178 FIFTEENTH CENTURY. [PART II. 

De la Roche continued by urging upon the States General 
that they were the elected procurators of all the Estates of the 
realm, and held the will of all in their hands ; they should 
therefore not be afraid to recognise that they had been sum- 
moned in order that the Commonwealth should be directed by 
their advice in the minority of the King. He argues that the 
contention of those who said that the States General only met 
to grant taxes was in manifest contradiction to the historical 
facts. The Assembly of the States General was not something 
new, nor was it unprecedented that they should take hold of 
the administration of the Commonwealth during a vacancy, 
and entrust it to upright men ; preferably to men of the royal 
blood, if they were men of character ; and he cited various 
cases which illustrated this. It was the States General which 
decided between Philip of Valois and Edward III. of England. 
It was the States General who after two years granted the 
Eegency of the Kingdom to Charles (afterwards the Fifth) 
when King John had been taken prisoner by the English. 
It was the States General by whose advice the kingdom was 
ordered in the time of Charles VI. He concluded therefore 
by urging them to set to the work of ordering and nominating 
the " Council of Eegency." l 

procurarinecesseest. Verum respondi : excludi qui regnum habitent." 

Nee ad aliquem unum principem nee * Id. id., p. 148 : " Cum autem 

ad plures, vel omnes simul, hoc in intelligatis vos universoruni statuum 

casu, revertitur. Oportet propterea, regni legatos et procuratores doctos 

ut ad populum redeat, hujus rei et omnium voluntatom vestris in mani- 

donatorem, qui earn quidem resumat, bus esse, cur concludere timetis vos 

velut suam, praesortim cum hujus rci ad hoc maxime vocatos negotiurn, 

aut diuturna vacatio, aut mala regentia quatenus respublica ob minoritatem 

in suam somper solius perniciem regis, quodammodo vacaDS, vestro 

redundet. Non sum tamen ejus consilio procurotur ': . . . Haec etiam 

mentis, ut dicam habitum regnandi, illos liquido refellunt, qui duntaxat 

sive dominium ad quomquam alium levandorum tributorum, non alterius 

quam ad regis transire personam ; operae vel finis gratia conventionem 

scd regni tamen procuratio atque tutela, indietam arbitrantur. . . . Verum 

non jus, sive proprietas, pro tempore huic sententiae manifestissime con- 

populo vel ab oo electis juro tribuitur. tradioit et exporientia rerum, et pro- 

Populum autom appello, non plcbom, cessus a nobis habitus, quo patuit 

neo alios tantum regni subditos, sed inultas alias res a nobis tractatas fuisse. 

omnes cujusquo status, adeo ut .... Non est autem res nova haec 

statuum generalium nomine otiam generalium statuum convontio. Non 

complecti principos arbitrer, nee aliquos est inusiiatum eos vacantem rei- 



CHAP. III.] POLITICAL WRITERS. 179 

As has been already said, we do not think it probable that 
the Sieur de la Eoche made a speech whose terms corresponded 
exactly with all this, but we think that what Masselin reports 
represents the political and constitutional ideas of some not 
unimportant number of the members of the States General. 
It will be observed that what is said embodies three very 
important conceptions. The first, which belongs to what we 
may call general political theory, that all authority originally 
comes from the community, and can come from no other 
source, and that this authority naturally reverts to the com- 
munity, when by any accident the government it set up fails. 
The second, the general constitutional principle that the States 
General represented the authority of the whole community, 
and that their authority was not in any way limited to the 
granting of financial assistance to the Government. The third, 
that the appointment of the Eegency should not be carried 
out without the advice and consent of the Estates. We shall 
return to the proceedings of this meeting of the States General 
in Chapter VI. 

There is a very interesting treatise of about 1477 by Wessel of 
Groningen, which sets out some very important conceptions 
of the source and the nature of political authority. 

The primary subject of the work is the nature and limitations 
of the Papal and Ecclesiastical authority, and this belongs to 

publicae administrationem capessere, teneretur, nonne status politiam regnum 

proborumque sui gremii virorum earn et administrationem assumpserunt, 

credere consilio ; omnino tamen prae- ordinaverunt, commiserunt ? Et quam- 

ferentes regii sanguinis viros, dummodo vis ipsius Johannis filius esset Carolus 

essent virtute praediti. Quintus, qui jam vigessimae aetatis 

Et ne longius hujus rei monumenta annum compleverat, non est tamen 

repetam, temporibus Philippi Valosii, continuo ei regentia credita, sed biennio 

cum inter eum et Angliae Regem Edu- post primam conventionem, rursus 

ardum, pro jure regnandi armis decer- status Parisius congregati, memoratus 

taretur, tandem inter eos convenit, Carolus reipublicae regimen cepit, non 

sicut jure debebant, nee veriti sunt rem alias quam eorum consensu ac decreto. 

tantam statuum generalium com- Sed quid paulo vetustiora commemoro ? 

mittere judioio : eorumque pro Phi- Regnum quidem, Caroli Sexti tern- 

lippo data sententia, adversum Anglos poribus, qui duodenis fere patri suc- 

defensione utimur. . . . Temporibus cesserat statuum consilio ordinatum ac 

item Johannis, Franciae Regis, cum procuratum fuit." 
eventu belli et injuria fortunae captivus 



180 FIFTEENTH CENTURY. [PART II. 

the literature of the Conciliar Movement, but in some chapters 
it deals with the general question of political authority. 

In one place Wesselius maintains that the true relation of the 
subject to the ruler must be carefully considered, for it is 
not one of an unconditional obligation, rather it is of the 
nature of a contract with the ruler, and if the ruler does not 
observe the law of the contract, the subject is not bound by 
it. 1 This is a very sharp statement of that contractual con- 
ception of the nature of political authority which we have 
discussed in previous volumes. Wesselius, however, not only 
states the principle, but goes on to explain its rationale. All 
subjection should be voluntary, and should only be accepted 
after due deliberation upon the causes of it, and of the results 
which are to be expected from such subjection ; and, inas- 
much as it is these which have led men to enter into the 
contract with a ruler, the contract is terminated if the con- 
ditions are not fulfilled. 2 After praising the Franciscan 
custom of electing their superior from year to year, and 
urging that the relation between a Bishop and his diocese 
is terminable if he prove unworthy of his charge, he goes on 
to argue that it should be the same with Kings, for in every 
well-ordered commonwealth the chief magistrate should either 
be annually elected, or his authority should be restrained by 
the votes of those who have consented to it. What does 
election mean, he says, but the freedom of those who have 

1 Wesselius Groningensis : ' De dig- ligatur subditus." 

nitate et potestate ecclesiastics,' xviii. : 2 Id. id. id. : " Omnis enim ilia 

" Consideratu dignum, quanto debet subjectio voluntaria et spontanea esse 

subditus praelato suo, et inferior suo debet, quare non subeunda nisi cum 

superiori. Hoc enim debitum non est deliberatione. Deliberatio autem cau- 

conditionis ut sit debitum absolute, sam considerabit et fructum. Unde 

sed magis est pacti cum prelato. Non quandocunque causa cum fructu eiusce- 

enim superior dominus est inferioris, modi sunt, ut movere possent deliber- 

licet inferiores dominos eos vocent, et antem ante contractum, pari ratione 

superiores aliquando justis causis per- solvunt obligatum, quando alter con- 

ferant. Nisi tamen superiores, juxta trahontium deficit in promisso. Fere 

debitum pacti, legi pactionum aequi enim ex natura hujus obligationis est 

sint, non tenebitur subditus integro ut subditi superiorem sibi oligant, 

debito, sed quantum ille legem supe- quatenus talem sibi eligant, in quo et 

rioris implet, catenus debitor est sub- ex quo suae deliberationis fructum et 

ditus. Unde si prorsus legem ill© praela- causam proximo coniectant." 
torum abjecerit, jam tunc nullo debito 



CHAP. III.] POLITICAL WRITERS. 181 

deliberated on it. Kings, therefore, are not to be obeyed in 
evil tilings, but rather they may lawfully " in regno turbari," 
unless this might cause even greater evils. 1 

These are drastic and far-reaching principles which Wesselius 
sets out, but when we allow for the sharpness of the phrases, 
there is nothing new in them. The contractual conception was 
embodied in Feudalism, and in the whole political system of the 
Middle Ages 2 the principle of election or recognition corre- 
sponded with the constitutional practice, while the principles 
of limitation and deposition were at least perfectly familiar. 3 

This is not, however, all which is important in Wesseli us. In 
another chapter he points out that the real meaning of St Paul's 
words, " There is no power except from God," requires a careful 
examination. It is obvious that those who hold temporal or 
spiritual power may greatly err and lead those who obey them 
into mortal error. We must, therefore, resist the unrighteous 
authorities unless we wish to be partakers with them. The 
words of St Paul (Eomans xiii. 1) must therefore be interpreted 
by those which follow, " There is no power but for edification." 
The power, so far as it edifies, is from God, but he who "edifies" 
by resistance also received the power of resistance from God. 4 

1 Id. id. id. : " Deberet etiam simile ' Non est potestas nisi a Deo, et quae a 
esse de regibus. Unde in omni re- Deo sunt, ordinata sunt. Itaque qui 
publica bene instituta, summus magis- potestati resistit, Dei ordinatione re- 
tratus vel tempore vel auctoritate, ut sistit.' Possunt enim qui in potestate 
vel annuus tantum sit, vel suffragiis tarn corporali quam spirituali errare et 
consentientium ab insolentia compes- graviter errare, ut in via Dei scandali- 
catur. Quid enim electio signat, nisi zent subjectos, et obedientes in mor- 
libertatem deliberantis. Oportet enim talem errorem praecipitarent. . . . 
parere meliori, ethunc debit electio con- Sceleratis ergo potestatibus oportet 
iectare, a quo quantum electus deficit, obviare, nisi velimus occulta societate 
pro tanto ei non est obediendum. . . . participare. 

Ex hoc fundamento non solum regibus Verba igitur apostoli de potestate, 

non parendum in malis, verum etiam sicut alibi moderantur, ipse dicens, 

iure deberent regno turbari, nisi maiore ' non est potestas nisi in edificationem,' 

damno timerentur aceepta mala resar- intelligenda sunt. Quatenus enim 

turn iri." aedificat potestas, a Deo est, et 

2 Cf . vol. iii. part i. chap. 4 ; quatenus non aedificat, qui resistendo 
part ii. chap. 6. aedificat, a Deo potestatem resistendi 

3 Cf. vol. v. part i. chaps. 7 and 8. habet. Posse igitur aedificare potestas 

4 Id. id., 23: "Non perfunctorie a Deo est, et qui plus aedificat plus in 
aut superficialiter legendum aut intelli- potestate est." 

gendum verbum apostoli ad Romanos, 



182 FIFTEENTH CENTURY. [PAET II. 

Wesselius was evidently anxious to correct^the error of those 
who thought that all authority, good or bad, just or unjust, 
was a divine authority. This conception had indeed been 
little regarded in the Middle Ages, but there are some traces 
of it in the fourteenth and fifteenth centuries, and the criticism 
of Wesselius is therefore of some importance. 

It seems to us that it is important to observe at this point 
that the theory that in the last resort the unjust ruler might 
legitimately be deposed, had, at the outset of the fifteenth 
century, an important illustration in constitutional action, that 
is, in the deposition of the Emperor Wenceslas in the year 
1400. This may seem a somewhat unimportant occurrence, 
but, as we shall see later, it was not forgotten in the sixteenth 
century. 

It is therefore worth while to notice the terms in which the 
electors, that is the Archbishops of Maintz, Trier, and Cologne, 
and the Count Palatine, expressed their judgment and declared 
Wenceslas deposed. We do not, it will be understood, pretend 
to deal with the actual circumstances which lay behind their 
action, and its merits. We are only concerned with the con- 
stitutional principles which they assumed, and the terms in 
which they justified their action. 

They charge him with neglect to act for the peace of the 
Church and of Germany, with his betrayal of the authority of 
the Empire, specially in the case of Milan, and with the reckless 
way in which he had allowed his seal to be affixed to blank 
forms which he sold to his friends, and they accused him of 
having murdered many ecclesiastics and others. 1 

1 ' Deutsche Reichstagsakten,' vol. vil stede und lande in Deutschen und 

iii. (Ed. Julius Weizsacker, Royal Welschen Landen dem Riche zugehor- 

Academy of Science, Munich, vol. iii. ende, und der ein teyl verfallen sint 

204) (p. 255) : Enumeration of charges dem heiligon riche, uebergeben, und 

against Wenceslas "(1) Nemlich daz der nit geachtet, noch an deme heiligen 

er der heiligen Kirchen ny zu fridden Riche behalden ; (4) So hait er auch 

gohulfen hait. ... (2) So hait er auch umbe geldes willon dicke und vil syne 

dez heilige Komisrhc Rich swerlich und freunde gesand mit ungeschrieben 

schedelichen entgledct und ongleden brieven, dy man nennet membranen, 

lassen, nemelieh Meylan und daz land dy doch mit syner majestat ingesigel 

in Lamparten. ... (3) Er hait auch besiegelt waren. ... (5) So hait er 



CHAP. III.] POLITICAL WAITERS. 183 

They say that they had remonstrated with him in vain, and 
had finally invited him to meet them at Ober Lahnstein and 
waited for him, but he had not come. The Archbishop of 
Maintz therefore, in the name of the electors, and acting as 
in a court, declared Wenceslas deposed, 1 and notified the 
Princes, lords and cities of the Empire that they were free 
from their oath of obedience to Wenceslas, while they con- 
tinued to be bound by their oath to the Empire and to the 
person who should be elected King of the Eomans. 2 

When we now endeavour to put together the political prin- 
ciples of the writers with whom we have dealt in this chapter, 
it is evident that there is a substantial agreement among them. 
They are clear that all political authority is derived from the 
community, that is, while they conceive of it as coming from 
God ultimately, directly and immediately it comes from the 
whole body of the community. It is indeed interesting to 
observe that Wesselius thought it well to correct the mis- 
interpretation of St Paul's words, " The powers that be are 
ordained by God." It is clear that, whether they were ecclesi- 
astics or laymen, they did not recognise the doctrine of what 
is called the Divine Eight of Kings ; they were clear whether 
they were Englishmen or Frenchmen that the authority of the 

auch ny kene achte gehabt alle der zu dem ersten angeruffen, in Gerichtea 

mishel und Kriege, dy leider manche stad gesessen, in namen und wegon 

zijt in Deutschen und in anderen unsere vorgeschriben Herren und midde 

Landen des heiligen Richs swerlich Kurfiirsten des heiligen Romischen 

und verterplich gewesen und noch Richs und unser selbes, umbe dieso 

werende sint. . . . (6) Er hat auch, egenanten und andere vile grosser 

das erschreglich und unmenschlich gebresten und sachen uns darezu 

ludet, mit syns selber hand, und auch bewegende, abethun und abeseczen mit 

ubermiez ander ubelteden die er by dissem unserme Urteil, daz wir thun 

yme bait, erwirdige und bidderbe und geben in dieser sehriSt, den vor- 

prelaten paffen und geistlich lude, und genanten Herren Wencezlaus als einen 

vil andere erbar lude ermordet, erdrun- unniiczen versumelichen unachtbaren 

ket, verbrand mit fackeln und sy entgleder und unwerdigen hant haber 

jemerlichen und unmenschlichen wid- des heiligen Romischen Richs, von dem 

der recht getodet, das eym Romischen selben Romischen Riche und vor aller 

Konige unczemelichen stehet und der wirde und herlichkeit darezu 

ludet." gehoreude." 

1 Id. id., p. 257 : " Und wir Johann ■ Id. id. id. 
Erzbischoff vorgenant, Gots namen 



184 FIFTEENTH CENTURY. [PAKT II. 

King was a limited authority. Gerson, d'Ailly, and Turrecre- 
mata emphatically prefer a mixed government, that is, a 
government which included the aristocratic and democratic 
elements, as well as the monarchical. Gerson and d'Ailly in 
France, and Fortescue in England, are clear that the legal 
rights of the subjects are protected, even against the King, 
by the Courts of Law. Gerson, Zabarella, and Wesselius are 
even clear that in the last resort the violent and unjust ruler 
might be resisted and deposed. 

These writers, then, know nothing of absolute monarchy ; 
indeed, it is evident that such a conception would have seemed 
to them irrational and repulsive ; they all, like the Mediaeval 
writers in general, conceived of monarchy as the best form of 
government, but it was a monarchy limited and conditioned 
by the law, and the good of the community for which it 
existed. 



185 



CHAPTER IV. 

THE THEORY OE THE DIVINE EIGHT. 

We have been carefully searching for the appearance of the 
theory of the absolute Divine authority of the King in the 
fourteenth and fifteenth centuries, as we have done in other 
volumes with relation to the earlier Middle Ages. 

In our first volume we pointed out that this theory was first 
explicitly stated by Gregory the Great, and in later volumes, 
that, in spite of his great authority, there is hardly any trace 
of it, except in a small group of imperialist writers, of whom 
the most important was Gregory of Catino, during the great 
conflict between the Popes and the Emperors in the eleventh 
and twelfth centuries. The great Mediaeval writers, like St 
Thomas Aquinas, ignore this theory, and even speak with 
confidence of the right to resist and even to depose the 
unrighteous ruler. 1 

The only writer of any importance in the fourteenth century 
who seems to us to have maintained the doctrine of the absolute 
Divine authority of the King was Wycliffe, and we have dealt 
with this in an earlier chapter. It seems to us that the con- 

1 We wish again to express our great mediaeval politics to this work, which 

regret that, owing to the troubled is, as far as we have seen, the most 

times in which it came out, our thorough study of the subject, within 

attention had not been called to the its limits. We are glad to find that, 

admirable work of Professor F. Kern, as we think, we are not compelled to 

' Gottesgnadenthum und Widerstands- alter the judgments which we have 

recht im Mittelalter.' We greatly expressed in former volumes, but 

regret that we were unable to consult Professor Kern has handled his subject 

it in writing our last volume. We with a fulness and precision which 

are glad to take this opportunity to command our admiration, 
draw the attention of students of 



186 FIFTEENTH CENTURY. [PART II. 

ception was wholly alien to the political thought of the fifteenth 
century, as we have so far considered it, but it found expression 
in two quarters, in Spain in 1445, and in a work of Aeneas 
Sylvius (afterwards Pope Pius II.) written apparently in 1446. 

We cannot here discuss the circumstances which lay behind 
the appearance of this conception in the proceedings of the 
Cortes of Olmedo in 1445, but it is evident that the country was 
in a highly disturbed and disorderly condition, not indeed 
uncommon in Spain in the fourteenth and fifteenth centuries, 
and it was very natural that men should set out in the strongest 
terms the urgent need of political order and obedience. 

However this may be, the principle of the Divine authority 
of the King, and the wickedness of resistance to him, is ex- 
pressed in very strong terms. After referring to the wars 
and revolts caused by some of the King's subjects in his king- 
dom, the Cortes declared that the Divine Law expressly forbade 
men to touch the King, who was the Lord's Anointed, or to 
speak evil of him, for he was the Vicar of God, or to resist him, 
for to resist the King was to resist the ordinance of God. 1 

This statement is rendered more significant when we observe 
that the Cortes went on to say that the revolters affirmed in 
their justification that they were acting in the King's own 
interest, and in accordance with the law of the kingdom as 
expressed in the ' Siete Partidas ' of Alfonso X. The passage 
from this law book, which they quote at length, certainly seems 

1 ' Cortes of Castilo and Leon,' vol. hi. su rrey e principe, commo a quel que 

18 (Olmedo, 1445). Present, the King, es ungido de Dios, nin aun de rretraer 

various prelates, nobles, doctors of the nin dezir del ningunt mal nin aun lo 

King's Council, and the Procurators of pensar en su espiritu, mas que aquel sea 

the cities and villas of the kingdom. tenido commo vicario de Dios e onrrado 

The Cortes presented a supplication commo por escelente, e que ningunt 

to the King in which they first refer to non sea osado dele rresistir, por quelos 

the revolt of some of his subjects, que al rrey rresisten son vistos querer 

p. 458 : " Oluidada la ley natural, por rresister ala ordenanca de Dios, alo 

estilo dela qual las abejas han un qual asi fazer todos son obligados e 

principe, e las gruas siguen un cabdillo, tenudos, non solo temiendo la ira de 

e aque ellos acatan e obodescen ; e Dios, e el mal e pena que dello los 

asi mesmo pospuesta la ley devinal, puede venir, mas aun por la guarda de 

lo qual espresamente manda e dofienda sus conscien? ias." 
que ninguno non sea osado do tocar en 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 187 

to suggest that the subjects should guard the King not only 
against themselves and foreigners, but also against himself, 
not only by good counsel, but by preventing him from com- 
mitting any act which might dishonour him, and injure his 
kingdom. 1 The Cortes urged that the revolters were mis- 
interpreting the passage ; they cited a number of other passages 
from the ' Siete Partidas ' on the nature of the authority of 
kings, which seemed to them to forbid such actions as those of 
the insurgents, and they contended that these should not be 
tolerated. It would, they said, be abominable and contrary to 
God, and Divine and Human Law, that the King should be 
subordinate to his vassals and subjects, and should be judged 
by them ; for the King is the Vicar of God, who holds his heart 
in his hands ; he is the head and heart and soul of his people, 
who are his members, and owe him reverence and obedience ; 
his authority is so great that all laws are subject to him, for he 
holds his power from God and not from men. 2 

After further citations from the " Fuero de las leyes," the 
Cortes urged that if anything in the ' Siete Partidas ' was 
contrary to these principles, the King should revoke it " de su 
cierta ciencia e proprio motu e poderio absoluto," so far as it 

1 Id. id. (p. 459). These are some todo derecho canonico eceuil,e enemiga 
words they quote from the ' Siete Par- de toda justicia e lealtat, major mente 
tidas,' ii., 13, 25 : " E por ende el pueblo delas leyes de nuestros rregnos, si el 
deve mucho punnar en quardar su rrey, rrey euyo coracon es enlas manos de 
lo uno por que lo han ganado espiritual- Dios, e lo el guia e inclina a todo lo quel 
mente por don de Dios, e lo al natural- plaze, et qual es vicario e tiene su logar 
mente por rrazon e por derecho, e enla tierra, e es cabe^a e coracon e alma 
esta guarda quele han de fazer es en del pueblo, e ellos son su mienbros, al 
tres maneras. La primera, de si mesmo, qual ellos naturalmente deuen toda 
la segunda de ellos mismos, la ter£era lealtat e fidelitat e sujec,ion e obedien?ia 
delos estrannos. E la guarda que han e rruenerencia e servi^io, e por el se ha 
de fazer a el de si mesmo es que non le de guiar e mandar el derecho del 
dexen fazer cosa a sabiendas por que poderio el quel es tan grande, especial- 
se pierda el alma, ninque sea a mal mente segunt las leyes de nuestros 
estan9a e desonrra de su cuerpo e de su rregnos que todas las leyes e los 
lignage, o a grant dapno de su rregno." derechos tienen so si, por que el su 

2 Id. id. (p. 483) : " Lo quarto, por poderio non lo ha delos omes mas de 
que cosa seria muy abominable e Dios, cuyo logar tiene en todas las cosas 
sacrilego e absurda e non menos temporales — oviese de ser e fuese 
escandalosa e dapnosa e contra Dios e sugeto asus vasallos e subditos e 
ley divina e umana e rrepugnante a naturales, e por ellos juzgado." 

toda buona policia e rrazon natural e a 



188 FIFTEENTH CENTURY. [PART II. 

might be contrary to the aforesaid laws of the " Fuero " and 
" Ordinamiento." x 

It would be difficult to find a more emphatic assertion of the 
doctrine of the " Divine Eight " of the King, and of his absolute 
authority as above the Law. It is possible that this may be 
related to the attempt made by Juan II. at the Cortes of 
Palencia in 1431 to annul the provisions of the Cortes of 
Bribiesca in 1387 and to give his Briefs the authority of law, 
which we have already considered ; but as we have seen, 
Juan II. had been compelled to withdraw from this position. 2 

We have another example in the fifteenth century of the 
assertion of the " Divine Eight " in a treatise of Aeneas Sylvius : 
' De Ortu et Auctoritate Imperii Eomani,' written, as we have 
said, apparently in 1446. 

This treatise is indeed primarily an exposition of the nature 
and authority of the Empire, and it is only incidentally that 
it touches upon the " Divine Eight," and it is perhaps worth 
while to observe its more general principles. Aeneas Sylvius 
begins by tracing the origin of monarchy to the conflicts among 
men ; its purpose therefore is to secure peace and justice. The 
conflicts of nations compelled men to accept some supreme 
authority ; this was the origin of the various Empires of the 
ancient world, and finally of Borne. 3 In Eome itself men 
were driven by similar causes to agree that the Government 
should be placed in the hands of one man ; the Prince was 
created and it "ratum esset quicquid ab eo constituitur." 4 
All peoples are subject to the authority of the Empire, 
for the purpose of the Empire is universal peace. 5 These, 
however, are little more than commonplaces ; we are con- 
cerned to know what in the view of Aeneas Sylvius was 
the authority of the Emperor. The Emperor has authority 
to make law, to interpret law and to abrogate law where 

1 Id. id. (p. 492) : " Las quiora • Cf. p. 133. 

rrevocar de 6u cierta ciencia e proprio 3 Aeneas Sylvius, ' De Ortu et Auc- 

motu e poderio rreal absoluto, asi o en toritato Imperii Romani,' 2-4. 
quanto son e pueden ser contra las 4 Id. id., 5. 

dichas leyes del Fuero e Ordina- 6 Id. id., 10-13. 

miento." 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 189 

there is reasonable cause. 1 In another chapter he deals 
with the question of appeals from the Emperor alone to the 
Emperor acting with the Princes ; he flatly denies that any- 
such appeal can be made, and adds that the Emperor has 
just as great an authority when acting alone as when acting 
with the Princes. 2 We are not here discussing the constitu- 
tion of the Empire, but it is obvious that Aeneas is speaking 
under the terms of the interpretation of Roman Law by the 
Civilians rather than under those of the actual constitution 
of the Empire in the Middle Ages. 

The Emperor has supreme legislative power, but we are also 
concerned to know what Aeneas thought was his relation to the 
actually existing law. It is right that he should live, and j udge, 
according to the law, and he cites the ' Digna vox ' (Cod. i. 14, 
4), 3 but he adds that while it is honourable to say this, it 
must not be asserted that the Emperor is subject to the law, 
for he is " legibus solutus." 4 Aeneas may not, however, 
have meant by this much more than to assert the dispensing 
power of the Emperor, that he had authority to temper the 
rigour of the law by Equity. 

It is, however, when we turn to Aeneas' discussion of the 
relation of the subject to what might be the unjust actions of 
the Prince that we come to the matter with which we are here 
specially concerned. We must always, he says, presume that 
there is a rational cause behind the action of the Prince, and 
therefore, even if he should unjustly annul, or derogate from 
some " privilegium," we must not revile or resist him, for there 
is no one who can judge his temporal actions. Whatever the 

1 Id. id., 19. tatem suprema potestas. . . . 

2 Id. id., 22 : " Nunc ultimo loco 33. Cumque in Caesare summa 
de appellationibus transigamus eosque potestas sit, summaque authoritatis 
confutemus qui a sententia summi plenitudo, nil est quod adjunctis prin- 
principia asserunt appellandum . . . . cipibus authoritatis accedat, quoniam 
Sed appellant quidam rursus ad neque summo adiici quicquam potest, 
Caesarem adjunctis principibus, quasi neque plenum potest esse plenius." 
maior sit imperator cum illis quam sine 3 Id. id., 20. 

illis. . . . Sed vana atque inania sunt * Id. id., 20 : " Quod quamvis pul- 

ista fundamenta. Tanta est enim in chrum est dicere, non tamen asseren- 

Caesare potestas, sine principibus dum est imperatorem esse eubjectum, 

quantam cum ipsis. Amat enim uni- cum sit solutus." 



190 FIFTEENTH CENTURY. [part II. 

Prince does must be patiently endured, however unjust it is, 
and we must look for some amendment of his action by his 
successor, or to its correction by that heavenly judge who does 
not suffer violence and injury to be perpetual. We must 
remember that whatever the Prince does, is done by the 
permission of God, for the heart of the King is in the hands of 
God, who turns it whither he wills. 1 

Aeneas was setting out in dogmatic phrases the doctrine of 
passive obedience, and relating this to the conception, that 
whatever the Prince does is done by the permission of God. 
He returns to this again in a passage of which we have already 
quoted a part, in which he deals with the question of appeals 
from the judgment of the Emperor. He admits that sometimes 
unrighteousness and an unjust judgment might proceed from 
the highest authority, but there can be no appeal, for there is 
no judge who can examine the temporal actions of Caesar. 
Men must recognise that they are subject to the Prince, and 
must reverence the Emperor and Lord of the world, for he 
rules over temporal things in God's place, and as men must do 
what God commands, they must also accept the commands of 
Caesar, " sine repugnatione." 2 

It is clear that Aeneas was concerned in this treatise to 
assert the absolute authority of the Emperor, both as supreme 

1 Id. id., 16 : " Vorum quum in scriptura) in inanu Dei est, et ubi 
omnibus quae goruntur a principe, voluerit, inclinabit illud. . . . Ex quo 
caussa presumatur et ratio facti, si fit, ut occulto Dei judicio apud Deum 
quando vel abrogare privilegia vol justa nonnunquam reperiantur, quae 
ipsis derogare principom contingit in- nobis videntur injusta." 
juste, quamvis liceat eum per viara sup- 2 Id. id., 23: " Etenim quamvis ex 
plicationis informare, humiliterque summo solio nonnunquam procedat 
petere restitutionem, non tamen recla- iniquitas, injustumque judicium pro- 
mare licet, vituparare vel impugnaro, deat, non tamen idcirco locus est 
si perseveret, cum nemo sit qui do appellationis, quum nemo sit judex, 
suis factis temporalibus possit cognos- qui temporalia Caesaris facta valeat 
cere. Tolerandum est patienter, quod oxaminare. . . . Cognoscant homines 
princeps facit, quamvis iniquo, ex- se principi esse subjectos, imperator- 
peelandaque est successoris emenda, omque mundi et dominum tanquam 
vel superni correctio judicis, qui vio- Dei vicem in temporalibus gerentem 
lentias atque injurias non sinit esse venerentur, et sicut quae Deus jubot 
perpetuas. Cogitandum insuper est, implenda sunt, nihilque contra replican- 
quod princeps agit Dei fieri per- dum est, sic temporalia Caesaris man- 
missione. Quia cor regis (ut inquit data sine repugnatione suscipiant." 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 191 

Legislator, and as being above the Law, and his references 
to this unchallengeable Divine authority are of some 
importance. 

It is then, we think, true to say that in the statements of 
the Cortes of Olmedo and of the treatise of Aeneas Sylvius 
we have a clear and sharp re- statement of a political doctrine 
which had little importance in the Middle Ages, but which, 
as we shall see later, was developed by some writers in the 
sixteenth century. 



192 



CHAPTER V. 

TAXATION. 

We have in a previous chapter dealt with this subject, as 
related to the fourteenth century, in some detail. We must 
now examine it in relation to the fifteenth century, for there 
appears to have been some confusion about this : naturally 
enough, for there are some statements by important writers 
of the fifteenth century which if uncontrolled by a more precise 
examination of the actual facts, might produce, and indeed 
have produced, a somewhat incorrect judgment : Sir John 
Fortescue, for instance, in his ' Governance of England,' 
attributed the poverty-stricken condition of the French people 
to the arbitrary power of taxation of the King. 1 

We must therefore consider carefully the evidence as to the 
constitutional principles, and the actual practice of taxation 
in the fifteenth century, and we begin with France, for it is 
here that there seems to have been most uncertainty. As we 
shall see, there is evidence that from time to time the French 
Crown endeavoured to impose taxation without the consent 
of the Estates, Provincial or General, but we think that it is 
also clear that the legal right to do this was not recognised, and 
that normally, when the Crown needed more than it received 
from its ordinary fixed revenues, it asked for Aids or Subsidies, 
either from the Provincial Estates or the States General. 

It is unnecessary to enumerate all the occasions on which 
the kings of France asked for Aids from the States General or 

1 Fortescue : ' Governance of Eng- Laudibus,' chap. 35. 
land,' chap. 3. Cf. his work ' De 



CHAP. V.] TAXATION. 193 

Provincial Estates ; we deal with some of the more important 
examples. 

The Treaty of Troyes of 1420, by which the unhappy King 
Charles VI. recognised Henry V. of England as his successor, 
contains a clause providing that Henry was not to impose upon 
the Kingdom of France any taxes without reasonable cause, 
and that these were to be in accordance with the laws and 
customs of the Kingdom. According to Juvenal des Ursins the 
Three Estates met in Paris later in the same year, and were 
asked for an Aid, and after deliberation expressed themselves 
as prepared to grant whatever the King and his Council should 
command. 1 

These proceedings were, it may be urged, taken, not under 
the legitimate government of France, but under the English 
usurpation, and we turn to the legitimate government. In a 
letter of Charles VII. of 1423 we find him mentioning that the 
Three Estates of the Kingdom had granted him an Aid at their 
meeting in Bourges. 2 In 1425 the States General meeting at 
Melun granted Charles VII. a Taille, but attached to this the 
condition that he should inform them what measures he 
proposed to take to put an end to the disorders caused by the 
soldiers, otherwise they would not make a grant. 3 In 1423, 
as we learn from another letter of Charles VII., the Three 
Estates of Languedoc had met in April and May at Carcassonne, 
and had granted him the sum of 200,000 "livres tournois." 4 

What is, however, more significant is the account given in 
a letter of Charles VII. of December 1427 to his Lieutenant 
in Languedoc, of the complaints made by the Estates of 

1 ' Recueil des Anciennes Lois Fran- Cf . Picot, ' Histoire des Etats Gener. 
caises,' vol. viii. 695 (p. 639) : Juvenal aux,' vol. i. p. 299. 

des Ursins, ' Histoire de Charles VI.' 4 ' Ordonnances,' vol. xiii. p. 34 : 

(Ed. 1653, p. 381). "Charles . . . Comme ez mois de Mai 

2 ' Ordonnances,' vol. xiii. p. 14 : et d'Avril derrierement passez, a l'As- 
" Charles. . . . Aux Commis a imposer semblee des Trois Estats de notre pays 
et asseoir en notre pays de Poictou, de Languedoc, que lors par notre 
l'ayde a nous presentement octroyee par Ordonnance furent assemblez en notre 
les gens des Trois Estats de notre roy- ville de Carcassonne, nous fut octroye 
aume, a l'Assemblee par eux faiete en par les gens du Commun Estat du pays 
notre ville de Bourges." la somme de deux cent milles livres 

3 ' Recueil,' vol. viii. 28 (p. 731). tournois." 

VOL. VI. N 



194 FIFTEENTH CENTURY. [PART II. 

Languedoc. At their meeting in that year they had protested 
that it had always been part of their liberty that no Aid or 
Taille, &c., should be imposed upon them by the King, until he 
had called together the Council or the Deputies of the Three 
Estates, and they complained that, in spite of this, the Lieu- 
tenant of the King, in virtue of a simple " letter patent," had 
imposed upon them a new Aid of 22,000 " livres tournois," 
over and above the Aid of 150,000 francs which had been 
imposed with the consent of the Three Estates. The King 
accordingly ordered the levy of the new Aid to be suspended 
until the meeting of the Three Estates which had been sum- 
moned for the following January. 1 

In a letter of Charles VII. of October 1428 there is a reference 
to a meeting of the States General at Chinon which had granted 
him an Aid of 500,000 francs, part for the Langue d'Oc, part 
for the Langue d'Oil. 2 According to Vaissette's ' History of 
Languedoc,' the King laid down, at this time, the general 
principle, at least for Languedoc, that for the future no one 
should impose any Aid or Subsidy without his express com- 

1 ' Ordonnances,' vol. xiii. p. 133 : impose et mis sus audit pays un aide 

" Nous avons ouii la dolente et griefve nouvel de 22 m. livres tournois, outre 

complaint e a nous faites de par les et par dessus la derniere aide de 150 m. 

gens des Trois Estats de notre dit pays francs, qui par le consentement des- 

de Languedoc, exposez par leurs dits trois Etats y avait ete paravant 

notables ambassadeurs et messagers imposes. 

pour ce envoyez par dovers nous, disons Pour ce est il que nous, . . . vou- 

que jacoit ce que de tout temps ils Ions toujours nos loyaux subjects estre 

soient en telle liberte et franchise, que f avorablement traites, et attendu meme- 

aucun aide ou taille ne doit de par nous ment que ledit aide et impost de 22 m. 

estre sur eux impose, a quelque cas livres a et6 fait sans notre su et sans 

quo ce soit, sans premierement appeler ce que nous ayons este advertis qu'il en 

a ce et faire assembler le Conseil ou les feut necessaire . . . par ces pr6sentes 

Deputez des trois Estaz d'icelui pais, octroyons de nostre grace speciale, se 

et que en ladite liberty et franchise les mestier est, quo d'icelui aide de 22 m. 

ayons jusques — cy maintenus ; n6ant livres et de tout autre nouvel aido 

moins par vertu d'une simple lettre dont en les voudreit charger, ils soient 

patente command6o et falte seelee tonus en souffrance et suspens, sans 

sous notre seel, au mois d'Aout der- plus avant y proceder par maniere de 

nierement pass6, a la relation de vous contrainte, ne autrement, jusques a ce 

notre Cousin et Lieutenant, sans que que a la prochaine assemblee des 

ladicte lettre ait 6te par nous passee, ni trois Estate do nostre ob6issance . . . 

sans v avoir aucunement appell6 ledit en soit par nous autrement ordonne." 
Conseil des Trois Estats, vous avez 2 ' Recueil,' vol. viii. 39 (p. 749). 



CHAP, v.] TAXATION. 195 

mand and without calling together the three Estates, as had 
been the custom. 1 

We have again references to grants of money by the Estates 
of Languedoc in 1431, 1434, and 1435, 2 and to the imposition by 
the King with the consent of the Three Estates of his " obedi- 
ence " (presumably the whole kingdom) of a variety of Aids 
which had been levied for the War but had been abolished 
when the King left Paris. 3 

It is then evident that during the first part of the century 
it was in virtue of a grant by the States General, or the Pro- 
vincial Estates, that Aids and Subsidies were normally levied 
by the King. We have, however, found a few cases in which 
there is no indication that the Estates had been consulted. 4 
This does not, however, amount to much more than the 
possibility that in the disturbed conditions of the early years 
of the fifteenth century the government of France may have 
occasionally levied taxes without taking account of the 
normal constitutional custom. 

We must now consider how far the constitutional practice 
of the earlier part of the century gave place to another system 
in its later part, and we must first examine the significance of 
the important ordinance issued after the Meeting of the States 
General at Orleans in 1439. We have already referred to this 
Ordinance in an earlier chapter, but must now examine its 
relation to taxation. 

Its main purpose was, as we have already seen, the establish- 
ment of a body of royal " Gens d'Armes " and the prohibition 
of the levy of all private forces. It was in order to carry this 
out that, as we should infer, the King, with the consent of the 
Three Estates, imposed a Taille, which was presumably in- 
tended to be continuous, at least for the period of the War. 

1 ' Ordonnances,' vol. xiii. p. 140. Trois Etats du pays ainsi qu'il 6tait 

(' Vaissette Histoire de Languedoc,' accountume de faire." 

vol. iv. p. 471): " Avec defense a 2 ' Vaisette Histoire de Languedoc,' 

toute sorte de personnes de mettre ou vol. iv. pp. 478-482. 

imposer desormais aucune ayde ou 3 ' Ordonnances,' vol. xiii. p. 211. 

subside en Languedoc, sans son expres 4 ' Ordonnances,' vol. ix. p. 5 ; vol. 

mandement, et sans appeler les gens des x. p. 214. 



196 FIFTEENTH CENTURY. [PART II. 

The most important clauses of this " Ordonnance " are, for 
our present purpose, two : the first says that, in spite of the 
imposition of a Taille by the King with the consent of the 
Estates, some of the Lords, Barons, and others hindered the 
raising of the Taille or other Aids on their lands, and sometimes 
appropriated them ol< the pretext that the King was in debt to 
them. The Ordonnance commands that this must cease. 1 
The second forbids men of any condition or estate to raise 
any " Taille " or " Aid " or tribute from their subjects under 
any pretext whatever, without the authority of the King given 
in his "letters patent," and declares that for the future any 
place or lordship where such " Tailles " or Aids had been 
imposed without his permission, was to be confiscated to the 
King. 2 

It is not within the scope of this work to deal with the 
complex question of the various forms of taxation in France. 
It has been held by some historical writers that the provisions 
of this Ordinance represented a far-reaching change in the 
royal power of taxation, by giving the King the power of levy- 
ing " Tailles " on his own authority ; others do not go so far. 3 

1 ' Ordonnanees,' vol. xiii. p. 312 navant cessent." 
(41): "Et pour ce que souventefoisapres 2 Id. id., p. 313 (44): " Et pour ce 
quo du consentement des trois Etats, le que plusieurs mettent tailles sus en leurs 
roi a fait mettre sus aucune taille sur terres, sans l'auctorit6 et conge du roi, 
son peuple pour le faiet de sa guerre, pour leur volont6, ou autrement, dont 
et lui subvonir et aider a sos necessitez, le peuple est moult opprime, le Roy 
los seigneurs, barons, et autres empech- prohibe et defend a tous, sur lesdictes 
ent et font empeeher les deniers de peines de confiscation de biens, que 
ladite taille et aussi des aides du roi nul de quelque estat, qualite on con- 
en leur terres et seigneuries, et les dition quil soit, ne mette ou impose 
aucuns les pronnent soubz coulour qu'ils taille ou autre aide ou tribut sur ses 
ont este assignez, on dient aucune sujets ou autres, pour quelque cause 
sommo lfuir etre deiies, ou aussi este ou couleur quo ce soit, sinon que ce 
promises par le Roi, et aucuns autres soit de l'auctorito et conge du Roi, et 
croieseut et mettent avec et pardessus par ses lettres patentes ; et declare 
la taille du Roi, sur leurs sujots, et le Roi des-a-pr6sent, le lieu ou seig- 
autres, grandes sommes de deniers neurio ou tellos tailles ou aides seront 
qu'ils font lever avec et soubz couleur mis sus sans son auctorit6 et cong6, 
de la taille du Roi, a lour profit ; par- commis et confisquez envers lui." 
quoy le Roi est empesch6 et ne peut 3 Ci. l'icot : ' Histoire des iStats 
estre pay6 les deniers de la taille par Gen6raux,' vol. i. pp. 322 ff. ; ' Recueil 
son peuple ; le roi ordonne, mande, et des Anciennes Lois,' vol. ix. pp. 57, &c. 
commando quo toutes telles voies dore- 



CHAP. V.] TAXATION. 197 

We think that however important the provisions of the 
Ordinance may have been with regard to certain forms of 
taxation, it would be a very serious error to think that it 
established the principle that taxes in general could be im- 
posed by the King without the consent of the Community. 

There is an interesting account by Monstrelet of the demands 
put forward by an Assembly of the Princes and Nobles at 
Nevers in 1441, and the answer of the King. They urged 
that the Lords and the Estates of the Kingdom should 
be called together to impose " Tailles " and " Impositions " 
on the Kingdom. The King replied that the Aids had been 
imposed upon the Lords with their consent, but that the King 
could impose the Tailles by his royal authority, in view of the 
circumstances of the Kingdom. There was no need to call 
together the Three Estates for this purpose ; that was only 
a burden upon the poor people who had to pay the expenses 
of those who attended. 1 

In the Ordonnances, however, from 1439 to the time of the 
meeting of the States General in 1484 we find frequent refer- 
ences to formal grants of money by the Estates of the several 
provinces, while we also find frequent complaints about 
taxation without their consent. In February 1443(4) we 
find Charles VII. referring to a statement of the Three 
Estates of Languedoc that they had voluntarily and freely 
granted him large sums of money by way of Aid for the War ; 
and so again in 1448. 2 In 1456 Charles asked the same 

1 Monstrelet : ' Chronique' (ed. 1862), le que auetre que luy ne puet faire sans 

vol. vi. p. 26 : " Ont remonstre au roy conge. Et n'est ja nul besoin d'assem- 

comme telles tailles et impositions se bier les trois Etats, pour mettre sus 

doivent mettre sus et imposer, et appeler lesdites tailles, car ce n'est que charge 

les seigneurs et les Estats du royaume. et despence au pauvre commun peuple, 

Reponse. Les aydes ont este mises qui a a payer les frais de ceux qui y 

sus par les seigneurs et de leur consente- viennent. Et ont requis plusieurs 

ment. Et, quant aux tailles, le roy, notables seigneurs des diz pays, qu'on 

quand il a est6 en lieu, les a appeler ou cessat de telle convocation faire. Et 

leur fait savoir. Combien de son autor- pour cette cause soit convenus, qu'on 

ite roial, veu les grandes affaires de envoie la commission aux eslues, selon 

son royaume, si urgents, comme chascun le bon plaisir du roy. (Cited in ' Re- 

sait, et mesmement ses ennemis en cueil,' vol. ix. p. 99.) 
occupent une grande partie, et d6trui- 2 ' Ordonnances,' vol. xiii. p. 392 ; 

sent le sourplus, les peut mettre sus, vol. xiv. p. 18. 



198 FIFTEENTH CENTURY. [part II. 

Estates for an Aid of 130,000 " livres tournois " ; they 
replied that their province was greatly impoverished, but they 
made a grant of 116,000 livres for one year. 1 In 1158 the 
people of Normandy complained of the violation of their 
laws and liberties, and Charles replied by confirming their 
Charter, and promised that no Tallies, subventions or exactions 
should be imposed on the people of the Duchy beyond the 
customary " redditus, census, et servitia nobis debita " except 
for some clear and urgent need, and then only by a meeting 
of the Three Estates of the Duchy, as had been customary. 2 
It should be observed that " Talliae " are included in the 
taxes which are not to be levied without the Estates. In 
March 1462(3), we find Louis XI. referring to the fact that the 
Three Estates of Normandy had granted him 400,000 " livres 
tournois" as representing all Aids, Taillages, &c, for the 
previous year. 3 In an Ordinance which as the Editors think 
belongs probably to 1463, we find that the Estates of Languedoc 
had granted an Aid, but complained that the Eeceiver of 
Taxes had taken more than the Estates had granted. 4 In 
1476(7) we have a letter of Louis XL, relating to the Govern- 
ment of the Duchy of Burgundy, which had fallen to the 
French Crown on the death of Charles the Bold, and Louis 
declares that no Aids or Subsidies should be levied in the 
Duchy unless they had been granted and authorised by the 
Three Estates of the Duchy. 5 

We have found direct evidence in a few cases of an attempt 
by Louis XI. to over-ride the Estates, and to levy taxes, if 
necessary, without their consent. The most important is a 

1 ' Ordonnances,' vol. xiv. p. 388 (1). sicut factum fuit et consuetum tempore 

2 Id., vol. xiv. p. 4C5 : " Quod de retro lapso." 

cetero per nos aut nostros successores 3 Id., vol. xv. p. 627 ; 

in dicto Ducatu in personis aut bonis * Id., vol. xvi. p. 25. 

ibidem commorantibus, ultra redditus, 6 Id., vol. xviii. p. 247 (17) : "Que 

census et servitia nobis debits, tallias, l'on no pourra lover ni cueillir sur iceulx 

subventiones, impositiones, aut exac- nos pays et duche, aydes ne subsides a 

tiones quascunque facere non possimus, notre prouffit ou d'autres, se non que 

nee debeamus, nisi evidons utilitas vel lesdites aydes ayent est6 octroyees, 

urgens necessitas id exposcat, et per accordees et consenties par lesditz gens 

conventionem et oongregationem gon- des trois Estats." 
tium trium statuura dicti Ducatus, 



CHAP. V.] TAXATION. 199 

letter of 1469 to the royal officers in Dauphine" : Louis instructs 
them to request the Three Estates to make a grant of money for 
the year, but if the Estates refuse or delay to do this, they are 
to impose the tax and to levy it by the methods used in cases 
of debts to the Crown, notwithstanding any privileges or 
exemptions granted by himself or his predecessors. It must, 
however, be observed that Louis adds, that this was to be done 
without prejudice to such privileges or exemptions for the 
future. 1 

In 1478 we find a declaration of Louis XI. that he had 
ordered the imposition of a tax throughout the Kingdom, and 
he demanded 1300 " livres tournois " from the people of 
Perigord, but, it should again be noticed, that he did this 
without prejudice to their privileges for the future. 2 

What conclusion then are we to draw ? It seems to us clear 
that, whatever may have been the significance of the provisions 
of the Ordinance of 1439 with regard to the " Taille," it was 
still recognised as a general principle that Subsidies and Aids 
could not be imposed without the consent of the Estates, 
Provincial or General. 

We turn to the proceedings of the great States General held 
at Tours in 1484 at the accession of Charles VIII. When the 

1 Id. id., vol. xvii. p. 288 : " Vous auront este imposees, par toutes voies 

mandons . . . que vous assemblies et manieres accountumees de faire pour 

lesdictes gens des diets trois estats nos propres debtes et affaires, non 

dudict pays de Dauphine . . . (et) leur obstant comme dessus et quelconques 

requerrez tres-instamment de par nous privileges et exemptions qui pourroient 

qu'ils nous veuillent octroyer et avoir este donnees et octroyees le temps 

accorder ... la somme de quarante- passe, par nos predecesseurs, ou nous, 

cinq mille florins pour l'ayde accoutu- a aucuns desdicts habitants, et sans 

mee, avec la somme de vingt-quatre prejudice diceux privileges et exemp- 

mille livres tournois forte monnaie . . . tions pour le temps a venir." 
et en cas qu'iceux gens decdicts Trois 2 Id., vol. xviii. p. 403 : " A ceste 

Estats seroient reffusans ou delayans cause advons advise, conclud et or- 

de nous octroyer pour ceste dicte annee donne, faire mestre sus, asseoir et im- 

les dictes deux sommes dessus declares, poser ladicte somme, en et par toutes 

nous voulons et vous mandons qu'en les elections de notre royaume, pour la 

leur refus ou delay vous les mectiez porcion de laquelle avons ordonne estre 

sus et imposies par la maniere devant mis sus et impose en votreditte election 

dicte . . . et non obstant oppositions (Perigord) la somme de treize cens 

et appellations quelconques . . . (et). livres tournois. . . . Et sans prejudice 

Contraigniez ou faictes contraindre de leurs privileiges pour le temps 

tous ceux sur lesquels lesdictes sommes a venir." 



200 FIFTEENTH CENTURY. [PART II. 

Estates came to deal with the financial business, the officers of 
the Crown attended and laid before them the actual condition 
of the finances of the country and the demands of the Crown. 
The Estates as Masselin reports in his ' Diarium ' were not 
satisfied that the statement of the revenue was correct, and 
it was proposed to grant the King the same amount as had 
been given to Charles VII., but only for two years, when the 
Estates were to meet again. 1 The Chancellor, as representing 
the Crown, was not satisfied, and while offering to reduce the 
amount of taxation, demanded 1,500,000 livres. 2 Masselin 
reports that a number of the Princes and Lords attempted to 
persuade them to submit to the demands of the Crown, and 
asserted dogmatically and in threatening terms that the King 
had the right to take his subjects' goods to meet the dangers 
and necessities of the Commonwealth, and that many thought 
that the amount demanded should be imposed and levied 
even if they were unwilling. 3 

The Estates finally decided to offer 1,200,000 livres for two 
years, and 300,000 for one year, for the expenses of the coro- 
nation, 4 but accompanied this with the following statement. 
They grant the King the same amount as had been levied in 
the time of Charles VII., but they do this as a gift, and 
" obtroy," not to be called " tailles," and they do this for 
two years only. They also grant the sum of 300,000 " livres " 
for one year, on his accession to the Crown. 5 They also 

1 Masselin, 'Diarium,' pp. 350- 6 Id. id., p. 449 : " Et pour subvenir 
360. aux grandes affairs dudit seigneur 

2 Id. id., p. 390. (Charles VIII.), tenir son royaume en 

3 Id. id., p. 420 : " Videmini pro- seurete, payer et soudoyer ses gens 
fecto conari, ut populuni etiam invi- d'armes et subvenir a ses autres affairs, 
turn, faciatis tenacem et avarum et les troys Estatz luy obtroyent, par 
inofficiosum principi. Quod si etiam maniere de don et octroy et non autre- 
eontra rationem dissentiret, certe non mont, et sans ce quon l'appelle dorese- 
ambigimus regem posse subditorum navant taillos, ains don et obtroy, telle 
bona capero, quatenus reipublicae et somblable somme que du temps du 
poriculis et necessitatibus provideat. . . . feu Roi Charles Septieme estait levee 
1'ostremo sciatis plerosque in oa fuisse et cueillie en son royaume, et ce pour 
sontentia, ut petitus denariorum nume- deux ans, prochainement venans, tant 
rus quindecies centorum millium vobis seulomont et non plus. . . . Item, et 
• ■iirim statuatur invitis, atque colli- par-dessus ce, lea ditz Estaz . . . luj 
gatur." accordent la somme de trois cent mille 

* Id. id., p. 428. livres tournois pour une fois tant 



CHAP, v.] TAXATION. 201 

petition the King that he should call together the States 
General within two years, for they do not contemplate (n'en- 
tendent point) that for the future any money should be raised 
without their being summoned and without their will and 
consent. They beg him to maintain the Liberties and privileges 
of the Kingdom and to abolish the novelties and grievances 
which had been introduced. 1 

It is clear that while some persons, representing the Court, 
made large statements about the power of the King to raise 
taxes at his pleasure, the States General were quite determined 
and firm in maintaining the principle that this was contrary 
to the tradition and custom of the Constitution, and it would 
appear from Masselin that the King promised to call together 
the States General within two years. 2 

We have then examined the evidence as to the constitutional 
usage of France with regard to taxation in the fifteenth cen- 
tury, but we must also take account of some very important 
statements of Comines in his ' Memoires.' 

In one place he sets out the general principle that if any 
king or lord were to impose any tax upon his subjects outside 
of his domain without their consent, his action would be 



seullement et sans consequence, et par car les ditz Estatz n'entendent point 

maniere de don et obtroy, pour son que doresnavant on mette sus aucune 

nouvel et joyeux advenement a la somme de deniers, sans les appeler, et 

couronne de France." que ce soit de leur vouloir et consen- 

(This, and what follows in the next tement, en gardant et observant les 

note, are given by the Editor in the libertez et privileges de ce royaume ; 

original French which Masselin trans- et que les nouvelletez, griefs et mau- 

lated into Latin.) vaises introductions qui, par c'y devant, 

1 Id. id., p. 451 : " Item et onsuivant puis certain temps en 9a, ont este faictes 

certain article, contenu ou cayer qui soieut repaireez ; et de ce supplient 

par les ditz Estatz a este leu et monstre tres humblement le roi nostre souverain 

au roi et a Messeigneurs du Conseil, seigneur." 

suplient et requierent les dits Estatz, (The article of the Cahier referred to 

que le bon plaisir du dit seigneur soit will be found on page 678 of the 

faire tenir et assembler lesditz Estaz ' Diarium.') 

dedens deux ans prochainement venans, 2 Id. id., p. 712: " Le roy est con- 
en lieu et temps qu'il lui plaira et que, tent que les Estatz se tienneut dedens 
de ceste heure, lesditz lieux et temps deux ans prochainement venant et les 
soient nommez, assignez et declairez ; mandera." 



202 FIFTEENTH CENTURY. [PART II. 

mere tyranny. 1 In another place lie says that neither the King 
of France nor any other Prince had the right to impose taxes 
on his subjects at his pleasure. Those who say that he could 
do this, do the King no honour, but rather make him to be 
feared and hated by his neighbours, who would not on any 
account become his subjects. If the King would recognise 
how loyal his subjects are, and how willing to give him what 
he asks, instead of saying that he would take whatever he 
wished, it would be greatly to his praise. Charles V. never said 
this and Comines had not heard any king say it ; he had 
heard their servants say it, but they only did this out of 
servility, and did not know what they were talking about. 2 

We shall return to Comines when we deal in the next 
chapter in more general terms with the position of represen- 
tative institutions in the fifteenth century. In the meanwhile 
it is obvious that his evidence about the principles of taxation 
is of great importance, especially in correcting the impression 
which such statements as those of Sir John Fortescue might 
produce. 

Comines does not indeed say that there had been no 
arbitrary taxation in France, but he confirms the judgment 

1 Philippe do Comines, ' Memoires,' si tres bons et si tres loyaux, qu'ils 

v. 19, p. 141: " Done pour continuer ne me refusent chose que je leur 

propos, yail roy ne seigneur sur terre saiche demander, et suis plus craiuct, 

qui ait povoir, oultre son domaine, de obey et servy, de mes subicts que nul 

mettre un denier eur ses subjectz ; autre prince qui vive sur la terre, et 

sans octroy et consentemont de ceulx qui plus patiemment endurent tous 

qui le doibvent payer, sinon par tyran- maux et toutes rudesses, et a qui moins 

nie ou viollence ? " ils souviengne de leur dommages 

* Id. id., v. 19, p. 142: " Notre roy passez ; ' il me semble que oela lui 

e6t le seigneur du mondo qui le moins seroit grand los (et dis la verite); 

a cause de user de ce mot : ' J'ay pri- non pas dire, ' Je prends ce que je 

vilege de lever sur mes subjectz ce que veulx, et en ay privilege ; il le me fault 

me plaist,' car no luy ne autre ne la : bion garder.' 

et ne luy font honneur ceux qui ainsi Le feu roi Charles Quint ne le 

le dient, pour le faire ostimes plus disoit pas ainsi, ne l'ay-je point ouy 

grand, mais lo font hair et craindro aux dire aux roys, mais l'ay bient ouy dire 

voisins, qui pour rien ne voudroient a do leurs serviteurs, a qu'il semblait 

est re soubz sa seigneurie ; et mesmes qu'ilz faisoient bien la besogue. Mais, 

aucuns du royaucme e'en passeroient solon mon advis, ils mesprenoientenvers 

bien, qui en tiennent. Mais si notre leur seigneur, et ne le disoiont que pour 

roy, ou ceux qui le veulent louer et faire les bons varlotz, et aussi qu'ilz ne 

agrandir, disaient ' J'ay des subjectz soavoieut ce qu'ils disoient." 



CHAP. V.J TAXATION. 203 

(which we should derive from the study of the " Ordon- 
nances ") that it is impossible to maintain that the King of 
France had any recognised and constitutional right to impose 
taxation at his discretion. That he frequently did so is clear, 
and the right to do so was from time to time asserted by some 
persons, but it is also clear that the right was emphatically 
and constantly denied, and that the King from time to time 
and in quite unequivocal terms recognised that taxation should 
not be imposed without the consent of the Provincial or General 
Estates. 

The evidence we have found in the proceedings of the Cortes 
of Castile with regard to the constitutional method of taxation 
during the fifteenth century, is curiously enough scanty, but 
what there is, is important. In the year 1411 we find a request 
made to the Cortes by the Guardians of the young King for 
the grant of a sum of money for the war against the Moors. 
The Cortes authorised the levy of the amount asked for, but 
they attached to the grant the condition that the Guardians 
should take an oath in the presence of the Cortes that the 
amount granted should be strictly appropriated to the ex- 
penses of the war, and to no other purpose. 1 

In 1420 the Cortes of Valladolid represented to the King 
that they were much disturbed by the fact that he was raising 
money without consulting the Cortes, and without their con- 
sent. The King replied that he would not levy such taxation 
till it had been authorised by the Cortes. 2 

1 ' Cortes of Castile and Leon,' vol. quelos pague el rregno este anno pre- 

iii. 2 (p. 5) (Valladolid, 1411): "Per lo sente en que estamos, para cunplir e 

qual nos demandastes que vos otor- continuar la dicha guerra . . . (p. 7). 

gamos, los tres estados del rregno, para Et este otorgamiento destos dichos 

cunplir e continuar, e sostener la dicha quarenta e ocho cuentos, sennores, vos 

guerra delos moros . . . quarenta e fazemos con condition que fagades 

cinco cuentos desta moneda usal . . . juramenta, en presencia de nos otros, 

(p. 6). A nos otros plaze todos de una que este dinero que vos otorgamos que 

concordia de vos otorgar, e otorgamos non lo tomaredes nin destribuyredes 

vos desde agora todo que nos copiere en otras costas nin otras cosas algunas, 

a pagar delos dichos quarenta e ocho saluo enla dicha guerra delos moros." 
cuentos desta moneda usal en Castiella. 2 Id., vol. iii. 4, 2 (Valladolid, 1420) : 

. . . Los quales dichos quarenta e ocho "E otrosy alo que me pidieron por 

cuentos vos otorgamos, sennores, para merced que mandase dar mi carta para 



204 



FIFTEENTH CENTURY. 



[PART II. 



There is also a very important and carefully drawn-out state- 
ment by the Cortes of Ocana in 1469. The Cortes expressed 
themselves as willing to contribute to the necessities of the 
King by a grant of money, but, as it appears, they were not 
satisfied with the financial administration, and they therefore 
proposed that the amount raised should be placed under the 
control of persons to be appointed by the Cortes, who should 
hold it for the King and should only expend it for the restora- 
tion of the royal patrimony and the Crown, and other pur- 
poses authorised by the Cortes. They also proposed that no 
payment should be made except under a writ signed by the 
King himself and at least two members of his Council, and 
certain persons to be appointed by the Cortes. They also 
proposed that the King should swear to maintain these pro- 
visions, and should request the Pope to excommunicate him 
if he did not do so. The King assented, except to the clause 
about the Pope. 1 



vos otros, en que fuese especificado 
todo el caso, que por mi mandado e 
en mi presencia el dicho Arcobispo de 
Toledo los avia dicho, e lo que cerca 
dello conduyeron, e certificando los, 
que por caso alguno que acaesciese, 
non mandario coger los tales pechos, 
sin primero ser otorgados : que de aqui 
adelanto quando algunos menesteres 
me viniesen, ami plazie de vos lo 
fazer saber primeramente antes que 
mandase echar nin derramar tales 
pechos." 

1 Id., vol. iii. 25, 10 (Ocana, 1469) : 
" Quales per nos otros fueren non- 
brados, para quo rresciban delos 
arrendadores e rrecaudadores e rrece- 
tores, todas las contias que montaren en 
los dichos pedidos e monedas, e lo 
tengan donde por vuestra alteza con 
acuerdo de nos otros fuere mandado, 
e les dipute salario rrazonable para 
ello, e que non acudan con cosa dello 
a persona alguna ni lo gasten, saluo 
enlo que fuere menester para las cosas 
concernientos ala rrostitucion de vues- 
tro patrimonio e rreformacion de vues- 



tra corona rreal, e enlas cosas conthe- 
nidas enel otorgamiento que per nos 
otros se hiziere delos dichos pedidos e 
monedas, e esto que se haga solamente 
por vuestras cartas o alualaes firmado 
de vuestro nonbre e firmado en las 
espaldas delos nonbros delos de vuestro 
consejo, que sean fulano y fulano y 
fulano y fulano, o alos menos los dos 
dellos, si los otros no estouieren en 
vuestra corte, e de algunos de nos otros 
quales nos otros deputaremos, e delos 
vuestros contadores mayores, que de 
otra guisa los dichos rrecaudadores, e 
arrendadores e rrecetores non sean 
thenudos de acudir ni acudan con 
dinero delos dichos pedidos e monedas, 
e quo vuestra alteza jure delo guardar 
e manthener asy e que non yra ni vegna 
contra ello, e que suplique a nuestro 
muy sancto Padre, que ponga sentencia 
de excommunion sobre vuestra rreal 
persona si lo contrario hiziere o man- 
dare e que desto nos mande luego 
dar eus cartas para quelos hagamos 
publicar." 



CHAP, v.] TAXATION. 205 

It would appear that, whatever may be the exact significance 
of some of these complicated provisions, the Cortes not only 
was the body which authorised the imposition of taxes, but 
that they considered themselves entitled to see that the 
amounts raised should be appropriated strictly to the purposes 
for which they granted them. We see no reason to doubt 
that the constitutional principles of the fourteenth century, 
which we have discussed in Part I. of this volume, were main- 
tained in the fifteenth. 1 

It is obviously unnecessary to discuss the question of 
taxation with regard to England in the fifteenth century, for 
there cannot be any doubt that it was recognised that Parlia- 
ment alone had in normal cases the right to levy taxation. 2 

1 Cf. Part I. p. 92. (ed. 1896), par. 370 and Index— Taxa- 

2 Cf. Stubbs, ' Const. Hist.,' vol. iii. tioa. 



206 



CHAPTER VI. 

REPRESENTATIVE INSTITUTIONS. 

We have in previous chapters dealt with the history of law, 
its source and authority, and with the theories of the nature 
and limitations of the authority of the Euler : we must now 
consider the development of the authority of the community 
as embodied in and finding expression in representative 
institutions. 

We venture to say that this is the proper method of ap- 
proaching the development of Parliamentary or quasi-Parlia- 
mentary forms. The phrases which are sometimes used, such 
as that of the " Sovereignty of the People," may be well meant, 
but are in our judgment somewhat misleading. The term 
" Sovereignty " itself has often been used so carelessly that 
it is better to avoid it, and the term " People " is almost 
equally ambiguous. It would be better to speak of the 
authority of the " Community," the " Kespublica " or " Uni- 
versitas," for these are more strictly the Mediaeval terms, and 
whatever ambiguity may belong to them, they have at least 
not become the catch-words of sometimes ill-considered con- 
troversy. 

We have seen that it is true to say that the normal Mediaeval 
conception, which was only reinforced by the revived study of 
the Eoman Jurisprudence, was that the community was the 
source of all political authority, which was indeed derived 
ultimately from God, but immediately from the community. 
The community was the source of law, and of the authority of 
the Euler, Emperor or King ; and it is also clear that, while 
the Prince was conceived of as having, subject to the law, 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 207 

a large discretion in the exercise of his authority, in fact the 
Mediaeval Prince normally acted with the counsel and advice 
of some body of councillors, the chief men of the Community, 
who were conceived of, however vaguely, as having some kind 
of representative character. 

There is nothing therefore to surprise the historian in the 
fact that this vaguely representative institution should have 
assumed a more precise and definite character in Spain in the 
twelfth century, in England and France and other countries 
in the thirteenth and fourteenth centuries. 

We endeavoured to trace very briefly the development of 
representative institutions in the twelfth and thirteenth cen- 
turies in our last volume, and in the first part of this volume 
we have set out something of their development in the 
fourteenth century. We must now consider this in the fifteenth, 
and especially in Spain and France. 

It is important to observe that while the Cortes of Castile 
and Leon did not meet every year, they met very frequently. 
It is not going too far to say that the Cortes in the fifteenth 
century continued to be, as in the fourteenth century, a 
normal part of the system of government. 

It is also evident that the Cortes were clearly conscious 
of their representative character, and greatly concerned 
to maintain this. We find them repeatedly throughout the 
century protesting against any interference by the King 
with the election of representatives. In 1441 they demanded 
that the King, when he issued his summons to the cities and 
estates to send their Procurators to the Cortes, should not 
no min ate any particular persons ; for the cities should elect 
freely according to use and custom. The King replied that he 
would not nominate any persons to be sent as procurators. 1 

1 ' Cortes of Castile and Leon,' vol. iii. nonbrar que enbien personas ciertas, 

9, 9 (Palencia, 1431) : " Otrosi supli- saluo aquellas quelas dichas cibdades 

camos ala vuestra alteza que cada e e villas entendieren que cunple auestro 

quando le plonguiere mandar avuestras seruicio e bien publico delos pueblos ; 

^ibdades e villas que enbien sus pro- por que libre mente los puedan escoger 

curadores ante vuestra merced, quela entre si, segund lo ban de uso e de 

vuestra sennoria non quiera mandar costumbre ; pero que non sean delos 



208 



FIFTEENTH CENTURY. 



[PAET II. 



In 1442 the Cortes of Valladolid renewed this demand even 
more emphatically, and added the very important claim that 
in the case of a disputed election the Cortes itself should con- 
sider and decide the question, and not the King or any other 
" justicia." The King again assented to their demand that he 
should not nominate any person for election, but his answer 
to the second point was, as we understand it, that in case of 
a disputed election they should ask his permission before 
determining upon it. 1 In 1447 the Cortes again protested 
against the interference of the King, but on this occasion, 
though accepting the general principle, the King reserved his 
right to take such action on his own initiative, if he thought 
it desirable. 2 In 1462 again the Cortes at Toledo demanded 



iabradores nin sesmeros nin del estado 
delos pecheros, por que mejor sea 
guardado el estado e onrra delos quelos 
enbian, e se puedan mejor conformar 
con los otros procuradores quando 
ovieren de tractar en sus ayuntami- 
entos. 

A esto vos rrespondo que yo non 
vos envie mandar que enbiasedes per- 
sonas ciertas por procuradores." 

1 Id., vol. iii. 16, 12 (Valladolid, 
1442): " Otrosi muy esclarecido rrey 
e sennor, por quanto la esperiencia ha 
mostrado los grandes dannos e incon- 
venientes que vienen enlos cibdades e 
villas quando vuestra sennoria enbia 
llamar procuradores, sobre la eleceion 
dellos, lo qual viene por vuestra senoria 
se entremoter a rrogar e mandar que 
enbien personas sennaladas, e asy 
mesmo la sennora Reyna vuestra 
Muger e el Principe vuestro fijo e otros 
sennores; supplicamos auostra sennoria 
que non se quiera entremoter enlos tales 
rruegos e mandamiontos, nin d6 logar 
que por la dicha sennora Reyna o 
Principe, nin por otros sennores sean 
f echos ; e ordenar e mandar que sy 
algunos llevaren tales cartas, que por 
el mesmo fecho pierdan los oficios que 
touioren enlas dichas cibdades et villas, 
e sea privado para sienpro de ser pro- 



curador ; por quelas dichas cibdades 
enbien libre mente sus procuradores, 
e sy caso sera que algunos procuradores 
vengan en discordia, que el conos§i- 
miento della, sea delos procuradores e 
non de vuestra sennoria nin de otra 
justicia. 

A esto vos respondo que dezides bien, 
e mando que se faga e guarda asy ; 
pero que el conoscimiento del tal 
quando la procuracion viniere en dis- 
cordia, que quede ami mercet para lo 
mandar ver e determinar." 

Cf. iii. 21, 9. 

2 Id., iii. 19, 60 (Valladolid, 1447) : 
" Otrosi muy poderoso sennor, algunos 
con importunidad ganan cartas de 
vuestra sennoria delos que estan 
cerca dello para que quando vuestra 
sennoria llama a Cortes e manda quele 
enbien procuradores, que enbien a ellas, 
lo qual no es vuestro servicio e dello se 
podrian seguir algunos inconvenientes ; 
supplicamos a vuestra sennoria que 
prouoa on ello, mandando quelas cartas 
non se den, e sy se dieren que sean 
obedecidas, mas non complidas. 

A esto vos respondo que asi lo he 
guardado o ontiendo mandar guardar 
segund quo melo suplicastes e pedistes 
por morced, saluo quando yo, non a 
peticion de persones alguna mas de mi 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 209 

that the King, Henry IV., should not interfere in the elections, 
and that any person who produced royal Briefs for his elec- 
tion in any city, should be perpetually disqualified for holding 
any office or " procuragion " in that city. The King replied 
that this was already provided for by the laws, specially those 
of Juan II. 1 

This jealous insistence on the freedom of the elections by the 
Cortes is of great significance, as we have said, in showing 
that they were much concerned to vindicate their representative 
character, and the fact that the Crown was evidently from 
time to time attempting to control the elections, is significant 
of the continuing importance of the Cortes. 

We have in an earlier chapter considered the functions and 
authority of the Cortes with reference to legislation, and in 
the last chapter we have dealt with their authority in taxation, 
but it must be carefully observed that the Cortes did not con- 
ceive of their function and authority as limited to finance 
and legislation, but claimed that they should be consulted 
on all the more important affairs of the Commonwealth. 

There is an excellent illustration of this in the early part 
of the century. The Cortes in 1419 represented to the King, 
Juan II., that when his predecessors ordained anything new 
or of general importance for the kingdom, they were accustomed 
to call together the Cortes and to act with their advice, and 
not otherwise ; they complained that this had not been done 
since his accession, and that this was contrary to custom and 
law and reason ; and they therefore petitioned him that he 
should do this in the future. The King replied that he had 
always done this in important matters, and that he intended 
to do it in the future. 2 

In 1469 we have a statement by the Cortes as emphatic as 
that of 1419. They protested to Henry IV. against an alliance 
with England instead of with France, and represented them- 
selves as aggrieved for several reasons, of which the first is 
important from our present point of view. They maintained 

proprio motu, entendiendo ser asy * Id., iii. 23, 37 (Toledo, 1462). 

complidero a mi servigio, otra cosa me ' Id., iii. 3, 19 (Madrid, 1419). 

ploguiere de mandar e disponer." 

VOL. VI. 



210 FIFTEENTH CENTURY. [pakt II. 

that according to the laws of the kingdom, when the kings had 
to deal with any matter of great importance, they ought not 
to do this without the counsel of the principal cities and 
" villas " of the kingdom, and they complained that the King 
had not observed this, but had acted without the knowledge 
of the greater part of the grandees, and of the cities and 
" villas." It is true that the answer of the King was, as 
it seems to us, evasive ; he only promised to consider their 
petition with his Council, and to take such action upon it as 
might seem best ; but this dogmatic statement of the Cortes 
of their claim to be consulted on all important matters, and 
their assertion that this was in accordance with the laws, 
remains very important. 1 

We /turn to the character of the representative system in 
Francjb in the fifteenth century, but we must again notice that 
in considering this we must remember not only the States 
General, but also the Estates of the great Provinces. If we 
could take account of them we should recognise more clearly 
the importance of the representative system in France, for 
though the meetings of the States General in the fifteenth 
century were important, the meetings of the Provincial 
Estates were, as we should judge, much more frequent. 

What were the matters with which they were concerned % 
We have already dealt with some of these, especially legislation 
and taxation, but we must observe that, besides these, they 
were concerned with all the important affairs of the kingdom. 

In the first part of this volume we have pointed out that 
the attitude of France to the great Schism in the Papacy was 
determined in some kind of great council of the kingdom. 

1 Id., iii. 25, 29 (Ocana, 1469) : "La grandes de vuestros rregnos, ni las 

primera, porque segund leyes di vuestros principales cibdades e villas dellos. . . . 

rregnos, quando los rroyos han de hazer A esto vos rrespondo que yo ontiendo 

alguna cosa de gran importancia, no lo deliberar sobre lo contonido en uestra 

deuen hazor sin consejo e sabiduria potieione platicaresto enel mi consejo © 

delos cibdades o villas principales de hazer sobrollo lo quo so hallare que e3 

vuestros rreynos ; lo qual en esto no mas complidero a sorvizio de Dios e al 

guardo vuestra altezu, hablando nos pro e bien commun de mis rregnos e 

otros con humill roverencia, ca nunca sennorios." 
cosa desto supieron la mayor parte delos 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 211 

It does not seem that we can call the Assembly, at which in 
1408 it was determined that France should be neutral as 
between the rival claimants to the Papacy, a meeting of the 
States General, but it had at least something of the character 
of a National Assembly. The King speaks of the decision as 
being made after great and mature deliberation with the 
Princes of the Blood, the great Council and others, both 
clerical and lay. 1 

We are on clearer ground when we observe that the Assembly 
summoned to meet in Paris in 1413 in the name of Charles VI., 
was composed of the Princes, Prelates, representatives of the 
University, and those of the good towns. The business of this 
Assembly was to deliberate on the great affairs of the kingdom, 
and especially on the reform of the Royal officials. 2 

In the Treaty of Troyes by which in 1420 Charles VI. gave 
the actual administration, and the future succession to the 
French Crown to Henry V. of England, it was specially pro- 
vided that the Treaty was to be confirmed by the oaths not 
only of the great Lords, but also by those of the Estates of 
the kingdom, spiritual and temporal, and the cities and 
communities of the kingdom. 3 In another clause of the Treaty 
it was provided that Henry was to endeavour to secure that, 
by the advice and consent of the three Estates of the two king- 
doms, the union of the crowns of England and France in one 
person should be perpetual. 4 It was no doubt in accordance 
with these provisions of the Treaty that the Three Estates were 
called together in Paris in December of the same year. We 
have unfortunately only an incomplete account of the pro- 

1 ' Ordonnances,' vol. ix. p. 342. " II est accorde que notre dit filz 

2 ' Recueil,' vol. vii. 5, 39. Cf. labourera par effect de son pouvoir, que 
Monstrelet, ' Chronique,' vol. ii. p. 307. de l'adviz et consentement des Troia 

3 ' Recueil,' vol. viii. 695, 13, p. 636. Estas desdiz royaumes, ostez les 
" II est accorde que les grands seigneurs, obstacles en ceste partie, soit ordonue 
barons et nobles, et les Estats dudit et pourveu que du temps que notre dit 
royaume, tant 6pirituel que temporelz, filz sera venu a la couronne de France, 
et aussi les citez et notables communitez, ou aucun de ses hoirs, les deux couronnes 
les citoyenset bourgeois dudit royaume, de France et d'Angleterre a toujours 
a nous obeissans pour le temps, feront mais perpetuelment, demourront en- 
les seremens qui s'ensuivent." semble, et seront en une mesme per- 

4 Id., vol. viii. 695, 24, p. 369 : sonne." 



212 FIFTEENTH CENTURY. [PAUT II. 

ceedings in Juvenal des Ursins' ' Histoire de Charles VI,' 1 
but if we could trust a document printed by Eymer in the 
' Foedera,' whose source is unknown, we have an important 
statement of the composition and proceedings of the Estates. 
They are described as composed of the Bishops and Clergy, 
the " Proceres," nobles, citizens, and burgesses. After the 
Chancellor had read the Treaty to them, and the King had 
declared that he had sworn to observe it, the Estates were 
adjourned for a few days, and on their reassembling they 
reported that they approved, accepted and authorised the 
Treaty and all its provisions. 2 

To return to the legitimate government of France, we have 
a reference to a meeting of the States General at Chinon, in a 
letter of 1426. 3 We have already dealt with the very impor- 
tant meeting of the States General at Orleans in November 
1439, and we need only point out again that it was with the 
advice of the Estates that Charles VII. created the new 
military organisation of France. 4 

In April 1468, Louis XI. called together the States General 
to deal with a great constitutional question ; that was — the 
demand of his brother Charles that the Duchy of Normandy 
should be separated from the Crown of France, and held by 
himself. The Three Estates agreed that it could not be thus 
separated, but must remain inseparably united and joined 
to the Crown. 5 It is also significant of the constitutional 
authority of the States General that on the same occasion, in 
view of the attacks made by the Duke of Brittany in Normandy, 

1 Juvenal des Ursins, ' Histoire de trusted is uncertain. It is possible 

Charles VI.,' ed. Paris, 1653, p. 384. i hat it represents an attempt in 

8 Rymer, ' Foedera,' vol. x. p. 30 : England to give the Treaty of Troyes 

" Responderunt quod, quantum ad a legal and constitutional character.) 

Pacem predictam, Ip.=i eandem Pacom 3 ' Ordonnances,' vol. xiii. p. 140. 

censentes et reputantes laudabilcm, * Cf. pp. 138, 194. 

nocessariam et utilemut risque Regniset 5 ' Recueil,' vol. x. 114 (3), p. 553: 

Bubditi6 eorundem, ymo et toti christi- " Que en t ant qu'il touche ladicto duche 

anitati, ipsam Pacem ac omnia et di Normandie, elle ne doit et ne peut 

singula in eadem contents, quantum etro separo6 do la couronne en quelquo 

in eis erat et velud ipsi tres Status dicti maniere que ce soit, mais y est et doit 

Regni, approbarunt, laudarunt, accep- etre et demeurer unie, annoxee et con- 

tarunt et auctorisarunt." jointe inseparablement ." 

(How far this document can be 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 213 

they gave the King authority to take such action as should be 
necessary to maintain the statutes and ordinances of the 
kingdom without waiting to call together the Estates. 1 

It is, we think, evident that the States General in France 
were conceived of, not merely as a body which should sanction 
taxation, important though this was, but as, in some sense and 
degree, representing the whole community of the nation, whose 
approval and support it was desirable that the King should 
obtain in matters of great political importance. It is only 
with this in our mind that we can understand the constitutional 
attitude of the great States General of Tours which met in 
January 1484, on the accession of Charles VIII. 

We have already dealt with some important questions which 
arose in the course of their meetings, and here, therefore, we 
only deal with some other of the most important of these. When 
the States General met, they conceived their function as being 
primarily to consider the abuses which had grown up during 
the last reigns, and secondly to consider and provide for the 
government of the country during the minority of the King. 

The first they proceeded to deal with by arranging the 
Estates in six divisions, representing the six groups of provinces ; 
each of these divisions was to prepare a statement of grievances 
and remedies. They then created a commission of six 
members of each division to prepare a general statement on 
this basis. We are not here concerned with the details of these 
statements, but it is important to observe that they covered 
almost the whole range of the govermnent of the country, not 
only in matters of finance, but also of the administration of 
justice. 2 

The question of the Council of Eegency was the subject of 
protracted discussion. It is evident from Masselin's account 
that there was much difference of opinion among the members 

1 Id. id. id. (9), p. 558 : " Et des poureeque ais6ment ils ne se peuvent 

maintenant pour lors, et des-lors pour pas assembler, y puisse proceder a 

maintenant, toutes les fois que les- faire tout ce que ordre de droit et de 

dits cas echerroient, iceux des Etatz out justice, et les statuts et ordonnances du 

accorde et consent!, accordent et con- royaume le portent." 
sentent que le roi, sans attendre autre 2 Masselin, ' Diarium,' pp. 66, 74, 

assemblee ne congregation des Etats, 76. 



214 FIFTEENTH CENTURY. [PABT II. 

of the States General, some maintaining that it was for them 
to appoint the Council, for the care of the State had now (in 
the King's minority) come to them, while others maintained 
that the appointment of the Council belonged to the Princes 
of the Blood. 1 The final result seems to have been that the 
Estates did not maintain the right to appoint the Council of 
Eegency, but they requested the King and his Council to add 
to it twelve persons, to be chosen from the six divisions of the 
Estates. 2 

It is no doubt probably true that behind the controversy 
in the Estates about the composition of the Council of Eegency, 
we can see the influence of different factions among the Princes 
and great nobles, but we are not attempting to write the history 
of the times. 

We turn again to Commines and to his attitude to the 
States General. His opinions have a special value, not only 
because he was a man of great experience in political and 
diplomatic affairs, but because he was a great servant of the 
French Crown, and cannot be suspected of any desire to de- 
preciate its authority. We have in the last chapter cited his 
important statements about taxation, but these are only 
incidental to his treatment of the importance of reasonable 
relations between the King and his subjects. It is not only 
with reference to taxation that he thinks that the King should 
act with the consent of his subjects. After the general con- 
demnation of the attempts of kings to impose taxes upon their 
subjects without their consent, as being mere tyranny, 
which we have cited, he continues, that even in the case of 
war it was much wiser for kings to act after consulting the 
assemblies of their people, and with their consent, and that this 
would greatly increase the King's power. 3 Commines is 

1 Id. id., p. 138. l'ontrepreudro. Xe so fault point 

1 Id. id., p. 702, 3. haster, et on a assez temps : et si vous 

3 Comminos, ' Memoircs,' v. 19, p. dis que los Roys et Princes en sont trop 

141 : " On pourroit respondre qu'il y a plus fors, quand ilz entrepreDneut du 

do saisons qu'il ne faut pas attendre conseil do lours sujectz, et en sont plus 

l'assemblee, et quo la chose soroit trop crainctz de leurs ennemis." 
longuo, a commoncer la guerre et a 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 215 

obviously referring to the Estates when he speaks of the 
assembly, and a little later on he speaks of them with 
special reference to the States General of Tours in 1484. He 
describes contemptuously certain persons who spoke of this 
assembly as dangerous, and denounced it as being treason 
(leze majeste) to speak of calling together the Estates, and 
argued that this would diminish the authority of the King ; 
such persons, he says, were really guilty of a crime against 
God and the King ; they were men who held some undeserved 
authority, and talked thus foolishly, because they were afraid 
of the great assemblies, and feared that they would be known 
for what they were, and be censured. 1 It is clear that Corn- 
mines looked upon the States General, that is, the meeting of 
the representatives of the community, and its consultation by 
the King, as being a useful and normal part of the organi- 
sation of a political society, necessary for taxation, and 
desirable for the effectiveness of public action. 

We do not need to discuss in detail the character of the 
representative Assembly of the Empire, for it is clear that the 
Emperor was the head of a political body which was tending 
to become a federal system rather than a unified monarchy, 
and that the final authority in this system belonged rather to 
the Diet than to the Emperor. 

It is, however, important to observe the terms in which the 
Diet is described by Nicolas of Cusa. The Council of the 
Empire, he says, consists of the Emperor, the principal Rulers 

1 Id. id., p. 143 : " Et pour parler que c'est pour diminuer l'auetorite du 

de l'experience de la bonte des Francais, roi : et sont ceulx qui commettent ce 

ne faut alleguer pour nostre temps que crime envers Dieu et le Roy, et la chose 

les Trois Estats terms a Tours, apres le publique ; mais servoient ces paroles, et 

decez de notre bon maistre le Roy servent a ceulx qui sont en auctorite 

Louis XI. (a qui Dieu fasse pardon) qui et credit, sans en riens l'avoir merit6, et 

fut l'an mi], quatre cents, quatrevingts qui ne sont points propices d'y etre, et 

et trois. n'ont accoustume que de fleureter en 

L'on povait estimer lors que ceste l'oreille, et parler do choses de peu de 

assemblee estoit dangereux, et disoient valleur ; et craigneut les grandes 

quelques ungz de petite condition et de assemblees, de paour qu'ils ne soieut 

petite vertu, et ont dit plusieurs fois congneuz, ou que leurs cauvres ne soient 

depuis, que c'est crime de Leze Majeste, blasmees." 
qui de parler d'assembler Estatz, et 



216 FIFTEENTH CENTURY. [part II. 

of the various provinces as representing these, and the heads 
of the great communities (Universitates) ; and, he adds signifi- 
cantly, when these are met in one representative body, the 
whole Empire is gathered together. 1 

We may put beside this the terms in which at the Diet of 
Worms in 1495, a new Court of the Empire, the " Eeichs 
Kammergericht," was established. Its creation was a part of 
the attempt made in the last years of the fifteenth century 
to reorganise the constitution of the Empire. The creation of 
this new Court is represented as being related to an attempt 
to establish a " Common Peace " for the whole Empire, and 
it was with the consent of the Electors, Princes, Counts, 
Nobles, and Estates that the Peace and the Court were 
established. 2 And it was with the counsel and will of the Diet 
that the Emperor was to appoint the judges of the Court. 3 

We do not discuss the development of the representative 
system in the fifteenth century in England, for this has been 
done by the great historians, but it is worth while to put beside 

1 Nicolas of Cusa, ' De Concordant ia heylig Reich und Teutsche Nacion eyn 

Catholica,' iii. 25 : " Scimus impera- gemainen Fried furgenommen, aufger- 

torem caput et primum omnium, apud ichtet und gemacht." (p. 6) " Ordnung 

quem est imperialis iussio, de congre- des kayserlichen Cammergerichts zu 

gandis subditis, regibus et principibus, Worms. . . . Wir haben aus beweg- 

si vero qui ut membra ad ipsun caput lichen Ursachen, einen gemeinen Landt- 

concurrere habent ; in hoc universali Frieden, durch den heylig Romisch 

concilio sunt principales praesides Reich und teutsche Nacion, aufgericht, 

provinciarum, suas provincias repre- und zuhalten gepoten, und nachdem 

eentantes, ac etiam univorsitatum der solb on rodlich, erber und furderlich 

magnarum rectores et magistri, et ill! Recht schwerlich in Wcsen besteen 

qui e senatorio gradu, qui sacer conven- mocht, darumb auch Germanien Niitz 

tus appelatur, exist unt. . . . Et dum zu Fiirderung und Nothurfften euer 

simul conveniunt in uno compendio aller, unser und des Heyligen Roychs 

representative, totum imperium collec- Cammergerichts mit zeitigem Rath 

turn est." Euer der Churfursten Fiirsten und 

a " Neue Sammlung," 'Senckenburg Gemainen Besammlung, auff unserem 

und Schmaus,' vol. ii. p. 21 ; Reichs- und des Roychs Tage, hie zu Worms, 

abschied, Worms, 1495: "Darumb aufzuriehton und zu halten, furgenom- 

mit eynmiitigen, zeytigen Rate der men in Form und Massen als hernach 

Erwerdigen und Hochgeporenen . . . volget." 

Curfurntcn und Fiirston, Ueysstlichon ' Id. id. : " Die Richter und Urtheiler 

und Weltligen audi Prelaten, Grafen, die all wir mit Rath und Willen der 

Herron und Stende, haben Wir durch Sammllung yetz hie kiesen werden." 



CHAP. VI.] REPRESENTATIVE INSTITUTIONS. 217 

Nicolas of Cusa and Commines, some of those passages which 
we have already cited in which Sir John Fortescue describes 
this, and also some observations on what he understood to 
have been its history in France. 

He deals with it first in his treatise on the Law of Nature, 
where he treats the English constitutional system as embodying 
the " dominium politicum et regale," for no laws can be made, 
nor taxes imposed without the consent of the Three Estates 
of the Kingdom, while on the other hand the subjects could 
not make laws without the authority of the King. 1 He deals 
with it again in the treatise, 'De Laudibus Legis Angliae,' 
where he points out that the laws of England do not proceed 
from the mere will of the King, for laws which are made by the 
Prince alone might often be directed to his private advantage 
and turn to the injury of his subjects, while the laws of England 
are made by the wisdom and prudence of more than three 
hundred elected men, that is by the assent of the whole 
kingdom, and for the good of the people. 2 

In his ' Government of England ' Fortescue contrasts the 
unhappy condition of the French people under a " Dominium 
Eegale " with that of the English under a " Dominium Politi- 
cum et Eegale," as he had done in his ' De Laudibus Legis 
Anghae,' but he also says that though the French King now 
reigned " Dominio Begali," this had not always been so, for 
neither St Louis nor his ancestors imposed taxes on the people 
without the assent of the Three Estates, which were like the 
Parliament in England, and this had continued till the time 
of the wars of England against France. 3 

We have, we think, said enough to justify our own conclusion 
that that representative system whose beginnings in the 

x Fortescue, ' De Natura Legis id est plurium dispensatione regulatum 

Naturae,' i. 16 : " Sed et tertium esse dici possit, verum etiam et regale 

dominium, non minus his dignitate et dominium nominari mereatur, cum nee 

laude, quod politicum et regale nomi- ipsi subditi, 6ine regia auctoritate leges 

natur. ... In regno namque Angliae condere valeant." 

reges sine trium statuum regni illius 2 Id., ' De Laudibus Legum Angliae,' 

consensu leges non condunt, nee sub- xviii. 

Bidia imponunt subditis suis. ... 3 Id., ' Governance of England," iii. 

Numquid tunc hoc dominium politicum, Cf. p. 175. 



218 FIFTEENTH CENTURY. [PAHT II. 

twelfth and thirteenth centuries we have traced in the last 
volume, and whose continued importance in the fourteenth 
century we have illustrated in the first part of this volume, 
continued to be a normal part of the political civilisation of 
Western Europe in the fifteenth century. As we have often 
said, we are not writing a constitutional history of Europe, and 
we are only concerned with the representative system as illus- 
trating the conception that political authority was understood 
to be the authority of the community, primarily indeed 
through the law which was the expression and the form of 
its life, but secondarily and in these later centuries especially, 
as embodied in the Assemblies, Estates, or Parliaments which 
were accepted as representing the whole community. 

We have examined the political and legal literature of the 
fifteenth century, and we have compared it with the constitu- 
tional practice especially of Spain and France, and we think 
that it is clear that there is little trace of the development of 
any political conceptions which were different from those of 
the fourteenth century, or of the Middle Ages. It seems to 
us evident that the political thought of the time was still 
dominated by the conception of the supremacy of law and 
custom, that is, if we use the rather unhappy terms of some 
moderns, it was not the Prince, but the Law, which was con- 
ceived of as sovereign. 

The Prince was indeed thought of as august, and was treated 
with profound deference and respect, but he was not absolute, 
and his authority was derived from the community. His 
authority was limited and even terminable if he violated the 
laws and liberties of the community. 

It is true that when we turn from the general political 
literature to the Civilians we find that they generally repre- 
sented another mode of thought, and we have come across 
a few statements of the theory of " Divine Eight," in the 
fourteenth and fifteenth centuries, but there is very little 
evidence that these absolutist theories had any appreciable 
influence on the general character of the political ideas of the 
fifteenth century. 



PART III, 

THE EARLIER SIXTEENTH CENTURY. 



CHAPTER I. 

THE THEORY OF A LIMITED MONARCHY. 

We have so far considered the character of the political 
theory of the fourteenth and fifteenth centuries, and its 
relation to the actual constitutional conditions of some of 
the greater European countries. We have now to examine 
the question how far, and in what respects, we can trace 
the appearance and development of any new and important 
political conceptions in the sixteenth century. We have 
to consider how far the great political and religious movements 
of the century, or that great but indefinable movement 
which we call the Eenaissance, may have brought with them 
new conceptions of the nature and principles of political 
society and authority. If, however, we are to approach the 
subject seriously, we must begin by putting aside all pre- 
conceptions and must not allow our judgment to be swayed 
by any traditional notions, or assume that those great move- 
ments were or were not important in the development of 
political ideas or principles. 

We have a work of the early years of the sixteenth century 
which is of the highest importance both as representing 
the experience of the past and as anticipating future develop- 
ments. This is the work entitled ' La Grant Monarchic de 



220 THE EARLIER SIXTEENTH CENTURY. [PART III. 

France,' which was written in the first quarter of the century 
by Claude de Seyssel, the Archbishop of Turin, who, though 
a noble of Savoy, had been for many years, from 1497 to 
1517, in the service of the French Crown, under Louis XII. 
It is the work, therefore, of a man who had a large practical 
political experience, and though it may be described as a work 
of political theory, it is rather of the nature of the recorded 
observations of a practical statesman on what he had seen. 

This is indeed a remarkable work, both for its shrewd and 
penetrating observation of the actual character of the political 
system, and for the sharp contrast it presents to the work 
of another important French writer, of the latter part of the 
century, that is the ' De la E6publique ' of Jean Bodin, first 
published in 1576. We shall have much to say about this 
in a later chapter, but we may at once contrast Bodin' s 
dogmatic and abstract conception of the nature of the political 
authority, which he calls " Majestas," which we should call 
Sovereignty, with the cautious and tentative conception of 
de Seyssel, that in the actual fact of human experience, 
political authority is conditioned and limited by forces, some- 
times intangible, but none the less real. 

At the outset of the work de Seyssel says that the French 
monarchy was the best of all monarchies, because it was 
neither completely absolute, nor too much restrained ; it was 
regulated and restrained by good laws, ordinances, and cus- 
toms which were so firmly established that they could scarcely 
be broken. The absolute power of the kings of France was 
regulated by three restraints (f reins), Keligion, Justice, and 
what de Seyssel calls " la police." x In a later passage he 
says that it is by these " freins " that the absolute power of 
the monarch, which is called tyrannical when it is exercised 

1 Do Seyssel, ' Grant Monarchic de adnichiler, iacoit que, en quelque 

France,' i. 8 : " Et neantmoings tomps et en quelque endroict, il y 

demeure toujours la dignity et authorito adviegne quelque infraction et violence, 

royale en son entier, non pas totale- Et pour parler desdicts freins par 

ment absolue, ne aussy restraincto lesquels la puissance absolue des rois 

par tropt : mais reglee et refrenoe par de France est reglee, jen trouve trois 

bonnes lois, ordonnances et coustumes, principaulx. Le premier est la religion, 

lesquelles sont establies de telle sorte le second la justice, et le tiers, la police." 
que a peine se peuvent rompre et 



CHAP. I.,] THE THEORY OF A LIMITED MONARCHY. 221 

against reason, is reduced to " civilite," and if he sets aside 
these limits, and follows his uncontrolled will, he is held to be 
an evil tyrant, cruel and intolerable, and earns the hatred 
of God and of his subjects. 1 

We must consider these " freins " a little more closely. 
About Beligion he does not say much which is of importance 
for our present subject except that the people would hate the 
king if he were notoriously irreligious, and would hardly obey 
him. 2 Of the second, " la justice," he has much to say which 
is of the greatest importance. This, he says, was more highly 
developed in France than in any other part of the world, 
under the form of the " Parlemens " which had been created 
chiefly for the purpose of restraining the absolute power 
which the king might desire to exercise. In respect of dis- 
tributive justice the kings had always been subject to this, 
so that in civil matters every man could obtain justice against 
them, just as much as against other subjects, and the king's 
letters and rescripts are subject to the judgment of the 
" Parlemens." In regard to criminal matters the kings' 
" graces et remissions " are subject to such discussion in these 
courts, that few would venture to do evil in hope of them. 3 

1 Id., ii. 6 : " Et premierement dont vouldroyent user les rois. Et si 
touchant les troys freins dont jay furent des le commencement establis 
parlee dessus par lesquels la puissance de si grans personages en tel nombre 
absolue du prince et monarque, laquelle et avec telle puissance et pouvoir quo 
est appelee tyrannique, quant Ton les rois y ont, quant a la justice dis- 
en use contre raison, est refrenee et tributive, toujours este subjectz ; telle- 
reduite a civility. . . . Et par le ment que Ion a justice et raison a 
contraire, des qu'il se desnoye desdits Pencontre deulx, aussi bien que a 
troys limites et veult user de volonte l'encontre des subjects es matieres 
desordonnee, il est tenu et repute civiles. Et entre les parties privees 
mauvais tyrant et cruel et intollerable, leur auctorite ne peut prejudicier au 
dont il acquiert la hayne de Dieu et droit daultruy. Ains sont leurs lettres 
de ses subjects." et rescriptes subjects au jugement 

2 Id., i. 9. desdits parlemens en tel cas : non pas 

3 Id., i. 10 : " Le second frein est touchant obreption et subreption seulle- 
la justice, laquelle sans point de dim- ment, comme ceulx des aultres pro- 
culte est plus autorisee en France que vinces selon les lois Romaines, mais 
en nul autre part du monde que Ion touchant la civilite et incivilite. Et 
sache, mesmemeut a cause des parle- quant aulx matieres criminelles leurs 
mens qui ont este instituez princi- graces et remissions y sont tellement 
pallement pour ceste cause et a ceste debattues et ceulx qui le« obtiegneut 
fin, de refrener la puissance absolue mis a telle discussion que peu se 



222 THE EARLIER SIXTEENTH CENTURY. [PAKT III. 

And then, lest it should be imagined that judges are after 
all under the king's control, he adds that their office was not 
temporary but perpetual, and that the king could not remove 
them " sinon par forfaiture," and that judgment upon 
them belonged to the courts themselves. And thus, the 
judges, knowing that they could not be removed, except 
for a definite fault, can give themselves with more confidence 
to the administration of justice, or are inexcusable if they 
do not do so. 1 The significance of this will be obvious to all 
who remember the importance of the principle of the medieval 
constitutional system of the supremacy of the law and the 
courts over the prince. 2 

We must turn to de Seyssel's treatment of the third " frein " 
upon the royal authority in Prance, that is, " la police." 
It is difficult to define in precise terms what he means by 
this, but it would appear that he uses it to describe the system 
and order of the State (probably as equivalent to " Politia "). 
He describes, as belonging to it, first the laws and ordinances 
which had been made by the kings themselves, and confirmed 
from time to time, and which tend to the preservation of the 
kingdom. These had been observed for so long a time that 
the princes do not attempt to " derogate " from them ; if 
they did, they would not be obeyed. 3 He returns to the subject 

trouvent de gens qui soubs osperance sachant non pouvoir estre deposees 

ne confiance de cela, osent faire chose sils ne meffont, plus asseurement 

mal faicte et sur tous cas execrable." saquittent a l'exercice de la justice ; 

1 Id. id. : '" Et dautant est icclle ou sils ne le font sont inexcusablcs. 

justice plus autorisco que les offieiers Et voritablement cestuy frein et 

deputes pour la faire et administrer, retonail et moult grant et louablo en 

sont perpotuels, et nest on la puissance France plus que en nul autre pays 

des roys les deposer, sinon par comme diet est." 

forfaiture, dont la cognoissanco est 2 Cf. esp. vol. iii., part i., chap. 4. 

reservee quant mix suppos des cours 3 Id., i. 6 : " Le tiers frein est 

souveraines a icelles commis en premiere celui de la police. C'est a scavoir de 

instance, et quant aulx autres inferiours plusieurs ordonnances qui ont este 

parappel. Et si par volunte desordonnee faictes par los rois mesmes, et apres 

aucun a estoe quelquo foys prive et confermees et aprouvees do temps en 

deboute sans garder lo dit ordre, temps, lesquelles tondent a la con- 

ceulx qui en ont este cause, ou ont servation du royaume en universel et 

prins et occupe lour lieu, on ont apres particulior. Et si ont este gardoes 

rondu compte et reliqua. Dont il pour tel et si long temps, que les 

advient que iceulx jugos ot offieiers princes nentrepreignent point dy 



CHAP. I.] THE THEORY OP A LIMITED MONARCHY. 223 

in a later chapter, when he says that the king knows that 
it is by means of the laws, ordinances, and laudable cus- 
toms of France concerning the " police," that the kingdom 
has come to its greatness, and the king must keep them 
and cause them to be kept, to the utmost of his power, 
remembering that he is bound to do so by the oath which he 
swore at his coronation. If he were not to do so, he would 
offend God and his own conscience, and would incur the 
hatred and ill-will of his people. 1 

This, however, is not all that de Seyssel treats of under 
" la police." There are, he says, three estates in the kingdom 
besides that of the Church — the nobles, the middle classes 
(le peuple gras), and the lower classes (le peuple menu), and 
each of these has its own " preheminences " according to its 
quality, and these must be carefully preserved. 2 

In the second book of the treatise he goes on to say 
that the king should take counsel, and he describes the Great 
Council, which he distinguishes from the ordinary Council. 
The Great Council is composed of the good and notable men 

deroguer : et quant le vouldroyent ce, affoiblist la force et par consequence 

faire Ion nobeist point a lour com- diminue sa gloire et sa renommee." 

mandemens. Mesmement quant au 2 Id., i. 13 : " II va outre a 

faict de leur demaine et patrimoyne ung aultre ordre et une aultre forme 

royal quil's ne pen vent aliener sans de vivre en ce royaume tendant a 

necessite." cette mesme 6n, que moult faict a 

1 Id., ii. 17 : " Quant au tiers louer et entretenir pour l'union et 

poinct de la police, portant que tout accord de tous les Estats dicelluy. 

ce que je diray, cy apres depend Car ilz ont este si bien introduicts et 

dicele, nen diray sur ce propos aultre continuez que a grant peine peult 

chose que le roy et monarque cog- venir le royaulme en grande decadence 

noissant que par le moien des lois tant quils seront bien entretenus, pour 

ordonnances et louables coustumes de autant que ung chescun des dictes 

France concernant la police, le royaulme Estats a ses droits et preheminences 

est pervenu a telle gloire, grandeur et selon sa qualite, et a peine peult l'ung 

puissance que Ton voit ; et se conserve opprimer l'autre, ne tous trois ensemble 

et entretient en paix prosperity et conspirer contre le chief et monarque. 

reputation ; les doibt garder et faire Et en ces trois Estats ie ne comprends 

observer le plus qu'il peult, attendu point celui de l'Eglise dont je parlera 

mesmement qu'il est astrainct par le apres. Ains les prens ainsy que Ion 

serment qu'il faict a son couronnement faict en aucuns aultres pays. C'est 

de ce faire. Pourquoy faisant le a scavoir la noblesse, le peuple moyen 

contraire offense Dieu et blesse sa que Ion peult appeler le peuple gras, 

conscience et si acquiert la hayne et et le peuple menu." 

mal vieillance de son peuple, et autre Cf. ii. 17. 



224 THE EARLIER SIXTEENTH CENTURY. [PART III. 

of the various estates, both secular and ecclesiastical, the 
Princes of the Blood, the Bishops, the chief officers, and, 
if the business is important, the Presidents of the Sovereign 
Courts (Parlemens), the principal counsellors of those courts, 
and other wise and experienced persons. This is not a body 
which should be called together frequently, but only when 
there are some grave and important matters to consider, 
such as the declaration of war, the making of laws and ordin- 
ances for the whole kingdom, and other like matters. He 
adds, a little grudgingly apparently, that it is sometimes 
expedient to summon to the Council some small number of 
men from the most important cities of the kingdom. 1 

It will be observed that this can hardly be described as 
the " States General," it is more of the nature of an Assembly 
of Notables, and it is evident that de Seyssel had no great 
interest in strictly representative institutions, but he is clear 
that the king should be advised by a body of men who repre- 
sented the political intelligence of the community. 

We have said enough to indicate why it is that this treatise 
is of great importance, for it expresses the judgment of an 
experienced officer of the French Crown on the nature of what 
we should call the constitutional system of France. It is 

1 Id. ii. 5 : " Tout ainsi je dis voquer tels personnages absens ne se 

que le roy doit les grans et communs faict ne doibt faire guieres souvent 

affaires du royaume communiquer a pour eviter confusion et despense. 

ung grant conseil assemblee de bons et Ains tant seulement quant il occourt 

notables personnages de divers estats quelque chose qui nadvient pas souvent 

tant d'eglise que seculiers, et tant de et est de grande consequence a toute 

robbe longue quo de robbo courte. le royaume, comme d'entreprendre une 

C'est a savoir ceulx qui sont qualifies guerre et conqueste nouvelle. De 

a cause do leur degre, estat, ou office, faire loix et ordonnances generalles 

comme sont en France les Princes du conccrnant la justice ou la police 

sang, les evesquos, les chefs d'office, les universelle du royaume, et aultres caa 

chambellans, los maitres dos requestes semblables, aux quels cas il est quelque 

et maitres d'hotol qui se trouvent en foys expedient d'appeller quelque 

Court. Et encore selon l'importanco petite nombro de gens des cites et villes 

des affaires y doibt Ion appeler des capitales du royaume. Et en ceci n'est 

presidens dos courts souverainos et pas appelle conseil ordinaire. Ains 

principaux conseillors dicelles, des est une assemblee casuelle. Laquelle 

prelatz absens, et autres notables comme dicte est ne se doibt faire sinon 

porsonnages quo Ion sait estre sages quant les cas le requierent." 
et oxperimentes. Mais cola do con- 



CHAP. I.] THE THEORY OF A LIMITED MONARCHY. 225 

evident that its emphasis lies just on those principles of 
political order which had been most characteristic of the 
Middle Ages, that the king was controlled by the Law, and 
that in all matters concerning the rights of his subjects he 
could only act by process of law and in the courts. If de 
Seyssel does not express the first principle in the precise terms 
of Bracton or Fortescue, his meaning is clear, and the second 
principle is stated by him in terms which are not far removed 
from those of Magna Carta and the great Feudal Lawyers. It 
is indeed the confidence with which he affirms the complete 
independence of the courts from the authority of the king, 
which is most remarkable. 

It is interesting and important to observe that the most 
famous political writer of the sixteenth century, that is, 
Machiavelli, made some observations on the government 
of France, which correspond in important points with the 
opinion of de Seyssel. In one place in his Discourses 
on Livy, he contends that when a people knows that the 
prince will not on any account violate the law, they will live 
secure and contented, and he gives as an example the kingdom 
of France which lives in security because the kings were bound 
by many laws which formed the security of all their people. 1 
In another place he points out the good effects in France of 
this ; that kingdom lived more completely under law than 
any other, for their laws were maintained by the Parlements, 
and especially by that of Paris, which would deliver judgment 
even against the king. 2 

1 Macchiavelli, ' Discorsi Super la leggi di quelli verso il suo principio. 
prima Decade di Tito Livio,' i. 16 : E si vedi quanto buono effetto fa 
" E quando un principe faccia questo, questa parte nel legno di Francia, il 
e che il populo vegga che per accidente quale regno viva sotto le leggi e sotto 
nessuno ei non rompe tali leggi, comin- gli ordini piu che alcun altro regno, 
cera in breve tempo a vivere sicuro e Delle quali leggi e ordini ne sono 
contento. In esempio ci e il Regno mantenitori i Parliament^ e massime 
di Francia, il quale non vive sicuro per quel di Parigi ; le quali sono da lui 
altro che per essersi quelli Re obligati rinnovate qualunque volta, e fa una 
ad infinite leggi nelle quali si com- esecuzione contra ad un principe di 
prende la sicurta di tutti i suoi populi." quel regno, e che ei condanna il Re 

2 Id., iii. 1 : " Hanno ancora i regni nelle sue sentenze." 
bisogno di rinnovarsi e ridurre le 

VOL. VI. P 



226 THE EARLIER SIXTEENTH CENTURY. [PART III. 

These conceptions of the nature of the French monarchy- 
may seem at first sight rather strange ; they do not correspond 
with the impressions of Sir John Fortescue, as we have seen, 
but after all de Seyssel was in a better position to judge the 
real nature of that government than an observer in England, 
however intelligent he might be. 

It is clear that in the judgment of de Seyssel the French 
monarchy was a monarchy limited by law and custom. We 
shall have to consider the development of the theory of an 
unlimited monarchy, so far as it is to be found in the sixteenth 
century, but it is clear that it was unknown to de Seyssel. 



227 



CHAPTER II. 

THE SOURCE AND AUTHORITY OF LAW. 

We have, in the last chapter, drawn attention to the work 
of de Seyssel, because it seems to us important as representing 
the judgment of a man of affairs, an experienced official of 
the French Crown, on the real nature of the government 
of France. Our task is, however, to examine the political 
theory which lay behind the actual institutions of European 
society, and we must therefore turn to a more detailed exam- 
ination of the various aspects of this. 

We must begin with an examination of the theory of the 
nature, the source, and the authority of law. As we have 
often said, and we are convinced that it is a right judgment, 
the supreme authority in the Mediseval State was the Law, 
not the prince, and as we have seen in the earlier parts of 
this volume, this continued to be the normal judgment of 
the fourteenth and fifteenth centuries ; we must now con- 
sider whether this continued in the sixteenth century, or 
how far it gave place to that theory of the supremacy of 
the monarch which became common in continental Europe 
in the seventeenth and eighteenth centuries. 

We have not found, in the literature of the earlier part of 
the century, very much discussion of the nature of law in 
general, but there is enough to indicate its general character, 
and to illustrate the continuance of the tradition of St Thomas 
Aquinas. We find examples of this in the work of an eminent 
English Jurist, St Germans, writing about 1539, in that of 
the Dominican Professor of Salamanca, Soto, who had been 
the confessor of Charles V. and in that of Calvin. 



228 THE EARLIER SIXTEENTH CENTURY. [PART III. 

St Germans' work is in the form of a dialogue between a 
Doctor of Civil Law and a Student of English Law, and 
he begins with a brief statement by the Doctor on the first 
and general principles of all law. The Eternal Law, he says, 
is nothing else but the supreme reason of the Divine Wisdom, 
by which God wills that all things should be moved and 
directed to their good and proper end. 

God reveals the Eternal Law to the rational creature in 
three ways : first, by the light of the natural understanding ; 
secondly, by Divine Eevelation ; and thirdly, by the reason 
in the prince or other ruler, who has power to impose law 
upon his subjects. The " Lex Naturae " is that which belongs 
to the rational human being; the "Lex Divina " directs 
men to eternal felicity ; while the " Lex Eationis " directs 
men to felicity in this life. The " Lex Humana," in order 
to be just, requires two things in the legislator : " prudence," 
that he may direct the community in accordance with right 
practical reason ; and authority, for he must have authority 
to make law. The Lex Humana will be called just, " ex fine," 
when it is directed to the common good, "ex authore" when 
it does not go beyond the authority of him who made it, 
"ex forma "when it imposes burdens on the subjects in due 
proportion to the end of the common good, for if these 
burdens are unequally imposed upon the multitude, the law, 
even if it is directed to the common good, will not be binding 
upon men's consciences. He adds finally, that, as Aristotle 
had said, it is better that all men should be ruled by a 
certain and positive law, than that the judgment should be 
left to man's will. 1 

1 Christopher St Germans, ' Dialogus oternam et notam facit earn creaturae 

de Fundamento legum Angliae,' cap. i. rationali. Primo modo, per lumen 

(folio ii.) : " Doctor. Lex eterna naturalis intellectus ; secundo per 

nihil aliud est, quam ipsa summa revelationem divinam ; tertio per 

ratio gubernationis rerun in Deo, rationem in principe sive in alio 

sive ilia summa ratio DivinaoSapientiae, quocunque socundario gubernante, qui 

qua vult Deua omnia a so condita habet potestatem legem imponere 

moveri et dirigi ad bonum et debitum subditis suis." 
finem." Id. id., cap. ii. (fol. iv.) : "Lex 

Id. id., fol. iii. : " Tribus igitur vero naturae specialitor considerata 

mod is revelat Deus hanc legem respicit solum ad creaturam rat ionalem 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 



229 



It is not necessary to illustrate at length the relation of the 
general theory of law in Soto to that of St Thomas Aquinas, 
as it is obvious that in his treatise, ' De Justitia et Jure,' he 
was illustrating and expounding the principles of St Thomas ; 
as, however, the question of the continuity of these concep- 
tions is highly important in the history of political theory, we 
may take note of a few passages. 

The Eternal Law of God is, he says, nothing else than the 
eternal reason by which he governs the whole world ; and 
the Eternal Law governs man by the Natural Law, which is 
a participation of it. The Natural Law is written in man's 
mind, without any process of argument ; the Jus Gentium 
is derived from it by a process of reasoning, but without any 
assembly of men ; while the Civil Law is derived from the judg- 
ment of men assembled in Council, that is, from the Common- 
wealth or from him who is its Vicar, and has its authority. 1 



humanam ad imaginem Dei creatam, 
quae a quibusdam etiam dicitur Jus 
Gentium." 

Id. id., fol. vi. : " Lex divina de 
propinquo et de se ordinat ad felicitatem 
eternam, lex rationis vero, ad felici- 
tatem hujus vitae." 

Id., chap. iv. fol. xi. : " Et ut 
lex humana sit justa requiruntur in 
legislatore duo, scilicet prudentia et 
auctoritas. Prudentia, ut secundum 
rectam rationem practicam dictet 
quid faciendum sit pro communitate . . . 
Auctoritas, ut scilicet babeat auctori- 
tatem legis condendae quia dicitur 
lex a ligando." 

Id. id., fol. xii. : " Dicitur enim 
lex humana justa, ex fine, ex authore 
et ex forma. Ex fine quando ordinatur 
ad bonum commune. Ex authore 
quando non excedit authoritatem 
ferentis. Ex forma quando secundum 
proportionem imponuntur subditis 
onera in ordinem ad bonum commune : 
et si onera inequaliter imponuntur mult i - 
tudini, licet ordinetur ad bonum com- 
mune ; in foro conscientiae non ligat." 

Id. id., fol. xii. : " Dicit itaque 



philosophus in secundo Ethicorum ; 
quod melius est omnes ordinari lege 
certa et positiva quam dimittere 
juditium arbitrio, propter tria." 

1 Soto, ' De Justitia et Jure,' i. 3, 2 : 
" Fit ut lex eterna in Deo nihil aliud sit 
quam sempiterna ratio suae sapientiae, 
qua mundi universitatem regit." 

Id. id., i. 4, 1 : " Ad primum igitur 
argumentum respondetur, quod etsi 
eterna lege gubernemur id tamen fit 
per naturalem, quae participatio illius 
est. ... Quin, vero . . . inde lex 
naturalis in nobis, prae brutorum 
instinctu, legis rationem habet, quod 
ratione nos ipsi ducimur ; ilia vero 
per impetum forinsecus aguntur." 

Id. id., i. 5, 3 (p. 40) : "Itaque jus 
naturale absque ulla ratiocinatione 
scriptum est in mentibus nostris : 
jus autem gentium naturali ratiocina- 
tione, absque hominum conventu et 
longo consilio inde elicitur, jus autem 
civile arbitratu hominum in unum 
coeuntium concilium constituitur." 

Cf. iii., 1, 3. 

Id. id., i., 1, 3 : " Leges condere 
non cujusque, sed reipublicae est, 



230 



THE EARLIER SIXTEENTH CENTURY. 



[PART III. 



The general correspondence of these principles of St Germans 
and of Soto with these of St Thomas Aquinas is obvious. 1 

The terms in which Calvin states his general conception 
of law are not formally the same, but it appears to us that they 
are not substantially very different. The Moral Law which 
is the true and eternal rule of justice is binding upon men in 
all places and times, who desire to order their lives by the 
will of God. Subject to this, every nation is at liberty to 
establish laws for itself, as it finds best ; they may vary in 
form, but they must have the same principle (ratio). 2 This, 
he says, will be done if we will distinguish between law and 
equity (aequitas) upon which law depends. Equity, because 
it is natural, is the same among all men ; constitutions (i.e., 
positive laws), because they are determined at least in part 
by particular circumstances, may well differ, so long as they 
are directed to the same end, of equity. The Moral Law of 
God is nothing else than the testimony of Natural Law, and 
the whole principle of equity is contained in it. 3 



ejusque vicem gerentis, seu curam 
habentis. . . . Lex est regula dirigens 
in commune bonum : dirigere autem 
in commune bonum proprium est 
reipublicae, cujus ejusmodi bonum 
proximus finis est ; ergo penes ipsam 
tantum, ac penes ilium qui ejus habet 
curam, potestas est ferendarum 
legum. . . . Subnectitur autem et 
secunda ratio : lex enim vim habot 
coercivam . . . vis autem haec et 
vigor in sola republica et principe 
oxistit siculi totius animalis virtus est 
membra movere." 

1 Cf. vol. v. pp. 36-44. 

'Calvin, ' Institutio,' iv. 20, 15 
(p. 655) : " Lex itaque moralis (ut 
inde primum incipiam) quum duobus 
capitibus contineatur, quorum alterum 
pura Deum fide et pietate colore, 
alterum syncere homines dilectione 
complect i simpliciter jubet : vera est 
justiciae regula, gentium omnium ac 
temporum hominibus prescripts, qui 
ad Dei voluntatem vitam suam com- 
ponere volunt. Siquidem haec etorna 



est et immutabilis ejus voluntas, ut a 
nobis ipse quidem omnibus colatur : 
nos vero mutuo inter nos diligamus. . . . 

Quodsi verum est, libertas certe 
singulis gentibus relicta est condendi, 
quas sibi conducere providerint leges, 
quae tamen ad perpetuam illam 
charitatis regulam exigantur, ut forma 
quidem varient, rationem habent 
eandem." 

3 Id. id. id. : " Id quod dixi planum 
fiet, si in legibus omnibus duo haec, 
ut decet, intuemur, legis constitutiones 
et aequitatem, cujus ratione con- 
stitutio ipsa fundata est ac nititur. 
Aequitas, quia naturalis est, non nisi 
una omnium esse potest, ideo ut 
legibus omnibus, pro negotii genere, 
eadem proposita esse debet. 

Constitutiones, quia circumstantias 
aliquas habent, a quibus pro parte 
pendeant, modo in eundem aequitatis 
scopum omnes pariter intendant, 
diversas esse nihil obest. Jam, quum 
Dei legem, quam moralem vocamus, 
constet non aliud esse quam naturalis 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 231 

We must turn to the consideration of the Positive Law of 
the State or Commonwealth, and we begin by discussing the 
conception of the nature of this, as it appears in the proceedings 
of the Cortes of Castile and Leon, in the last years of the 
fifteenth century and the first part of the sixteenth. The 
Introduction, or Preface, to the proceedings of the Cortes, 
called by Ferdinand and Isabella at Toledo in 1480, seems 
to us to set out very clearly the recognised principles of the 
method of legislation. The Sovereigns, it says, have found 
it necessary to provide for the circumstances of the time, 
by making new laws, as well as by securing the execution 
of the old ones, and they have therefore summoned the 
" procuratores " of the cities and " villas " of their kingdoms, 
not only to take the oath to their eldest son, but to provide 
by legislation for the good government of the kingdoms. 
The " procuratores " have presented various petitions, and in 
accordance with these petitions Ferdinand and Isabella, 
with the consent of their Council, order and establish the laws 
which follow. 1 

This seems to us to be a very clear recognition of the 

legis testimonium, et ejus conscientiae, todos nuestros reynos, que enbiasen los 

quae hominum animis a Deo in- dichos procuradores de Cortes asi para 

sculpta est, tota hujus, de qua haec jurar al principe nuestro fijo primo- 

loquimur, aequitatis ratio in ipsa genito heredero destos reynos, como 

praescripta est. Proinde sola ipsa para intender con ellos e platicar e 

legum omnium et scopus et reguia et proveer en las otras cosas que saran 

terminus sit oportet. Ad earn regulam nescessarias de se proveer por leyes 

quaecunque formatae sunt leges, quae in para la buena gouernaeion destos 

eum scopum directae, quae eo termino dichos reynos. 

limitatae, non est cur a nobis im- Los quales dichos procuradores . . . 

probentur, utcunque a lege Judaica, nos frequentaran e dieron certas 

vel inter se ipsae alias differant." peticiones, e nos supplicaran que 

1 ' Cortes of Castile and Leon,' vol. iv. sobrellas mandassemos proveer e 

Toledo, 1480. Preface : " E nos cono- remediar como viesemos que complia 

sciendo que estos casos occorrian alo a servicio de Dios e nuestro e bien de 

presente en que esce necessario y la republica e pacifico estado destos 

provechoso provear de remedio por leyes dichos reynos, sobre las quales dichas 

nuevamente fechos, ansi para executar petitiones y sobre las otras cosas que 

las passadas, como para proveer et nos entendimos ser complideras, con 

remediar los nuevos casos, accordamos acuerdo delos perlados e caualleros e 

de enbiar mandar a las cibdades e villas doctores del nuertro Consejo, proue- 

de nuestros reynos que suelen enbiar imos e ordinamos e statuimos las 

procuradores de Cortes en nombre de leyas que se siguen." 



232 THE EARLIER SIXTEENTH CENTURY. [PART III. 

necessity of consulting the Cortes before legislation and a 
statement of the normal method of such legislation. 

In the proceedings of the Cortes, which met at Valladolid 
in 1506, under Queen Juana, we have an explicit statement 
of the same principle. The Cortes maintained that the former 
kings had laid it down that when new laws had to be made, 
the Cortes should be summoned, and it was then established 
by law that no laws could be made or revoked except in Cortes, 
and they therefore petition that from henceforth this rule 
should be kept. They complain that many " Pragmatics " 
had been issued without this process, by which the kingdoms 
felt themselves aggrieved, and ask that these should be revised 
and the grievance removed. The Queen assented to the 
petition. 1 This statement of the proper method of legislation 
is not only important in itself, but as affirming that this 
was traditional and legal. 

With this we may compare a clause in the proceedings of 
the Cortes of Valladolid in 1523, in the reign of the Emperor 
Charles V. This provides that the answers made by the 
King (Charles V.) to the petitions of the Cortes were to be 
registered (yncorparados) and observed and executed as laws 
made and promulgated in Cortes. 2 And again we may com- 
pare a petition made by the Cortes of Madrid in 1534, and 

1 Id., vol. iv. Valladolid, 150C, 6: syenten por agrabiados, mande que 

" Y par esto los rreys establocieron aquellas ssean rrebistas e probean e 

que, quando diesen de hazer leys, rremedian los agrabios quelas tales 

para que fuesen probeckosas a sus prematicas tienen. R. (reply) Que 

rreynos a cada provincia fuese bien quando fuere necessario, su alteza lo 

probeyda, se Uamasen Cortes e Pro- mandara proveer de manera que se de 

curadoros y entendiesen enellos, y por accuerdo dello." 

esto se establecio ley, que no se ficiesen, i Id. id., Valladolid, 1523 (p. 402): 

ni rrevoeason, leys ey no in Cortes : " Torque vos mandamos a todos e a 

suplican a vuestras Altezas que agora cada uno de vos, segund dicho es, que 

e de qui adelante se guarda e faga veays las respuestas que por nos alas 

asy, e quando leys se obiesen de hazer, dicha3 peticiones e capitulos fueron 

mandan llamar sus rreynos e pro- dadas, que de suso van yncorporadas, 

curadores dellos, porquo para las tales y las guardeys e cunpleys y executeys, 

saran dellos muy mas ynfamados, e hajays guardar e cunplir e executar 

y vuestros rreynos juste e derochamente en todo e por todo, segund e como le 

proveydas : e porque fuera desta suso se contiene, como nuestras leyes 

horden, se an fecho muchas prematicas, e prematicas sanciones par nos hechas, 

de que estos vuestros rreynos, se y promulgadas en Cortes." 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 233 

accepted by Charles V., that the " Capitula " made in former 
Cortes, and in the present one, were to be held as laws, and 
put together in one volume with the laws of the " Ordinami- 
ento," and that a copy of this was to be kept in every city 
and "villa." 1 It seems to be clear that in Castile, in the 
early sixteenth century at least, it was assumed as a normal 
constitutional principle that legislation was a function not 
of the king alone, but of the king in, and with, the Cortes, 
as the representative body of the kingdom. 

It is equally clear that the King of Castile had no authority 
to ignore or set aside the laws. We find repeated examples 
of the tenacity with which this principle was held, in the 
repeated protests made by the Cortes in the sixteenth, as 
in earlier centuries, against the issue of royal briefs which 
interfered with the ordinary course of justice. At Valladolid 
in 1518 and 1523 the Cortes petitioned King Charles V. to 
revoke all "Cartas e cedulas de suspenzyon" whether granted 
by himself or by the Catholic Kings (Ferdinand and Isabella), 
and not to issue them in the future. The King complied with 
their request, and this was repeated in the Cortes of Madrid 
in 1531. 2 

1 Id. id., Madrid, 1534 : " l.Primera- non se de, por el prejuyzio que dellos 
mente supplicamos a vuestra majestad siguen alas partes." 

que de todos los capitulos proveydos Id. id., Valladolid, 1523 (p. 373) 

en las Cortes pasados, y delos que en (62): " Otrosy : supplicamos a vuestra 

estas se proueyeren, se hayen leyes, alteza mande revocar qualesquier 

juntandolas en un volumen, con las cartas e cedulas de suspenciones de 

leyes del Ordinamiento emendado y pleytos que estan dadas ansy por 

corregido . . . y que cada ciudad e vuestra alteza como por los Reyes 

villa tenga un libro, y el regimiento Catholicos, pues es denegar justicia 

tenga especial cuydado de hazer y abdiencia alas partes en prejuyzio 

guardar las leyes del. ... de su derecho. 

R. A esto vos repondemos que ya R. A esto vos rrespondemos que 

auemos proeydo y nombrado persona nose den suspensyonesdeaquiadelante, 

qual conviene para effectuar lo en y mandamos que las dadas sean en sy 

vuestra supplicazion contenido." ningunas, e de ningund efecto." 

2 Id. id., Valladolid, 1518: "(23) Id., Madrid, 1534 (42): " Otrosi, 
Otrosy, supplican a vuestra Alteza porque acaesce dar cedulas para que 
mande rrevoear e rrevoque quales los oydores enbien relacion de algun 
quier cartas e cedulas de suspensyon pleyto que ante ellos pende, diciendo 
que esten dadas, ansy por vuestra que la parte se quiesca que no 
alteza, ansy por los reyes Catholicos los pertinesce il conosciemento, y 
vuestros aluelos, y de aqui adelante entretanto se" los manda sobreseer, e 



234 THE EARLIER SIXTEENTH CENTURY. [PAKT III. 

When we turn from Castile to England it is obviously 
unnecessary to illustrate in detail the normal methods of 
legislation. We have, however, a very important discussion 
of the subject in that most interesting treatise on English 
Law by Christopher St Germans, to which we have already 
referred in dealing with the theory of the nature of law in 
general. 

This treatise is in the form of a dialogue between the 
" Doctor," that is, the Civilian, and the " Student," or 
representative of English Law, who gives an account of the 
nature of this. He enumerates the six foundations of English 
Law — the Law of Eeason, the General Customs of the Country, 
certain " Principia " which are called " Maxima," certain 
particular Customs, and, finally, the Statutes made by the 
Common Council of the Kingdom, that is, the Parliament. 1 

One of the most important aspects of St Germans' work is 
his treatment of law as custom, for he includes under this 
not only the general customs of the country and the particular 
customs of different localities, but also the " Maxims " of the 
courts, for he says of these that they might be reckoned among 
the general customs of the kingdom — their sole authority 
was ancient usage. 2 

He defines the general customs as being those which from 
ancient times had been used by the king and his councillors, 
and had been accepted and approved by their subjects. 
These are neither contrary to the Divine Law, nor to Eeason, 
and as they are considered to be necessary for the common 
good of the kingdom, they have the force of law, and it is 
these which are properly called the common law (Lex Com- 

qual es daiio conoscido, supplicamos Cf. Id., Madrigal, 1476, 2 ; Toledo, 

vuestra majostad, que no se don con 1480-84. 

suspension a unque sea temporal, y * St Germans, ' Dialogue,' cap. 

se si dieren, sean obedescidas y no iv.-x. 

complidas. 2 Id. id., cap. viii. (fol. 27) : 

A esto vos respondemos que nuestra " Et licet omnia ilia maxima inter 

merced y voluntad es de no dar las predictas consuetudines generales regni 

tales schedulas de suspension, y convonientcr enumerari possint, quia 

declarando vosotras en qu6 casos antiqua consuetudo est hiis et illis sola 

ynegocios se an dado, mandaremos lo auctoritas." 
que convenga." 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 235 

munis). It is the judges who decide what are general customs, 
and it is these, together with the " Maxims," which form 
the greater part of the law of England, and the king, 
therefore, at his coronation, swears that he will faithfully 
obey them. 1 

The fifth foundation of the law of England St Germans 
finds in the local customs of different parts of the country, 
and these have the force of law even against the general 
customs and maxims, inasmuch as they are not contrary to 
Eeason and the Divine Law. They are determined not by 
the judges but by the " Patria," and he cites as examples 
the customs of Gavelkind and Borough English. 2 

It is deserving of notice that St Germans maintains that 
it is from custom that the great Courts, the Chancellor's, the 
King's Bench, the Common Pleas, the Exchequer, and also 
certain lesser Courts such as those of the manor and the 
county, have their origin and authority ; there is, he says, 
no written law concerning their institution, but they belong 
to the ancient custom of the country and could not be changed 

1 Id. id., cap. vii. (fol. 21): quodomnesconsuetudinesregni fideliter 

" Tertium fundamentum legis Angliae observet." 

habetur ex diversis consuetudinibus 2 Id. id., cap. ix. (fol. 32) : 

generalibus per totum regnum Angliae " Quintum fundamentum legis Angliae 

ex antiquo tempore usitatis, per dom- stat diversis consuetudinibus par- 

inum regem et progenitores suos, et ticularibus in diversis patriis, villis, 

eorum subditis, acceptis et approbatis. dominiis et civitatibus regni usitatis ; 

Et quia consuetudines illae nee contra quaequidernconsuetudinesparticulares, 

legem divinam, nee contra rationem quia non sunt contra rationem, neque 

in aliquo existunt, et pro bono communi contra legem divinam, licet predictis 

totius regni, ex earum diuturnitate generalibus consuetudinibus sive max- 

censentur fore necessaria, vim legis re- imis legis contrarientur, tamen vim 

tinent. Et hae sint illae consuetudines legis retinent. Sed si dubium in- 

quae proprie dicuntur lex communis, surgat ; inter partes in Curia Regis, 

Et semper determinari oportet per utrum talis sit consuetudo particularis, 

judices utrum sit talis lex sive con- vel non, non debet semper determinari 

suetudo generalis, ut pretenditur vel per judices utrum sit talis consuetudo 

non, et non per patriam. Et ex istis vel non, ut de predictis consuetudinibus 

consuetudinibus generalibus et aliis generalibus sive maximis superius 

principiis sive maximis legis Angliae dictis fieri debet, nisi in paucis con- 

de quibus inferius dicetur, dependit suetudinibus particularibus sufiicienter 

maxima pars legis Angliae. Et ideo ex recordo in Curia Regis conditis 

Dominus rex in coronatione sua, inter et approbatis, set debet triari per 

alia, sacramentum praestat speciale patriam." 



236 THE EARLIER SIXTEENTH CENTURY. [PART III. 

except by Parliament. 1 And it is equally important to 
notice that lie maintains that it was by the custom of the 
kingdom that no one could be judged except according to the 
" lex terrae," This custom was confirmed (not made) by 
Magna Carta. 2 

Finally, St Germans states the sixth foundation of English 
law as consisting of various statutes made by the king and his 
ministers, the Lords Spiritual and Temporal, and the " Com- 
munitas " of the whole kingdom in Parliament, when the 
Law of Eeason and the Law of Customs and Maxims are 
not sufficient. 3 

St Germans' treatment of English law is then highly 
important for several reasons. He has the same conception 
as Bracton that law is not primarily an enactment, but a 
custom ; and while he is clear, with Bracton and Fortescue, 
that the deliberate judgment and will of the whole community, 
the king and nobles, with the representatives of the people 
in Parliament, can make laws, and can change ancient 
customs, it is only the whole community which can do 
this ; the king has indeed his part, but he cannot legislate 
alone. 4 

When we turn to France, the evidence is more complicated, 

1 Id. id., cap. vii. (fol. xxiii.) : parium suorum, et per legem terrae." 

" De earum institutione ut scilicet tales 3 Id. id., cap. x. (fol. xxxiv.) : 

Curiae riant, nulla lex scripta in legibus " Sextum f undamentum legis Angliao 

Angliae habetur, nam earum institutio stat in diversis Statutis per dominum 

solum ex antiqua consuetudine Regni Regem et progenitores suos, et per 

dependit, quae etiam consuetudo dominos spirituales et temporales, et 

tantae auctoritatis habetur, quod non per communitatem totius regni, in 

possunt Curiae illae, noc earum parliamentis edit is, ubi lex rationis, lex 

auctoritates alterari, noc earum nomina divina, consuetudines, maxima, sive 

mutari absque Parliamento." alia fundamenta legis Angliae prius 

* Id. id. id. (fol. xxiii.) : " Item sufficere minime videbantur. Et ultra 

ex antiqua consuetudine Regni habetur haec fundamenta legis Angliae alia 

quod nullus mittetur ad respondendum, me legisse non meminor." 

nee judicetur nisi secundum legem * There are a few but important 

terrae. Et haec consuetudo firmatur references to the principle of the 

per Magnam Cartam, cap. xxvi., ubi supremacy of law in Thomas Starkey's 

sic habetur. Nullus liber homo ' Dialogue between Cardinal Pole and 

eapietur, aut imprisonclur, nut dis- Thomas Lupsot,' but it will be more 

8aisietux, aut alio modo destruetur, convenient to deal with these in a later 

nee super oum ibimus nee super cum chapter, when we consider the nature 

mittemus, nisi per legale judicium and source of the authority of the Ruler. 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 237 

especially for the reason that in France we must always take 
account of the Provincial Estates as well as of the States 
General. 

We may at once notice some references to the customs and 
constitutions of the great provinces. In the Letters Patent, 
issued in 1498 by Louis XII. on the occasion of his marriage 
with Anne of Brittany, he confirms the rights and liberties 
of the Duchy, and assures them that if there were good reason 
for making some change in their customs and constitutions, 
it should be done by the " Parlements " and assemblies of its 
Estates as had always been the custom. 1 

In the Ordinances issued by Louis XII. in 1499 for the 
reorganisation of the Exchequer Court of Normandy, it is 
said that for this purpose he had summoned an Assembly 
of prelates, barons, lords, the greater part of the " Baillifs " 
of the province, and the men of the three Estates. 2 In 1501 
Louis XII. issued an ordinance about " Weights and Measures " 
in Languedoc, after deliberation with his Council, by his 
full power and royal authority, but it should be observed 
that he does this on the petition of the three Estates of 
Languedoc. 3 

1 ' Ordonnances,' vol. xxi. Jan. 7, parlements et assemblees des Estats 

1498 (9) (p. 151) : " C'est a savoir que dudit pays, ainsi que de tout tems 

en tant que touche de garder et est aecoustume, et que autrement ne 

conduire le pays de Bretagne et les soit fait ; nous voulons et entendons 

subjets d'ieeux en leurs droits, libertez, que ainsi se fasse, appelez toutos 

franchises, usaiges, coustumes et tailles, voyes les gens des trois estats de 

tant aux frais de 1'Eglise, de la Justice, Bretagne." 

commeChancellerie, Conseil, Parlement, 2 Id. id., April 1499 (p. 215): 

Chambre de Comptes, Tresorcrie gener- " Pour pourveoir a laquelle chose 

alle, et autres de la noblesse et comun ayons mande, assemble plusieurs prelats 

peuple, en maniere que aucune nouvelle barons, seigneurs, et la plus grande 

loi ou constitution n'y soit faite, fors partie des baillifs dudit pays, avee les 

en la maniere accoustumee par les gens des trois Estats d'iceluy." 

rois, et dues predecesseurs de notre 3 Id. id., July 1501 (p. 279) : 

dite cousine, la Duchesse de Bretagne " Nous avons receu 1'humble supplica- 

. . . (7.) Item, et en tant que peut tion de chiers et bien amez gens des 

toucher s'il advenist que de bonne Trois Estats de Languedoc. . . . Par 

raison, il y eut quelque cause de faire la tenure de ces presentes, de notre 

mutacions, particulierement en aug- grace especial, plein pouvoir et auc- 

mentant, diminuant. ou interpretant torite royal, statuons et ordonnons 

lesdits droits, coustumes, constitutions par edict, statut, et ordonnance per- 

ou etablissemens, que ce soit par les petuelle et irrevocable, que desormais 



238 



THE EARLIER SIXTEENTH CENTURY. 



[PART III. 



Perhaps, however, the most significant reference to the 
nature and source of law in France is contained in the Ordin- 
ances of Charles VIII. and Louis XII., providing for the 
collection and publication of the customs of the different 
parts of the kingdom. Charles VIII. in 1497 appointed a 
Commission to collect, correct, and adapt these customs, 
but they were to be collected with the advice of the men of 
all classes in each district, and to be published with the con- 
sent of the three Estates of each district or the larger and 
wiser part of them. 1 In 1505 Louis XII. again appointed 
a Commission to carry this out, for it apparently had never 
been completed. The three Estates were to be called together 
in each Bailliage, and the king declared by his full power and 
royal authority that the customs, as agreed upon by these 
Estates, should be perpetually kept and observed as laws. 2 

This treatment of the customs of different parts of 
France, as determined by the representatives of the different 



en tous et chacune des villes, lieux 
et places de notredit pays de Languedoc, 
Boit us6 desdits poix de balance, &c." 

1 Id., vol. xxi., September 1497 
(p. 7) : " Eussions despieca, mande 
aux bailiSz, seneschaux et autres 
juges do notre royaume, appelez 
avec eux chacun en sa jurisdiction 
les gens d'Eglise, nobles, nos officiers, 
praticiens et aultres gens de bien en ce 
cognoissans, ila vissent et visit assent 
lesdites coutumes ; et icelles, en- 
semble lour advis, de ce quil leur 
semblera y debvoir estre corrig6, 
adjute, diminu6, nous envoyassent, ce 
que est et6 fait. . . . Et assomblable- 
ment en a este donne conclusion sur 
votre dit advis, et ne reste qua les 
faire publier en chascun desdits 
baillages, senechaussees et jurisdic- 
tions. . . . Et n6anmoins s'en faisant 
ladicto publication y survenant aucune 
difficultez, nous, desirous ycelle estre 
vuydees, vous avons donn6 et donnons, 
et a ceux ainsi quo vous esleuz pour 
faire ladicte publication, pouvoir, 
puissance et auctorite de lea accorder, 



du consentement toutes voyes desditz, 
trois Etats de chaques baillage, sene- 
schaussee et jurisdiction, ou de la plus 
grante et saine partie d'iceulx." 

2 Id., vol. xxi., March 4, 1506 
(p. 332) : " Et neantmoins voulons 
tous et chascuns les articles qui seront 
accordez par les-dits dos Etats assem- 
blez, comme dit est, ou la plus grande 
et saine partie d'iceux, et ceux d'entre 
vous qui serez commis a la publication 
desdits coustumes estre publiez, et des 
maintenant pour lors, et des lors pour 
maintenant les coustumes contenus en 
iceux articles accordez en la maniere 
dessusdite, de nostre science, propre 
mouvement, pleine puissance et auc- 
torite royale, nous avons decretez 
et auctoris6, decretons et auctorisons 
par ces presents, et icelles voulons 
inviolablement estre gardees et obser- 
vers, sans enfraindre, comme loi 
perpetuelle, sans qu'aucun doresnavant 
soit recu a poser ni prouver coustumes 
contraires, ne desrogant a icelles 
coustumes ainsi publiees." 



CHAP. II.] THE SOURCE AND AUTHORITY OF LAW. 239 

localities and acknowledged as laws by the king, would seem 
to show that in France, even in the sixteenth century, 
the source of legislation must not be thought of as being 
simply the royal authority. 

We must, however, notice that we find some indications 
of another conception of the relation of the King of France 
to the law. There is a well-known declaration of the Presi- 
dent of the Paiiement of Paris made in the year 1527 at a 
" Lit de Justice " held by Francis I. The occasion of this 
was a complaint made by the Parlement about the evocation 
of cases, which had been brought before it, to the Great Council 
of the king. The President maintained that this was an 
innovation of the reign of Louis XL, which had been con- 
demned by the States General of Tours in 1484 ; but, he went 
on to say, the Parlement did not intend to throw any doubt 
upon the royal authority ; this would be a kind of sacrilege, 
for they knew well that the king was above the laws, and 
that laws and ordinances could not constrain him. They 
did, however, intend to say that the king ought not to do 
anything that he had the power to do, but only that which 
was reasonable, good, and equitable — that is, Justice. 1 The 
king commanded the Parlement not to meddle with anything 
except matters of justice, and not to impose any modifications 
upon royal ordinances, edicts, or briefs. 

We find, however, another example of the relation of 
the King of France to the law, in a letter of Louis XII. 
of December 1499, which expressly forbade the Parlements 
of Paris, Toulouse, and other Courts to pay attention to 
any dispensation which he might grant from the terms 
of the Ordonnance for the administration of justice, which 
he had issued in March 1499. They were to ignore such 
dispensations, and in virtue of the authority of this Declaration, 

1 ' Recueil des Lois Anciennes,' vol. contraindre, et n'y etre contrainct par 

12, No. 145 (July 1527) : " Nous ne puissance co-active ; mais entendons 

voulous revoques en doute ou en dire que vous ne devez, ne voulez pas 

dispute de votre puissance, ce serait devoir, tout ce que vous pouvez, ains 

espece de sacrilege, et savons bien seulement, ce qui est en raison, bon et 

que vous etes pos6 sur les lois, et que equitable qui n'est autre chose que 

les lois et ordonnances ne vous peuvent justice." 



240 



THE EARLIER SIXTEENTH CENTURY. [PABT III. 



to annul them, as lie himself now declared them annulled and 
revoked. 1 This is clearly parallel to similar provisions in 
Spain. 



1 ' Ordonnances,' vol. xxi., December 
1499 (p. 217) : " Nous voulons et 
ordonnons que a telles lettres on n'ait 
aucun regard, et defendons expresse- 
ment a nos ames et feaux les gens 
tenons nos cours de Parlement a 
Paris, Toulouse, Bordeaux, Dijon, 
eschiqtiier de Normandie, et sem- 
blablement a tous nos justiciers et 
omciers, que, par vertu ou sous couleur 
de telles nos lettres de dispense, ils ne 
contrarient ou contreviennent, fassent, 
souffrent, ni permettent contrarier, ou 
contrevenir a nos dites ordonnances, 



en quelque maniere que ce soit, sur 
peine d'estre eux-mesmes reputes a 
nous disobeissans et inf racteurs d'icelles 
ordonnances ; mais nos dites lettres de 
dispense et derogeantes, en usant de 
notre presente declaration et intention, 
cassent annullent et declarent nulles, 
et de nul effet et valeur ; lesquelles a 
cette f ois pour quelconque cause qu'elles 
soyent expedies, nous, des maintenant 
et pour lors, avons cassSes revoquees et 
adnullees." 

Cf. ' Ordonnances,' vol. xxi., March 
1499, 40. 



241 



CHAPTER III. 

THE SOURCE AND NATURE OF THE AUTHORITY 

OF THE RULER. 

With the principles of the nature and supremacy of the Law, 
Avhich we have considered in the last chapter, in our minds, 
we can now turn to the conception of the source and nature 
of the authority of the Ruler or Rulers, as we find it in 
the earlier part of the sixteenth century in France, in Italy, 
in Spain, and in England. 

One of the most interesting writers, for our purpose, is 
James Almain of Sens, whose work seems to us to have been 
somewhat overlooked. Little seems to be known of him, 
except that he was a teacher in the College of Navarre in 
the University of Paris, and that he received the Doctor's 
degree in 1511 and died in 1515. * 

In various treatises he dealt not only with the particular 
question with which we are now concerned but with the whole 
nature of political society and authority, and in order to do 
justice to his principles we must take some account of his 
political theory as a whole. 

He distinguishes between that " Dominium Naturale " 
which was given to men by God over all things, and the 
" Dominium Civile " which was added after sin came into 
the world, by which man has "civil" property and "juris- 
diction," that is, the authority to use the material sword. 2 

1 " Biographie Universelle," from 'Opera,' ed. 1606. Prima Pars): 
' Dupin, Bibliotheque des Auteurs ' De Dominio Naturali Civili et Ec- 
Ecclesiastiques.' clesiastico ' (col. 687). 

2 Jacobus Almain (in J. Gerson, " Dominium naturale, quod homini 

VOL. VI. Q 



242 THE EARLIER SIXTEENTH CENTURY. [PART III. 

It is interesting to observe that Almain represents the Stoic 
and Patristic conception of the origins of political society, for 
he thinks of political authority and property as consequences 
of sin. 

This docs not, however, mean that Almain denied that 
political society and authority were of Divine institution. 
On the contrary, he insists dogmatically in another treatise 
that the lay power was just as truly derived from God as 
the ecclesiastical. 1 The sacred character of political insti- 
tutions was not confined to Christian communities, and he 
repudiates contemptuously and as savouring of heresy the 
theory, which he attributes to Innocent, that there was no 
legitimate political authority outside of the Church. 2 Political 
society and authority were then in the view of Almain con- 
sequences of sin, but also, as the Patristic tradition held, a 
Divine remedy for sin. 

Almain had, however, no belief in the absolute King, or 
in the " Divine Eight " of the monarch. On the contrary, 
he develops the conception of the constitutional authority 
of the Community very dogmatically. In the treatise which 
we cited first he maintains that a Community of men, 
united with each other to form one body, has by natural 
law the power of removing, even by death, any person who 
disturbs the Community ; and no Community can abdicate 
this power any more than the individual can renounce his 
right of self-preservation ; the prince cannot slay any man 

convenit ex dono Doi, simpliciter est sequitur in textu, ' Non est potestas 

inabdicabile quantum ad cuncta ; nisi a Deo,' ideo talis potestas laica est 

similiter et quantum ad certam aoque bene a Deo, sicut potestas 

speciom cibi ot potus in omni eventu : spiritualis." 

oui dominio post peccatum conveniens - Id. id., Q. ii. 12 (col. 8415) : " Et 

fuit superaddere dominium civile pro- ad verba Innocontii, si intelligantur 

prietatis, similiter ot jurisdictiouis ; quod extra occlesiam nullus habet 

quo fungentea, executionem gladii legit imam potestatem qua utatur 

materialis habont." gladio materiali, ilia sapiunt haeresim ; 

1 Id., ' Do Potestate Ecclesiastica et nam et apud fideles et apud infideles, 

Laica,' Q. i. 1 (col. 752) :" Hac occasione est vera potestas laica, idem parum 

quuoritur, utrum talis potestas laica curandum est de auctoritate Innocentii 

sit a Deo ; et vidotur quod sit, ad in proposito." 

Rom : xiii. ' Omnis anima sublim- (Innocent IV. in his ' Apparatus ' 

ioribus potestatibus subjecta sit,' et says the opposite. Cf. vol. v. p. 34.) 



CHAP. III.] 



THE AUTHORITY OF THE RULER. 



243 



by his own authority ; as William of Paris had said : the " dom- 
inium jurisdictionis " of the prince in relation to the Com- 
munity is a ministerial authority, as the authority of the 
priest is in relation to God. The Community cannot renounce 
the authority which it possesses over the prince whom it 
has established, and by this authority it can depose him if his 
rule is not for edification, but for destruction, and he cites 
a gloss on the " Decretum " of Gratian. He concludes that 
the Community cannot in any case bestow a monarchy, 
" pure regalis," that is, a monarchy in which one alone 
rules, and is subject to none. 1 

The same conception of political authority, as not merely 
derived from, but inherent in the Community, is repeated 
by Almain, in the first chapter of his work, ' De Auctoritate 



1 Id., ' De Dominio Naturali Civili 
et Ecclesiastico ' (col. 689) : " Tertia 
pars conclusionis est, quod conveniens 
fuit tarn dominium civile proprietatis 
quam jurisdictionis superaddi dominio 
naturali. Pro cujus probatione ; 
quaelibet communitas ad invicem 
conversantium est velut unum corpus 
cujus singuli alter alterius sunt membra, 
juxta illud dictum Pauli ad Rom : xii. 

Secundo supponendum est, quod in 
ilia communitate jure naturali est 
potestas quaedam qua licite illos, 
quorum vita est in perturbationem 
ejus, potest a corpore praescindere, 
etiam per mortem, et istud deducitur 
a priori ex ratione Sancti Thomae, 
ii. 2. Q. 64. . . . Secundum corol- 
larium nulla communitas perfecta 
hanc potestatem a se abdicare potest, 
sicut nee singularis homo potestatem 
quam habet, ad se conservandum in 
esse. 

Tertium corollarium, Princeps non 
occidit auctoritate propria, nee illam 
potestatem potest ei conferre res- 
publica. Hinc dicit Gulielmus Paris- 
iensis, quod dominium jurisdictionis 
Principum est solum ministeriale in 
ordine ad communitatem, sieut dom- 
inium sacerdotis, respectu romis- 



sionis peccatorum, est solum minis- 
teriale in ordine ad Deum. 

Quartum corollarium, non potest 
renunciare communitas potestati quam 
habet super suum Principem, ab ea 
constitutum, qua scilicet potestate eum 
(si non in aedificationem sed de- 
structionem regat) deponere potest, 
cum talis potestas sit naturalis : et 
istius sententiae est glossa xxiii. Q. iii. 
Can : ostendet ; (Gratian, Decretum, 
C. xxiii. Q. iii. 11) ubi dicit, " populus 
habet jurisdictionem, licet, dicat lex, 
quod earn transtulit in imperatorem." 
Nam, si civitas vel populus non haberet 
jurisdictionem, quare puniretur propter 
delictum judicis, xxiii. ii. 2. Can : 
Dominus (Gratian, Dec : C. xxiii. 
Q. ii. 2), ubi dicitur sic, " Gens et 
civitas petenda est bello, quae vel 
vindicare neglexerit quod a suis 
improbe factum est ; non enim puni - 
endus foret civitas nisi jurisdictionem 
haberet ad compellendum. Et item 
sequitur, quod non est dabilis, in 
quocunque casu naturalitei', monarchia 
pure regalis, prout visus est capere 
quidam istis diebus, quando unicus 
praeest, et nullis subest : nam apud 
philosophum non ita capitur politia 
timocratica sicut ipse capiebat." 



244 THE EARLIER SIXTEENTH CENTURY. [PAKT III. 

Ecclesiae,' where he adds a more developed statement of the 
principle that the prince has no authority of himself, nor 
from God immediately, but only from the Community. 1 
In the first chapter of his work, ' De Potestate Ecclesiastica 
et Laica,' he affirms in more general terms that the secular 
power is derived from the people, whether it passes by heredi- 
tary succession or by election ; in some exceptional cases 
God may have bestowed it upon some man, but, regularly, 
God does not do this. 2 In another place in this work he 
asserts, incidentally, that the legitimate kingdom in France 
was established by the agreement of the people. 3 

These conceptions of Almain are obviously very significant ; 
he does not merely repudiate the theory of what we call the 
" Divine Eight," but he looks upon political authority as 
properly inherent in the Community, in such a sense that 
it is really inalienable, and that an absolute monarchy cannot 
properly be created by the Community. The Community 
always has such authority over the prince whom it has created 
that it can depose him if his rule is for destruction, otherwise 
it would not have power adequate for its self-preservation. 
It was this authority which the Community of the Gauls 

1 Id., ' De Auctoritate Ecclesiae,' I. 2 Id., ' De Potestate Ecclesiastica et 

(col. 707) : " Communitas confert Laica,' Q. i. cap. 1 (col. 752) : " Sed 

principi auctoritatem occidendi eos, potestas laica sive secularis est potestas 

quorum vita in perniciem reipublicae a populo, ex successione hereditaria, 

cedit ; ergo ilia auctoritas est per vel ex electiono alicui vel aliquibus 

prius in communitate, cum nemo tradita rcgulariter, ad aedificationem 

alteri dot quod non habet et ante- communitatis, quantum ad res civiles 

cedens notum est, cum princeps a so secundum leges civiles, pro consequ- 

auctoritatem illam non habeat, nee tione habitationis pacificao. Primo 

habet earn immediate a Deo, saltom tangitur causa efficiens et origo hujus, 

ut inpluribus. Nam.ut dicunt doctores, scilicet 'a populo regulariter ' et 

praesertim Durandus in Tractat. De licet aliquando Dous spocialiter dederit 

Jurisdictione Ecclesiastica, non est aliquibus hanc potostatem laicam, ut 

mtolligendum quod auctoritas regis Sauli . . . et Davidi . . . et aliquibus 

secularis sit a Deo sic, quod earn qui utobantur ista potestate super 

immediate alicui commiserit regulariter, Israel, ut patet Judicum I., tamen 

sed quia secundum rectam rationem regulariter nominem Deus instituit." 

quam Deus hominibus indidit, est 3 Id. id., Q. 4 (col. 871): " Dico 

alicui commissa. Et non videtur quod incoepit esse legitimus rex in 

(cum non sit a Deo immediate com- Gallia, ox consensu populi, quia con- 

missa) a quo sit principi collata nisi sensit populus in aliquom ut regeret." 
ab ipsa communitato." 



CHAP. III.] THE AUTHORITY OF THE RULER. 245 

used when they deposed the king (Chilperic), not so much 
for any crime as because he was incapable. And it was the 
same authority which the Israelites used against Rehoboam, 
for even when God had given authority immediately, as seems 
to have been the case with Saul and David, such princes 
remained subject to the whole Community if they used their 
authority to the destruction of the Community. 1 

This does not mean that Almain was an enemy of monarchy. 
In another treatise he cites the usual definition of the various 
forms of government, but adds that of these the best is the 
monarchy, the worst what he calls the " Censupotestas." 
And again he adds that there is no form of government which 
may not be changed into another, for the form of government 
belongs to the " Jus Positivum." 2 A little further on, he goes 
some way towards defining what he understood by the 
monarchy. A monarchy is that form of government in which 
normally one man rules, but this does not mean that there 
is no assembly which is over him, and can depose him, but 
while in the " Communitates " the assembly is constantly in 
being, and ruling, that is not so in the monarchy. 3 

1 Id., ' De Auctoritate Ecclesiae,' I. civilem immediate, ut videtur probabile 

(col. 70S) : " Secundum eorollarium de Saule et Davide, nihilominus semper 

est, nulla communitas perfecta hanc toti communitate fuerunt subjeati, 

potestatem a se abdicare potest. . . . casu quo in destructionem corn- 

Tertium Corollarium, tota communitas munitatis regerent." 
potestatem habet super principem ab - Id., ' De Potestate Ecclesiastica et 

ea constitutum, qua eum (si non Laica,' Q. i. 5 (col. 766) : " Et inter 

in aedificationem sed in destructionem has, summa et ultima est regnum, 

politiae regat) deponere potest, alias infima auteni censupotestas. . . . 

non esset in ea sufficiens potestas se Ultra supponitur quod nulla est 

conservandi : et ista potestate Gallorum politia pure civilis, et nulla regalis, 

communitas quondam usa, regem quin posset mutari in aliam speciem, 

suum deposuit, non tain pro criminibus, puta timocratiam vel aristocratiarn, 

quam pro eo quod tantae regimini quia quaelibet talis est instituta jure 

inutilis esset, ut habet glossa Can. alius pure positivo, ergo quaelibet potest in 

15 Q. 6 (Gratian Decretum, C. 15 Q. 6), aliam mutari." 
ubi dicitur quod Zacharias Regem Cf. Id., Q. iii. 7 (col. 867). 

Francorum deposuit, habet glossa, id 3 Id. id., Q. i. 16 (col. 824) : " Sed ilia 

est, deponentibus consensit. Hac (politia) dicitur regalis, quando unus 

eadem potestate usi, filii Israel re- solus dominatur, et non plures ; 

cesserunt a Rehoboam. . . . Et verum est regulariter, nam in civilibus 

quamvis super aliquem populum a Deo non dicitur politia regalis ex eo quod 

acceperint aliquam jurisdictionem nulla congregatio sit super regem, 



246 THE EARLIER SIXTEENTH CENTURY. [PAST III. 

In a later passage he sums up some of the functions and 
limitations of the best prince. He is to render to every man 
what belongs to him, that is, to administer justice, to establish 
law, to appoint the inferior judges and officers, but especially 
to correct and punish the transgressors. The prince must 
rule for the common good, he must remember that he reigns 
over free men and not slaves ; it is inconsistent with the best 
princely authority that he should have absolute power 
(plenitudo potestatis), that is, that he should have authority 
to transfer one man's property to another, without fault 
or cause, or to do whatever he pleases, so far as it does not 
conflict with the laws of nature and of God. 1 

It is perhaps worth while to notice that Almain in the same 
chapter represents the person whom he cites as " Doctor " 
as saying that it was not inconsistent with the best 
" principatus " that there should exist in the Community 
a juridical (legal) authority, which in no way depends upon, 
or is created by, the Supreme Prince ; and he mentions, as 
an illustration of this, that, in some countries, in Aragon, 
as it is said, there are jurisdictions which the king does not 
create but which descend by hereditary succession ; the 

nam congregatio nobilium politiae quarumcunque virtutum praecipere ; 

civilis, immediate est super regem, et quilibet princeps ex officio ad ista 

et pro idonietate possunt deponi tenetur : sod tamen ad hoc videtur 

regcs, ut patet in Childerico et Zach- esse principalissime constitutes ut 

aria. Non vocatur ergo regalis, eo corrigat et puniat dolinquentes. . . . 

quod nulla congregatio sit super Ex his patet quae sunt optimo prin- 

illum qui gubornat. Sed in com- cipatui necessario annexa, et quao 

rnunitatibus est congregatio super incompossibilia et quae import inentia, 

regem, et semper manet in esse con- et dictum est quod ad optimum prm- 

gregatio. Sed in politia regali non cipatum necesse est quod sit ad bonura 

sic est, quia non est somper congregatio commune, et quod principans princi- 

nobilium congrogata, quae sit super potur liberis, et non servis, et quod 

regem." sit unus principans et non plures. 

1 Id. id., Q. iii. 6 (col. 865) : Item repugnat optimo principatui 

" Coneequenter restat inquirere quae habere plenitudinem potestatis, puta 

possunt adesse et abesse optimo quod possit ad placitum suum trans- 

principatui ; et breviter dicitur quod ferre rem meam in alterum, sine 

ad optimum principatum spectat uni- quocunque meo poccato, vel causa, 

cuiquo quod suum est reddore, hoc et facero quidquid non repugnat jun 

est justitiam ministrarc, leges condere, naturae et divino ; et visum est etiam 

judices inferiore8 et alios officiales, quo modo praecipuus actus principalis 

delegero et constituere, operationes est malorum punitione intendere." 



CHAP. III.] THE AUTHORITY OF THE RULER. 247 

sons succeed the fathers as judges and the king cannot deprive 
them of their authority ; rather, they are over the king, in 
respect of this jurisdiction. 1 

The whole position of Almain is exceedingly interesting. 
He has the same preference for the monarchy as that which 
we normally find in the mediaeval world, but he is also quite 
clear not only that the source of political authority is the 
Community, but that the ultimate authority always remains 
in it and must in the nature of things do so, and though the 
monarchy is the best form of government, it is strictly 
limited by the purpose for which it exists, the furtherance 
of the common good and the maintenance of justice ; an 
absolute monarch is to him impossible. 

The character of the political theory of John Major is 
very close to that of Almain ; indeed, it would seem that 
he was either directly influenced by Almain or that they were 
both under the influence of some common tradition. John 
Major was a Scotsman, but taught for many years in the 
University of Paris, and the work with which we are now 
dealing was apparently published in 1518. It is primarily 
concerned, like those of Almain, with the ecclesiastical questions 
of the relation between the Pope and the General Council, 
but we are here only concerned with its political principles. 

The king has no authority except that which is derived 
from the kingdom, for he himself or his first predecessor was 
elected by the people ; the king is over every individual 
person in the kingdom, but he is not over all the kingdom, 
"regulariter et casualiter," he is " regulariter " over the 

1 Id. id. id. (col. 865) : " Jam regulariter 

Doctor infert aliqua corollaria — Primo Hinc est quod in aliquibus regnis, 

non repugnat optimo principatui su- ut fertur in regno Arragoniae, rex non 

premo, optimo ordinato, aliquem esse habet instituere jurisdictiones, imo 

potestatem juridicam alicujus, vel est aliqua potestas juridica, quae 

aliquorum de communitate ilia, quae habetur ex succeesione parentum. 

nullo modo ab ipso supremo princi- Ita quod post patres, filii sunt judices 

pante dependeat, et quae non sit ... nee illos rex potest destituere, 

ab ipso instituto, hoc est, quae non imo sunt supra regem quantum ad 

dependeat ab ipso, nee quoad insti- illam jurisdictionem." 
tutionem nee ad destitutionem saltern 



248 



THE EARLIER SIXTEENTH CENTURY. [PART III. 



whole kingdom, while the kingdom is over him " casualiter." 1 
This is sharply stated, but the principle is even more com- 
pletely expressed in another passage. The King of France 
is over all France, but the " praecipua pars " from which 
he derives his authority is over him, and can depose him for 
reasonable cause. The people is " virtualiter " over the 
king, and in difficult matters the three Estates of the Bealm 
are called together and direct him, and a free people has 
the power, for reasonable cause, to alter the form of the 
Constitution. 2 

He expresses the same principle again in another place. 
In France and Scotland it may be said that the supreme 
power is in the king, but it would be better to say that there 
are two powers of which one is supreme and more unlimited 
than the other. In the kingdom and in the whole free people 



1 John Major, ' De Auctoritate 
Concilii super Pontificem maximum.' 
(In J. Gerson, Opera, vol. i., ed. 1606) 
(col. 881) : " Rex utilitatem reipublieae 
dissipans et evertens incorrigibiliter, 
est deponendus a eommunitate cui 
praeest. . . . Rex non habet robur 
ot auctoritatem nisi a regno, cui libere 
praeest." 

(Col. 888) : " Rex tamen non est 
super omnos in regno regulariter et 
casualiter, quia vel electus est, vel 
enim primus predecessor erat electus 
a populo, pro communi populi utilitate, 
et non pro suo. . . . Ad politiam vero 
rogalem, non requiritur quod rex sit 
super omnes sui regni tam regulariter 
quam casualiter, ut ex dictis liquet : 
Bed sat est, quod rex sit super unum- 
quemlibot ; et super totum regnum 
regulariter ; ot regnum sit super oum 
casualiter, et in aliquo eventu." 

8 Id. id. (col. 886) : " Exemplum 
in simili, Franciscus dicitur communiter 
rex totius Franciae, et non modo est 
super unarn provinciam Galliao, sed 
super totam categoromatice, non ob- 
stante quod precipua pars est super 
ipsum, a qua auctoritatem habet, quae 
non potest tollere ab eo regnum suum, 



sine rationabili et arduissima causa. . . . 
Si contradicat, in hoc solum est 
discrimen, pontificatus est de jure 
divino et ex institutione Christi, et 
rex habet regnum a toto populo . . . 
respondeo, sed auctoritas communicata 
est ecclesiae a Christo, sicut summus 
pontificatus, et auctoritas ilia non 
dependet ab auctoritate summi ponti- 
ficatus, sed immediate a Deo, et sic 
aliquo modo convenit potestas ecclesiae, 
cum potestate populi unius regni et 
aliquo modo differt ; nam quoad 
suporioritatem convenit, ita quod 
sicut populus virtualiter est super 
rogom, ct in casu, ut in rebus arduis 
in quibus convocantur tres status 
regni, qui regem in casibus ancipitibus 
habeant dirigere ; sic, in casibus 
arduis Concilium rite congregatum, 
habet leges obligatorias pontifici im- 
ponere, quoad ejus personam, et non 
quoad dignitatem ipsum. Hoc pro 
tanto dico, quod corpus ecclesiae non 
potestmutare politiam regalem ecclesiae 
in aristocrat icam vel timocraticam, 
quia tunc contraveniret institutioni 
Cliristi : populus autem liber, pro 
rationabili causa potest politiam 
mutare." 



CHAP. III.] THE AUTHORITY OP THE RULER. 249 

there is a supreme power which is the ultimate source of all 
authority, and which cannot be abrogated, while the king 
holds a power, honourable, indeed, but ministerial. 1 

It is interesting to compare the position of A 1 main and 
John Major with that of Machiavelli in Italy. We are not 
here discussing the character and significance of his discussion 
of statecraft in the administration of government as it is 
set out in ' The Prince.' Indeed, we venture to say that 
there is but little relation between this and the history of the 
development of political civilisation as embodied in the laws 
and institutions of the countries of Western Europe. 

It must not be thought that we are undervaluing the 
importance of Machiavelli in history, or attempting to estimate 
the significance of his penetrating analysis of the forces 
which, rightly or wrongly, consciously or unconsciously, 
have determined in so great a measure the relations of the 
autonomous Communities of Europe ; but the history of these ]/ 
relations does not come within the scope of this work, and it 
would be absurd to discuss them merely incidentally. We 
deal, therefore, with certain aspects of his political theory 
which are to be found mainly in the ' Discourses on Livy,' 
and these are for our purposes very interesting and 
significant. 

Machiavelli sets out the traditional definition of the three 
good forms of State, Monarchy, Aristocracy, and popular 
government, and their three corrupt counterparts, the Tyranny, 
the Oligarchy, and the corrupt Democracy. He adds that 
the good forms of government had a fatal tendency to turn 
into the corrupt ones, and points out that the wise founders 
of States had therefore endeavoured to establish a constitution 

1 Id. id. (col. 889) : " Similiter in (Col. 890) : " Similiter in regno et 

regno Francorum vel Scotorum est in toto populo libero, est suprema et 

suprema potestas etiam in eorum fontalis potestas inabrogalis ; in rege 

regibus ; melius dicantur duae potestates vero, potestas ministerialis honesto 

realiter, quarum una est superior et ministerio : et sic aliquo modo sunt 

iUimitatior quam alia, ad quam alia duae potestates, sed quia una ordin- 

subordinatur, et sic est quodammodo atur propter aliam, potest vocari 

una. ii. una effectualis. " 



250 THE EARLIER SIXTEENTH CENTURY. [PART III. 

which had something of all the good forms, something both 
of monarchy, aristocracy, and popular government ; and he 
cites, as examples, Sparta and Rome. 1 This conception of 
the virtue of a mixed constitution was, as we have seen, 
not only known to the ancient writers, but was also current 
among the mediaeval. 

We come to a more complex subject when we endeavour to 
ascertain what it is that Machiavelli meant by Liberty. He 
looks upon it as being among the chief ends of government ; 
in one place he says expressly that to those who ordered the 
Commonwealth with prudence, among the most necessary 
things was the establishment of a protection for liberty. 2 

What liberty meant to Machiavelli is not easy to define, 
but it is possible to arrive at some conclusion as to his meaning 
by putting together various passages. The words we have 
just cited are followed by a discussion of the question whether 
it is better to entrust the protection of liberty to the nobles 
(Grandi), or to the people (Populari) ; and he concludes that 
it is clearly better to put it in the hands of the people, for the 
nobles desire " dominare," while the people only desire not 
to be dominated, and have therefore a greater desire to live 
in freedom. 3 

1 Machiavelli, ' Discorsi sopra la bene collocata dura pui o meno quel 
prima Deca di Tito Livio ' (' Opera ' vivere libero." 

ed., Milan, 1772), i. 2: " Dico adunque 3 Id. id., i. 5 : "E venendo alle 
che tutti i detti modi sono pestiferi ragioni dico (pigliando prima la parte 
per la brevita della vita che o ne tre do Romani) come e' si debbe mettere 
buoni, e per la malignita che e ne' tre in guardia coloro d'una cosa che hanno 
rei. Talcho avendo quelli che prudent c- meno appetito d'usurparla. E senza 
mente ordinano loggi conosciuto questo dubbio se si considera il fine de nobili e 
difetto, fuggendo ciascuno di quest i degl' ignobili, si vedra in quelli de- 
modi per se stesso, ne elcssero uno che siderio grando di dominare, e in questi 
partkipasse di tutti, giudicandolo piu solo dosiderio di non essere dominati, e 
fermo e piu stabilo, perche l'uno per consequonte maggior volonta di 
guarda Paltro, sendo in una medesima vivere liberi, potendo meno speraro 
citta il principato, gli ottimati, ed il d'usuparla che non possono i grandi; 
governo populare." talche essendo i popolari preposti a 

2 Id. id., i. 5 : " Quelli che prudonte- guardia d'una liberta, e ragionevole no 
mente hanno constituita una repubbliea, abbiano piu cura, e non la potendo 
in tra le pui necessarie cose ordinate occupare loro, non permettano che 
da loro, e stato constitucre una guardia altri l'occupi." 

alia liberta, e secondo che quosta e Cf. on the need of equality in a 



CHAP. III.] THE AUTHORITY OF THE RULER. 251 

Machiavelli does not, so far as we have seen, relate the 
conception of liberty directly to that of the supremacy of 
Law, but we may reasonably judge that he implies it. He 
compares the character of the good Euler, who lives according 
to the law, with that of the tyrant, 1 and in another place ~ 
he says that Tarquin was driven from Rome, not because 
Sextus had violated Lucretia, but because he had broken the 
laws of the kingdom and ruled as a tyrant, and had thus 
deprived Eome of that liberty which it had possessed under 
the earlier kings. 2 

Machiavelli certainly looked upon the subordination of 
the Rulers to the Law as a matter of the first importance to 
a free Commonwealth. We have pointed out in a previous 
chapter that Machiavelli refers to France as an example of 
the good results of this, and we repeat this here. The kingdom 
of France lives in security, for the kings are bound by many 
laws. Those who ordered that State provided that the king 
should have the control of arms and money, but that in all 
other matters they should only act as the Laws directed. 3 
In another place he deals with this in more detail, and points 
out how good was the effect in France, that that kingdom, 
more than any other kingdom, lived under the control of 
the laws. The " Parlemens," and especially that of Paris, 
enforced these, and even delivered judgments against the king. 4 

republic, and the incompatibility of a mantenuta." 

" vivere politico " with the existence of 3 Id., i. 16: "In esempio ci e il 

a class of " gentiluomini," i. 55. regno di Francia, il quale non vive 

1 Id., i. 10. sicuro per altro che per essersi quelli 

2 Id., iii. 5 : " Non fu adunque re obligati ad infinite leggi nelle quali 
costui (i.e., Tarquinius Superbus) si comprende la sicurta di tutti i suoi 
cacciato per avere Sesto suo figliuolo populi. E chi ordino quello stato 
stuprata Lucrezia, ma per aver rotte le voile che quelli re, dell' arme e del 
leggi del regno e governatolo tyran- danaio facessero a loro modo ; ma che 
nicamente, avendo tolto al senato d'ogni altra cosa non ne potessero 
ogni autorita e riddotola a se proprio ; altrimenti disporre che le leggi si 
e quelle facende che nei luoghi ordinassino." 

publici con satisfazione del senato 4 Id., iii. 1 : "E si vede quanto 

Romano si facevano, le ridusse a fare buono efletto fa questa parte nel regno 

nel palazzo suo con carico ed invidia di Francia, il qual regno vive sotto le 

sua. Talche in breve tempo egli leggi e sotto le ordini pui che alcun 

spoglio Roma di tutta quella liberta altro regno. Delle quali legge, e 

che ella aveva sotto li altri re ordini ne sono mantenitori i parlia- 



252 THE EARLIER SIXTEENTH CENTURY. [PAKT III. 

It seems to us to be clear that Machiavelli held that the 
prince should be subject to the Law, and that he related this 
to the conception of liberty. 

We find also in Machiavelli a very interesting discussion 
of the ultimate foundations of a healthy political system. 
He contrasts the success of Borne, in establishing and main- 
taining liberty after the expulsion of the Tarquins, with its 
inability to restore it when the opportunity was given by 
the deaths of Csesar, or Caligula, or Nero, and he contends 
that the reason of this was that in the time of the Tarquins 
the Eoman people was not yet corrupt, while in the later 
times it was most corrupt. And he adds that the same thing 
could be said of his own time. Nothing, he says, could ever 
restore liberty in Naples or Milan, the corruption of the people 
had gone too far, and this could be seen in the fact that, on 
the death of Filippo Visconti, Milan wished to recover its 
liberty, but could not maintain it. 1 

We must not, indeed, interpret Machiavelli's conception 
of the corruption of the Community as related to what we 
should call private morals ; it has reference rather to what 
we might call public spirit and honour. The importance of 
Machiavelli's conception, from the point of view of our subject, 
is that he is clear that the prosperity of a State and the char- 
acter of its government depends in the long-run on the 
qualities, not merely of the Euler but of all the members 
of the Community. 

menti, e massime quel di Parigi ; lo essere dei tempi de Tarquinii il populo 

quali sono da lui rinnovate qualunque Romano ancora corrotto, e in questi 

volta e' fa una osecuzione contro ad tin uhimi tempi essere corrottissimo. . . . 

1'iincipe di quel regno, e che ci con- E benche questo esompio di Roma 

danna il Re nolle sue sentenze." sia da proporre a qualunque altro 

1 Id., i. 17 : " Ma non si vede il esempio, non di meno voglio a questo 

piu forte esempio che quello di Roma, proposito addurre inanzi popoli conos- 

la quale cacciati i Tarquinii potette ciuti ne nostri tempi. I'ertanto dico 

subito prendore o mantenere quella che nessuno accidente, benche grave 

liberta ; ma morto Caesare, morlo o violento, potrebbe ridurre mai 

Caligula, morto Nerone, spenta tutta Miluno o Xapoli libere, per essere 

la stirpe Caesarea, non potette mai, quelle membra tutte corrotte. II 

non solamente mantenore ma pure che se vido dopo la morto di Filippo 

dare principio alia liborta ; no tanta Visconti, che volendosi ridurre Milano 

diversita di evento in una medesima alia liberta non potette e non 6eppe 

citta nacque da altro, se non da non mantenerla." 



CHAP. III.] 



THE AUTHORITY OF THE RULER. 



253 



The truth is, that though he asserted the principle that the 
mixed or tempered constitution was the best, he held that the 
people as a whole, if they accepted the control of the Laws, 
were wiser and more prudent and less variable than a prince. 
In one chapter he discusses at some length the opinion of 
Livy and other historians that the multitude is inconstant, 
and declares that this might be said equally of princes, when 
they are not restrained by the Laws. A people which is well 
ordered will be constant, prudent, and grateful as much as, 
or more than, a prince, even a wise prince ; while a prince, 
who is not subject to the Laws, will be more ungrateful, 
more variable, and more imprudent than the people. There 
is some ground for the comparison of the voice of the people 
to the voice of God. 1 

The people is much wiser than the prince in the appoint- 



1 Id., i. 58 : " Nessuna cosa esser 
piu vana e piu inconstante che la 
multitudine, cosi T. Livio nostro 
come tutti li altri Istorici affermano. . . . 

Dico adunque como di quello difetto 
di che accusano li serittori la multi- 
tudine, se ne possono accusare tutti 
gli uomini, particolarmente, e massime 
i principi . . . e de' buoni e de savi ne 
sono stati pochi ; io dico de' principi 
che hanno potuto rompere quel freno 
che li puo corregere ; tra i quali 
non sono quelli Re che nascevano in 
Egitto quando in quella antichissima 
antichita si governava quella provincia 
con le leggi, ne quelli che nascevano 
in Isparta, ni quelli che a nostri tempi 
nascono in Francia, il qual regno e 
moderato piu delle leggi che alcun 
altro regno di che ne' nostri tempi si 
abbi notizia. E que-iti Re che nascono 
sotto tali costituzioni, non sono da 
mettere in quel numero donde si abbia 
a considerare la natura di ciascuno 
uomo per se, e vedere se egli e simile 
alia multitudine ; perche all' incontro 
loro si debbe poire una multitudine 
medesimamente regolata dalle leggi 
come sono essi, e si trovera in lei 
essere quella medesima bonta che noi 



veggiamo essere in quelli. 



Conchiudo adunque contra alia 
commune opinione, la qual dice come i 
Popoli, quando sono principi, sono 
vari, mutabili, ingrati, affermando che 
in loro non sono altrimente questi 
peccati che si sieno ne Principi par- 
ticolari. Ed accusando alcuno i 
Popoli e i Principi insieme, potrebbe 
dire il vero ; ma traendone i Principi, 
s'inganna : perche un Populo che 
commanda e sia bene ordinato, sara 
stabile, prudente, e grato, non altri- 
mente che un Principe, o meglio chs 
un Principe, eziandio stimato savio ; 
E dal altra parte, un Principe sciolto 
dalle leggi sara ingrato, vario, e im- 
prudente piu che un Populo . . . Ma 
quanto alia prudenza e alia stabilita, 
dico come un Populo e piu prudente, 
piu stabile, e di miglior giudizio che 
un Principe. E non senza cagione si 
assomiglia la voce d'un populo a 
quella di Dio ; perche si vede una 
opinione universale fare effetti mara- 
vigliosi ne' pronostici suoi, talche 
pare che per occulta virtu e' prevegga 
il suo male e il suo bene." 



254 THE EARLIER SIXTEENTH CENTURY. [PART III. 

ment of the magistrates, and is more constant in its opinions. 
The truth is that the government by the people is better than 
that of the prince ; if we compare the government of a prince 
bound by the Laws with that of a people equally bound, 
there is more excellence (virtu) in the people than in the 
prince ; while, if we compare the errors of the prince with 
those of the people, the errors of the people are fewer and 
less serious, and more easily remedied. The truth is, 
Machiavelli adds, that the common depreciation of the people 
arises from the fact that everyone speaks evil freely, and 
without fear, of them, even when they govern, while of princes, 
men only speak with fear and deference. 1 

It is clear that Machiavelli's political conceptions, as 
represented in the ' Discorsi,' are related primardy to the 
tradition of the Italian City States, but it is significant that he 
represents the same position as other mediaeval writers, that 
the foundation of a civilised political life is the supremacy 
of Law. 

We turn to Spain, where we find in Soto a writer whose 
work was not indeed published till after the middle of the 
century, but who seems to us to belong in character to its 
earlier part ; for he does not seem to be affected by the great 
political movements of the latter part of the century. Indeed, 
the work of Soto is in the main a careful restatement of some 
of the principles of St Thomas Aquinas, with occasional 
modifications, no doubt. 

1 Id. id. id.: " Vedesi ancora nolle de' Principi. . . . Se adunque -i 

6ue elezioni a i Magistrati fare di lungo ragionera d'un Principe obligato alle 

miglioro elczione cho un Principe, ne leggi, e d'un populo incatenato da 

mai si persuadera ad un populo che quelle, si vedra piu virtu nol populo 

sia bene tirare alia dignita un uomo cho nel Principe ; se si ragionera del 

infame e di corrotti costumi, il che uno o del altro sciolto, si vedra meno 

facilmente o per mi Ho vie si persuade errori del populo che nel Principe, o 

ad un Principe ; vedosi un populo quelli minori o arrano maggiori 

cominciare ad avere in orrore una re modi. . . . Ma l'opinione contra ai 

cosa, e molti secoli stare in quella populi nasee perche do' popoli ciascun 

opinione ; il cho non si vede in un dice male senza paura, e liberamente 

principe. ... II cho non puo naseere ancora montre che regnano ; de 

da altro se non che sono migliori Principi si parla sempre con mille 

govorni quelli de' popoli che quelli pauro e mille rispetti." 



CHAP. III.] THE AUTHORITY OF THE RULER. 255 

We have already noticed Soto's conception of Law in 
general ; we are now concerned with his conception of 
the prince. Kings, he says, do not derive their authority 
immediately or directly from God, except in some special 
cases, such as those of Saul and David ; they are normally 
created by the people, and their authority is derived from the 
people. Such words as those of the Proverbs, " By me kings 
reign," only mean that God, as the source of Natural Law, 
has granted to mortal men that every Commonwealth has 
the right to govern itself, and if reason, which is itself an 
inspiration (spiramen) of the Divine, demands it, to transfer 
its authority to another. 1 

The authority of the king is, however, conceived by Soto 
as being very great. In a passage dealing with the practice 
of selling public offices, he is met with the contention that 
the king cannot do this, for he is merely " dispensator offi- 
ciorum " ; he emphatically disputes this, and says that the 
king is not merely a " dispensator," but he is the Respublica, 
not a mere vicar of the Respublica, like the Doge of Venice. 
The people, in Ulpian's phrase, has conveyed to him all its 
authority and force, and neither he nor his heirs can be de- 
prived of this, except for manifest tyranny. Therefore, the 
kingdom is his, as the house of a private citizen belongs to 
the citizen, and every power and right (Jus) of the Respublica 
belongs to him. Only, the Respublica was not made for him, 
but he for the Respublica, and he must therefore consider 
everything from the point of view of its good. 2 In another 

1 Soto, 'De Justitia et Jure,' i. 1, 3 auctorem, donatum mortalibus est, ut 

(p. 9) : " Haud enim a Deo proxime, et unaqueque respublica se ipsam regendi 

quod aiunt immediate creati sunt, habeat arbitrium ; ac subinde, ubi 

praeter Saulum et Davidem eoramque ratio, quod spiramen etiam est divini 

prosapiam.cui seeptrum ipse commisit, numinis, postulaverit, in alium suam 

Bed, ut habetur 1. quod placuit ff. de transmittat potestatem, cujus legibus 

Consti. prim (' Digest,' i. 4, 1), reges ac providentius gubernetur." 

principes a populo creati sunt, in quas 2 Id., iii. 6, 4 (p. 273) : " Attamen 

suum transtulit imperium ac potes- objectio haec nisi fallor nullatenus 

tatem. . . . Unde verbum illud apud conclusionem nostram expugnat. Rex 

sapientem ex Proverb : viii. supra enim non tanquam dispensator, sed 

citatum, ' Per me reges regunt, etc.' tanquam ipse eadem respublica repu- 

non aliter intelligendum est quam tandus. Enim vero non est estimandus 

quod ab ipso, tanquam naturalis juris tanquam reipublicae vicarius, sicuti 



256 THE EARLIER SIXTEENTH CENTURY. [PART III. 

passage Soto speaks of the power of the prince in making 
laws ; and says emphatically that he is superior, not only 
to all individuals, but to the whole State. 1 

It should be observed that with all his emphasis on the 
authority of the king, he is equally clear that he must use it 
for the good of the State, and if he uses it tyrannically he 
may be deposed. This is not merely an incidental judgment, 
but is carefully developed, with due qualifications, in another 
passage, where he discusses the question of tyrannicide. He 
makes a distinction, with which we are by this time familiar, 
between the tyrant by usurpation and the tyrant by practice. 
As to the first there is no doubt ; he may be slain by anyone, 
for he is making war on the Commonwealth. The case of the 
second is more difficult, as he has a lawful right to the kingdom; 
he can therefore only be deprived of this by public judgment, 
but when this has been pronounced, anyone may be appointed 
to carry it out. If the Commonwealth has a superior, he should 
be requested to provide a remedy, but if there is none, the 
Commonwealth may take arms against the tyrant. It is 
noteworthy that he interprets the Decree of the Council of 
Constance concerning tyrannicide as referring to the action of 
a private person. 2 It is clear that, with all his reverence for 

Venetorum dux, qui est a republics ipsum est : licet non respublica propter 

pendens, sed tanquam plenissimam ipsum, sed ipse propter rempublicam 

habens potestatem reipublicae, oandom sit institutus : et ideo omnia debet in 

scilicet quam ipsa habebat. Sic enim publicum commodum referre." 

expresse habet lex ilia, quod principi, • Id., iv. 4, 1 (p. 309) : " At hinc sit, 

ff. : de Constit. prim ('Dig.' i. 4, 1). ut lib. i. Quest, vi. dicebamus, princi- 

Quod principi placuit, legis habet pem potestate fungi ferendarum legum ; 

vigorem, utpote cum lege regia quae quibus rempublicam coerceat. Fitque 

de imperio lata est, populus ei et in praeterea ut non solum singulis reipub- 

eum omne suum imperium et potes- licae membris superior sit, verum et 

tatem contulorit. Hac enim lege totius collectim corporis, caput, totique 

atquo hac de causa non potest ilium adeo sic eminens, ut totam etiam simul 

ullo pacto dimovere, neque filios jure puniro valoat. Quare noque per rem- 

hereditario regnandi expoliaro, si illud publicam rex potest regni expoliari, 

semel illi contulerit, nisi ubi aperta nisi fuerit in tyrannidem corruptus." 

tyrannide regnum pessundaret. Et 2 Id. id., v. 1, 3 (p. 400): " Primum 

tunc solo beneficio naturalis juris, de tyranno, an cuivis civium licet eum 

quo vim vi repollere licet. Itaque privatim intorficere. Apparet enim 

regnum est suum, sicut cujusquo civis id esse, natura magistra, legitimum. 

sua est domus ; atque adeo quaecunque Nam unicuique conceditur jus de- 

facultas et jus reipublicae penes fendondi sese. De hoc D. Thom : ii. 



CHAP. III.] THE AUTHORITY OF THE RULER. 257 

the authority of the king, Soto holds that, as it is 
derived from the Community, he may justly be deprived 
of it by the Community if he uses it unjustly and 
tyrannically. 

Soto's treatment of the relation of the king to the Law is 
rather different. He discusses this in detail in a chapter 
in which he asks whether all are subject to the Law, and points 
out the difficulty raised by the words of St Paul, " Law is 
not made for the righteous man " (1 Tim. i. 9), and by those 
of Ulpian, " Princeps legibus solutus est " (Dig. I. iii. 31). 
We cannot here enter into his discussion of the first passage, 
but his observations on the second are important for our 
purpose. The prince is subject to the directing force (vis 
directiva) of the Law, but is not subject to its coercive force ; 
this, he says, is obvious, for he cannot apply force to himself ; 
the prince should not, however, think of this as a privilege, 
but rather as an unhappy circumstance, for subjects are both 
illuminated by the light of the Law and driven by its penalties ; 
the prince lacks the second, for there is no one who can compel 
him or even dare to reprove him. And, therefore, the king 
should be the more careful to listen to reason and the Divine 
voice, and to hearken to the laws which he has made for others, 
and Soto cites the words of the Imperial Constitution, " Digna 

Sent : Dist : 64. Q. ii. Art. ii., et trucidet, vel sua rapiat, potest civis 

opus xx De Regimine Principis C. vi. ille, vim vi repellendo, eum interimere, 

optime disserit. Summa autem dis- dum tamen constantissimum sit, esse 

putationis secundum quosdam ejus tyrannum. . . . Quare si respublica 

interpretes, atque alios doctores, haec superiorem habet, ille adeundus est, 

est ; bifarium quempiam contingit ut remedio succurreat : sin vero, ilia 

esse tyrannum, videlicet, aut potestatis potest in cum coarmari. . . . Atque 

acquisitione, aut sola administratione in hoc casu intelligenda est sanctio 

quern juste adeptus fuit. Atque in Concilu Constantiensis, Sess : 15, 

hoc secundo casu, communis consensus ubi tanquam haeresis condemnatur 

est, nemini licere ipsum privatim eorum error qui affirmabant cuilibet 

interimere. Et ratio est, quod quum licere tyrannum occidere. Si vero 

jus habeat ad regnum, non est illo nisi tyrannride invasam, rempublicam ob- 

per publicum judicium expoliandum, tinuit, neque unquam ipsa consensit, 

ut s. audiatur. Lata vero in eum tunc quisque jus habet ipsum extin- 

sententia, quisque potest institui execu- guendi ; nam vim vi repellere licet ; et 

tionis minister. quamdiu ille rempublicam sic obtinet, 

Praeterea dum particulariter civem perpetuum gerit in ipsam bellum." 
quempiam aggreditur, ut vel ipsum 

VOL. VI. R 



258 THE EARLIER SIXTEENTH CENTURY. [PART III. 

vox est majestatis regnantis, legibus alligatum se principem 
profited " (Cod. I. xiv. 4). 1 

Soto then, on the one hand, ascribes to the prince a great 
authority ; he looks upon him as normally the source of Law, 
and as, technically, above it, though he is conscious of 
the danger of this conception ; but, on the other hand, he 
maintains very emphatically that it is from the Community 
that his authority is derived, and that if he abuses this 
authority he may be deposed. 

It is hardly necessary to point out that in England St 
Germans represents the tradition of Bracton and of Fortescue, 
that the authority of the king was limited by the Law, and 
that the Law was not made by him alone. It is obvious, from 
what we have said in an earlier chapter, that in the opinion of 
St Germans it was from the custom of the Community that 
the Law was originally derived, and that the only authority 
which could change these customs was that of Parliament, 
including, no doubt, the king, but also representing the whole 
community. The sixth foundation, as he says, of the law of 
England was to be found in the Statutes made by the king or 
his ancestors, by the Lords Spiritual and Temporal, and by 
the community of the whole kingdom. He knows no source 

1 Id. id., 1, 6, 7 (p. 65) : " Sit ergo verum otiam ejus penis stimulantur, 

prima conclusio, universi qui subditi duobus subsidiis ad virtutem utuntur ; 

6unt potestati, legibus subinde ipsius ; princeps autem altero destitutus est, 

quia voro et princeps quantum ad vim dum nullus est qui ilium cogere posset, 

directivum subiicitur. . . . Huic autem aut reprehendere audeat ; immo vix 

subiicimus similem ei tertiam : prin- ullus qui veritatem doceat. . . . 
ceps quantum ad vim coercivam non Quapropter rex quo eum Deus 

eubditur legi. Conclusio est aperta, liberiorem fecit, legumque coactioni 

quoniam coactio ejusdem ad se ipsum longius exomptum, oo debet esse 

esse non potest : nonenimest intellectu ipse rationi vigilantius, divinoque 

possibile, ut vim quispiam sibi ipse nutui audiens esse, ac subinde legibus 

inferat at quo adeo se sua loge cogat. . . . quas aliis ponit, ipse auscultare : ne in 

Quod autem sua principem lex non ilium Cbristi improperium impingat, 

cogat, non indo vcnit quod ipso non ' qui dicunt et non faciunt ' . . . et 

egeat, sed quod lex natura sua nequeat. C. De Leg : et Constit. 4. Aiunt 

At vero hanc principes oxomptionem imperatores ipsi ' digna vox est 

non inter privilegia ducere debent, majestatis regnantis, legibus alligatum 

immo est illis iniqua conditio. Subditi se principem profited. ' " (Cod. I. 

enim qui non solum legis luce ducuntur, xiv. 4.) 



CHAP. III.] THE AUTHORITY OF THE RULER. 259 

of English law except the Divine Law, the Law of Season, 
the general and particular customs of the country, and the 
Statutes of Parliament. 1 To the observance of these laws 
the king is bound by the oath which he takes at his corona- 
tion, 2 and it is by the customs embodied in Magna Carta 
that the person and property of the Englishman is legally 
protected. 3 

There is, however, another English work of this time which 
deserves some notice. This is the ' Dialogue between Cardinal 
Pole and Thomas Lupset,' written by Thomas Starkey, not 
later than 1538, for he died in that year. 4 The greater part 
of this work is indeed occupied with a description and dis- 
cussion of the social and economic conditions of England 
with which we cannot deal here, but from time to time there 
are important observations on the authority of law and of 
the Euler. 

Pole is represented as saying that originally " man wandered 
abroad in the wild fields and woods, none otherwise than you 
see now the brute beasts to do" (page 52). At last certain 
wise men persuaded them to forsake this rude life and to build 
cities in which they might live. " Thereafter they devised 
certain ordinances and laws whereby they might be somewhat 
induced to follow a life convenient to their nature and dignity " 
(page 52). 

The forms of government, Pole defines in the Aristotelian 
tradition, as that of one, a king or prince, or a few wise men, 
or that of the whole body and multitude of people, " and thus 
it was determined, judged, and appointed by wisdom and 
policy, that ever, according to the nature of the people, so, 

1 St Germans, ' Dialogus,' cap. x. menta legis Angliae alia me legisse non 

(fol. 34) : " Sextum Fundamentum meminor." 

legis Angliae stat in diversis statutis 2 Id. id., cap. vii. (fol. 22). 

per dominum Regem et progenitores 8 Id. id. id. (fol. 23). 

suos, et dominos spirituales et i We refer our readers for details 

temporales, et per communitatem about Thomas Starkey and his work 

totius regni in parliamento editis, to the edition published for the Early 

ubi lex rationis, lex divina, consuetu- English Text Society in 1878. The 

dines, maxima, sive aha fundamenta work was never published before, 

legis Angliae prius sufficere minime We have modernised the spelling in 

videbantur. Et ultra haec funda- our references. 



260 THE EARLIER SIXTEENTH CENTURY. [part III. 

by one of these politic manners, they should be governed, 
ordered, and ruled " (page 53). He also repeats the Aristot- 
elian principle of the difference between a bad and a good 
government ; the good government is that which is directed 
to the wellbeing of the whole Community, while the evil 
government is that which is directed to the advantage of the 
Euler (pages 53, 54). 

So far there is nothing of much importance, but in the last 
paragraph of the third chapter Pole turns from the discussion 
of the economic and social evils of England to the " mis- 
orderings and ill-governance which we shall find in the order 
and rule of the state of our country " (page 99). And in the 
next chapter he begins the consideration of this subject by 
saying " that our country has been governed and ruled these 
many years under the state of Princes which by their royal 
power and princely authority have judged all things per- 
taining to the State of our Eealm to hang only upon their 
will and fantasy, insomuch that whatsoever they ever have 
conceived in their minds, they thought by-and-by to have 
it put in effect, without resistance to be made by any private 
man and subject ; or else by-and-by they have said that 
men should diminish their princely authority. For what is a 
Prince (as it is commonly said) but he may do what he will. 
It is thought that all wholly hangs on his only arbitrament. 
This hath been thought, yea, and this is yet thought, to per- 
tain to the Majesty of a Prince — to moderate and rule all 
things according to his will and pleasure ; which is, without 
doubt, and ever hath been, the greatest destruction to this 
Eealm, yea, and to all others, that ever hath come 
thereto 

For Master Lupset this is sure, and a Gospel word, that 
country cannot be long well governed nor maintained with 
good policy where all is ruled by the will of one, not chosen 
by election, but cometh to it by natural succession ; for 
seldom seen it is, that they which by succession come to 
kingdoms and realms, are worthy of such high authority " 
(pages 100 and 101). 

Lupset is greatly alarmed, and warns Pole that many 



CHAP. III.] THE AUTHORITY OF THE RULER. 261 

people will think that this sounds very like treason, for " it 
is commonly said (and, I think, truly) a king is above his 
laws, no law binds him " (page 101). 

The words attributed to Pole clearly express the opinion 
that the royal authority had tended to become absolute, 
and that a government of this kind was a great evil in England 
or any other country. It must be noticed, however, that 
Pole's words here suggest that this might be different if the 
prince were elected instead of hereditary, and he develops 
the criticism of succession by inheritance. Lupset replies 
that experience had shown that hereditary succession was 
necessary to prevent civil war, and Pole admits that it was 
better to have it in England (pages 104-108). 

Pole returns to the subject in the Second Part, and again 
expresses his preference for an elective monarchy, but he 
now adds that even the prince thus elected " should not 
rule and govern according to his own pleasure and liberty, 
but ever be subject to the order of his laws " (page 168). 

He turns, however, immediately to the question of the 
method of government if the prince succeeds by inheritance, 
"if we will that the heirs of the Prince shall ever succeed, 
whatsoever he be, then to him must be joined a Council by 
common authority ; not such as he wills, but such as by the 
most part of the Parliament shall be judged to be wise and 
meet thereunto " (page 169). 

He assumes the existence of the " Great Parliament," as 
he calls it (page 169). It is not to meet continually, but to be 
called together for the election of the prince and for other 
matters " concerning the common state and policy," and 
is to appoint a Council which should sit continually in London 
and represent the authority of Parliament, and " should be 
ready to remedy all such causes, and repress seditions, and 
defend the liberty of the whole body of the people, at all 
such times as the king or his Council tended to anything 
hurtful and prejudicial to the same " (page 169). This Council 
is to be wholly distinct from the ordinary Council of the king, 
and it is to be composed of four nobles, two bishops, four 
judges, and four citizens of London, and they should have 



262 THE EARLIER SIXTEENTH CENTURY. [PART III. 

the authority of the whole Parliament when it was not 
meeting. The end and purpose of this Council is, "to see 
that the king and his proper Council should do nothing against 
the ordinance of his Laws and good Policy, and should also 
have power to call the Great Parliament whensoever to them 
it should seem necessary for the reformation of the whole 
State of the ' Commynalty.' By this Council, also, should 
pass all acts of Leagues, Confederations, Peace, and War. 
All the rest should be administered by the king and his 
Council " (pages 169, 170). 

In another place Pole is represented as dogmatically re- 
pudiating the conception that the authority of Government, 
whether it is evil or good, is derived from God. " Even as 
every particular man, when he followeth reason, is governed 
by God, and contrary, blinded with ignorance by his own 
vain opinion ; so whole nations, when they live together 
in civil order, instituted and governed by reasonable policy, 
are then governed by the Providence of God and be under 
His tuition. As, contrary, when they are without good order 
and politic rule, they are ruled by the violence of tyranny ; 
they are not governed by His Providence, nor celestial ordin- 
ance, but as a mass governed by ' affectis,' so they be tor- 
mented infinite ways, by the reason of such tyrannical powers ; 
so that of this you may see that it is not God that provideth 
tyrannies to rule over cities and towns, no more than it is 
He that ordaineth ill ' affectys ' to overcome right reason ,: 
(page 166). 

He again insists that the law must be supreme even over 
the prince, " seeing also that Princes are commonly ruled 
by ' affectys ' rather than by reason and order of justice, 
the laws which be sincere and pure reason must have chief 
authority. They must rule and govern the State, and not 
the Prince, after his own liberty and will " (page 181). And 
he contends that, " For this cause the most wise men, con- 
sidering the nature of Princes, yea, and the nature of man, 
as it is indeed, affirm a mixed state to be of all other the best 
and most convenient to conserve the whole out of tyranny ' 
(page 181). 



CHAP. III.] THE AUTHORITY OF THE RULER. 263 

It would no doubt be impossible to attach, very much im- 
portance to a work which was not published till three cen- 
turies after it was written, if it were not that its judgments 
coincide, in a large measure, with those of other important 
writers of the time. It is clear that Pole, as represented by 
Starkey, absolutely refuses to acknowledge that the prince 
has any absolute authority derived from God ; he maintains 
emphatically that the prince is not above the Law but under 
it, and he conceives of the best government as being 
mixed or constitutional, and as representing the authority 
of the whole community. 

We must finally consider, and carefully, what was the 
position of that great Frenchman, John Calvin, who exercised 
so immense an influence not only in France but throughout 
Europe. It appears to us that there has been some misunder- 
standing about this, and we must therefore examine it with 
some care. 

Calvin has not, either in the ' Institutio ' or elsewhere, set 
out any complete system of political thought, but he states 
with care some important principles both of a general and a 
particular kind. His treatment of politics in the ' Institutio ' 
was, at least in part, intended as a defence of the Reformers 
against the charge that they held doctrines which were sub- 
versive of all political and civil order. Indeed, he says this 
explicitly in the Preface to the ' Institutio ' addressed to 
Francis I. in 1536, 1 and it seems to us that his treatment of 
political authority was largely determined by the need to 
repudiate those who did hold such subversive views, that is, 
especially, some Anabaptists. 2 This is why Calvin so em- 

1 Calvin, ' Institutio Christianae populi perturbet, leges omnes abroget, 

Religionis,' Preface : " Ne quis haec dominia et possessions dissipet, omnia 

injuria nos queri existimet : ipse denique sursum deorsum volvat." 

nobis testis esse potes rex nobilissime, - Id. id., iv. 20, 1 (p. 549) : " Mi 

quum mendacibus calumniis quotidie enim, quum in evangelio promitti 

apud te traducatur, quod non aliorsum libertatem audiunt, quae nullum inter 

spectet nisi ut regibus sua sceptra e homines regem, nullumque magis- 

manibus extorqueat, trubunalia, judi- tratum agnoscat, sed in Christum 

ciaque omnia precipitet, subvertat unum intueatur : nullum libertatis 

ordines omnes et politias, et quietem suae fructum capere se posse putant, 



264 THE EARLIER SIXTEENTH CENTURY. [PART III. 

phatically and repeatedly lays down the principle of the 
Divine source and nature of political authority, and the 
religious obligation of obedience to it. In one passage of the 
' Institutio ' he shows that the function of the magistrate 
is not only approved by God, but that the Scriptures speak 
of this authority in the strongest terms. The magistrates 
are even called "gods," and this not without significance, 
for they have received their authority from God, they are 
endowed with the authority of God, they bear the person of 
God, for they act in His place. This is what St Paul meant 
when he called the Power the Ordinance of God, and said 
that there was no Power which was not ordained by God. 1 

We may compare this with a passage in one of his homilies 
on the First Book of Samuel, in which, like Gregory the Great, 
he treats the conduct of David in refusing to lift his hand 
against the Lord's Anointed as an example to Christian men, 
and argues, like Gregory, that we must obey the rulers, even 
when they abuse their authority, and that we must render 
honour to the king or prince, even when he unjustly imposes 
tributes and taxes upon his subjects, or otherwise gravely 
oppresses them. 2 

quamdiu aliquam supra se eminore gerunt, nee in ea appellatione leve in- 

potestatem vident. Itaque nihil fore esse monumentum quis putet. Ea 

salvum existimant, nisi totus in enim significatur mandatum a Deo 

novam faciem orbis refoimetur : ubi habero, divina auctoritate praeditos 

nee judieia sint, nee leges, nee magis- esse, ac omnino Dei personam sustinero, 

tratus, et si quid simile est, quod cujus vices, quodammodo agunt. . . . 

officere suae libertati opinantur. At Quod et Paulus aperte docet, dum 

vero qui inter corpus et animam, inter prefecturas inter Dei dona enumerat . . . . 

presentem hanc fluxamque vitam, et Nam et potestatem Dei ordinationem 

futuram illam aotenamque diseernere esse tradit : nee pot estates esse ullas, 

noverit, nequo difficile intelliget nisi a Deo ordinatas. Ipsos autem 

spirituale Christi regnum et civilem principes ministros esse Dei, bene 

ordinationem res esse plurimum agentibus in laudem, malis ad iram 

wepositas." ultores." 

1 Id. id., iv. 20-4 (p. 550) : " Magis- : Id., ' Homilies on 1 Samuel.' 

tratuum functionom non modo sibi xxiv. 7, 8 (p. 483) : " Nos igitur dc. , 

probari, acceptaque esse testatus est honores tribuore discamus iis quibus 

Dominus, sed honorificentissimis in- Deus pecjliarem quandam notam 

super elogiis ejus dignitatem prose- dedit. quum eos ad rerum gubornacula 

quutus, mirifioe nobis commendat. sedore voluit,et justitiamadministraro; 

Ut pauca oommemorem : Quod Dii quisquis enim, ut ait Paulus, dignitati 

nuncupantux, quicunquo magistratum superiori resistit, Deo ipsi resistit 



CHAP. III.] THE AUTHORITY OF THE RULER. 265 

This is not, however, all that Calvin said. In another 
place in the ' Institutio ' he warns subjects that they must 
not meddle in public matters ; but then he adds that while 
they must not interfere with the function of the magistrate, 
nor tumultuously raise their hands against him, if there is 
something in the public order which should be corrected, 
they should bring this to the knowledge of the magistrate 
whose hands are free to deal with the matter. 1 Here, it 
is evident, is another mode of conceiving the position of 
the king or prince ; private persons, indeed, may not resist, 
may not interfere in public matters, but there are others, 
public persons or officers, to whom this does not apply. 
The truth is that Calvin makes a sharp distinction between 
the position of private persons and that of those who held 
a public and constitutional office in the State. In an earlier 
passage in the ' Institutio ' he had said that it would be 
idle for private persons to dispute about the best form of 
the State, for they have no right even to deliberate about 
any public matter, 2 but it should be observed that it is 
" private " persons of whom he speaks. We must therefore 
bear this in mind when we turn to the well-known passage 
in which Calvin speaks of the possibility of a constitutional 

... (p. 487.) Quo exemplo (i.e., that moderationem comprehendo, quam sibi 

of David) docemur, magistratibus et in publico imperare debent privati 

priniariae dignitatis viris et ad rerum homines, no se ultra admisceant 

gubernacula sedentibus suum officiurn publicis negociis, aut temere irrumpant 

non facientibus, sed auctoritate abu- in partes magistratus, ac ne quid 

tentibus, nihilominus obtemperan- omnino publico moliantur. Si quid in 

dum. . . . Exempli gratia, si quis publica ordinatione corrigi intererit, 

rex aut princeps subditos tributis et non tumultuentur ipsi, nee admoveant 

vectigalibus injuste premat, et aliis operi manus, quas illis omnibus ligatas 

gravioribus erroribus graviter laedat, esse in hac parte decet ; sed 

dignitas tamen et potestas ilia semper ad magistratus cognitionem deferant, 

est honore afficienda. Quamobrem cujus unius hie soluta est manus." 
ad Deum respiciendum norimus, quum 2 Id. id., iv. 20-8 (p. 551): " Et 

tanta inter homines violentia passim sane valde otiosum esset, quis potissi- 

regnet, tantoque odio nos etiam ultro mus sit politiae, in eo quo vivunt loco, 

persequatur, ut patientia nostra laesa, futurus status, a privatis hominibus 

nos ad ordinem, a Deo prescriptum, disputari : quibus de constituenda re 

turbandum impellat." aliqua publica deliberare non licet." 

1 Id., 'Institutio,' iv. 20, 23 (p. Cf. 'Horn, on 1 Samuel,' xxiv. and 

558) : " Sed hac praeterea obedientia, ' Comm. on Romans,' xiii. 



266 THE EARLIER SIXTEENTH CENTURY. [PART III. 

method by which the unjust ruler might be restrained. He 
had, in this passage, been saying that if men are cruelly 
treated, plundered, or neglected by their prince, they must 
consider that God is no doubt visiting their sins with punish- 
ment, and that they can only look to God, in whose hand 
are the hearts of kings ; while God has sometimes raised up 
deliverers for the oppressed, they must not imagine that they 
are entrusted with God's vengeance, they can but suffer and 
obey. 1 There is then, however, a sudden turn ; in saying 
this, he is speaking always of private persons. If there are 
magistrates of the people who have been created to restrain 
the arbitrary will of kings, such as were formerly the Ephors 
in Sparta, or the Tribunes of the People in Eome, or the 
Demarchs in Athens, or in modern times perhaps the three 
Estates in their Assemblies, these, he asserts, may legitimately 
intervene to restrain the license of kings ; indeed, he maintains 
that if they should connive at the violence of the kings, they 
are guilty of treachery, for they betray the liberty of the people 
of whom they are, by God's ordinance, the guardians. 2 

It is quite evident that while Calvin repudiates in the 
strongest terms all revolutionary and unconstitutional move- 
ments against the existing political authority, his words have 
no reference to the propriety of constitutional restraints on 
the ruler. We can, therefore, now take account of some 
observations which he makes upon the proper functions of 
government and its various forms. 

He refuses to determine which is the absolutely best form 

1 Id. id., iv. 20, 51 (p. 561) : " Neque Senatui, Demarchi : et qua etiam 
onim si ultio domini est effrenatae forte potestate, ut nunc res habent, 
dominationis correctio, ideo protinus funguntur in singulis regnis tres 
domandat am nobis arbitremur : quibus ordines (quum primarios conventus 
nullum aliud quam parendi et patiendi, peragunt), adeo illos ferocienti Regum 
datum est mandatum." licentiae, pro officio, intercedere non 

2 Id. id., iv. 20,51 (p. 561) : " De veto.utsiRegibus impotenter grassanti- 
privatishominibus semper loquor. Nam bus, et humili plebeculae insultantibus 
si qui nunc sint populares magistratus conniveant, eorum dissimulationem 
ad moderandum Regum libidinem nefaria porfidia non carere affirmem ; 
constituti (quales olim erant, qui quia populi libertatem (cujus se, Dei 
Lacedemoniis regibus oppositi erant, ordinatione tutores positos norunt) 
Ephori ; aut Romanis Consulibus, fraudulenter produnt." 

Tribuni plebis ; aut Atheniensium 



CHAP. III.] THE AUTHORITY OF THE RULEE. 267 

of government ; the monarchy is liable to turn into a tyranny, 
the aristocracy into a faction, the democracy to become 
seditious, but he admits that he would himself prefer either an 
aristocracy or a government combining the elements of aristoc- 
racy with those of the constitutional commonwealth (politia). 
Experience had shown that this was the best, and it was also 
the government which God Himself had instituted among 
the Israelites. That seemed to Calvin the happiest form of 
government, where liberty was moderated, and which tended 
to continuance. The magistrates of such a State ought to be 
diligent to see that its liberty was not violated or diminished. 1 
From the discussion of the best form of Government he turns 
to the nature of the law of the State. He begins by laying 
down the general principle that without laws there can be 
no magistrates, as without magistrates there are no laws. 
He repudiates with great energy the notion that the political 
laws of Moses were binding upon the State ; the moral law, 
however, which is the true and eternal law of justice, is binding 
upon men of all places and times who desire to order their 
life by the will of God, for it is His eternal and immutable 
will that men should worship Him and love each other. 
Subject to this, every nation is at liberty to establish laws 
for itself, as it finds best ; they may vary in form, but they 
must have the same principle (ratio). 2 

1 Id. id., iv. 20, 8 (p. 552) : " Equi- et beatissimos censeo, quibus hac 

dem si in se considerantur tres illae, conditione frui licet ; etsi in ea con- 

quas ponunt philosophi regiminis for- servanda, retinendaque strenue ac 

mae, minime negaverim vel aristo constanter laborant, eos nihil ab 

cratiam, vel temperatam ex ipsa et officio alienum facere concedo. Quin 

politia statum aliis omnibus longe etiam hue summa diligentia intenti 

excellere. Id cum experimento ipso magistratus esse debent, ne qua in 

semper f uit comprobatum : turn suo parte libertatem, cujus praesides sunt 

quoque auetoritate Dominus con- constituti, minui nedum violari 

firmavit, quum aristocratiam politiae patiantur. Si in eo sunt segniores et 

vicinam apud Israelites instituit, quum parum solliciti, perfidi sunt in officio, 

optima constitutione eos habere vellet, et patriae suae proditores." 
donee imaginem Christi produceret 2 Id. id., iv. 20, 14 (p. 555) : " Proxi- 

in Davide. Atque ut libenter fateor, mae sunt magistratui in politiis leges, 

nullum esse gubernationis genus isto validissimi rerum publicarum nervi . . . 

beatius, ubi libertas ad earn quam decet sine quibus consistere nequit magis- 

moderationem est composita, et ad tratus.quemadmodumnec ipsaerursum 

diuturnitatem vitae constituta : sic sine magistratu quicquam vigoris 



268 



THE EARLIER SIXTEENTH CENTURY. 



[PART III. 



This, Calvin says, will be clear, if we will distinguish between 
law and equity (aequitas), upon which law depends. Equity, 
because it is natural, must be the same among all men ; the 
constitutions (i.e., positive laws), because they depend upon 
circumstances, may well differ, as long as they look to the 
same end of equity. The moral law of God is nothing else 
than the testimony of natural law, and the whole principle 
of equity, which is the rule and end of all law, is contained 
in it. Laws which are directed to this end are not to be 
condemned by us, even though they differ from the Jewish 
Law, and from each other. 1 

It is clear that substantially Calvin was restating the 
principles of St Thomas Aquinas, and other great mediaeval 
political writers, both with regard to the nature of positive 
law, and its relation to reason, the moral law, and the 
natural law, and also with regard to the nature and limitations 
of the authority of the prince. It is evident that, like St 

1 Id. id., iv. 20, 16 (p. 555): "Id 
quod dixi planum fiet, si in legibus 
omnibus duo haec (ut decet) intuemur, 
legisconstitutionem.etequitatem.cujus 
ratione constitutio ipsa fundata est 
ac nititur. Equitas quia naturalis est, 
non nisi una omnium osso potest, ideo 
et legibus omnibus, pro negocii genere, 
eadem proposita esse debet ; Con- 
Btitutiones, quia circumstantiaa aliquas 
habent, a quibus pro parte pendeant, 
modo in eundem equitatis scopum, 
omnes pariter intendant, diversas esse 
nihil obest. Jam, cum Dei legem, 
quam moralem vocamus, constet non 
aliud esse quam naturalis legis testi- 
monium, et eius conscientiae, quae 
hominum animis a Deo insculpta est : 
tota hujus, de qua nunc loquimur, 
equitatis ratio in ipsa praescripta est. 
Proinde, sola quoque ipsa Iegum 
omnium et scopus et regula et terminus 
sit oportet. Ad earn regulam quae- 
cunquo formatae 6unt leges, quae in 
eum scopum diroctae, quae eo termino 
limitatae : non est cur a nobis im- 
probentur, utcunque vel a lege Judaica 
vel inter se ipsae alias differant." 



habent. Proinde nihil dici verius 
poterat, quam mutum esse magis- 
tratum legem ; magistratum, legem 
esse vivam. . . . Sunt enim qui recte 
compositam esse rempublicam negant, 
quae neglectis Moyse politicis, com- 
munibus gentium legibus regitur. Quae 
sententia quam periculosa sit et tur- 
bulenta, viderint alii ; mihi falsam esse 
ac stolidam demonstratam satis erit . . . 
15. Lex itaque moralis (ut inde primum 
inr-ipiam), quum duobus capitibus 
contineatur quorum alteram pura Deum 
fide et pietate colore, alteram sincere 
homines dilectione complecti, sim- 
pliciter jubet, vera est eternaque 
justitiae regula gentium omnium ac 
temporum hominibus praescripta, qui 
ad Dei voluntatom vitam suam com- 
ponere volunt. ' Siquidem haec aeterna 
est et immutabilis eius voluntas, ut a 
nobis ipse quidem omnibus colatur, 
nos vero mutuo inter nos diligamus. . . . 
Quod si verum est libertas certe singulis 
^entibus relicta est condendi quas sibi 
conducere providerint leges : quae 
tamen ad perpetuam illam charitatis 
repulam exigantur, ut forma quidem 
varient, rationem habont candem." 



CHAP. III.] THE AUTHORITY OF THE RULER. 209 

Thomas, his own preference was for a mixed or constitutional 
government. 1 

We may finally ask whether Calvin's opinions or advice on 
the actual events of his time throw any further light upon 
his conception of government. It would seem that so far 
as they go, they correspond very closely with the principles 
which we have just set out. Calvin lived through the period 
when the Protestant Princes of Germany, reluctantly in some 
cases, took up arms against the authority of the Emperor, 
Charles V., and his letters show that he found no reason to 
criticise their action ; indeed, in a letter to Farel of 1539, 
he seems formally to approve. 2 

This contrasts with the tone of some letters of 1560, which 
seem to refer to the conspiracy of Amboise, in France. To 
Bullinger he says that he had acted rightly in repudiating 
the charge of responsibility for the tumults in France. He 
(Calvin) had known of the deliberations about this matter 
eight months before, and had interposed his authority to 
prevent them going any further. 3 And to another corre- 
spondent he says that he had from the beginning anticipated 
what would happen, but he had been unable to restrain them 
(the conspirators). Formerly, they had allowed themselves 
to be governed by his advice, but when they saw that their 
design was displeasing to him they had deceived him. He 
never approved of the enterprise, for in his judgment they 
were attempting more than God permitted. 4 

1 Cf. vol. v. pp. 94-97. infeliciter cecisse inconsideratum suum 

2 Calvin, ' Epistolae ' (ed. 1575, ardorem, ad vos perlatum esse non 
p. 18). (April 1539) : " Foedus dubito. Ab initio vaticinatus sum 
Germanicum nihil habet quod debeat quod accidit, sed nescio quo fascini 
piorum pectus offendere. Cur enim, genere sic captae erant multorum 
quaeso, quas dedit eis Dominus vires, mentes, ut frustra impetum illorum 
non conjungant ad communem Evan- sedare conatus sim. Antea meis con- 
gelii defensionem." siliis se regi passi f uerant : sed quum in- 

Cf. id., page 6. telligerent totam hanc actionem mihi 

3 Id. id., p. 229 (May 1560) : " Quod non placere, nullum putarunt esse melius 
Gallici tumultus a nobis depellere non compendium quam si me fallerent. . . . 
dubitasti, tute id poteras. Quum ante Sicut autem earum expeditio nunquam 
octo menses agitari consilia haec mihi probata fuit, quia plus meo judicio 
inciperent, meam auctoritatem inter- tentabant quam Deus permitteret, ita 
posui ne longius progredi tentarent." consilio destituti, rem non legitimam 

* Id. id., p. 230 (June 1560) : " Gallis stulte et pueriliter aggressi sunt." 



270 THE EARLIER SIXTEENTH CENTURY. [paet in. 

The difference between this and Calvin's judgment on the 
action of the German Princes serves to illustrate his theory. 
And our judgment is confirmed by that important letter to 
Coligny, of 1861, which Professor Allen has cited in his learned 
work, for, while Calvin condemns forcible resistance to per- 
secution by the reformed party in France, he admits that 
such action would be lawful if it were taken by the Princes 
of the Blood and the Parlement. 1 

We have then, we hope, said enough in this chapter to 
make it clear that by some of the most important writers of 
the earlier part of the sixteenth century, not in one country 
only, but in all the great countries of Western Europe, the 
mediaeval principle of the limitation of the authority of the 
ruler, Emperor, King, or Prince, was firmly and intelligently 
maintained. 

We have also pointed out that this coincides both with 
the general evidence of constitutional practice and principles. 
In the last section of this chapter, however, in discussing 
the position of Calvin, we have referred to the question of 
the Divine authority of the ruler, and while we are clear 
that Calvin's own interpretation of this was not in any 
way inconsistent with the principle of the constitutional 
limitation of that authority, we must now turn to the con- 
sideration of the reappearance in the sixteenth century of 
the theory that the Divine authority of the ruler was un- 
qualified and unlimited. 

1 Calvin, ' Lettres Francaiscs,' ed. valoit mieux que nous perissions 

Jules Bonnet, vol. ii. p. 382 : " Cost tous cent fois, que d'estre cause que 

que sept ou huit mois auparavent le nom de Chrestient6 et l'Evangile 

(i.e., before the attempt at Amboise), fust expose a tel opprobre. Bien lui 

quelqu'un ayant charge de quelque accorday-je quo si les princes du sang 

nombre do gens, me demanda conseil requorroyent d'estre maintenus en leur 

s'il ne seroit pas licite do resistor a la droit pour lo bien commun, et que les 

tyrannic dont les enfans de Dieu cours de Parlomont se joignissent a 

estoyent pour lors opprinu'z, et quels lour querelle, qu'il seroit licite a tous 

moyens il y auroit. ... Je respondi bons subjects de leur preter mainforte." 
^implement a tellos objections, que Cf. J. W. Allen, ' History of Political 

s'il s'e.spandoit une seule goutte de Thought in the Sixteenth Century,' 

sang, les rivieres en decoulleroyent p. 59. 
par toute l'Europo. Ainsi qu'il 



271 



CHAPTER IV. 

THE THEORY OF THE DIVINE EIGHT. 

We have in the first volume of this work endeavoured to 
trace the appearance in Western thought of the conception 
that the Euler was in such a sense representative of God 
that he could in no circumstances be resisted, however oppres- 
sive and tyrannical he might be. We have pointed out that 
while there may be some tendency towards this in earlier 
Christian writers, it was St Gregory the Great who first 
definitely formulated and enunciated this doctrine. We 
have ventured to suggest, and we still think it is true, that 
this conception was substantially alien to Western thought, 
and that it was an orientalism which was derived from an 
interpretation of some parts of the Old Testament. 1 We 
have also pointed out that this must be quite clearly dis- 
tinguished from the conception of St Paul, that political 
authority is derived from God, because it exists for the main- 
tenance of justice. 2 

We have also pointed out that while the conception of St 
Paul became the normal doctrine of mediaeval civilisation, the 
doctrine of St Gregory the Great had no real place in the 
political ideas of the Middle Ages, not only because, as the 
cynic might say, the recurrent conflicts between the ecclesi- 
astical and secular powers made such a doctrine inconvenient, 
but much more because it was completely incompatible with 
the fundamental principle of the Middle Ages, that human 
society was governed by law, which was the expression of 
justice, and not by the arbitrary will of any ruler. There 

1 Cf. vol. i. chap; 13. « Cf. vol. i. p. 90. 



272 THE EARLIER SIXTEENTH CENTURY. [PAUT III. 

were indeed a few writers, such as especially Gregory of 
Catino in the twelfth century, who reaffirmed the view of 
St Gregory the Great, but they were insignificant in number 
and in authority. In the first and second parts of this volume 
we have cited the interesting but isolated restatements of 
St Gregory the Great, by Wycliffe in the fourteenth century 
and by the Cortes of Olmedo and by ^Eneas Sylvius (Pope 
Pius II.) in the fifteenth century. 

It was not till the sixteenth century that, as far as we can 
see, this conception came to have any importance. How 
far, indeed, it had any real importance even then we shall 
have to consider, but we have first to endeavour to trace the 
appearance and development of the conception, and to discuss 
so far as possible what we are to understand by it. 

As far as we have been able to discover, the first writer of 
the sixteenth century of whom we can say that he, at one time, 
held and affirmed the conception that the temporal ruler was 
in such a sense representative of God that under no cir- 
cumstances he could be resisted, was Luther. For there 
can be no doubt that this was his conviction till about 1530. 
We have, in spite of our best efforts, been quite unable to 
discover how Luther came to entertain so eccentric 
an opinion, whether directly from the tradition of Gregory 
the Great or from some other unknown influence. It is 
no doubt obvious that he endeavoured to find sufficient 
authority for it in the well-known words of St Paul in Eomans 
xiii. and of St Peter in his first Epistle (iii. 13, 14), and like 
St Gregory the Great he was also clearly influenced by the 
conception of the king, the Lord's Anointed, as represented 
especially in the stories of the relation of David to Saul in 

1 Samuel. 

It is, however, difficult to imagine that these alone would 
have induced him to adopt an attitude so extreme, and 
which was so contrary, as we have seen, to the general 
tendency of thought in Germany and in Western Europe, 
not only in the Middle Ages, but in the fifteenth century. 

We would begin by pointing out that it appears evident 



CHAP. IV.] THE THEORY OP THE DIVINE RIGHT. 273 

that Luther was not a systematic political thinker, that 
indeed he can hardly be described as a political thinker at all. 
There are, however, some general conceptions expressed in 
his writings which it may be well to notice, for they may 
serve at least to indicate some of the presuppositions with 
which he approached political questions. 

In his treatise, ' Von Weltlicher Obrigkeit,' after citing St 
Paul's words, " The powers that be are ordained of God " 
and the parallel words in the first Epistle of Peter, he discusses 
the apparent conflict between the Old Testament and the 
Sermon on the Mount, with regard to the use of force to 
maintain justice. He contends that the coercive authority of 
society is required because men are not all true Christians ; 
if they were, there would be no need of kings and princes, of 
law or of the sword. 1 If it is then asked why the Christian 
man should be obedient to the coercive authority, the answer 
is, that while the true Christian does not need this for himself,, 
he must obey it for the sake of his neighbours. 2 

The same conception is expressed in different terms in 
Luther's tract, written in July 1525, in defence of the harsh 
and violent terms which he had used against the peasants, 
in May of the same year. There are, he says, two kingdoms : 
the one is the kingdom of God ; the other, the kingdom of the 
world. The kingdom of God is a kingdom of grace and mercy, 
the kingdom of the world is a kingdom of wrath, of punishment, 
and of judgment, to coerce the wicked and to defend the 
godly, and therefore it has the sword ; the prince represents 
the wrath and the rod of God. 3 

1 Luther : Works, vol. xi., ' Von sondern seynen nehisten lebt und 
Weltlicher Obrigkeit,' p. 247 : " Und dienet, sso thut er von art seyns 
wenn alle welt rechte Christen, das ist geystes auch das, des er nicht bedarff, 
rectgleubigen weren, so were keyn sondern das seynen nehisten niitz und 
Farst, Kiinig, Heir, Schwerd, noch noth ist." 

Recht noth oder niitze." 3 Id. id., vol. xviii. : " Ein send- 

2 Id. id., p. 253 : " Anttwortt ; brief von der harten Buchlein widder 
itzt hab ichs gesagt, das die Christen die Bauern," p. 389. 

unter einander und bey sich und fur " Es sind zweyerley Reich. Eyns 

sich selbs keyns Rechten und Schwerds ist Gottis Reich, das ander ist der 

diirrffen, denn es ist yhn keyn noth wellt Reich . . . Gottis Reich ist eyn 

noch niitz, aber were eyn rechter Reich der gnaden und Barmhertzickeit, 

Christen auff Erden, nicht yhm selbst und nicht eyn Reich des Zoms odder 

VOL. VI. S 



274 THE EARLIER SIXTEENTH CENTURY. [PART III. 

The same principles are again set out by Luther in a Treatise 
written in 1526, on the position of soldiers and their relation 
to the Christian religion. This, he says, is the conclusion of 
the whole matter : the office of the sword is lawful and a 
godly and useful ordinance. For God has established two 
governments in the world, the one is spiritual, the other is the 
worldly government of the sword, which has been set up, that 
those who will not live religiously and justly, and in obedience 
to the word of God, may be compelled to be religious and just 
in this world. God is the Founder and Lord of both forms 
of righteousness, both of the Spiritual and of the Temporal ; 
they are not merely human ordinances, nor are they founded 
merely upon human power, but they are Divine. 1 

It is the same conception of the two kingdoms which is 
expressed in the Tract which Luther wrote, apparently in 
April 1525, in answer to the demands of the Suabian peasants, 
when he deals with the question of serfdom. They wished, 
he says, to make all men equal, but this would be to try to 
convert the spiritual kingdom of Christ into a visible and 
earthly kingdom, which was impossible. For the earthly 
kingdom could not exist without inequality ; some must 
be free, others in bondage, some, lords and some, subjects. 2 

Straffe. . . . Aber das welltlich Reich durch's wort, nicht wollen frum und 

ist eyn Reich des zorns und ernsts, gerecht werden zum ewigen Leben, 

derm daselbst ist eytel strafien, weren, dennoch durch solch weltlich Regiment 

richten und urteylen, zu zwingen gedrungen werden, frum und gerecht 

die bdsen und zu schiitzen die fromen, zu sein f iir dor Welt. . . . Also ist Gott 

darumb hat es auch, und furet das selber, aller beyden gerechtickeit, 

Schwerd, und ein Furst odder Herr boide goistlicher und loiblicher, Stiffter, 

heyst Gotts zorn odder Gott's rute Herr, Meister, Fodderer und Belohner. 

ynn die Schrift." Und ist keine menschliche ordnung 

1 Id., Works, vol. xix. : " Ob Kriegs odder gewalt drinnen, sonder eytel 

Leute auch in seligem Stande sein Gottlich ding." 

konnon," p. 29. 2 Id., Works, vol. xviii. : " Erman- 

" Denn das ist summa summarum nung zum Frieden, auf die zwOlf 

davon : Das amt des Schwerds ist Artikel der Bauerschaft in Schwaben," 

an yhmsolbor recht, und eino Got tlieho p. 326. 

nutzlicho ordnunge. . . . Denn er hat " Es will disser artickel alle menschen 

zweiorley Regiment mil i irden menschen gleich mac.hen, und aus dem geistlichen 

auffgericht. Eins geistlich . . . das Reich Christs eyn weltlich eusserlich 

andor ist ein weltlich Regiment durch's Reich machen, wilchs unmuglich ist. 

Schwerd, auff das diojenigen so Denn welltlich Reich kann nicht 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 275 

It seems to us clear that while Luther's words have a 
character of their own, he was, in principle, so far simply 
restating the Stoic and Patristic doctrine, that the coercive 
authority of the Political Society is a consequence of sin, that 
it is made necessary by the moral infirmity and defect of 
human nature. It is a consequence of sin, but also, as in the 
Patristic tradition, a Divine remedy for sin, created by God, 
and deriving its authority from Him. And we should con- 
jecture that Luther's development of this, into the conception 
of the two kingdoms, is probably derived, ultimately, from St 
Augustine, and especially from the ' De Civitate Dei,' although 
we have not actually observed any direct reference to this. 

The Political Order, then, is the result of human sin, and is 
appropriate to the sinful nature of man, but it is a Divine 
institution, and its authority is a Divine Authority. 

So far, we have nothing, or little more, than the 
traditional conceptions of the Middle Ages. We can now 
approach Luther's interpretation of the conception of the 
Divine origin of political authority as meaning that the 
Temporal Euler must always be obeyed, except in spiritual 
matters, as holding the authority of God. 

The first reference we have found to the subject of the 
necessity of implicit obedience to the Supreme Euler, is in a 
letter written by Luther to the Elector Frederic of Saxony 
in 1522, after the decision of the Diet of Worms. Luther 
proposes to return to Wittenberg, but he urges upon the 
Elector that he must not resist any action taken by the Em- 
peror, or attempt to defend Luther ; the only thing he suggests 
that the Elector might do was to "leave the gates open," 
so that Luther might, if necessary, escape. 1 The impression 

stehen, wo nicht ungleychheit ist ynn des Widerstands," published in the 

Personen, dass ettliche frey, ettliche Transactions of the Bavarian Academy 

gefangen, ettliche Herren, ettliche for 1915. 
Unterthan." Without this most careful collection 

1 Luther, ' Briefe,' &c. Ed. De and comment upon the many references 

Wette, vol. ii. p. 140. to the subject which are to be found 

We desire to acknowledge our very in Luther's works and correspondence, 

great obligations to the admirable we should have had the greatest diffi- 

Essay of Professor K. Muller, entitled culty in dealing with them. 
" Luther's Aiisserungen tiber das Recht 



276 THE EARLIER SIXTEENTH CENTURY. [PART III. 

•which this leaves is confirmed by the more formal " Bedenken " 
or opinion, written by Luther in 1523, in which he very clearly 
condemns all forcible resistance to the Emperor. 1 

It is the same principle which is expressed in a letter of 
1525 to the Count of Mansfeld, in answer to a question, 
whether it would be lawful for the Eeformed princes to form 
a league and defend themselves against the Emperor. Luther 
answers unequivocally that this would be absolutely wrong, for 
God requires men to honour the supreme authority, whether 
it is good or bad. 2 

For the full development of this conception we must, 
however, turn to his pamphlets or tracts. We have already 
cited some important passages from the tract, ' Von Weltlicher 
Obrigkeit,' and we should observe that this tract not only 
asserts the Divine origin of the Temporal Power, but also says 
very emphatically that no prince may fight against his king 
or emperor or his feudal lord, for the Supreme Lord must 
not be resisted by force but only by confession of the 
truth. 3 

It was, however, in the tracts dealing with the Eising of the 
Peasants that Luther developed this theory most completely. 
In the first of these, written in April 1525, Luther said that the 
peasants in Suabia claimed to be defending their religion and 
to be Christian men, but he replied that they were taking 
God's name in vain. St Paul had bidden every man to be 
subject to the authority (Oberkeit), the man who resists 
God's Ordinance will be damned. They may say that the 
authority was wicked and intolerable, that it endeavoured 
to take the Gospel from them and oppressed them in body 

1 Luther, ' Brief - wechsel,' Ed. oder gut, geehret haben, Rom. xiii. 1, 
Endors, vol. iv. No. 76. 1 Peter v." 

2 Luther, ' Briefe,' &c. Ed. De 3 Id., Works, vol. xi., ' Von Welt- 
Wette, vol. iii. p. 73 : " Das ander, licher Obrigkeit,' p. 276 : " Da9 kein 
ob man sich verbinden m6go untor, Furst, wider sein Oberherrn, als den. 
hintor, oder wider die Oberkeit, oder Konig und Kaiser oder sonet eeynen 
wie ihm zu thun sey, dass man solchon Lehenherrn kriegen soil, sondern lassen 
Tyrannen widerstche. Aufs er6te nehmen, was da nympt. Denn die 
weiss or wohl, dass wider die Oberkeit, Oberkeyt soil man nicht widerstehen 
kein Verbindung gilt. Denn Gott mit gewalt, sondern nur mit bekenntniss 
will die Oberherren, sie seyn bose der wahrheit." 



CHAP. IV.] THE THEORY OF THE DIVINE EIGHT. 



277 



and soul, but this was no excuse, for to punish the wicked was 
not the right of any man but only of the Temporal Authority. 1 

If every man took the law into his own hands, there would 
be no law or order in the world, but only slaughter and blood- 
shed, 2 and Luther bids them remember that Christ taught 
men not to resist evil but to submit to injuries ; the only right 
of the Christian is suffering and the Cross. 3 Luther does not, 
indeed, deny that the Lords had behaved like tyrants, and 
would be judged by God, but the peasants had transgressed 
against God by their insurrection. 4 

So far, Luther's theory was extreme, but his language was 
moderate ; in two later tracts of the same year he seems to 
lose all sense of proportion and restraint and decency. In 
one of these, written in May 1525, he says that the peasants 
had broken their oath of obedience to the authorities ; they 
had robbed and plundered, they had made the Gospel a cloke 
for their sin, and he calls upon the princes and lords to take 
the most violent and ruthless measures against them. 5 And 



1 Id., Works, vol. xviii., ' Ermah- 
nung zum Frieden, auf die zwolf 
Artikel der Bauernschaft in Schwaben,' 
p. 303 : " Sondern, wie S. Paulus 
sagt, Ein igliche Seele solle der Ober- 
keit untertan sein, mit fiircht und 
ehren. 

Wie kindet yhr doch fur diesen 
Gottes spriichen und Rechten uber, 
die yhr euch rhumet, Gottlichen Recht 
nachzufahren, und nehmet doch das 
Schwerd selbst, und lehnet euch auff 
widder die Oberkeit von Gotts recht 
geordnet ? Meynet yhr nicht, das 
urtheil S. Pauli werde euch troffen. 
' Wer Gott's ordnung widderstrebt, 
den wird das verdamnis iiber- 
kommen. . . . Zum dritteni Ja, 
sprechet ihr, die Oberkeit ist zu bose 
und unleidlich. Denn sie das Evan- 
gelion uns nicht lassen wollen, und 
drucken uns allzu hart ynn zeitlicher 
guter Beschwerung, und verderben uns 
also an Leyb und Seele. Autworte ich ; 
Dass die Oberkeit bose und unreckt 
ist, entschuldigt keyn rotterey noch 



aufruhr, denn die bosbeit zu straffen, 
das gebtirt nicht eym iglichen, sondern 
der weltichen oberkeyt, die das Schwerd 
furet.' " 

2 Id. id., p. 306. 

3 Id. id., p. 301 : " Leyden, Leyden, 
Kreutz, Kreutz is des Christen Recht, 
das, und keyn anders." 

« Id. id., p. 329. 

5 Id. id., vol. xviii. ' Wider die 
Rauberischen und Morderischen Rotten 
der Bauern,' p. 358 : " Drumb sol hie 
zuschmeyssen, wurgen und stechen 
heymlich oder offentlich, wer da kann, 
und gedencken, das nicht gifftigers, 
schedlichers, teuffelischers seyn kan, 
denn eyn auffrurischer mensch, gleich 
als wenn man eynen tollen hund 
todschlahen mus, schlegstu nicht, so 
schlegt er dich und ein gantz land 
mit dyr." 

Id. id., p. 361 : " Drumb, liebe 
Herren, loset hie, rettet hie, helfft hie, 
erbarmt euch der armen Leute, steche 
schlahe hie, wer da kann, bleybstu 
driiber tod, wol dyr." 



278 THE EARLIER SIXTEENTH CENTURY. [PABT III. 

in another tract, written probably in July 1525, he attempted 
to defend the language and attitude of the first, especially 
by means of that distinction between the two kingdoms — 
God's kingdom of mercy and the earthly kingdom of wrath 
and punishment, which we have already discussed. 1 

We come back to a more restrained tone of discussion in 
in the little work, ' Ob Kriegsleute auch im Seligen Stande 
sein konnen,' written in 1526, to which we have already 
referred. Here he discusses the principles of political obedience 
with greater fulness, but with equal decision. He admits 
that in the ancient world men had not hesitated to depose 
and even to kill useless or wicked rulers. The Greeks set up 
monuments to the Tyrannicides, the Eomans murdered many 
of their emperors ; but these, he says, were heathen who did 
not know God, and that the temporal authority was God's 
Ordinance. 2 This was incompatible with the Christian Faith ; 
even if the rulers do what is unjust it is not lawful to be dis- 
obedient to them, and to destroy the Ordinance of God ; 
men must endure injustice. 3 Luther was aware of the 
fact that the Swiss had emancipated themselves, and that, 
not long before, the Danes had deposed their king, but, he 
says, he is not speaking of what had been done, but of what 
ought to be done. 4 Men must submit to the tyrant, they must 
not resist him, they must leave him to God's judgment, and 
he cites the example of David's conduct to Saul. 5 

This is sufficiently clear, but it is not all. Luther was 
aware, even then, of what we may call constitutional tradition, 
but he sets this aside. It may be contended, he says, that a 
king or lord had sworn to his subjects to reign according to 
definite conditions, and that, if he violated these, he forfeited 
his authority, as it is said that the King of France must reign 
in accordance with the judgment of his Parlement, and that 

1 Cf. p. 273, note 3. unrocht zu thun, das ist ungekorsam 

8 Id. id., vol. xix., ' Ob Kriegsloute,' sein und zerstoron Gotts Ordnung, die 

&c, p. 633. oicht unser ist, sondern man solle 

8 Id. id. id., p. 634 : " Aber ich hab das unrocht leiden." 

eolchs verantwortot, dass obglrich die 4 Id. id. id., pp. 635 to 637. 

Herrn unrecht daran theton, were B Id. id. id., p. 640. 

drumb nicht billig noch recht, auch 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 279 

the King of Denmark had sworn to observe certain consti- 
tutional articles. Luther answers that it is good and reasonable 
that the Supremo Euler should reign according to law, and 
not merely according to his capricious will, and should swear 
to do this. But, if he did not do so, are his subjects to 
attack him and sit in judgment on him % Who, he says, has 
commanded this ? This could only be done by some superior 
power who could hear both parties and condemn the guilty. 1 
He adds, in reply to those who might say that he was flattering 
the princes, that this was not true, for what he had said 
applied to all alike, peasants, burghers, nobles, lords, counts, 
and princes, for they all have a superior lord to whom they 
are subordinate. 2 

Luther's conception is thus far perfectly clear and unam- 
biguous. l Die Obrigkeit ' has an absolute authority, and God 
requires of men an unconditional obedience to it, for it is 
God Who has set it up. It would no doubt be well that the 
ruler should govern justly and according to law, but if he 
does not do so, his subjects must still submit and leave it to 
God to punish him. The principle is clear and unqualified, 
but we have made no progress in tracing the sources of 
Luther's opinion. It may be suggested that it was in the main 

1 Id. id. id., p. 640 : " Ja sprichstu, sein, und er gelobets auch zu thun. 

wie aber, wenn ein Konig oder Herr Wohlan, wenn nu solcher Konig der 

sich mit Eyden seiiien unterthanen keins helt, widder Gotts Recht, noch 

verpflicht, nach fiirgestellten artikel sein Landrecht ? Soltestu yhn driimb 

zu regirn, und helt sie nicht, und angreiffen, solchs richten und rechen ? 

damit schuldig sein wil, auch das Wer hat dirs befohlen ? Es musste 

Regiment zu lassen ; wie man ja hie zwischen euch ein ander Oberkeit 

sagt, dass der Konig zu Frankreich komen, der euch beide verhorte und 

nach den Parlamenten seines leichs den schuldigen verurteilt. Sonst wirstu 

regieren rmisse. Und der Konig zu dem urtheil Gotts nicht entlauffen, 

Denemark auch schweren musse, auff da er sagt, ' Die Rache ist meiD,' Item, 

sonderlich artikel. ' Richtet nicht,' Matt, vii." 

Hie, antworte ich : Es ist fein und 2 Id. id. id., p. 643 : " Nicht also, 

billig, das die Oberkeit nach Gesetzen sondern was ich von der unter person 

regire und die selbigen bandhabe und sage, das soil treffen beyde, Bauer, 

nicht nach eygenem mutwillen. Aber Burger, Eddel, Herrn, Graven und 

thu das noch hinzu, das ein Konig Fursten. Denn diese alle haben auch 

nicht alleine sein Landrecht odder Oberherrn, und sind Unterperson eiues 

Artikel gelobt zu halten, sondern Gott andern." 
selber gebeut yhm auch, er solle frum 



280 THE EARLIER, SIXTEENTH CENTURY. [PAUT in. 

a violent reaction against the danger of anarchy, as represented 
by the revolt of the Peasants, but this is not really con- 
sistent with the facts, for the statements of Luther, which we 
have cited from the years 1522, 1523, show clearly that he 
held the same opinions before the Peasants' Eevolt. 

We must now turn to the development of Luther's later 
views, for it is quite clear that these were not the same as his 
earlier views. As late as May and November 1529, we find 
him solemnly warning the Elector of Saxony against the 
formation of a League for the protection of the Eeformers, 
and against any attempt to resist the Emperor if he en- 
deavoured to seize Luther. 1 But, as Professor Muller thinks, 
even in December 1529 there are some indications of a 
change, 2 and in March 1530 Luther and some others in a 
letter to the Elector of Saxony gave a formal opinion which 
has a very different character from Luther's earlier views. 
This letter was written in reply to one from the Elector, 
and Luther said that it might perhaps be true, that, according 
to the Imperial and Secular Law, it was in some cases lawful 
to defend oneself against the Emperor, especially as the 
Emperor had sworn to maintain his subjects in their ancient 
liberty. Scripture, however, Luther says, does not permit 
Christian men to set themselves against the Supreme Authority, 
but requires them to submit to injustice and violence from him. 
Secular and Papal Laws do not consider that the Supreme 
Authority is an Ordinance of God ; but the Emperor remains 
Emperor, and the Prince remains Prince, even if he trans- 
gresses all God's commands — yes, even if he were a heathen. 
Then, however, Luther comes to the rather surprising con- 
clusion that there is only one remedy, and that is that the 
Empire and the Electors should agree to depose him. 3 

1 Luther, ' Briefe,' Ed. de Wette, dasa vielleicht nach Kaiserlichen und 
vol. iii. pp. 454 and 626. weltlichen Rechten, etliche mochten 

2 Of. K. Muller, 'Luther's Aiisser- schliessen, dass man in solchem Fall 
iingen ubor das Recht dos VViderstands mochte wider Kaiserliehe majestat 
gogen dem Kaiser,' pp. 20-29. sich zur Gegonwehr stellen, sonderlich 

3 Luther, ' Briefe,' Ed. de Wette, woil Kaiserliehe majestat sich ver- 
vol. iii. p. 660 : " Und befinden, pflichtet und vereidet, niemand mit 



CHAP. IV.] THE THEORY OF THE DIVESTE RIGHT. 281 

It is clear that in this formal statement of opinion we 
have something which is very different from Luther's earlier 
judgments. In the first place, we have an indication that 
Luther was beginning to take some account of the Consti- 
tutional Law of the Empire, and that he recognised that 
some jurists at least maintained that if the Emperor violated 
the obligations of the oath which he had sworn at his 
election, it was lawful to resist him. In the second place, 
he still maintained that the Holy Scriptures did not permit any 
such resistance, however unjust the Emperor's conduct might 
be. But in the third place, we come upon the surprising view 
that although, while the Emperor continued to be Emperor, 
he could not be resisted, it might be lawful for the Empire and 
the Electors to depose him. We have already observed 
a conception analogous to this in several earlier writers. 1 

In October of the same year, 1530, the question of resistance 
to the Emperor was formally put before Luther and others of 
the Eeformers at Torgau, and there was laid before them a 
statement on the subject drawn up by some jurists, showing 
in what circumstances it would be lawful to resist the Supreme 
Authority (Obrigkeit), and declaring that such circumstances 
were now present. Luther and his colleagues answered that 
they had not known that the Law itself recognised the right 

gewalt anzugreifen, sondern bei aller em gottliche ordnung sey, darum sie 

vorigen Freyheit zu lassen, wie denn vielleicht die pflicht und eid so hoch 

die Juristen handeln von den Repre- achten dass sie die Obrigkeit in solchem 

salien und Diffidation. Aber nach der Fall sollton aufhalten und wehren. 

Schrift will sichs in keinem weg ziemen, Aber weil Kaiser Kaiser, und Furst, 

dass sich jemand, wer ein Christ sein Furst bleibt, wenn er gleich all gebot 

will, wider sein Oberkeit setze, Gott Gottes uebertrat, ja ob er gleich ein 

gebe sie thun recht oder unrecht ; heide ware : so soil er's auch seyn, 

sondern ein Christ soil gewalt und ob er gleich sein Eide und Pflicht nicht 

unrecht leiden, sonderlich von seiner halt, bis dass er abgesetzt, oder nimmer 

Oberkeit. Denn obgleich Kaiserliche Kaiser sei . . . und, summa, sunde 

majestat unrecht thut und ihr Pflicht hebt Oberkeit und gehorsamkoit nicht 

und Eid uebertriflt, ist damit sein auf ; aber die straffe hebt sie auf, das 

Kaiserlich Obrigkeit und seiner un- ist, wenn das Reich und die Kurfursten 

terthanen gehorsam nicht aufgehebt, eintrachtiglich den Kaiser absetzen, 

weil das Reich und die Kurfursten ihn dass er nimmer Kaiser Ware." 

fur Kaiser halten und nicht absetzen. ... l Cf. ' Sachsenspiegel,' vol. iii. p. 61, 

Weltliche oder Papstliche Recht and in this volume, pp. 22, 23, 50. 
sehen hierinnen nicht an, dass Oberkeit 



282 



THE EARLIER SIXTEENTH CENTURY. [PART III. 



of resistance in certain cases ; they had always thought that 
the Law must be obeyed, and that the Gospel does not con- 
tradict the Secular Law ; they could not therefore maintain 
that men might not defend themselves against the Emperor 
himself, or his representative ; it was, therefore, also right 
that men should arm themselves, and thus be prepared to 
resist a sudden attack. 1 

The judgments expressed in this letter represent a different 
position from the letter of March 1530. Luther was even then 
aware that some jurists admitted the lawfulness of resistance ; 



1 K. Miiller, ' Luther's Aiisserungen,' 
Beilage 3 : " Uns ist ein Zetel furget- 
ragen, daraus wir befinden, was die 
Doktores der Rechte schliessen auff die 
Frage, in welchen fellen man muge 
der Oberkeit widderstehen. Wo nu 
das al3 bey den selbigen Rechtsdoktoren 
odder Verstendigen gegrundet ist, und 
wir gewislich ynn solehen fellen stehen, 
ynn welchen (wie sie anzeigen) man 
muge die Oberkeit widderstehen, und 
wir allzeit gelert haben dass man 
welttlich Recht solle la3sen gehen, 
gelten und halton, was sie vermugen, 
und das Evangelion nicht widder die 
welttliche Recht leret, so konnen wir's 
roit der Schrift nicht anfechten, wo man 
sich des falls weliren musste, es sey 
gleich der Keiser ynn eigener Person, 
odor wer es thut unter seinen namen. . . . 
So wil sichs gleichwol zimen, dass 
man sich ruste und als auff eine 
gewalt, so plotzlieh sich erheben 
mochte, bereit soy, wo sichs denn nach 
gestallt und leuffte der sachen loicht- 
lich begeben kann. 

Denn das wir bisher geloret, stracks 
nicht widder zu stehen der Oberkeit, 
haben wir nicht gewust, das solch's 
der Oberkeit rechte selbs geben, 
welchen wir doch allcnthalben zu 
gehorchen vleissig geleret habon." 

Cf. the formal statement signed by 
Luther, Justus Jonas, Bugonhagen 
and Melanchthon in 1536. 

Melanchtbon, " Opera Omnia " in 



' Corpus Ref ormatorum,' vol. hi. Epistle, 
1458, p. 129 (1536 a.d.) : "Nu ist 
erstlich klar, dass jede Oberkeit uber 
andere gleiche Oberkeit, oder ' privatos,' 
schuldig ist ihre Christen und die 
Lehre zu schiitzen. Hie ist weiter 
die Frage, was einem Fiirsten wider 
seinen Herrn, als den Kaiser, in sol- 
chem Fall zu thun gebiihre. Darauf 
ist auch gleiche antwort. Erstlich, 
diewohl das Evangelium bestatigt 
weltliche loibliche Regiment, so soil 
sich ein idlicher Christlicher Fiirst 
gegen seinen Herrn oder Kaiser halten 
vermoge darselbigen natiirlichen und 
wolthchen Regiment und Ordnung. 

Wenn der Kaiser nicht Richter ist, 
und will gleichwohl Straf uben, als 
' pendente appellatione,' so heisst 
solch sein thatlich Vornehmen, ' notoria 
injuria.' Nu ist dieses natiArlieho 
Ordnung der Regiment, dass man sich 
schiitzen moge, und die gegenwelir 
gobrauchen wioder solche ' notoriam 
injuriam.' Darum, so der Kaiser et- 
was thiitlig vornimmt vor dem Concilio 
' pendente appellatione,' in sachen 
welcho die Religion betrefien, und den 
zugosagten Friodon wahrhaftiglich und 
ohue sophistorei belangen : (so) ist 
er zu halten als eine Privat-person, 
und ist solche ' injuria,' wider die 
Appellation und zugosagten Frieden 
angonommen, eine dffentliche ' notoria 
injuria.' " 






CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 283 

but he still maintained that Holy Scripture did not permit 
this. Now, Luther admitted that if, as the jurists said, 
the law of the Empire admitted the right of resistance, they 
could have nothing to say against it, for they had always 
taught that the law must be obeyed. 

There are some letters written in the spring of 1531 which 
justified or explained this apparent change of position, but 
they do not add very much. In a letter addressed to 
Lazarus Spengler of Nuremberg, he says that he had heard 
that it was reported that he and the other Eeformers had 
withdrawn their previous advice that the Emperor must not 
be resisted. The real truth was as follows : they were now 
informed that the Imperial Law permitted resistance in the 
case of obvious injustice. He himself had no opinion of 
his own on the law, but must leave that to the jurists to decide. 
If this was the Law of the Empire, they were no doubt bound 
to obey it. The other letters are in much the same terms. 1 

That this change in Luther's position was permanent seems 
to be clear : in 1531 he wrote a pamphlet entitled, ' Warnung 
an seine lieben Deutschen.' We are not concerned here with 
its general subject-matter, but with some passages in it which 
deal with the relations of those who accepted the Reformed 
opinions to the Emperor and the Roman Party. If, he says 
in one passage, it should come to war, he would not suffer 
those who defended themselves against the " murderous and 
blood-thirsty Papists " to be called rebels, but would refer 
them to the Law and the jurists ; and in another place he 
says that his advice was that if the Emperor should summon 
them to fight against the Reforming Party no one should 
obey him. 2 

1 Luther, 'Brief -wechsel,' Ed. Enders, lassen gehen und geschehen, dass sie 
vol. viii. pp. 343, 344. es eine not were heissen, und wil sie 

2 Luther, ' Werke,' vol. xxx. part iii. damit ins Recht und zu den Juristen 
" Warnung an seine lieben Deutschen," weisen. 

p. 282 : " Weiter ; wo es zum Kriege 

kompt, da Gott fur sei, so wil ich das Page 291 : Das ist aber mein 

teil so sich widder die mordische und trewer Rat, das wo der Kaiser wurde 

blutgyrige Papisten zur were setzt, auffbieten, und widder unser Teil, 

nicht auffriirisch gescholten haben, umb der Bapst's Sachen odder unser 

noch schelten lassen, sondern wills lere willen kriegen wolt. . . . Dass 



284 THE EARLIER SIXTEENTH CENTURY. [PAUT III. 

We have dealt with Luther's position, not exhaustively, 
as has been done by Muller in his admirable monograph, 
but we hope, sufficiently to bring out his original opinions and 
the change after 1530. It seems clear that at first Luther 
maintained dogmatically that the king, whether he was good 
or bad, just or unjust, held his authority from God and could 
not be resisted, but must in all secular matters receive an 
unqualified submission. His judgment is clear, but we have 
not been able to find in his work any real light upon 
the source of his opinions, for his citations from St Paul and 
St Peter cannot be described as furnishing this adequately. 
No doubt his opinions were ultimately derived from those of 
St Gregory the Great, for these opinions had not completely 
disappeared in the Middle Ages, though they had been ignored 
or dismissed by all serious theological or political thinkers. 
We can only suggest conjecturally, that Luther may have 
come under the special influence of some abnormal teacher. 

It is also clear that from about 1530 his opinions were 
completely altered, at least with regard to the Empire. Whether 
Luther fully understood the significance of the change in his 
conceptions may be doubted, but in fact the change was funda- 
mental, for he was no longer maintaining the absolute authority 
of the Euler, but the supreme authority of the Law ; it is not 
necessary to explain the importance of this change. 

It would seem that Melanchthon followed Luther, both in 
his earlier and later opinions. In a letter of 1530 to the Elector 
of Saxony, he speaks of resistance to the Emperor as being 
contrary to God's command, 1 but in 1536 he joined Luther 
in signing the Declaration which we have just cited. 2 

In a letter of 1539 he says plainly that the principle that 
subjects must not resist their superiors does not apply when 
the superior commits atrocious and notorious injuries. 3 

ym solchen Fall koin mensch sich s Melanchthon, ' Opera Omnia,' vol. 

dazu gebrauchen lasse, noch dem iii. Epist. 1767 (p. 630) : " Item quod 

Kaiser gehorsam sei." dicitur ; subditis non licere ut re- 

1 Melanchthon, ' Opera Omnia ' (in sistant superioribus ; hoc dictum habet 

'Corpus Reformatorum '), vol. ii. Epist. locum sicut in aliis causis civilibus, 

660 (p. 20.) quando superior non infert injurias 

- Cf. p. 282, note |. atroees et notorias." 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 



285 



In 1546 Melanchthon, along with Bugenhagen and others, 
signed a declaration that, in their opinion, it was lawful for 
the " Stande " to defend themselves against the Emperor, 
if he attacked them on account of their religion. 1 In a letter 
of the same year Melanchthon briefly, but clearly, criticised 
the argument for non-resistance, as drawn from St Paul's 
words in the Epistle to Eomans xiii. 1. The Power, he 
says, is indeed an Ordinance of God, but only a just Power ; 
unjust violence is not God's Ordinance ; and he adds an im- 
portant appeal to the principle that the relations of inferior 
authorities to the superior were determined by certain con- 
ditions and agreements, and refers to the mutual obligations 
of lord and vassal in Feudal Law. 2 Thirteen years later 
Melanchthon set out the same judgment in terse and significant 



1 Id. id., vol. vi. Epist., 3454 (p. 
123) : " Denn wenn es gewiss ist, dass 
der Kaiser diese Stande von wegen der 
Religion uberziehen will, alsdann ist 
kein Zweifel, diese Stande thun Recht, 
so sie sich und die ihren ernstlich mit 
Gottes hiilf schtitzen, wie S. Paulus 
spricht : die Obrigkeit fiihrt das 
Schwert nicht vergeblich, sondern sie 
ist Gottes Dienerin, und soil strafen 
diejenigen, so arges thun, als morder, 
und ist eine solche gegenwehr nicht 
anders, denn so man einen haufen 
morder wehren miisste, es werde 
gefiihret vom Kaiser oder anderen. 
Denn es ist eine offentliche Tiranney 
und ' notoria violentia.' " 

2 Id. id., vol. vi. Epist., 3477 
(p. 152): " Aliud dictum Rom. xiii. 
qui potestati resistit, Dei ordi- 
nationem resistit, et judicium sibi 
acquirit. Haec sententia precipue 
videtur prohibere defensionem contra 
magistratum sed ipsa sese declarat. 
Vetat enim resistere in casu justae 
jurisdictionis, quia manifesto inquit 
ordinationi Dei resistit. Violentia 
autem injusta, non est ordinatio Dei, 
ut Thebani, cum excusserunt Laoe- 
demonios, qui rapiebant civium con- 
juges et liberos, non resistebant 



ordinationi Dei, sed manifestis furori- 
bus Diaboli et manifesto latrocinio. . . . 

(P. 153) : Postea etiam, et de 
imperiis dici potest, quae etiamsi 
aliis subjecta sunt certa conditiore, 
tamen habent suam jurisdictionem et 
administrationem gladii, ut principes 
certa conditione subjecti sunt regibus. 
Cum autem politicas ordinationea 
congruentes rationi approbat Deus, 
manifestum est, his quoque defensionem 
concedi, juxta ipsorum pacta. Ideo 
in hire multa de mutuis obligationi- 
bus, domini et vassali, ut vocant, 
tradita sunt quae vera sunt, sed ilia, 
quae supra diximus, ex lege naturae 
sumpta, illustriora et indubitata sunt. 

Addo tamep, et hanc manifest am 
regulam, ut judex inferior, juste uti 
jurisdictione sua debet (he contrasts 
this with the conduct of the judges in 
the Story of Naboth). . . . Et Trajani 
vox recte intellecta congruit cum hac 
regula, qui tradens gladium magistro 
equitum inquit, si justa imperabo, pro 
me utaris gladio, si injusta, contra 
me utaris " (p. 155, he explains 
David's refusal to slay Saul as being 
due to his not wishing to set an ex- 
ample of slaying a king). 



286 THE EARLIER SIXTEENTH CENTURY. [PART III. 

words. Eesistance and necessary defence against the unjust 
and notorious violence of the superior is right, for the Gospel 
does not annul the political order, which is in accord 
with Law. 1 

It is here that we may appropriately notice an important 
statement of the year 1550, made by the parish Clergy of 
Magdeburg, which sets out dogmatically the principle that the 
inferior public authorities might rightly defend their subjects 
against the unjust attacks of the Supreme Authority upon 
their religion ; this means that in such cases the Imperial 
cities and the Princes could lawfully resist the Emperor. 2 
They refer to the doctrine that it was always unlawful to 
resist the Higher Powers, but they contemptuously reject it. 
It is admitted, they say, that the superior and the subjects 
are bound to each other by oaths, but princes and lords, 
some say, may deal as they like with their subjects, may forget 
their oaths and may do what they please, while the subjects 
may not protect or maintain their rights and liberties. 3 

The ' Obrigkeit ' is an Ordinance of God, whose function it is 
to honour the good and to punish the evil, and therefore, 
when it persecutes the good and sets forward the evil, it is 
no longer an Ordinance of God, but of the Devil, and to resist 
it is to resist, not the Ordinance of God, but of the Devil. 4 

1 Id. id., vol. ix., 6886 (p. 987) : und rechte Gottes dienst zuverleugnen, 
" Abor von wahrhaftiger nothiger und Abg6tterey anzunekmen." 
Gegenwehr zu redon ohne Sophisterei, Cf. p. 15. 

ist wahr das Gegenwehr und ' necessaria 3 Id. id., p. 5: "Item: Oberkeit 

dofensio ' wider unrechte ' violentiam,' und unterthanon haben sich zusammen 

auch wider offentliehe ' notoriam hart verpflicht, und mit Eyden ver- 

violentiam superioris potestatis,' recht bunden. Abor die Fiirsten und Herren 

ist ; denn das Evangelium vertilgt mogen dennoch ihren muthwillen mit 

nicht weltliche Ordnung, den Recht on den untersassen iiben, ihres Eydts 

gemass." vergessen und thuen was sie wollen. 

2 ' Bekenntuiss, Unterricht und Dagegon habon die Untersassen nicht 
Vermanung der Pfarrhorrn und Pre- macht dawriddor zu reden, ihre Recht 
diger dor Christlichen Kirchen zu und Freyheiten bandtzuhaben. Der 
Magdeburg,' ed. 1550, part ii. (The Fiirst mag Imogen widdor die Rechte 
pages are not numbered, but this is on und soinen Eydt, aber die Unter- 
the fourth page) : " Wir wollen aber thanon diirffen ihm nicht widdorstehen 
uns furnohmen zu beweison dass eine nach den Rechten." 

Chriatliche Oberkeit mag und sol ihre 4 Id. id., p. 16: Die Oberkeit ist ein 

rthanen verteidigen auch widdor Ordnung Gottes, das gute zu eliren, 

eine hohore Oberkoit, so die Leute und zu straffen das Bose (Romans xiii.) 

mit gewalt zwingcn, und Gottes wort Deshalben wenn die Obrigkeit anhebt, 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 287 

If the superior authority attempts to suppress the lower 
authority, which will not follow it in evil, its action is null 
and void before God, and the lower authority is still bound 
to carry out its duty. 1 If the authority, prince, or emperor 
endeavours, against his oath, to destroy the lawful liberties 
of the lower authority, the latter may lawfully resist, though 
it may be wiser to submit ; but if the higher authority 
endeavours to stamp out the true religion, the inferior 
authority must resist, and those who do this are not to 
be called rebels. 2 

The first English writer of the sixteenth century, as far as 
we have seen, who sets out the conception of the Divine 
Eight and Non - Eesistance was Wilham Tyndale. It 
is carefully and clearly set out in his work called ' The 
Obedience of Christian Men,' published in 1528, and it is 
reaffirmed in his 'Exposition of Matthew v., vi., and vii.,' 
published in 1532. 

We have already pointed out that the Eeformers in France 
and Germany were anxious to show that they were in no way 
related to any movement of revolt or revolution, and that 
they had, still less, any sympathy with the Anabaptist move- 
ment. Tyndale's work, ' The Obedience of Christian Men,' 
shows the same concern. In the Prologue to this work he 
says that the occasion of the Treatise was the charge that the 
doctrine of the Eeformers, and especially the preaching of the 
Word of God, tended to make men disobey and revolt against 
their rulers, and to set up a system of community of goods. 3 

das gute zuverfolgen und das Bose Religious, which ought to defend God's 

zu fodern, so ist sie nicht mehr (indem Word, speak evil of it, and do all the 

das sie also handelt und thut), ein shame they can to it, and rayle on it, 

Ordnung Gottes, sondern ein Ordnung and bear their captives in hand, 

des Teuffels. Und wer solchem Bose that it causeth insurrection and 

fiirhaben widderstehet, der widerstehet teacheth the people to disobey their 

nicht der Ordnung Gottes, sondern heades and governours, and moveth 

der Ordnung des Teuffels." them to rise against their princes, 

1 Id., p. 17. and to make all common, and to make 

2 Id., pp. 19, 20, 21. havoke of other men's goods ; therefore 

3 W. Tyndale, ' The Obedience of have I made the little treatise that 
Christian Men ' (Edition, London, 1573). followeth conteinyng all obedience that 
Prologue (p. 104): "Forasmuch as is of God." 

our holy Prelates and our ghostly 



288 THE EARLIER SIXTEENTH CENTURY. [PART III. 

All this he indignantly repudiates, and suggests that it was 
rather the Pope and his followers who had taught men to 
resist their rulers. 1 

In setting out his own view, Tyndale begins by citing St 
Paul's words in Pv,omans xiii., and concludes that it is God 
who has given laws to all nations, and who rules the world 
by means of the Kings and Eulers whom he has appointed, 
and that no subject may resist his superior for any cause 
whatsoever, for if he does this, he takes upon himself the 
authority which belongs to God only. 2 Again, rulers are 
ordained of God, whether they are good or evil, and what 
they do, whether good or bad, is done by God, for if they are 
evil, they are the ministers of God's punishment upon the sins 
of the people. 3 A Christian man is in respect of God, but as a 
" passive thing, a thing that suffereth only and doth nought." 4 
This is sufficiently explicit, but he also says that the king in 
secular matters is outside of the Law, and whether he does 
right or wrong gives account to God only. 5 How far this is a 
reminiscence of the " legibus solutus " of the Eoman Law, and 
how far it may be derived from other sources, we cannot say. 

1 Id. id., p. 106 : " To disobey governors are ordeined of God, and 
even father, mother, master, lord, are even the gift of God, whether they 
king and emperor : yea, and to invade be good or bad. And, whatsoever is 
whatsoever land or nation that will done unto us by them, that doth 
not receaue and admit his God-head. God, be it good or bad. If they be 
Where the peaceable doctrine of Christ evill, why are they evill, verily, for 
teacheth us to obey, and to suffer for our wickednesse sake. . . . Therefore 
the Word of God." doth God make his scorge of them, and 

2 Id. id., p. 109: "God therefore turn them unto wild beastes ... to 
hath geven lawes unto all nations and avenge himself of our unnaturall and 
in all landes hath put kingos, governors blind unkindnosse, and of our rebellious 
and rulorb, in hys oun stede, to rule disobedience." 

the world through them. ... (p. 4 Id. id., p. 119: "A Christian 

110): Neithor may the inferior man in respect of God, is but a passive 

person avenge himself upon the thing, a thing that suffereth only and 

superior, or violently resist hym, for doth nought, as the sick in respect of 

whatsoever wTong it be. If ho doe, he the surgeon or physitian doth but 

is condemned in the deede doing; suffer only." 

inasmuch as he taketh upon hym that s Id. id., p. Ill : " Hereby seest 

which belongeth to God only, which thou that the kyng is in this worldo 

sayth 'Vengeance is mine, and I will without law, and may at his lust do 

rewarde.' " right or wrong, and shall give ac- 

8 Id. id., p. 118: " Heades and comptes but to God only." 



CHAP. IV.] THE THEORY OF THE DIVINE EIGHT. 289 

It may be urged, indeed, that these are somewhat abstract 
phrases, and must not be pressed, but in a later work, an 
exposition of the Sermon on the Mount, he discusses the re- 
lation of the subject to the Euler in more concrete terms. 

In commenting on the words of our Lord (Matt. v. 38, 42), 
Tyndale contends that these words do not mean that the 
Christian man is forbidden to go to law, but that, even if the 
law is administered by wicked and corrupt rulers, he must 
not take the law into his own hands, for to rail against his 
rulers is to rail against God, and to revolt against them is to 
revolt against God. This is sufficiently emphatic, but Tyndale 
was not satisfied till he had repudiated, what we may call, the 
traditional constitutional contention, that the king had on 
his accession sworn to maintain the laws, privileges, and 
liberties of his subjects, and that it was only upon this con- 
dition that his subjects had submitted to him, and that, 
therefore, if he misgoverned them, they were not bound to 
obey, but could resist and depose him. Tyndale answers 
contemptuously that this argument is of no force ; a wife 
cannot compel her husband if he violates his oath to her, or 
a servant his master ; this can only be done by some higher 
authority. Again, it may be contended that the subjects had 
chosen their ruler, and " Cujus est ligare, ejus est solvere " ; 
but Tyndale answers that even though the people elect their 
ruler, it is God who has elected him through them, he is the 
Lord's anointed, and cannot be deposed without a special 
commandment from God ; and he then cites the story of 
David and Saul, as Gregory the Great had done. He adds 
an ingenious parallel, that the citizens of London elected their 
Mayor, but could not depose him without the consent of the 
king, from whom they had received the power to elect, and 
concludes that if the highest authority does wrong, subjects 
can only complain to God. 1 

1 Id., ' Exposition on Matthew ever as much more, whatsoever unright 

v., vi., vii ' (p. 213) : " Wherefore the be done thee, rather than of im- 

text meaneth this, that where the patience thou shouldest avenge thyself 

law is unjustly ministered and the on thy neighbour, or rayle or make 

governors and judges corrupt . . . insurrection agaynst the superiors 

there be patient and ready to suffer which God hath set over thee. For 

VOL. VI. T 



290 



THE EARLIER SIXTEENTH CENTURY. [part III. 



It seems clear that Tyndale intended to repudiate all con- 
stitutional arguments for the restraint of the royal authority, 
and it is interesting to observe that in this same work he sug- 
gested that the evils which had befallen England in the fifteenth 
century were really the result of their action in slaying their 
rightful king, Richard II., whom God had set over them. 1 

them, as so must he be the chief putter 
down of them agayne, so that without 
his special Commandment they may 
not be put down agayne. Now hath 
God geven no Commandment to 
put them down agayne, but con- 
trariwise, when we have anoynted a 
kyng at his Commandment, he sayth : 
touch not mine anointed. And what 
jeopardy it is to rise agaynst thy 
Prince that is anointed over thee, 
how evill soever he be, 6ee in tho story 
of King David, and throughout all 
the Bookes of the Kings. The authority 
of the King is the authority of God ; 
and all the subjects compared to the 
King are but subjects still (though the 
King be never so evil). . . . And unto 
your argument, ' Cujus est ligare ejus 
est solvere,' I answere : he that bindeth 
wyth absolute power, and without 
any higher authoritio, his is the might 
to loose agayne. But he that bindeth 
at other men's commandment, may 
not loose againe until the command- 
ment of the same. As they of London 
choose them a Mayor : but may not 
put him down again, how evil soever 
he bo, without the authority of him 
with whoso licence they chose him. 
As long as the power of officers be one 
under another, if the inferior do thee 
wrong, complayne to the higher. But 
if tho hyghest of all do thee wrong, 
thou must complayne unto God only. 
Whrrofore the onely remedy against 
evil rulers is, that thou turne thine 
eyes to thyself, and thyne owne sinne, 
and then looke up unto God." 

1 Id. id., p. 207 : " Let England 
looke about them, and marke what 
hath chaunced them since they slew 



to rise against thorn, is to rebell again-t 
God, and against thy father when he 
scourgeth thee for thyne offence, and 
a thousand times more sinne than 
to avenge thee on thy neighbour. 
And to raylo on them is to rayle on 
God, as though thou wouldest blas- 
pheme Him, if He made thee sicke, 
poore, or of low degree, or otherwise 
than thou wouldest be made thyself. 

Thou wilt happily say : the 
subjects ever choose the Ruler and 
make hym swear to keep their law 
and to maintain their privileges and 
liberties, and upon that submit their- 
selves unto him. Ergo, if ho rule 
amiss, they are not bound to obey, 
but may resist him and put him down 
again. 

I answere, your argument is 
naught. For the husband sweareth 
to his wife, yet though ho forswear 
himself, she hath no power to compel 
him. Also though a maister keep not 
covenant with his servaunt, or one 
neighbour with another : yet hath 
neither servaunt nor neighbour (though 
he be under none obedience) power to 
avenge : but the vengeance pertayneth 
ever to an higher office, to whom thou 
must complayne. 

Yea, but you will say, it is not 
like. For ( he whole body of the subjects 
choose the Ruler. Now, ' Cujus est 
ligare, ejus est solvere,' ergo, if he rule 
amiss they may put him down 
agayne. . . . God (and not the 
common people) chuseth tho Prince, 
though he chuse by them. For, 
Deut. xvi., God commandeth to chuse 
and set up officers, and therefore is 
God the chief chusor and Better-up of 



CHAP. IV.] THE THEORY OF THE DIVINE RIGHT. 



291 



It would be difficult to find any stronger declaration of 
the conception that the king holds by Divine Right an absolute 
and unqualified authority, that he is above law and not under 
it, that all appeal to constitutional tradition is empty and 
void, that all resistance to his authority, however reasonable 
the cause for this might be, is an offence against God, and the 
authority which he has given to the king. 

It is obvious, of course, that this is a restatement of the 
conceptions of St Gregory the Great, but we are strongly 
inclined to think that it is from Luther's earlier statements 
that Tyndale's opinions are derived, and especially from the 
" Ermahnung zum Frieden " of 1525, and possibly from the 
tract ' Ob Kriegsleute auch im seligen Stande sein konnen ' of 
1526. He does not, indeed, refer to them explicitly, but 
a comparison of Tyndale's arguments with those con- 
tained in Luther's tracts seems to us to make this highly 
probable. 

There is not much to be said about R. Barnes, another of 
the English Reformers, who seems to us clearly to be on this 
subject a disciple of Tyndale. In the tract entitled ' A suppli- 
cation to Henry VIII.' he is evidently concerned to show 
that, while the Reformers taught men that God commanded 
obedience to princes, it was the Pope who taught men to 
revolt. In another tract he sets out, in terms as strong as 
those of Tyndale, the duty of absolute submission to the king, 
however unjust and contrary to the law his action might be. 1 



their right kyng, whom God had an- 
ointed over them, King Richard II. 
Their people, townes and villages are 
minished by the thirde parte." 

Cf. Tyndale's ' Answer to More,' 
Book iv. chap, xiii., where he speaks 
of Henry V. as holding the kingdom 
against all right. 

1 R. Barnes' Works. Edition, 
London, 1573 (with Tyndale and Frith, 
paged with Frith's Works), p. 292 : 
" In this article we must note that 
there be two manner of ministers or 
Powers : one is a temporal power, 
the other is called a spiritual power : 



the Temporal Power is committed of 
God to Kings, Dukes . . . Mayors, 
Sherriffs, and all other ministers under 
them. ... In thys power is the 
Kynge chief and full Ruler ; all others 
be ministers and servaunts, as Paul 
doth declare, saying : ' Let every soul 
be subject unto the Higher Power,' &c. 
Also St Peter : ' Be subject unto the 
Kynge as unto the chief head . . .' 
unto this power must we be obedient 
in all thynges that pertain to the 
ministration of the present life, and 
of the Commonwealth. ... So that, 
if this power commando anything of 



292 THE EARLIER SIXTEENTH CENTURY. [PAUT III. 

The only thing that he will allow is, that the oppressed man 
may fly (he is evidently thinking primarily of a man persecuted 
for his religion). 

We have thus endeavoured to set out the first development 
in Germany and in England in the sixteenth century of the 
theory of the absolute Divine Eight of the monarch, and of 
the principle of non-resistance, but we shall return to this in 
another chapter, with regard to its development in the later 
part of the century. 

tyranny against the Right and Law Faythe) our charitie must needs suffer 
(always provided that it repugn not it, for, as Paule sayth Charitie suffereth 
against the Gospell nor destroye our all Thyng." 



293 



CHAPTER V. 

THE POLITICAL THEORY OF THE CIVILIANS IN 
THE SIXTEENTH CENTURY. 

We have dealt with the conception of the source and nature 
of the authority of Law, as illustrated in the writers on 
Political Theory in the earlier part of the sixteenth century. 
In previous volumes and in the earlier parts of this volume 
we have found it necessary to distinguish sharply between the 
character of political theories in general and the conceptions 
of the Civilians, and it is necessary to continue this distinction, 
for, as we have said, the political conceptions which these 
jurists derived from their study of the Eoman Law differed 
in many and important respects from the traditional con- 
ceptions and practice of mediaeval Europe. 

We cannot, indeed, pretend that we have been able to 
examine the political theory of the sixteenth century Civilians 
in as much detail as we have done those of the earlier periods : 
we have no longer the invaluable guidance of Savigny's great 
work, which terminates at the end of the fifteenth century. 

We begin with the famous French humanist and jurist, 
Guillaume Bude", whose work belongs to the earliest part of 
the sixteenth century. It is, indeed, not very easy to bring 
Budd.'s conceptions into complete harmony with each other ; 
when dealing with general principles, he seems 10 assert the 
absolute power of monarchy, and especially in France ; while 
in other places he attributes to the " Parlement " of Paris 
a very large authority, even in relation to the king. 

The first position is developed by him in his discussion of 



294 



THE EARLIER SIXTEENTH CENTURY. [PART III. 



the meaning of the phrase, " Princeps legibus solutus " ; the 
second, in a passage in which he compares the Eoman Senate 
with " Curia nostra suprema " (meaning clearly, the " Parle- 
ment " of Paris). 

He begins the treatment of the meaning of " legibus 
solutus " by appealing to a famous passage of the ' Polities,' 
in which Aristotle speaks of the natural monarchy of a man 
who is incomparably superior to all other men in the 
state. Such a man, Bude maintains, cannot be treated as 
the equal of others, but must rather be regarded as a 
god among men ; it would be absurd to impose law upon 
such a man, as he is a law to himself. 1 He goes on to 
assert that the Eoman Emperors, at least at the time of 
Ulpian, and the Kings of France, had a pre-eminence of this 
kind ; the Emperor ordered all things according to his will, 
and the Kings of France have all things in their power. They 
are like the Jove of Homer, and all things tremble at their 
nod : they are human Joves, but that, like other men, they 
die. 2 



1 Budaeus, ' Armotationes in Pan- 
dectas ' (Dig. i. 3, 31), p. 67 : " Princeps 
legibus solutus est. Aristotoles, Lib. 
Tertio, Politic. Hujus dicti rationem 
momorabilem afferre mihi videtur. . . . 
Je igitur in eo Iibro in banc propemodum 
HOntentiam inquit, si tamen recte 
vertimus ; in republica autem optimo 
constituta is donauin iuris esse dici 
debot, qui et rogere ot regi, et voluntate 
et aptitudino ad vitain paratus est 
secundum virtutem agendum. Agedum 
.sit aliquis unus, aut uno etiam plures 
(pauciores tamen quam ut civitatis 
numerum implore possint), tanto ceteris 
virtutis oxuperantia praostantes, si 
plures sint, aut pracstans si unus sit, 
roliquorum ut universorum virtus cum 
illius aut illorum non sit comparubiliw ; 
dico, inquit, hujusmodi viros non 
jam civitatis partem oxistimandos esse, 
quippe injuriam illis baud dubie factum 
iri credendum est, si aequas ferro 
partes digni ipsi videbuntur, tanto 



ceteris inaequales virtute civilique 
facultate. Hujusmodi enim quasi 
Deum quondam censeri inter bomines 
par est. Proinde legum quoque 
lationcm inter aequales necesse est 
esse et genere et facultate civili. In 
illos autem hujuscemodi nulla est 
prorsus legislatio, quippe qui ipsis 
lex sunt, quia enim ridiculum fore 
putemus eum qui legem do huiusmodi 
forre aggrodiatur." 

2 Id. id., p. 68 : " Age cum quinque 
sunt genera regni, quintum genus 
est quod Trafij3aai\tia dicitur, quasi 
dicas rognum numeris omnibus domina- 
tionis absolutum : cujusmodi erant 
Reges, Principes Romani, Ulpiani 
tempore, nibil jam priscae civilitatis 
rotinentos, omnia arbitrio suo 
statuentes : ut nunc Reges nostri sunt, 
qui omnia in pot estate habent, quique 
(ut Homoricus ille Jupiter) quoquo 
sese verterint, omnia circumagunt, 
nutu t'tiam solo omnia quat ientes : 



CHAP, v.] CIVILIANS IN THE SIXTEENTH CENTURY. 295 

Bude" is, indeed, not satisfied that the words " legibus 
solutus " are adequate to express the relation of the prince 
to the Law ; he prefers the phrase " Principem . . . etiam 
legibus non teneri." Laws, he says, are made for men who 
are equal in every political " facultas," but they cannot 
constrain those who are greatly superior ; kings have no 
equals in the antiquity and dignity of their birth, in excellence 
of soul and body, and in the majesty of their bearing ; they 
are, or should be held to be, equal to the heroes ; and laws 
which are made for the people cannot control such sacrosanct 
beings. 1 

He suggests that there is no more reason why the laws 
should stand between the prince and the people than between 
a father and his children. 2 He carries, however, his conception 
of the supreme place of the prince still further. The prince 
is the minister of God for the welfare of men, and it is for him 
to distribute the good things which are given by God to the 
human race ; and he cites a saying that justice is the end of 
the law, and this is the fimction of the prince, for the prince 
is the image of God, who orders all things aright. This, Bude" 
says, agrees with the words of the apostle, " Let every soul 
be subject to the Higher Powers." Plutarch had, indeed, said 

denique humani Joves, ut inquit aequare possit aut contendat, virtute 

Plautus in Casina, sed qui tamen pono et animi et corporis, omnique 

hominum more emoriantur. Hoc morum majestate humanum captum 

autem regni genus est, inquit Aristoteles, modumque excedere, heroasque aequare 

cum unus omnium potestatem habet, aut debeant, aut credantur. Manifes- 

tum communiiun turn publicarum turn est legibus in cives, id est in 

rerum, non aliter atque civitas una, populum latis, sacrosanctos homines 

aut populus unus habent." non teneri, august a ilia designatione 

1 Id. id., p. 68 : " Ex supradictis eximios." 

igitur demonstrari potest ut arbitror, 2 Id. id. id. : " Ad haec cum 

Principem non modo legibus esse nullum jus civile inter patrem et 

solutum, id quod Ulpianus dixit, sed liberos et inter dominum et familiam 

etiam legibus non teneri. Jam primum intercedat, ut Aristotoles docet Lib. v. 

cum leges ferri debeant in homines, Ethicorum, et nos alibi diximus, sit 

genere facultateque omni politica autem eadem ratio inter Principem et 

equates, nee legibus teneantur qui populum ; satis ut arbitror effectus est, 

multo ceteros rebus his praestare quod efficere meditabamur, . . . et Prin- 

videntur ; reges autem generositate, cipem non modo legibus solutum esse, 

id est opulentia, antiquitate, et sed etiam non teneri." 
claritate natalium nemo omnium 



296 THE EARLIER SIXTEENTH CENTURY. [PART III. 

that the Law is the prince of princes, but he explained what 
he meant by the Law when he said that it is not that law 
which is written in books or on tables, but that living " reason " 
which is within the prince. 1 

It is obvious that Bud£ was anxious, at least as a general 
principle, to maintain the view that the king stood outside of, 
and above, the legal order of society. 

It is, however, also clear that in another place Bude repre- 
sent actual constitutional practice of France in very 
different terms. In discussing the position of the Senate in 
Rome he compares it with " curia nostra suprema," and 
maintains that this Court had all the powers which had been 
in the Senate. The " Maiestas " and powers of the Roman 
people had been transferred to the prince by the " Lex 
Eegia," while the Senatorial Power had been granted to the 
Curia — i. e. , the ' ' Parlement. ' ' It was this ' ' Parlement ' ' which 
declared the princes' " acta," " rata irritave." by it he willed 
( his Constitutions should be promulgated ; and it was 
to the judgment of this Court alone that the princes, though 
gibus soluti," submitted themselvc> {ua sibi jus dici, 
principes leges soluti civili animo ferant "). 2 

1 Id. id. id.: "' Verius autem quis Quae verba esse consentanea cum 

dixerit magistrates summos et prin- lege, ' Digna Vox : (Cod. i. 14, 4). 

Dei ministros esse in procuratione Sed quam legem Plutarchus pi 

hominum et salute, ut quae bona imperitantem dixerit, ex iis quae 

:i huznano divinitus donantur, ea sequuntur mus. . . . LAS 

nartim distribuant inter homines, inqu pi imperatrix erit : non 

iin assen-( m . . . tantorum pcrro ilia quidem aut in libris extrinsecus 

bc>norum divinorum taliumque nullus scripta, aut in tabulis, sed animata 

: hominibus fructus ususque com- intus in ipso ratio, semper cum eo 

modus e". : -. ... conversans, ejusdemque observatrix, 

... Deinde haec sub- quaeque eius animam nunquam 

dit ; Justitia ip .aruam." 

At ! Id. id.. Dig. i. 9, li' (p. M 

jui omnia ea igitur curia in qua summa juris-- 

Oon Gallicae atque etiam juriihv- 

hoc cum 'Ad tialis imperii sita est, omnia inesee 

Romano.^ i (Rom. xiii. mih. or, quae et in senatu. et in 

1 ). Plutarchus tamen, alibi in centumvira \ u. el in areopago ( I 

:actatu ita inquit. ... dumtaxat quod ad jurisdLtionem 

jmptT ; umque jurisdictiak . . . 

uae omnium regina est mortalium i apud Romanos 
atque tmmortalium, ut inquit Pindarua. 



CHAP, v.] CIVILIANS IN THE SIXTEENTH CEHTU] 






This is. indeed, a very differf-nt conception of the relation 
of the prince to the Law from that expressed in the pi 
already cited ; it is possible that Rude looked upon this 

relation of king and Rarlernent as arising from and depend- 
ing upon the king's will and pleasure, but the discrepancy 
remains, and we shall find something very like it in Bodin. 



We may rmt beside the opinions of Bnde* some ments 

of Jean Ferrault, in a work on the 1 I od privileges of the 
kingdom of France, published in 1515. lie conteu 
Kings of France have the saim r of Legislation as the 

Roman Emperor, and he seems, curiously enough, to hold 
that the Salic Law was strictly analogous to the Lex Regia 
of Borne, and that by it all power had been transferred to the 
King of France, who po d all the rig tie Emperor. 1 

And, in another place, as we understand him. he seems to 
assert that the King of France can impose " novum reel igaL," 
while other kings and lords can only exact the Regalia. 2 



Populus sciscere solebat et jubere, 
Senatus censere et auctor esse. Ilia 
igitur popularia ad principem lege 
regia delata sunt, haec eenatoria ad 
curiam translata ease creduntur. . . . 
In hujus acta referri diplomata regiaque 
beneficia solent, ut perpetua esse 
possint, ac nunquam antiquabilia. 
Hujus autoritate rata irritave principnm 
acta, ne ipsis quidem recusantibus , 
fiunt. Una haec curia est, a qua sibi 
jus dici, principes legibus soluti civili 
animo ferant : quam auctorem fieri 
sacrand's promulgandisque sanctioni- 
bus suis velint : cujus consilii cen- 
surae, eonstitutione3 suas eximi ; edict - 
aque sua nolint, imo cujus decretis 
hujusmodi sua acta conservari eternitati 
vulint." 

1 Jean Ferrault, ' Tractatus de 
Juribus et Privilegiis Regni Francorum,' 
xxxv. : "' Duodecim lilium jus ali- 
qualiter respiciens est quod Rex 
iste solus facit constitutiones seu leges 
in Regno Franciae. . . . Est eniro 
jure eertissimum, quod populus regitur 



solo rege, ille solus potest statuere, 
eondere et instituere. Constituti'. 
edictum est, quod tantuin rex 
imperator eonstituit, II. Diet. c. 
Constitutio. Xam salutem reipublicae 
tueri nulli magis credidit, 
Augusti (nus) convenire, nee aiiquem 
sufficere ei rei . . . quia antiqua lege 
regia quae salica nuneupatur omne j a 
omnisque potestas in regiam translata 
icuti imperatori soli hoc 
conveneret in subditis . . . ita regi ; 
cum rex Franciae omnia jura impeia- 
toris habeat, quia (ut dictum 

recognoscit in temporalibus 
-,'aperiorern." 

2 Id. id., 41 : " Decimurn septimum 
jus regium est, quod ipse solus et 
nullus alius potest imponere novum 
vectigal . . . alii autem reges, et 
domini temporale3 possunt exigere ; in 
Tit. quae sunt regalia X Coll. Sed 
nee imponere nee quocunque colore 
aliam exa^tionem facere etiam pro 
utilitate patriae." (We confess that we 
are not quite clear about this passage.) 



298 



THE EARLIER SIXTEENTH CENTURY, 



[PABT III. 



We may also put beside Ferrault the opinions of Charles 
de Grassaille, in a work published in 1538. * 

When, however, we turn to other and more important 
Civilians of the sixteenth century, we find judgments of a 
very different kind. We begin with Alciatus of Milan and 
Bourges, whose earlier years were spent in Milan, but who 
later migrated to France and taught in the Law School of 
Bourges in the earlier part of the century. 

Alciatus, as was natural, held that the authority of the 
Emperor was derived from the Roman people, but he de- 
veloped this into the doctrine that all political authority 
was and could only be derived from the people. The " Jus 
imperii Eomani " belonged to the people until they transferred 
it by law to Augustus. God gave men lordship over all 
animals, but not over other men ; kings were created, not by 
the Divine command, but by the consent of the people. 
Charles the Great was elected by the Boman people, and this 
authority is now exercised by the seven German Electors. 
Thus, also in France, Chilperic was deposed and Pipin elected 
king, and so with Hugh Capet ; and thus also, in lesser 
kingdoms. Alciatus concludes that " he is a just prince who 
reigns with the consent of the people, and he is a tyrant who 
reigns over unwilling subjects." St Augustine rightly described 
kingdoms created by violence, without the consent of the 
subjects, as " magna latrocinia." 2 



i Cf. J. W. Allen, 'A History of 
Political Thought in the sixteenth 
century,' p. 284. 

* Alciatus, Opera, vol. ii. col. 1047, 
' Comm. on Digest,' L. 16, 15 : 
" Jus Imperii Romani ad populum 
pertinebat, donee per legem Rhomniam 
populus in Augustum Caesarem 
jus omne transtulit. . . . Nam 
cum hominem creavit Deus, illi 
in cetera quidem animantia jus et 
dominium concessit, hominem autem 
in alteri alter serviret non indixit. 
LTnde principio rerum non divina 
jussione, Bed ex populi consensu reges 



assumpti sunt ; quod et, post Romani 
imperii occasum, scrvatum fait, cum 
Carolus Magnus a populo Romano 
Augustus electus est, et a pontifice 
Leone sacro oleo iniunctus ; quod jus 
populi hodio Gregoriana lege in septem 
Germaniae principes translation est. 
Sic et Franci, Chilperico ejecto qui 
regno idoneus non esset, I'ipinum 
TraiKfAriKw consilio substituerunt. Et 
cum 1'ipini proles a majoribus degener- 
asset, rursus Odonem, mox eras fiat rem 
Robert um et deinde Roberti nepo em 
Hugonem ad summum fastigium 
evexerunt. . . . Et quod de maxitnis 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 299 

This is an interesting expansion of the tradition of the 
Eoman Law, that all authority in Eome was derived from 
the people, for Alciatus enlarges this into the general principle, 
that without the consent of the community there is no legiti- 
mate authority. 

He is almost equally definite in his repudiation of the 
conception that the authority which the people had granted 
to the prince was absolutely unlimited. He refers contemptu- 
ously in one place to the " hallucinations " of the theologians 
and the " adulation " of the jurists who maintained that the 
power of the prince was supreme and free, and that he could 
do whatever he pleased. This, he says, is certainly not true 
in Italy ; it is absurd to say that bishops, dukes, or marquises 
have an authority over Italians which the Emperor himself 
does not possess. 1 

In another work he insists again upon the limited nature 
of the authority of princes. He has, he says, dealt at some 
length with this, in order that princes, whether they had 
reached the highest rank (he means the Empire) or are kings, 
dukes, or counts, might learn that they had not so great an 
authority as their flatterers tell them ; and also in order that 
the doctrine of Martin (i.e., that there was nothing that the 
Emperor could not do) should once again be refuted. 2 

hisce regibus, nimirum Romano et persuadentibusque omnia principilicere, 

Franco, dictum est, idem in inferioribus summamqueet liberamessepotestatern. 

observatum fuisse, qui historicos legerit, Quod certe in Italia verum non est . . . 

deprehendet; ut merito censeam Divina ut ridiculum sit affirmare pontificibus, 

lege eum justum principem esse, qui ducibus.et quos Germanics voce march - 

ex populi consensu regnet, quod et iones vocant, absolutam in subditis 

Aristot. tradit ; qui vero invitis potestatem competere, quae nee ipsi 

dominetur, eum tyrannum esse, etiamsi Imperatori in Italos competit." 

Caesar sit, a Septemviris electus, vel 2 Id., ' De Formula Romani Im- 

quaqua aliarationecivili jure potentiam perii ' (ed. Basle 1554) p. 43 : " Et haec 

suam tueatur. Unde cum magna a nobis diffusius dicta sunt, turn ut inde 

regna non ex subditorum consensu, admonerentur principes, sive ipsi ad 

sed per violentiam primo constituta summum imperii gradum pervenerint, 

sunt, merito Augustinus libro de sive ab imperatoribus, reges, duces, 

Civitate Dei IIII. magna latrocinia comites appellati sint : non tantum 

esse dicit." illis in populos licere quantum adula- 

1 Id. id., vol. ii. col. 1162, ' Comm. on tores eorum auribus melle diluto 

Digest,' L. 16, 111: " Hallucinantibus veneno infundunt ; turn etiam ut 

theologis, adulantibus jurisconsultis, Martini, qui Bononiae jus civile pro- 



300 THE EARLIER SIXTEENTH CENTURY. [PART III. 

Alciatus did not, Ave think, doubt that the prince had the 
legislative power, which he had received from the people, 
but in one passage he indicates that he was of opinion that 
the prince should not make laws without the advice of the 
" Periti," the men of experience. It appears very possible that 
this is a reminiscence of the provisions of ' Code.' i. 14, 8, though 
he is not here commenting on that passage. 1 He is also clear 
that the prince is bound by his contracts, that he has no 
power to revoke or annul them. We have already observed 
the importance of this conception in the Civilians of the 
fourteenth and fifteenth centuries ; indeed, he refers directly 
to some of them, and he also refers to the important parallel 
principle of the Feudal Law, that the lord could not deprive 
the vassal of his fief without just cause. 2 

He also discusses the question whether the prince can insert, 
in his briefs, clauses which derogate from the law ; he says in 
one place that no one can do this except the prince, and such 
persons as have received authority from him. 3 That is, he 
would seem to maintain the dispensing power of the prince. It 
should, however, be observed that in another place Alciatus 
allows this only under important reservations. The prince, 
he says, has power to remit all punishments for offences 
against himself, but he cannot deal in this way with " our " 
rights anymore than the people did who gave him this authority; 

fitebatur, nihil non Imperatori eon- Paulus de Castro in L. Digna Vox 

cedentis, sententiam confutaretur." C. De Legibu9. (Cod. i. xiv. 4.) 

For the story about Martin, cf. Et Baldus in Cap. I. Ad haec de pace 

Savigny, ' Geschichte des Romischen jur. firm. Et Lud. Rom. . . . 

Rechts,' vol. iv. p. 180. Queritur primo, dicons, quod princeps 

1 Id., Opera, vol. iii. col. 26, ' Comra. non potest revocare contractum a se 
on Cod.,' i., 2, 5: " RationabilisConsilii. factum. . . . Item est in feudo." 
Non enim debent principes ex se ips. . 8 Id. id., vol. i. col. 1108, ' Coram, on 
leges promulgare, sed adhibito peri- Dig.,' xxx. i. 56 : " Adnotavit in primis 
torum consilio." Doct. non posse testatorem adversus 

2 Id. id., vol. iv., col. 816, 'Tractatus leges quicquam inducere. Et ideo nee 
de Praesumptionibus,' ' Regula Tertia ipsum, noc quemquam alium, except o 
Praescriptiomim ' : " Et probatur ista principe, posse clausula derogatoria 
opinio, quae videtur communior . . . legum uti. Prineipibus quidem id 
ubi non presumitur causa in principe permittifur, qui legibus soluti 6unt ; 
volente rescindere proprium con- aliis vero minime, nisi quatem. 
tractum : imo istud non potest eliam principisindulgentiahocconsequantur." 
de plenitudine potestatis, secundum 



CHAP, v.] CIVILIANS EN THE SIXTEENTH CENTURY. 



301 



there is, therefore, in ' jure nostro ' no mention of " plenitudo 
potestatis," or of " non obstante " clauses. Much less can 
marquises, dukes, or counts take away another man's rights. 1 
Alciatus seems clearly to interpret the doctrine that the 
prince is " legibus solutus " as meaning little more than that 
he can remit penalties that he has himself imposed, and 
not as meaning that he can suspend any law at his pleasure. 

The conception of political authority which we find in 
Alciatus is obviously very important, even if it stood alone, 
but its importance is greatly increased when we bring it into 
comparison with that of some other important Civilians of 
the sixteenth century. 



How far it may be thought that some of the conceptions of 
other important French Civilians of the sixteenth century 
are due to the influence of Alciatus, and his teaching at 
Bourges, we cannot positively say, but it is certainly remark- 
able that several of them set out conceptions which are more 
nearly akin to his than to those of the Italian Civilians of the 
fifteenth century with which we have dealt in the second part 
of this volume. 

Francois Connon, who died in 1551, is said to have studied 
law at Bourges under Alciatus, 2 and his Commentaries on 
the Boman Law contain some very important observations 
on the nature of law and its relation to the king. The primitive 
world, he says in one place, was ruled by kings who were 
chosen for their capacity and virtue, and they ruled without 
any fixed system of law. When, however, they began to abuse 
their power, and men saw how dangerous it was to entrust 
the wellbeing of all to the goodwill of one, they either thrust 



1 Id. id., vol. iii. col. 113, ' C'omm. 
on Cod.,' ii., 2, 2 : " Dubium tamen non 
est , quin supremi pri ncipes , si volunt , has 
poenas, libera, quam sibi vendicant, 
potest ate remit tero possiunt. De jure 
autem nostro non possunt, cum enim 
omne jus et imperium ex translatione 
populi habeant, non aliter eo debent 
uti, quam ipsi qui transtulerunt 
uterentur : qua propter in jure nostro, 



nullus est mentio plenitudinis potes- 
tatis, item clausulae non obstante, 
&c, ut Baldus ait. Sed quid in Mar- 
chionibus, Ducibus, Comitibusque ab 
his constituti ? Et multo minus posse, 
dicendum est, nee in ejus dignitatis con- 
cessione id actum videri potest, ut jus 
alterius auferant." 

2 Cf. ' Biographie Universelle.' 



302 THE EARLIER SIXTEENTH CENTURY. [PART III. 

out the kings and made laws, or retained the kings and im- 
posed upon them the restraints of law. 1 He goes on to cite 
a judgment which he attributes to Aristotle, that to obey 
the Law is to obey God and the Law, while to obey a man 
is to obey a "wild beast, for the greed and anger which 
turns the magistrate from virtue is like that of a wild 
beast. 2 

These are general conceptions, and when he turns to the 
actual conditions of his time, his statements are different 
but significant. In discussing the source of Law he first 
mentions with approval the saying of Demosthenes that law 
is the agreement of the whole " Civitas " and the similar 
doctrine of Papinian (' Digest,' i. 3, 1), but he admits that 
in France it is the authority of the king which binds men by 
laws. Even here, however, Connon maintains that it was 
from the consent of the people that this authority was drawn, 
and thus no law is made without the will of the people, 
either by their own decree, or by that of the person to 
whom they have given authority to make it. 3 

1 F. Connanus, ' Libri Common- tamquam frenos legum iniecerunt, ut 

tariorum Juris Civilis,' vol. i. Bk. i. 7 eos nimia potentia ferocientes duritia 

(p. 25) : " Hoc est quod dicitur, juris cohiberent." 

priscis illis seculis omnia fuisse guber- 2 Id. id. id., " Bene Aristoteles : 

nata manu regia. . . . Erat enim Qui legem praeesse vult, is videtur 

regibus sola naturae ratio et juris et Deurn et leges imperare : qui autem 

injur iae regula. . . . Itaque non vult hominem, adiungit et beluam : 

quilibet creabatur rex, sod inter ipsos nam belue similis est cupiditas et 

esset ad res gerendas maxime idonous, iracundia, quae magistratus et opti- 

qui virtute, consilio, prudcntia, ac mum quemque a virtute detorquent." 

animi magnitudine et robore maxime 3 Id. id., i. 8 (p. 28) : " Quod vero 

praestaret. . . . Qui non amore aut lex dicitur esse conventum quoddam 

odio, non cupiditate aut iracundia totius civitatis, bene a Demosthene 

duceretur ad judiraiiduni, sc.l quod jus, dicitur quod Atheniensibus lex nulla 

quod equitas et Veritas postularet, nisi de ipsorum consensu impnni 

id omnibus in rebus constitueret, id potuerit. Bene et Papinianus, ' lex 

sequeretur et tueretur. est commune precept um . . . com- 

Postquam vero coepissenl ii, quibus munis rcipublicae sponsio.' (Dig. i. 

ad hunc modum fuerat data rerum 3, 1.) Nam et Romanis legis sciscendi 

omnium potestas, contra rationis prae- potestas fuit penes populum. 

sumptionem, multa pro animi libidine Nos qui regibus paremus, non 

facere, et periculosum videretur, unius communis sponsio, sed principis aulb- 

arbitrio fort i • vitam omnium oritas alligat legibus : nisi jam turn 

committi ; quidam, eiectia regibus, ul> initio regni constituti, consensus 

leges posuerunt, alii, retentis regibus, otiam ca de re nostcr putatur accessisse, 



CHAP, v.] CIVILIANS IN THE SIXTEENTH CENTURY. 303 

Connon is, however, clear that the legislative authority 
of the prince (at least, of the Roman Emperor) was unfettered 
by the necessity of taking counsel ; he cites the opinion of 
Papinian that the Law is " consultum virorum prudentum," 
but adds that this does not imply that the prince must consult 
the jurists ; it is customary to do so, and it is right and 
honourable, as the Code says " Humanum est," &c. (' Code,' i. 
14, 8), but as Bartolus says, this is a counsel of " Humanitas," 
not a legal necessity. Connon holds clearly and emphatically 
that the legislative power of the prince was as complete as 
that of the whole Eoman people. 1 

On the other hand, he contemptuously repudiates the notion 
that law is superior to custom ; their authority is equal, and 
the later prevails over the earlier 2 ; and he is equally dogmatic 
in repudiating the doctrine that the prince is " legibus solutus." 
The prince is, indeed, over the people, but he is still one 
of the people, and he wishes that all princes should re- 
member the " Digna Vox " (' Code,' i. 121, 4), and should suffer 
their authority to be controlled by the law and by equity. 3 
A little later he lays down dogmatically the principle that an 
unjust law is not a law at all, and should be corrected or 
annulled ; and that, if a king by hereditary right becomes a 
tyrant and violates the divine and human laws, he should 
be deposed. The law and the king are sacred, and not to be 
violated, but evil law is to be abrogated and the tyrant to be 
expelled. Until this has been done, they must be obeyed ; 

cum et illi regnandi potestas data est, 3 Id. id., 8 (p. 28) : " Quod si ita 

et nobis imposita necessitas parendi. est, ne princeps quidem ipse legibus 

Sic fit ut nulla lex non de populi solutus est, quoniam ita praeest 

voluntate constituatur, et sit tanquam populo, ut unus tamen sit de populo, 

pactum quoddam consentientiuni inter ' Digna vox est majestate Regnantis 

se civium, ut dicebat Lycophron . . . et re vera majus imperii est 

sophistes ; quod earn aut sciscunt ipsi, submittere legibus principatum. Et 

aut is cui eius sciscendae ferendaeque oraculo praesentis edicti quod nobis 

dederunt potestatem. Ergo vel utilitas licere non patimur, aliis indicamus.' 

ipsa justi prope mater et equi, ut Quod utinam sibi editum puterint 

scribit Horatius, vel conventio ipsa omnes principes omnium qui unius 

nostra, nos obligat legibus, iis ut imperio subsunt populorum : et poten- 

omnes parere debeamus." tiam suam jure, lege, equitate prae- 

1 Id. id., 8 (p. 29). ponderari sinant." 

* Id. id., 10 (p. 42). 



304 THE EARLIER SIXTEENTH CENTURY. [PAET III. 

but when it is done, men are free from them. 1 We cannot 
say that these conceptions of Connon are derived from those 
of Alciatus, but there are obviously important parallels 
between them. 

Francois Duaren was also a pupil of Alciatus and a con- 
temporary of Connon, dying in 1559, and in his Commentaries 
on the ' Digest ' we find some important observations on the 
sources of law and the authority of the prince. 

There is no doubt, he says in one place, that the prince 
can make law, but he raises the question how far the people 
also have the right to do this, and he contends that they 
clearly possessed this right in the time of Julianus, that is, in 
the second century ; he also cites Dion and Suetonius as showing 
that Augustus and Caligula were in the habit of submitting 
legislative proposals to the people, and in a later passage he 
suggests that it is at least possible that the people shared 
their power of legislation with the prince, and did not re- 
nounce it entirely, and he cites the words of Julianus as 
illustrating this. 2 

1 Id. id., 8 (p. 30): " Haec igitur (cf. vol. iii. p. 61, note 2). Vacarius, 

disputationis nostrae summa sit, in- cf . this volume, p. 23, note 4. 

justam legem, legem non esse, et vel 2 F. Duarenus, ' Comment, in 

tollendam esse, errore cognito, vel Digest.' i. 3, cap. 3 : " Principem 

certe corrigendam ; dum id fiat nulla dubitatio est legem condere posse, 

parendum ei esse. cum potestas populi in eum translata 

Ut si qui justa hereditate rex est, sit. . . . Sed de populo quaeri potest 

tyranuicos mores induat, divina atque an legis constituendae potestatem 

humana jura pervcrtat, suorum non habeat. Et Julianus satis aperte 

salutem petat, sed sanguinem, eiicien- ostendit in 1. De quibus, hie (Dig. 

dus regno est : dum id fiat, rex est : i. 3, 32) tempore suo populum legem 

nee attentandus a quoquam est, nisi condere potuisse. Ac scribit Dion, 

communi suorum decreto deliberatum August um leges ad populum ferre 

sit et constitutum. Sanctum est, solitum, postquam urbis imperium ei 

enim nomen legis, sanctum et regis : delatum est . Sed et Suetonius, de 

neutrum quod fieri potest violandum : Caligula loquens : ' tentavit, inquit, et 

sed ilia abroganda, si mala est ; hie, comitiorum more revocato, suffragia 

si tyrannus, expellendus est. Turn populo reddere.' " 

utrique impune non pareas, utroque Id. id., i. 4, cap. i. : "Nam jus 

Bolutus. Ante vero si obedientiam quod princeps constituit, vim legis 

abjeceris, manus quodammodo videris habet, etsi non intervenerit populi 

afferre patriae." consensus, sed sola principis voluntas. 

Cf. ' Sachsenspiegel,' iii.. 54, 4 ... Quamvis autem juris consti- 



CHAP, v.] CIVILIANS IN THE SIXTEENTH CENTURY. 



305 



His treatment of custom seems to us to be related. 
He first asks whether custom can override the law when 
made by the prince, for " the event shows that the law did 
not correspond with the customs of the people " ; and he cites 
as from Gratian the words of St Augustine that laws are 
confirmed when they are approved by the custom of those 
who are concerned. He also repudiates the interpretation 
of the famous rescript of Constantine as meaning that custom 
could not override law ; Constantine only meant that custom 
had in itself no greater authority than law. 1 

Duaren accepts the principle that the prince is " legibus 
solutus," though he adds that he does voluntarily submit to 
the law. and he cites " Digna Vox " (' Code,' i. xiv. 4), but 
he very emphatically contradicts the conception that the 
rescripts of the prince are to be always obeyed. They have 
no authority against the law or the public interest, they 
cannot deprive a man of his legal rights, they cannot annul 
a judicial decision (" res judicata ") when there is no legal 
right of appeal.' 2 



tuendi potestas fuerit principi concessa 
a populo : tamen credibile est popu- 
lum earn potestatem magis cum prin- 
cipe quodammodo communieasse, 
quam a se omrtino abdicasse, quod et 
Julianus ostendit, paulo ante dis- 
putans de consuetudine. D. 1. De 
quibus, supra prox. Tit. (Dig. i. 3, 32)." 
1 Id. id., i. 3, cap. 12, 4 : " Post- 
quam vero desiit populus leges condere, 
queritur, an possit consuetudo jus a 
principe constitutum tollere. Et 
existimo, si princeps ab initio non 
coegerit inobedientes ad parendum legi, 
sed dissimulaverit longo tempore, 
adeo ut consuetudo inoleverit paulatim 
legi contraria, ea consuetudine legem 
abrogari. Eventus enim docet earn 
legem moribus populi non convenien- 
tem, atque ideo contemnendam esse. 
Can. erit autem 4 Dist. (Gratian 
Decret. D. 4). Inde illud Augustini 
celebratum est, ' leges firmantur, cum 
moribus utentium a pprobantur. . . .' 

VOL. VI. 



Verum obiicitur nobis rescriptum 
Constantini 1. 2. Quae sit longa 
consuetudo (Cod. viii. 52, 2). . . . Ex 
quo consequi videtur legem consuetu- 
dine abrogari non posse. 

Sed alius mihi videtur eorum 
verborum sensus quam vulgo credatur. 
Xon enim his verbis significat Con- 
stantinus, si consuetudo legi omnino 
contraria sit, non posse legem ea 
abrogari, sed consuetudinem majoris 
auctoritatis non esse quam legem, 
imitatur enim legem, et vim legis 
habet.'* 

2 Id. id., i. 3, cap. 5: " Excipitur 
Princeps, qui legibus solutus est lege, 
et senatus consultis. . . . Sed is se 
sponte sua legibus se subiicit, et 
secundum leges profitetur se vello 
vivere 1. Digna Vox (C. i. 14, 4).' : 

Id. id., i. 4, cap. 4 : " Rescriptum 
parendum esse sine recusatione. . . . 
Quae res multas cautiones habet, 
ut saepe accidit ut rescript o parendum 



306 



THE EARLIER SIXTEENTH CENTURY. 



[PART III. 



This means, as we understand it, that while the prince 
stands personally in some way outside of the law, he cannot 
interfere with the due process of law, or, by his brief, deprive 
a man of his legal rights. We are again reminded of 
Alciatus. 



We turn to another French Civilian of a little later date, 
Nicolas Vigelius, whose work on the ' Digest ' was first published 
in 1568. 

His discussion of the sources of law does not seem to us 
to be much more than a collection of some of the passages 
in the ' Digest ' and ' Code ' which refer to it, 1 except when 
he deals with the relation of custom to law. This he discusses 
in some detail, and he states his own conclusions dogmatically. 
He first refers to it in dealing with what he terms " Ex- 
ceptiones adversus leges." The seventeenth " exceptio " is 
" nisi lex aha lege vel consuetudine sit mutata," and he cites 
some words of that passage of Julianus, to which we have 
so often referred, in which he says that laws are abrogated 
not only by the will of the legislator, but also by the tacit 
consent of all, " per desuetudinem." 2 

Vigelius returns to the subject a little later, and at some 
length. Custom, he says, has the force of law, and he confirms 
this by citing various passages from the ' Digest ' and the l Code.' 
He cites as an " exceptio " that important rescript of Con- 
stantine which seems to imply that custom had no force 
against laAv (' Code,' viii. 52, 2) and some words of Ulpian 
(Digest, i. 32, 3) ; but he concludes dogmatically that if the 

non sit ; idque variis ex causis, propter 
quas hodie in judiciis rescripts im- 
pugnari solont. Primum, quod re- 
scriptum juri contrarium sit, aut 
contra utilitatem publicam, 1. nee 
damnosa 1. roscripta C. De Precibus 
imper. offer. 1. ult (Cod. i. 19, 3, and 7). 
C. si contra jus vel utilitatem publi- 
cam (Cod. i. 22, 6). Quo in genere 
poni debet rescriptum, quo jus alienum 
tollitur . . . unde intolligitur rescripts 
impetrari solum posse a principe de iis 
quae nemini damnum inferunt. . . . 



Quaeritur de eo, qui adversus senten- 
tiam rescriptum impetravit. Et cer- 
tum est, si res judicata sit, ut nullus 
supersit locum appellationi aut supplica- 
tioni, rescripta ejus retractandae causa 
impetrata, nullius esse momenti. . . . 
Praetcrea advorsum rescriptum obiicitur 
quod per mendacium et obreptionem 
impetratum sit." 

1 Vigelius, ' Digestorum Juris Civilis 
Libri Quinquaginta,' i., 1, 4; i. 3, 1; 
i. 4, 1 ; i. 4, 3. 

1 Id. id., i. 7, 17. 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 



307 



custom were subsequent to the written law, it prevails against 
it. (We cite the last words of the passage.) 1 

When he turns to the relations of the prince to the law, 
while he cannot directly repudiate the doctrine " Princeps 
legibus solutus," he argues that to act upon this is contrary 
to the " Digna Vox," and that in several cases the Emperor 
had said they would not act upon it, but that while they were 
" legibus soluti " they lived according to the laws ; and he 
quotes some lines of Claudian. 2 Vigelius clearly does not 
like the principle that the prince is " legibus solutus." When 
we come to the authority of the prince's briefs, he states 
dogmatically the limits which are set upon it by the law. 
In spite of the reverence which is due to the briefs of the prince, 
no such brief is to be accepted in a Court of Law which is 
contrary to the general law or the public service, unless it is 
such that it inflicts no injury upon anyone. 3 



1 Id. id., i. 8 (col. 28) : " Ergo si 
scripta lex extet contra consuetudinem, 
consuetudo legi scriptae cedit. Hujus 
exceptionis replicatio haec est : nisi 
lex scripta consuetudinem praecesserit, 
tunc enim consuetudo postea in- 
secuta praecedentem legem tollit, 
eaque potior habetur." 

2 Id. id., i. 7, 18 : " Exceptio, 
nisi imperator vel Augusta leges non 
observaverit. Haec exceptio ap- 
probatur 1. Princeps, 31 ff. De 
Legibus (Dig. i. 3, 31) ; his verbis 
princeps legibus solutus est. . . . 

Plane non omne quod licet hones- 
turn est. Itaque quamvis principi 
liceat praeter leges vivere, decet 
tamen eum vivere secundum leges. 
Quod approbatur 1. Digna Vox (Cod. 
i. xiv. 4). . . . Concordat 1. ex 
imperfecto 23 ff. De Legibus. . . . 
' Ex imperfecto testamento legata vel 
fideicomnissa imperatorem vindicare 
inverecundum est.' Decet enim tantae 
majestatis, eas servare leges, quibus ipse 
solutus esse videtur. Concordat item 1. 
ex imperfecto 3 C. de testamentis, his 
verbis (Cod. vi. 23, 3). Ex testamento 



nee imperatorem hereditatem vindicare, 
saepe constitutum est. Licet enim 
lex imperii solemnitatibus juris impera- 
torem solverit, nihil tarn proprium 
imperii est, quam legibus vivere. 
Concordat denique Instit, quibus modis 
testamenta infir. fin. ubi. ; Impp. 
Severus et Antoninus (Inst. i. xvii. 8). 
' Licet (inquiunt) legibus soluti simus, 
attamen legibus vivimus,' Hue perti- 
net versus apud Claudianum poetam. 
'In commune jubes si quid, censesve 
tenendum, Primus jussa subi : tunc 
observatior aequi, Fit populus, nee ferre 
vetat, cum viderit ipsum, Auctorem 
parere sibi." 

3 Id. id., i. 10 (col. 35) : " Primo : 
Rescriptum principis regulariter utile 
est, et servandum. . . . Concordat 1. 
sacrilegii ix. Cod. De Diversis re- 
scriptis, his verbis (Cod. i. xxiii. 5). 
' Sacrilegii instar est, super quibus- 
cunque administrationibus vel dignita- 
tibus promulgandis obviare beneficiis.' 
. . . Hujus regulae exceptionessequun- 
tur . . . (col. 40), xii. exceptio. Nisi 
rescriptum contra jus sit, vel utilitatem 
publicam. Haec exceptio approbatur 



308 



THE EARLIER SIXTEENTH CENTURY. [PAKT in. 



A little later still, we come to another important French 
Civilian who lectured at Bourges from 1551 to 1572, H. Doneau, 
whose work, ' Commentariorum de Jure Civili,' was first 
published in 1589-90. 1 

Doneau is, in the first place, clear that law is established 
by the Eoman people, for the prince only holds the legislative 
power because the people have conferred it upon him, and it 
is immaterial whether the people makes laws itself, or whether 
it does this by those to whom it gives the power to do so. 2 

In another place Doneau seems to speak as though the con- 
sent of the citizens were still required to make law, and he 
cites the important passages which speak of the " communis 
resipublicae sponsio " as a necessary element in legislation ; 
this is the more significant as he adds that the obligation of 
law is greater when it represents a man's own consent, than 
when it is imposed upon him by the will and authority of 
another. 3 



1. ult. C. Si contra jus, et his verbis 
(Cod. i. xxii. 6), ' Omnes cujusque 
majoris vel minoris administrationis 
nostras universae reipublicae judices 
monemus, ut nullum reseriptum, nullam 
pragmaticam sanctionem, nullam sac- 
ram adnotationem, quae generali juri 
vel utilitati publicae adversa esse 
videatur, in diseoptationcm cujus- 
libel litigii patiantur proferri : sed 
generates sacras const itutiones, modis 
omnibus nondubitant observandas. . . .' 
Concordat 1. nee 3 C. De precibus Imp. 
offorondis hisce verbis. ' Nee damnosa 
fisco, nee juri contraria postulari 
oportet ' (Cod. i. xix. 3). Proposii.x- 
exceptionis replicatio haec est. ' Nisi 
reseriptum contra jus nemini i 
et prosit petenti': quae replicatio 
iipprobatur 1. Roscripta, 7 C. Do 
Precibus Imp. off. his verbis (Cod. i. 
xix. 7). ' Roscripta contra jus elicits 
ab omnibus judicibus praecipixnus 
refutari : nisi forte aliquid est quod 
non laodat alium et prosit petenti, vel 
crimon supplicant ibus indulgeat.' " 
1 ^'o wish to express our groat 



obligations to the excellent work of M. 
Eysell, ' Doneau, sa vie et ses ouviages,' 
both for his detailed study of Doneau 
and for his valuable account of the 
other Civilians with whom wo have 
been dealing. 

2 H. Doneau, ' Opera Omnia,' vol. i., 
ed. Rom. 1828, i. 8, 6. 'Commen- 
tariorum do Jure Civili ' : " Lex totius 
populi Romani const it utio est. . . . 
Penes hunc summa juris const ituendi 
potestas fuit. Nam, no princeps 
quidem, postea hac potestate prae- 
ditus esset, nisi populus potestatem 
suam in ilium contulisset. . . . i. 8, 14. 
Jam ante dixi, nihil intoresse, utrum 
quis quid constituat, aut decernat ipse, 
an voro ii, quibus ipse constituendi aut 
deceraendi potestatem dedit." 

3 Id. id. id., i. 16, 6: " Accedit ad 
lia o consensus civium in jura et leges, 
ex quo lex, ' Communis reipublicae 
sponsio,' dicitur in 1. i., 1. ii. Dig. De 
legibus. (Dig. i. 3. 1, 2.) Sponsio 
communis, quia in earn se omnes oives 
obligant communi consensu tamquam 
sponsione . . . unde earn servare 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 309 

It seems reasonable to relate this to Doneau's treatment 
of custom in relation to law. He interprets the rescript of 
Constantine (' Cod.,' viii. 52, 2) as referring not to a particular 
custom, but to custom in general, that is, as meaning that 
custom, as such, is not superior to law as such ; and that if 
a particular custom and a particular law are in conflict, the 
later in time is superior. 1 

When Doneau turns to the relation of the prince to the 
existing law, he asserts dogmatically that all men are under 
the law, even the prince. It is true that the prince is " legibus 
et solemnitatibus juris solutus " by the " Lex Eegia " of the 
Eoman people, but he is bound " commimi principum lege 
et sua," for the prince wills to live according to the law. 2 

He returns to the question in his Commentary on the ' Code,' 
and contemptuously brushes aside the contention of those 
who favoured the prince, that it was derogatory to his dignity 
that he should not be able to do whatever he pleased, and he 
points out that the Empire rests upon good laws, which are 
established not only by the words of the prince but by his 
example. 3 

debent tanto diligentius : quanto major legibus. Dicitur quidem princeps 

est obligatio ea, quam sibi quisque solutus legibus, 1. princeps d. de legibus 

sponsione sua imposuit, quam quae (Dig. i. 3, 31) quia legibus et solemni 

aliena voluntate et imperio injicitur." tatibus juris solutus est a populo 

1 Id. id. id., i. 10, 6 : "In his Romano lege regia, quae de ejus 
enim verbis, ' Consuetudo non vincit imperio lata est. (Dig. i. 4, 1 ; Cod. vi. 
rationem aut legem,' neque ' con- 23, 3.) At tenetur legibus communi 
suetudinis ' verbo nominatur species principum lege et sua, declarant enim 
aliqua consuetudinis, ut apparet, sed hi se velle legibus vivere, statuentes, 
genus ipsum consuetudinis. . . . nihil magis convenire imperio 1. 3 C. 
Itaque totum hoc edictum est de De Testamento ult. (Cod. vi. 23, 3) ; 
consuetudine et lege in suo genere, Inst, quibus modis test, infirm. (Instit. 
non in specie hujus, aut illius vel ii. 17, 8). Extatque hujus sententiae 
consuetudinis vel legis. . . . Caeterum, confirmatio cum insigni commendatione 
si species inter se conferantur, con- conjuncta in 1. digna, C. De Legibus 
euetudines seu leges abrogantes, et ' Digna Vox.' (Cod. i. 14, 4). . . . 
leges abrogatae, negare non potest, Quod si quidquid principi placuit lex 
quin lex abrogans vincet priorem est (Dig. i. 4, 1), etiam haec voluntas 
quae abrogatur." lex erit. Et quoniam principes in se 

2 Id. id., i. 17, 1 : " Sed an omnes hoc volunt : etiam ipsi in sese erunt 
juri parere debent ? Omnes, quando lex." 

quidem commune preceptum est, quod 3 Id., Opera, vol. ix., ' Comm. on 

omnibus ponitur. . . . Etiamne prin- Code,' vi. 23, 3 (col. 15): "Sed pro 
ceps ? Et tenentur etiam principes principe hoe dicitur : principem solu- 



310 



THE EARLIER SIXTEENTH CENTURY, 



[PART III. 



The general principle that the prince is under the law is so 
firmly asserted by Doneau, that it is not surprising that he 
should lay it down dogmatically that Imperial Eescripts in 
particular cases, which are contrary to law and the public 
interest, are to be ignored by the judges. He admits, indeed, 
that if they do not injure others, and in some other cases, 
they may be received, but with these exceptions they are to 
be treated as null and void ; it is significant, he adds, that 
even if they contain a " non obstante " clause, they have 
no force. 1 

It would seem clear, as we said before, that, whether we 
attribute this to the influence of Alciatus or not, these import- 
ant Civilians of the sixteenth century represent very different 
conceptions from those of most Italian Civilians of the fifteenth 
century. 



We can now turn to Cujas, the greatest French Civilian 
of the sixteenth century ; it is true that his work belongs to 



turn esse legibus. . . . Respondent 
boni principos, hoc jus sibi placere, 
ne quid ex imperfecto testamento 
capiant, non quod pro sua potest ate 
capere non possint, si oa uti velint, 
t-cd quia soluti legibus, nihilominus 
legibus vivere volunt, et submittere 
legibus principatum (Inst. ii. 17, 8 ; 
Cod. vi. 23, 3). 

Dixerit aliquis, quod de assenta- 
toribus prineipum nimis quam saepe 
audirc solet, principem facere infra 
dignitatem et magistratus imperium, 
i aon faciat quae libct, cum hoc ejus 
imperio tributum sit, ut sit solutus 
legibus oaoterorum. Hie egregie re- 
sponderunt boni principes, quod in 
hoc rescripto Iegimus, tantum al 
ut, (linn princip e mbjiciunt legibui , 
aliquid imminunnt de maj estate im- 
perii et sua, ut nihil sit tam proprium 
imperii quan i vivere. El recte, 

nam proprium imperii est rcmpubli- 
cam et imperium ornare moribus ; 
bonorum morum pars magna est 
obtemperare bonis legibus. l'roprium 



imperii est, eas res const ituere maxime, 
quibus imperium consistit : stat autcm 
omne imperium bonis legibus, hae 
stabiliuntur a principe, non verbis et 
ejus jussu, sed maxime exemplo." 

1 Id., Opera, vol. i. : ' Comm. De jure 
Civili,' i, 9, 12 : " Si concessum quid sit 
contra jus vel utilitatem publicam. 
Quod totuni genus districte vetatur res- 
cript is a judicibusadmitti." (Ho refers to 
Code i. 19, 3, 7, and Code i. 22, 6.) Such 
Rescripts may, however, bo admitted 
if they do not injure a third party, or 
if they merely remit a punishment, 
and in some other cases when they 
merely provide for some delay. " Quod 
si nihil horum erit : non dubitabirmis, 
quin rescript urn contra jus impetra- 
tum non debeat a judicibus admitti. 
Quid tamen, si princeps nominatim 
addiderit in rescripto, velle so servari 
quod rescribit, non obstante lege 
contraria, et earn legem nominatim 
appellet ? Ne sic quidora rescriptum 
admit tendum." 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 311 

the later years of the century, but it appears to us that 
it is closely related in character to that of the Civilians 
with whom we have been dealing. Cujas' observations on 
politics are scattered over his various legal works, but when 
they are put together they seem to represent something like 
a systematic theory of the nature of the State and its 
authorities. 

In commenting on the famous passage of Gaius, " omnes 
populi " ('Digest,' i. 1, 9), he sets out a far-reaching and signifi- 
cant judgment on the relation of the organised State to human 
life. There may be, he seems to mean, men who are not 
ruled by laws and customs, but these do not constitute a 
" Populus," for where there is no law there is no " Populus," 
and therefore no Commonwealth ; and he cites Aristotle as 
saying that where there is Law, there is a Commonwealth. 
So far his words are reminiscent of Cicero as well as of Aristotle, 
and, indeed, they are also closely parallel to Bracton, and they 
represent the same profound and penetrating judgment, 
that without rational order the life of the community is 
impossible. 1 Cujas does not, however, merely say that there 
can be no Commonwealth without Laws, but he also holds 
emphatically that while there may be races of men who live, 
like the beasts, without them, yet there is in all men a right 
Eeason which makes them capable, like us, of the greatest 
things ; for this Eeason can be brought out like fire from ashes 
or from flint ; and, though they may be " wild and outlaws," 
they are not, like the beasts, incapable of being ruled by 
custom and law. The natural Eeason, which is the Law of 
Nature, may be asleep or buried in them, but the light of 
Eeason may be easily stirred up. 2 

1 Cf. vol. i. p. 4 and vol. iii. p. 67 f . Nam Respublica est res populi. Et 

2 Cujas, ' Opera Omnia,' vol. ii. recte Arist. 4 Politic. ' ubi lex est ' 
' Comm. on Digest,' ad. L. ix. (i.e., inquit, ' ibi est Respublica.' Et ubi 
Dig. i. 1, 9) (col. 136) : " Ait autem : Respublica, ibi leges vel mores, qui 
' Omnes populi qui legibus et moribus sunt pro legibus. Sunt qui, bestiarum 
reguntur.' Ergo quidem sunt qui nee more, vitam ducunt, et in agris agentes 
legibus nee moribus reguntur et quidam passim, et ratione recta nihil adminis- 
sunt non populi. Nam ubi lex non est, trantes. Sunt plereque gentes hujus- 
nec pro lege mos, ibi nee populus est. modi sed tamen inest eorum animis 
Et si populus non est, nee Respublica. vis et materia, non minus quam in 



312 



THE EARLIER SIXTEENTH CENTURY. [PART III. 



These are very interesting words, closely parallel to a 
famous passage in Cicero's 'De Legibus ' l ; but it is important 
especially as illustrating Cujas' judgment that the foundation 
of the Commonwealth is the Law, and the foundation of Law 
is Eeason. 

In another passage Cujas discusses the meaning of " Jus," 
and says that if we are to consider this properly we must 
begin with the Jus Gentium, which he identifies with that 
Natural Law which Eeason teaches men, and which is present 
in all men. 2 

He then discusses a phrase of Modestinus (' Digest,' i. 3, 40). 
" Jus," he says, " is made by consent or necessity, or estab- 
lished by custom," and Cujas explains what he understands 
this to mean. " Jus," which is made by consent, is Lex, 
for it is established by the command of the " Populus " or the 
" Plebs." " Lex," that is, law in this sense, is binding upon us 
because we have consented to it, or because it has been 
established by that State in which we were born and brought 
up. Again, Cujas puts it in another way. What is " Lex " ? 
he asks. It is an agreement of the Commonwealth or the 
common consent of all those who dwell together, or as Demos- 
thenes and Aristotle say, the common agreement of the city. 3 



nostris, ad maximas res gerendas, et 
recta ratio quae facile elici potest, aut 
reddi melior, praecipiendo, ut ex 
cinere ignis, ignis ex silice non difficile 
elici potest, quod insit ei haec natura. 
Nam quod sint qui dam feri, et immanes 
et exleges, non ideo etiam ut bruta 
non possunt non mori bus et legibus regi . 
Consopita est in quibusdam et quasi 
ronsepulta ratio ilia naturalis, quod est 
gentium omne jus, et quamvis eo non 
regantur, est tamen insitum in eis, 
quantumvis feris, ejus rationis lumen 
quod facile excitari potest." 

1 Cf. Cicero, 'Do Legibus,' i. 1-12 
and vol. i. (p. 8). 

2 Id. id., ' Comra. on Digest,' nd L. 
vii. (Dig. i. 1, 7) (col. 129) : "Qui 
voluit definire jus civile universum, 
non praetermisit jus gentium, ut 



Aristoteles qui jus civile divisit sum- 
matim, in jus naturale, quod est jus 
gentium, et legitimum : non praeter- 
misit consuetudinem, non equitatem, 
ut Cicero in Topicis. Nam jus gentium 
est ratio, qua imbuti sunt omnes 
homines, quae jubet facienda, pro- 
hibetque contraria, quam nemo ignorat, 
vel si quis eius ignorantiam obtendat, 
non excusatur." 

3 Id. id., ' Comm. on Digest,' ad L. 
vii. (Dig. i. 1, 7) (col. 130). He cites 
Modestinus (Dig. i. 3, 40) : " Ergo 
omne jus aut consensus fecit, aut 
necessitas constituit, aut firmavit 
consuetudo. . . . Nam jus quod con- 
sensus fecit, lex est, quae populi aut 
plebis jussu sancita est, nam lex 
nulla alia ex causa nos tenet, quam 
quod nos ei consenserimus, aut quod 



CHAP. V.] CIVILIANS EN THE SIXTEENTH CENTURY. 



313 



Jus, which is made by necessity, is in the first place a 
" senatus consultum," and Cujas cites Pomponius, ' Digest,' i. 
2, 2. When it became difficult for the whole people to be 
gathered together on account of their number, it was necessity 
which compelled men to give the care of the Commonwealth 
to the Optimates. In the second place, it was necessity which 
created the form of " Jus " which is made by the prince ; 
it was because the Senate was not equal to the charge of 
ruling the Provinces that the prince was created. 1 

Jus, which is established by long custom, also rests upon 
consent, but it is a tacit and unwritten form of consent. 
Cujas adds that Jus, which is established by necessity, has 
indeed some form of consent, but it is a forced, not a free 
consent, such as that which makes law (lex) or custom. The 
foundation of the Senatus consultum is necessity, that of 
law and custom is will. 2 



earn civitatem (civitas) constituit, in 
qua nos nati et educati sumus 1. de 
quibus, de legibus (Dig. i. 3, 32). 
Quid lex ? Communis reipublicae 
sponsio 1. 1 ; de legibus (Dig. i. 3, 1), 
et communis consensus omnium simul 
habitantium, consponsio populi, Demos- 
thenes Lib. ii. avvv-qKT) kolvt] rfjs tt6\€ccs. 
Et Arist. 6,uo\uytT/xa ttjs irdAtws, 
in addit. ad Alex." 

1 Id. id. id. (col. 130) : " Jus autem, 
quod necessitas fecit, est senatus 
consultum, 1. 2 § deinde, de Orig. Jur. 
(Dig. i. 2, 2, 9). Cum difficile posset 
populus in unum convenire, aucto 
numero civium, necessitatem ipsam 
curam reipublicae ad optimates, poli- 
tiores viros, ad senatum deduxisse, 
inde nata senatus consulta. . . . Nam 
jus quod princeps facit, necessitas fecit. 
Nam non ob aliam rem creamus prin- 
cipem, quern ut decreta faciat et jura 
det, ut est aperte scrip turn in 1. 2 § 
novissime.de Orig. Juris (Dig. i. 2, 2, 11), 
dum ait, ' Sicut ad pauciores (id est, ad 
senatum ) vias j uris constituendi transisse 
videbatur, ipsis rebus dictantibus ' (id 
est ipsa rerum necessitate), ita per 



partes evenisse (id est paulatim, non 
ut quidam per partes, id est per 
suffragia. Alii per partes, id est per 
factiones). Et rectissime dicitur ab 
Accursio rem a populo venisse ad 
senatum, et a senatu ad populum 
(principem) per partes, per vices, 
paulatim pedetetimque. Quid vero, 
iniquit, per partes venit ? ut, inquit, 
necesse esset reipublicae per unum 
consuli. Nam senatus non potuit 
sufficere omnibus provinciis regendis, 
ob id constitutus princeps, qui rerum 
omnium esset dominus, quique potes- 
tate caeteros omnes praepolleret." 

2 Id. id. id. (col. 130): "Verum 
notandum hoc jus, quod firmavit con- 
suetudo longa, etiam esse consensum, 
sed taciturn et illiteraturn. Legem facit 
consensus expressus et literatus, suffra- 
gium, conventio, jussum, decretum 
populi aut plebis. Quinimo et jus 
quod necessitas constituit, in se con- 
sensum habet, sed coactum, non 
liberum, qualis est is qui legem aut 
consuetudinem facit. Senatus consulti 
principium est necessitas, legis et 
consuetudinis voluntas." 



314 THE EARLIER SIXTEENTH CENTURY. [PART in. 

We turn to his more developed theory of the nature of law 
as custom. In another work Cujas discusses this question 
with immediate reference to the famous passage in ' Code,' 
viii. 52, 2 ; he maintains that a custom which reason and 
public utility approve, and which has been confirmed by long 
unwritten consent, and by a judgment in the Courts, abrogates 
any law which has ceased to serve its purpose and is of little 
use to the Commonwealth. For no law is binding upon men 
unless it has been received by custom ; or, as he puts 
it in another place, the force and power of approved 
custom is such that written laws do not bind men unless 
they have been accepted by the judgment of the people, that is, 
unless they have been approved by custom. 1 

This is a very explicit statement of the importance and 
authority of custom as representing the reception of a law 
by the people. Cujas puts this principle, however, in still 
more general terms, in another work, when commenting on 
the famous definition by Papinian of Lex, in ' Digest,' i. 3, 1. 
We are bound, he says, by the Laws, for no other reason than 
that they have been received by the judgment of the people, 
and approved by custom, and he cites Aristotle as saying that 
the whole authority, which law has to compel men to obedience, 
comes from custom ; and he cites a writer named Demetrius 
as saying that law is simply custom which has been written 
down, and that custom is unwritten law. 2 

1 Id. id., vol. iii., 'Paratitla in 52 (col. 1196): "Hie igitur quaeri- 
Libros ix. Codicis,' Code viii. 52 mus, de vi longae et probatae con- 
(col. 211): " Ea (Consuetudo) tamen suetudinis, cujus una vis seu virtus 
quam ratio suusit, ut ait 1. 1, ratio haec est, quod leges ipsae, quae ex 
quaedara major, et publica utilitas, et scripto constant, nulla alia ex causa 
longum tempus tacito ot illiterato nos tenent, quam quod judicio populi 
omnium consensu, et rorum judicat- receptae sint, id est quod etiam con- 
arum firmavit auctorilas, sane abrogat suetudine sint adprobatae." 
legem, cujus ratio vel cessavit, vcl J Id. id., vol. iv., 'In Lib. I. Defin. 
minorest.vel minus confert Reipublicae, Papin. Ad. 1. 1 ft". Do legibus ' (Dig. 
quia et deficere videtur lex tanquam i. 3, 1) (col. 1273): "Lex enim est 
obliterata supra quam usus invaluit, et commune praeeeptum, communis spon- 
deficiente lege consuetudo sola domin- sio omnium, et recte 1. de quibus 
atur, et legis vim obtinet. . . . Sed et (Dig. i. 3, 32), loges nulla alia ex causa 
nulla lex, aliter nos tenet quern si et nos tonere, quam quod populi judicio 
consuetudine recepta sit." receptae et usu probatae sunt, id est, 
Id. id. id., ' Comm. on Code,' viii. communi 6ponsione populi, et idem 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 315 

So far, then, Cujas conceives of law as representing the 
custom and consent of the community, but he also formally 
and explicitly accepts the principle that the people had trans- 
ferred their legislative authority to the prince. In one work 
he puts this quite dogmatically and simply, that while the 
public and general ancient laws were made by the people, 
or the Plebs, they do not now make such laws, for they have 
transferred their authority to the prince. 1 In another work 
he gives a summary of the various forms of Jus, which once 
belonged to the people, but had been transferred to the 
prince. 2 It should, however, be noticed that in his Com- 
mentary on the ' Digest,' Cujas' language about the nature of 
the authority of the prince does not seem quite the same. 
In commenting on the account given by Pomponius of the 
origin of the Imperial power, he describes how, by a slow 
process, Rome passed from the authority of a king to that of 
the people, from that of the people to that of the Senate, and 
from that of the Senate to that of one man, not a king, but a 
prince who should be first in the Commonwealth and the 
Senate, but should not take to himself all the right (jus) 
of the people or Senate, but rather should share it. 3 

We turn to Cujas' conception of the relation of the prince 

ipse Arist. ii. Polit., b vojxos ouSffxlav vi. 50 (col. 818): "Jus omne, quod 

&iav ex ellr P° s to Trti0eu8ai T)apa rh e6os, populi fuit, translatum est in princi- 

id est lex nullam vim habet, qua pern. Populi fuit leges ferre et per- 

compellat homines at sibi pareant, nisi ferre . . . hodie est principis. . . . 

earn quam assumit ex more reeepto, ex Populus creavit magistratum, hodie 

consuetudine, quae non eonflatur, nisi princeps. . . . Populus indixit bella 

diurno tempore, atque adeo recte . . . hodie princeps solus. . . . Popu- 

Demetrius legem nihil aliud esse quam lus a magistratibus appellabatur, hodie 

consuetudinem scriptam, consuetvi- princeps. . . . Bona vacantia populo 

dinem esse legem, non scriptam." deferebantur, hodie principi." 

Cf . Cujas, Opera, vol. hi., ' De Feudis, 1 3 Id. id., vol. ii., ' Comm. on Digest,' 

Lib. ii. 1 (col. 1827). ad L. 2 (Dig. i. 2, 2) (col. 148) : " Per 

1 Id. id., vol. hi., ' Paratitla in partes. . . . Et lento progressu a vi 
Libros ix. Codicis,' Cod. i. 14 (col. 20) : et potestate regis ad populum, a populo 
" Ac primum quidem in hoc titulo ad senatum, a senatu ad unum, non 
agitur de legibus publicis et generalibus, regem, sed principem quasi in republica 
quae antiqua sunt jussa populi vel pie- et senatu primum, qui nee populi 
bis : quales nullae feruntur hodie, pop- sibi, nee senatus jus omne vindicaret, 
uli potestate translata in principem." sed cum eo partiretur." 

2 Id. id., vol. hi., ' Comm. on Code,' 



316 



THE EARLIER SIXTEENTH CENTURY. 



[PART III. 



to the law, when made, that is, to his discussion of the meaning 
of "legibus solutus." In treating the passage of Ulpian 
(Digest, i. 3, 31), which says, " Princeps legibus solutus est," 
he says that these words had been understood by the Greeks 
as referring to " penal " laws, for the prince has no judges ; 
by the Latins as referring to all laws ; but the truth is that 
they only apply to " Leges Caducariae," not to others ; 
even if the prince has not sworn to observe the laws, much 
more, if he has. The people was bound by the laws which 
it had made, and therefore, also, the prince upon whom it 
had conferred its authority. The proper meaning of the phrase 
is that the prince has the power of making and unmaking 
laws, but he must only use this power for a just cause and for 
the good of the Commonwealth ; he has also some power of 
rectifying things done without law. 1 In another work, 
commenting on ' Code,' vi. 23, 3, he sets out the same judgment 
in much the same terms, and with special reference to his 
own time. 2 



1 Id. id., vol. iv., ' Observationes,' 
Lib. xv. 30 (col. 1755): "Ad 1. prin- 
ceps. De Legibus (Dig. i. 3, 31). 
Do legibus pocnaris Graeci ita interpre- 
tantur . . . quia scilicet judices non 
habot. Lalini, do quibuscunque 
legibus, cum sit, inscriptions legis, ea 
sententia tantum accipienda de legibus 
caducariis, Julia, et Papia, quae satis 
etiam per se odiosae erant. . . . Sed et 
plerisque aliis principes soluti non 
orant, licet imperii initio non jurassent 
in leges, et multominus si jurass< nt. 
Quinimo, ut popuhis ipse suis legibus 
tenebatur, ita prinoops. . . . Cadu- 
cariis legibus soluti erant, ex S. C. 
quodam eorum, quae facta esse Jus- 
tinianusrefert.et aliis quibusdam veluti 
solemnibus manumissionum. . . . Quod 
igitur d. 1. Trinceps, et Dio 53, dicens 
hoc se ex Latino sermone transforre 
Af'AufTai Toic v6nuiv, non de omnibus 
legibus accipiendum est. Et quod 
Dio. Chrysostom., principem esse 
twv vowov (ndioj . . . et idem Jus- 
tinianus in Nov. 105 (Nov. 195, 2, 3) 



eo tantum pertinet, ut intelligatur 
penes principem esse omnem potes- 
tatem ferendarum vel abrogandarum, 
aut derogandarum legum, ut Augus- 
tinus ait in Epistola quadam, ' Im- 
peratorem non esse subjectum legibus 
qui habct in potestate alias leges ferro, 
non temere quidem, sed ex just a 
causa et re publica atque adeo 
confirmanda etiam quae non jure facta 
sunt .' Ut principem legibus adoptionem 
non jure fart am confirmare . . . < t 
matrimonium statumque liberorum non 
jure quaesitorum ; et hoc quidem 
solum est principem supra leges esse. 
Non placet quod do Achille Horatius, 
' Jura negat sibi data, nihil non arrogat 
armis.' " 

a Id. id., Opera, vol. iii., ' Coram, on 
Cod.,' vi. 23, 3 (col. 687) : " Principem 
non vindicare horeditatem. . . . Im- 
peratorem, non item, quia defunct o 
extraneus est. Et addit rationem, 
quia lex imperii solemnitatibus juris 
imperatorem solvent, nihil tamen est 
tam proprium Imperatori quam legibus 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 



317 



It is quite clear that Cujas refuses to admit that the Eoman 
Emperor was above the law; he recognises, indeed, his legis- 
lative power, but maintains very confidently that he was 



vivere. Et legem imperii vocat earn 
quae primum Augusto detulit im- 
perium, ut refert Dionysius Lib. 52. 
Quod Augustum privilegium dicitur, 
leg. un. ult. de Caduc. toll. (Cod. vi. 
51 § 14, a). Quodque Dionysius 
scribit se transferre ex Latino sermone 
XvovTcoi' rav vofiwv : id est solvuntur 
legibus. Et inde D. Chrisos. in 
Oratione quadam tradit principem 
esse, twv vouwv iiravw. Et similiter 
Justin, in Nov. 15, leges niti principe, 
et esse ei submissas, atque subjectas, 
quod scil. in potestate sit solius 
principis, ex usu reipublicae leges 
ferre, vel abrogare, vel derogare, et 
eas ipsum quandoque sequi non posse. 
Quapropter aliquando major videtur 
potestas esse principis, quam populi 
fuerit. Populus enim suis legibus 
tenebatur, princeps suis legibus non 
tenetur. . . . Ea est lex imperii, 
quae Augustum solvit legibus, maxime 
si non juraverit in leges initio imperii. 
Non solebant enim jurare in leges, cum 
Plinius scribit in Panegyrico ; ' jurare 
magistratus quidem in leges, sed enim 
jurisjurandi verba ignota esse prin- 
cipibus.' Nisi cum magistratus cogunt 
jurare in leges. 

Hodie quia princeps statim initio 
imperii jurant in leges, tantum abest, 
ut legibus soluti sint, quin quam 
maxime legibus obstringantur ex suo 
jurejurando. Et ut soluti sunt prin- 
cipes legibus, tamen ut inquit 1. 3 
(Cod. vi., 23, 3), nihil est tarn 
proprium principatus quam secundum 
leges vitam degere. . . . Et eleganter 
Impp : Severus et Anton, in § ult. 
Inst, quibus modis testamenta in- 
firmentur (Inst. ii. 17, 8), licet, 
inquiunt, soluti simus legibus, tamen 
legibus vivimus. Et elegantius, 1. 4. 
De Legibus (Cod. i. 14, 4), preclarum 
esse et dignum vocis principis, profi- 



tentis se legibus alligatum esse, et de 
auctoritate legum pendere auctori- 
tatem principis, et revera majus esse 
imperio legibus submittere im- 
perium. . . . (Col. 688), Contra tamen 
invenio in quibusdam legibus omnino, 
ita esse solutos principes, ut nee secun- 
dum leges vivant. Invenio solutum 
esse principem legibus caducariis, 
Julia nempe et Papia, 1. quod princ. 
de leg. 2 (Dig. i., 4, 1). Si tibi re- 
lictum sit legatum et hominem ex- 
emeris i. mortuus fueris, antequam 
dies legati cederet, caducum fit lega- 
tum. Sed si legatum relictum sit 
principi, et is obierit, quod omnes 
obire oportet, antequam dies legati 
cederet, legatum non fit caducum, sed 
cedit heredi principis. Et hoc est 
quod ait 1. princeps de legibus, ' Prin- 
ceps legibus solutus est.' (Dig. i. 
3, 31.) Nam diligenter attende ad 
incriptionem legis quae est Ulpiani ex 
quatuordicim ad legem Juliam et 
Papiam, quae sunt leges caducariae. 
Princeps ergo est legibus solutus, 
i. 1. Julia et Papia, non omnibus legi- 
bus. . . . Nee vivere dicam unquam 
generaliter esse verum quod ait 1. 
princeps. (Dig. i. 3, 31) cum id tantum 
sit accipiendum, specialiter de lege 
Julia et Papia, non de legibus omnibus, 
et tamen maxime id affirmabo cum 
erit princeps, qui juravit in legem ; 
et quod contra legimus in plerisque 
auctoritatibus ' Principem esse supra 
legem,' hoc eo pertinet ut intelligatur 
principem habere potestatem ferendi 
et abrogandi leges, non temere quidem 
sed ex justa causa et e republica. 

Ac consequenter posse principem 
confirmare quae non jure facta sunt, 
ut legimus adoptionem non jure 
factam a principe confirmari . . . et 
matrimonium injustum, statumque 
liberorum in jure quaesitorum, a 



318 THE EARLIER SIXTEENTH CENTURY. [PART III. 

normally bound to obey the law so long as it was law ; and 
it must be observed that Cujas says in the passage last quoted 
that the princes of the modern world were bound by the oath, 
which they took on their accession, to obey the laws ; that is, 
it is clear that besides what he conceived to be the rational 
and critical interpretation of the jurisprudence of the ancient 
world, he had no doubt about the constitutional principle 
of his own time. It may also be observed that Cujas very 
emphatically asserts that it is a mere error to maintain that 
the prince has " property," in the strict sense of the word, 
in that which belongs to the private individual; he has 
rights over it " imperio," but not " dominio." 1 

We think that it is plain that in France from Alciatus to 
Cujas, a number of the most important Civilians of the 
sixteenth century maintained a conception of Law and its 
relation to the prince very different from that of the Italian 
Civilians of the fifteenth century, and even from that of the 
Civilians of the fourteenth century. 

We must also observe that one of the most important 
Civilians of the century in Germany, Zasius, a native of 
Zurich, but for many years Professor of Eoman Law in the 
University of Freiburg in the Breisgau, during the first part of 
the sixteenth century, represented in some important points 
the same principles as Alciatus and the French Civilians with 
whom we have just been concerned. 2 

principe confirmari. . . . Legiraus eos esse intelligaraur. At et juris civilis 

poenae veniam facoro et abolere crimen Seneca hanc vocem esse ait: 'omnia 

indulgentia et benignitate sua. Eos regis esse, etiam quae sibi quisque 

ex causa etiam veniam logibus facere. privatus habet et possidet,'quamtamon 

Et hoc solum est, quod dicitui princi- ita excipit rectissime, ' ut omnia rex 

pem esse supra legos : non placot, quod imperio possideat, singuli dominio. 1 

de Achille ait Horatius, 'Jura negat Nee enim quae tua sunt, principis 

sibi data, nihil non arrogat armis.' ' sunt ; aut certe tua sunt, aut certe tua 

1 Id. id., vol. v., 'Observationes,' xv. non sunt, quoniam dominium in soli- 

30 (Col. 1755) : " Verum ne abutimur dum duorum esse non potest, et com- 

etiam ilia sententia ' omnes esse prin- munia quoque esse inter se et princi- 

. ipis.'cxl. 3C. Dequadr. praesc. (Code pem dixerit nemo, et fiscalia quoque 

vii. 37, 3) cujus mens haee est, ut ipsa proprio principis non sunt." 

omnia tain lis. alia quam patrimonialia, * For an account of his life and 

de quibus in ea lege agitur, principis work cf . the excellent work of Stiutzing, 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 319 

We find some important judgments in his Commen- 
taries on the ' Digest,' and we have, in one of his 
" Consilia," a detailed discussion of the question whether 
the Emperor could interfere with a judgment of the Eeichs 
Kammer-Gericht by an Imperial writ or brief. 

Zasius uses the strongest terms to describe the " Potestas 
immensa " of the Emperor ; he is a living law, and what he 
decrees as law, or decides in judgment, is held to be law. 
He is " legibus solutus," and can make law " solus " ; whether 
Zasius meant by this that he can issue laws by his own 
authority, or that he is the only person who can make law, 
is not clear. 1 

We must not, however, be misled by these high-sounding 
phrases. Zasius goes on at once to say that the Eoman 
prince, if he has made any contracts or agreements even with 
private persons, is bound by them ; for, though God has 
placed the laws under the control of the prince, he has not 
done this with contracts ; they belong to the " Jus Gentium " 
and are founded on natural reason. This, he maintains, is 
the common doctrine of the " Juris Periti," such as Cynus 
and Baldus, and he relates it to the tradition of feudal tenures. 2 
Zasius returns to this question of contractual obligations in 
his treatise, ' In usu feudorum.' 3 

'Geschichte der Popularen Literatur subjecerit leges, non tamen subjecit 

des rornischen und canonischen Rechts, contractuum vincula, quae juris gen- 

in Deutschland.' tium sunt, naturalique ratione con- 

1 Zasius, ' Opera Omnia,' Frankfort, sistunt, et praecipue in principe bonam 
1590, vol. i. ; ' Comm. on Digest,' fidem requirunt. Quae est communis 
i. 2, 2 (p. 124) : " (Ratum esset) jurisperitorum doctrina, Bald. Cynus. 
Ex quo colligitur, principis Romani Doctor. . . . Unde nimis improvide, 
potestatem esse immensam ; est enim ne quid durius dicam, nuper quidem 
lex animata in terris. . . . Et quid- exdoctor aulicis contrarium respon- 
quid statuerit, aut sententiam dando derat. Nee porro tutum mihi videtur 
decreverit, ceteris paribus pro lege quod Jacobus de Sancto Georgio in 
servatur . . . ipse enim sicut est legi- practica feudorum, in princip. asseruit, 
bus solutus ita solus legem condere principem Romanum auferre vasallo 
potest." feudum posse. Cum enim vim con- 

2 Id. id. id. id. : " Contractus tamen tractus feuda habeant, stare contractui 
si quos princeps Romanus etiam princeps tenebitur." 

privatis personis perfecerit, eum obli- a Id. id., vol. iv., ' In usu feu- 

gant ut fidem conventionis sorvare dorum,' pars. vii. 56 (p. 87). 
cogatur. Licet enim Deus principi 



320 THE EARLIER SIXTEENTH CENTURY. [PART HI. 

He also maintains that the prince's actions must be 
conformed to reason and equity, and he cites not only the 
well-known stories about Trajan and Agesilaus, but also the 
rescript of the Emperor Anastasius, which instructs the 
administrators of the Empire that they were not to pay any 
heed to rescripts or pragmatic sanctions which were contrary 
to the general law or to public utility. 1 

Zasius considers this question further in a passage in which 
he discusses what is meant by the phrase " legibus solutus." 
Does this, he asks, mean that the prince can act contrary 
to the law and annul the Civil Law? The Canonists, he 
says, maintain that this was true of the Pope ; it would thus 
be true also of the Emperor ; but this assertion, he says, 
never pleased him, for various reasons, and especially because 
laws (jura) are given by God through the mouth of the prince. 
He considers that some laws may be suspended in particular 
cases, and that this is done by a " non obstante " clause. 
But again, he says, if the prince should annul a man's legal 
rights without due cause, his action is null and void, even 
though he does it in the form of a law or decree. This is the 
law of Germany, and he says that he had heard a judgment 
given against the prince in the prince's " consistory." 2 

1 Id. id., vol. >., ' Comra. on Digest,' " Omnis cujuscunquo majoris vel 

i. 2, 2 (p. 124) : " Et in universum, minoris administrations universae 

princeps nihil admittet quod rationi nostrae reipublicae judices monemus, 

obviet et equitati, ut est eligahtissimus ut nullum rescriptum, nullam prag- 

text. in Leg. Digna Vox. (Cod. i. 14, 4). maticam sanctionem, nullam sacram 

Licet enim absoluta potestas legibus adnotationem quae generali juri vel 

non ligetur, ut supra diximus, ea utilitati publicae adversa esse videatur, 

tamen potestate abuti non debet: in disceptationem cujuslibet litigii 

quantoenim est sua potestas immensior, patiantur proferri, sed generales sacras 

tanto niagis aequilatem exigit et constitutiones modis omnibus non 

justitiam, quam in primis colere et dubitent observandas.") 
colendam praescribere debet. . . . In- 2 Id. id., Opera, vol. i., ' Comm. on 

signis extat D. Trajani scntentia . . . Digest,' i. 3, 31 (p. 167): "Sed quia 

denique optime Rex Agesilaus ... in L. nostra principem ab omnibus 

quod et imperator Anastasius salubriter absolvisse legibus, et lege positive, 

sancivit in 1. fin. C. si quid contra jus quaero an per hoc princeps possit 

(Cod. i. 22, 6) ; quern textuni utinam facere contra legem : an possit tollere 

doctores pro suo quisque, vel commodo jus civile : Certe Canonistae hoo 

vel ingenio, non ita distorquerent." tenent de Papa, quod possit tollere 

(The text of Code i. 22, 6, reads : jus positivum . . . et sic etiam hoc 



CHAP, v.] CIVILIANS IN THE SIXTEENTH CENTURY. 321 

This reference to a definite case in the Courts is of great 
interest, and it seems probable that this is the case which, 
as we have said, is dealt with at length in one of Zasius' " Con- 
silia," which has happily been preserved. The plaintiff had, 
many years before, brought a case against the defendant 
in the Reichs Kammer-Gericht, and the Court had ordered 
the defendant to pay a certain sum of money to the plaintiff. 
The defendant had then taken the matter to the Emperor 
Maximilian, who issued a mandate, " de plenitudine potestatis 
et ex certa scientia," annulling the judgment. After further 
negotiations, a compromise had been arrived at, by which 
the plaintiff was to receive 1000 florins, but this was never 
paid. On the death of Maximilian, the plaintiff applied for 
the execution of the original judgment. 1 

Zasius begins by laying down two general principles, the 
first that the Emperor could not override the judgment of 
the Court, and the second, that the Emperor was bound by 
his contract. 

He recognises that there had been much discussion about 
the effect of the use of such phrases as "ex plenitudine 
potestatis " and " ex certa scientia," when employed by 
the Emperor in his briefs or writs, but he is himself quite 
clear that the prince could not annul " Ees Judicata " by 
the use of such phrases. He had always held, and still main- 
tained, whatever other doctors might say, that the prince 
could not, by his " plenitudo potestatis " or his " certa 
scientia," or in any other way, annul the lawful right (jus) 
which a man might demand, except for some great public 
cause. The authority of the prince is of the largest kind, 

imperatori esset permissum. Sed mihi hoc non valeret, causa non apparente, 

nunquam placuit ista assertio, per etiamsi hoc per modum legis, decreti, 

multas rationes quas jam obmitto, aut statuti faceret, contra doctrinam 

et maxime, quia jura sunt divinitus Baldi in 1. 2 C. eod. : et ita servat nostra 

per ora principum promulgata, ut Germania integritatem legis : et vidi 

dicunt patres in decretis. Bene ita judicari in Consistorio Principis 

credo quia aliqua jura ex causis possint contra Principem, securi quo pacto 

in particulari tolli, vel contra eas adulentur vel Itali vel alii principibus." 

indulgeri, quod quotidie fit per clausu- 1 Id. id., vol. vi. " Consilia " Liber 

lam non obstante. . . . Quapropter ii. 10 (p. 127). 
si princeps noceret tollendo mea jura, 

VOL. VI. X 



322 



THE EARLIER SIXTEENTH CENTURY. 



[part III. 



for the protection of his subjects, but an authority to injure 
them, belongs not to a prince, but to a tyrant. He dismisses 
rather contemptuously the contention that it must always 
be presumed that the prince had some just reason for his 
action, and contends that the use of such phrases as " pleni- 
tudo potestatis," &c, had become so much a matter of con- 
vention that no great force could be attributed to them. 
He concludes, therefore, that the prince could not take away 
a man's lawful rights by the use of such phrases. 1 



1 Id. id., ii. 10: 1. " Praemitto pro 
indubitato, quod sententia diffinitiva, 
a domino judice Camerae lata, vim 
habet rei iudicatae . . . quod igitur 
per sententiam diffinitivam procerum, 
Imperii Cesaris nomine decisum est, 
refricari alio processu non debet. . . . 

4. Secundo praemitto, principem 
Romanum suo contractu ligari, sicuti 
privatum aliquem. Deus enim qui leges 
mere positivas principi subjecit, eundem 
subjecit contractibus. . . . 

6. Et quod princeps Romanus 
contractu eatenus obligatur, ut nee 
plenitudo potestatis, nee ulla urgens 
clausula eum eximat, tenet Philippus 
Decius. . . . Idem Docius . . . qui 
dicit Principem licet lege positiva 
non obligotur, tamen dictamine rationis 
subici. . . . 

His sic praemissis, aliqua ex 
actis mihi presentatis dubia colligero 
volui, quae videbantur magis neces.saria 
ut dividerentur. Primo an princeps 
de plenitudine potestatis, et ex certa 
scientia, per sua mandata, rem judi- 
catam a domino auctore obtentam 
cassare et annulare potuerit. . . . 

Breviter igitur agentes, diximus 
mandata hujusmodi titulo Caesaris 
emissa, quamvis ex plenitudine potes- 
tatis et ex corta scientia exierint, rem 
judicatam predictam cassari non 
potuisso, noc esse cassatam, quod 
multiplicitor probari potest. 

7. Et primo quicquid dicant doctores 
in hoc punto, ego semper tenui et 
teneo quod princeps, nee ex pleni- 



tudine potestatis, nee ex certa scientia, 
sed nee ullo alio modo, jus alteri 
quaesitum tollere, vel infirmare possit, 
nisi hoc ingens publicae utilitatis 
causa urgeret. . . . 

10. Proinde eiusdem leges a doc- 
toribus male in argumentum trahuntur, 
quasi principis Romani absoluta potes- 
tas ad jura privatorum violanda se 
extendat. Scio bene principis potes- 
tatem ad tutelam subditorum, ad 
justitiam asserendam esse amplissi- 
mam : caeterum ut injuria subjectis 
fiat, illic principis potestatem non 
agnosco, sed tyranni. . . . 

11. Nee obstat quod ex doctoribus 
aliqui putant, causam justam in 
principe semper praesumi. ... Si in 
Caesaris mandatis absurda, non veri- 
similia, item impertinentia et quae 
prima fronte iniqua apparent, con- 
tinentur, et princeps in mandatis et 
clausulis hujusmodi emittendi esset 
facilis, jam justa causa presumi nee 
deberet nee posset. . . . 

13. Accedat quod cum hujusmodi 
clausulae plenitudine potestatis et 
certae scientiae, hoc tempore velut 
ex styli consuetudine, in omnibus 
prope imperialibus Uteris, ut divus N. 
alio quodam loco fatetur, inseri et 
saepenumero impertinenter asscribi 
consueverint, non est tanta in eis vis 
ponenda. . . . 

15. Et ut finiam, si a justitia 
Justus dioitur, et principem Romanum 
justum esse necesse est, consequitur 
ut in eo justitiam residere dice- 



CHAP. V.] CIVILIANS IN THE SIXTEENTH CENTURY. 323 

This is important, but it is not all that Zasius has to say ; 
so far he has argued on general grounds that the Emperor 
could not override the judgment of a Court of Law, or violate 
the clear rights of any subject, by invoking some supposed 
absolute authority. He goes on to contend that in this par- 
ticular case the Emperor Maximilian was bound by a Con- 
stitution of his own. He describes the Diet held at Worms 
in 1495, and says that Maximilian promulgated a Constitution 
that he would not obstruct the proceedings or judgments of 
the Eeichs Kammer-Gericht, nor evoke its cases to himself, 
nor annul, nor suspend its decisions, and that he had confirmed 
this Constitution on several later occasions. This Constitution 
had received the force of a contract by the Emperor's oath 
to observe it, and the Emperor is bound by his contract. 1 

He sums up, therefore, that the authority of the Soman 
prince does not extend to injustice ; although he is free from 
merely positive law, he is subject to reason and the Divine 
Law, the right (jus) claimed by another which belonged 
to the Jus "Naturale" or "Gentium" could not be taken 
away by any words of the Emperor, such as " de plenitudine 
potestatis " or "ex certa scientia," except for some obvious 
public cause ; the use of such phrases in the Imperial writs 

mus. ... At cum justitia uniucique sum judicii Camerae imperii, in ejus 

tribuit quod suum est, quomodo processibus et sententiis non impedire, 

princeps alteri quod suum est auferet ? nee ad se avocare, irritare, suspendere, 

Quornodo injuriae ab eo nascentur a aut ulla via, sive appellationis, suppli- 

quo jura processerunt ? cationis aut restitutionis, ad sese 

16. Recte ergo coneludo quod per trahere, aut rescindere velit, &c. 

clausulas supra dictas quantumcunque Quamconstitutionem seu ordinationem, 

sinum effundant, alteri quod suum dicitur Divus Caesar verbo majestatis 

est, sine ratione, immo contra rationem, seu dignitatis suae promisisse : vero 

pro solo voluntatis et potentiae libito, existente quod eandem ordinationem 

auferri non possit." Caesar in aliis sequentibus imperii 

1 Id. id. id. : " 26. Tertia ratio consessibus saepe renovaverit, sicuti et 

sumitur a contractu seu constitutione novissime de anno, &c, 10, in civitate 

Divi Caesaris N. Nam in facto mihi Augusta factitatum esse fertur, prout 

refertur, quod Caesarea majestas ante ex actis apparet. Cum igitur divus 

complures annos cum principibus, Caesar se dictam ordinationem servare 

proceribus, legationibus et statibus prorniserit, non est dubium quin in 

sacrosancti imperii Romani dum con- vim contractus transient. . . . Sed 

ventus imperii Wormaciae haberentur, supra in secundo evidentiali evicimus, 

constitutionem et ordinationem fecerit, Caesarem euo contractu obligari et 

quod sua majestas statum et procur- subioi." 



324 THE EARLIER SIXTEENTH CENTURY. [PABT III. 

has therefore little significance. The Emperor, therefore, 
cannot annul the " res judicata " in the case under discussion, 
and more especially because he was bound by his own contract 
made with the Empire. He concludes, therefore, that the 
Court should order the judgment given before in favour of 
the plaintiff to be carried out. 1 

We shall have occasion in later chapters to deal with some 
other important jurists of the sixteenth century, specially 
with Bodin, Peter Gregory of Toulouse, Barclay, and Althusius, 
but primarily as political writers, not jurists, it seems to us 
better to treat them from that point of view. 

In this chapter we have endeavoured to put together some 
observations on the political theory of some important 
Civilians of the sixteenth century, mainly in France, and 
we think that we have done enough to make it clear that they 
represent a position different in some respects from that of 
the Civilians of the fourteenth and fifteenth centuries, and 
analogous rather to that of some of the most important 
Civilians of the thirteenth century, like Azo and Hugolinus. 

1 Id. id. id., 67 : " Epilogando igitur, multum operontitr, id quod Divus 
et velut sub summario recolligendo N. ultro per literas suas confossus est: 
quod supra diffuse scripsimus : cum et maxime predictae clausulae nullam 
Principis Romani potestas ad injus- prorsus habeant effieaciam si constet 
titiam extendi nee debeat nee possit, principi esse obreptum ; bisque con- 
scilicet quod princeps etsi sit lege mere soquens sit quod^Divus Caesar supra- 
positiva solutus, rationi tamen et dictis mandatis ab eo obreptitie ex- 
juri divino subjectus sit : nee alterius tortis, rem judicatam domini actoris 
jus quaesitum, quod de jure naturali tollere et cassare nee potuerit nee 
vel gentium prodidit, auferri per princi- voluerit, attento precipue contractu 
pem possit, ne de plonitudino quidom et ordinatione sua cum imperio 
potestatis, vel certa scientia, nisi facta. . . . Concludimus, partes dom- 
fortassis ex causa publicae utilitatis ini judicis et dominorum assessorum 
princeps moveretur, et do ea manifeste esse, ut sontentiam et rem judicatam 
appareret : et constet quod dictae praedictam, juxta petita domini act- 
clausulao, plenitudinis et scientiae, oris, esse exequondam pronuncient, et 
passim sine delectu in principalibus exequantur." 
litteris inculcari consuetae, non ita 



PART IV. 

THE POLITICAL THEORY OF THE LATER 
SIXTEENTH CENTURY. 



CHAPTEE I. 

THE SOURCE AND AUTHORITY OF LAW. 

We have so far been dealing with the history of political 
theory and ideas in the first part of the sixteenth century, 
for it appears to us that it is wise to distinguish in our treat- 
ment between the earlier and the later part of the century. 
How far indeed there are any important differences between the 
general character of the earlier and later conceptions we shall 
have to consider, but it is obvious that in the second half 
of the century there was a great deal more political writing. 
The fact is obvious, and some of the causes are obvious and 
apparent, for the last fifty years of the century were full of 
the clamour and noise of civil war and revolutionary move- 
ments. We may say at once that it seems clear to ourselves 
at least that these movements had no relation at all to what 
is called the " Eenaissance," whatever that word may mean, 
and that the great revival of religion, the Eeformation, or 
what is called the counter-reformation, was only, and only in 
part, the occasion and not the cause of these movements. 

As von Eanke long ago pointed out, the great international 
conflicts of the sixteenth century were not caused by the re- 
ligious movements, but only sometimes crossed and some- 



326 THE LATER SIXTEENTH CENTURY. [PAItT IV. 

times deflected by them ; and the same thing is true of the 
political principles and theories. It is at first sight a curious 
thing to find a Scottish Protestant like George Buchanan 
expressing almost the same judgments in political theory as 
the Spanish Jesuit Mariana ; but the fact is that the difference 
of religious belief, as such, had little or no relation to political 
conceptions. 

All this, however, we shall have to consider ; the fact is 
that, whatever the reason may have been, there was a great 
outburst of energetic political theory in the second part of 
the sixteenth century, and our business is to examine this, 
and to consider what were the relations of this to the traditional 
conceptions of the Middle Ages. 

We thought it well to begin the preceding part of this volume 
by drawing attention to a work which seems to us to be in 
many ways very representative of the normal attitude of men 
in the sixteenth century to political authority — that is, de 
Seyssel's ' La Grant Monarchic de France,' a work written 
apparently with no specially controversial intention, and we 
pointed out that, to him, the Government of France was a 
monarchy indeed, but limited by the various laws and organisa- 
tions of the country. 

In 1583 there was published in England (but it had been 
written apparently in 1562) the work entitled ' De Eepublica 
Anglorum,' by Sir Thomas Smith, a man of large and varied 
experience of public office, an Ambassador, a Privy Councillor, 
and a Secretary of State. 1 This work also appears to have 
been written without any special controversial intention, 
and we think that a consideration of the main prin- 
ciples set out in this work may serve to indicate some of 
the normal conceptions of Englishmen about politics, and 
especially their conception of the place and authority of law. 

After describing the six forms of good and bad governments 
in the terms of the Aristotelian tradition, 2 he goes on to deal 
in more detail with the contrast between the king and the 



*8 



1 Cf. J. W. Allen, « Political Thought • T. Smith, ' De Republics Anglo- 

in the Sixteenth Century,' p. 263. rum,' i. 3. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 327 

tyrant. The king he describes as one who by inheritance 
or by election has received the Crown with the consent 
of the people, and who governs it by its laws, to the 
benefit both of the country and of himself. The tyrant, on 
the other hand, is one who rules without the consent of the 
people, who makes and unmakes laws at his pleasure, without 
the advice of the citizens, and who puts the advantage of 
himself and his kindred before the common good. 1 

He goes on to say that this " tyrannical power " was given, 
as it was said, to the Eoman emperor by a decree of the 
people, and some say that the same power belonged to the 
King of France and some of the Italian princes, that they 
possessed the power of making and unmaking laws, and of 
imposing taxes without the consent of the people ; he adds 
that it was said that it was Louis XI. who first changed the 
administration of the French kingdom into this absolute 
and tyrannical power. There are, he says, some who main- 
tain that this was not a form of tyranny but the proper form 
of monarchy. Smith, however, regards such an unlimited 
authority as one which might be valuable in time of war, 
but is in time of peace dangerous to the people. 2 

1 Id. id., i. 7: "When one person tained, by which all the people of Rome 
beareth the rule, they define that to be did conferre their power and authority 
the estate of a king, who by succession unto Caesar wholly . . . Some men 
or election, commeth with the good doe judge the same of the Kinges of 
will of the people to the government, Fraunce, and certaine Princes of Italie 
and doth administer the common and other places, because they make 
wealth by the lawes of the same and and abrogate lawes and edicts, lay on 
by equitie, and doth seeke the profit tributes and impositions of their own 
of the people as much as his owne. will, or by the private counsell and 

A tyrant they name him, who by advise of their friends and favourites 

force commeth to the Monarchy against only, without the consent of the 

the will of the people, breaketh lawes people. 

alreadie made at his pleasure, maketh The people I call that which the 

other without the advise and consent word ' populus ' doth signifie, the 

of the people, and regardeth not the whole bodie and the three estates of 

wealth of his communes but the ad- the commonwealth ; and they blame 

vancement of him selfe, his faction, and Lewes the XI. for hindering the 

kindred." administration royall of Fraunce, from 

2 Id. id., i. 7 : " The Emperors the lawfull and regulate raign to the 
claime this tyranicall power by pre- absolute and tyranicall power and 
tence of that Rogation or plebiscitum, government. . . . 

which Caius Caesar or Octavius ob- I. 8 : Others do call that kinde of 



328 THE LATER SIXTEENTH CENTURY. [PAUT IV. 

This is a very emphatic and important statement, that in 
normal political society, and in its normal circumstances, it 
is the Law and not the prince which is supreme. This is the 
conception of Bracton and of Fortescue, and, as in Fortescue, 
the statement receives a greater emphasis by the reference 
to France, while Smith, like Fortescue, thinks of the French 
conditions as being recent developments. 

It is interesting to compare the conceptions of Sir Thomas 
Smith with those expressed in the contemporary work of 
Francis Victoria, who was a Dominican and Professor at 
Salamanca. Victoria has a high conception of the nature 
and place of the king and his legislative authority, but he 
also sets out in very dogmatic terms his judgment that the 
king is bound by the Law. Some, he says, contend that the 
king is above the whole commonwealth, and that no one 
can be bound except by a superior ; but it is clear that the 
king is bound. The laws of the king have the same authority 
as those which are made by the whole commonwealth, but 
laws made by the whole commonwealth are binding upon all 
men. It is open to the king to make laws or not, but it is 
not open to him to be bound or not. As in contracts, a man 
may or may not enter into a contract, but when it is made 
it binds him. 1 

administration which the Greekes do lute and uncontrolled authoritie, with- 

call irafj.0a<ji\f7ay, not tyranny, but out swelling into too much pride and 

the absolute power of a king, which insolence." 

they would pretend that everie king J Franciseus Victoria, ' Relectiones 

hath, if he would use the same; the De Potestato Civili,' xxi. : "Queriiur 

other they call jSacriAf'ia vo/xtKrj, or tamen, an leges civiles obligant legis- 

the royal power regulate by lawes. latorem, et maxirne reges. Videtur 

Of this I will not dispute at this time. enim aliquibus quod non, cum sint 

lint, as such absolute adininL-'t ration supra tot am rcmpublicam, et nullus 

in time of warre, when all is in armes, possit obligari nisi a superiore : sed 

and when Iimrs hold their peace certius et probabilius est quod obli- 

luriiu-'' (hej cnimnt i,i- heard, is mosi gentur. 

necessarie : so in time of peace, the Quod probalur primo : quia huius- 

snmo is very daungerous, as well to modi legislator facit injuriam reipub- 

liim that doth use ii, and much more licae, et roliquis civibus, si, cum ipse 

to the people upon whom it is used: sit pars reipublicae, non habeat partem 

whereof the cause is the frailtie of oneris, juxta personam tamen suam 

man's nature, which (as Plato saith) et qualitatem, et dignitatem. Sed 

cannot abide or beare long that abso- ista obligatio est indirecta, et ideo 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 329 

The principles of government which are set out by Sir 
Thomas Smith may be conveniently compared with those 
which had been laid down a few years earlier, that is, in 1556, 
by Bishop Ponet in his work entitled ' A Short Treatise of 
Politike Power.' Ponet certainly shows no signs of the influ- 
ence of that theory of the Divine Eight of Kings with which 
we have dealt in a previous chapter, but sets out with singular 
clearness the same constitutional traditions as Sir Thomas 
Smith. Like him, he repeats the Aristotelian description of 
the three good governments — the Monarchy, Aristocracy, and 
Democracy ; but adds, " And where all together, that is, 
a king, the nobilitie, and the Commons, a mixte state, which 
men by long continuance have judged to be the best of all ; 
. . . but yet every kynde of these states tended to one ende, 
that is, to the maintenance of justice, to the wealthe and 
benefit of the hole multitude, and not of the superiour and 
governours alone " (Ponet, ' Short Treatise,' Part I. p. 7 ). Ponet, 
however, also deals with the subject of the relation of political 
authority to God, and in Part II. he asks the question whether 
kings, princes, and other governors have an absolute power 
and authority over their subjects. " Forasmuch as those 
that be the rulers in the world, and wolde be taken for Goddes 
(that is, the ministers and images of God here in earthe . . .) 
clayme and exercise an absolute power ... or prerogative 
to doo what they lust, and none may gaynesaye them ; to 
dispense with the laws as pleaseth them, and freely and 
without correction or offence doe contrary to the lawe of nature 
and other Goddes lawes, and the positive lawes and customes 
of their countreyes, or breake them : and use their subjectes 
as men doe their beastes, and as lords doe their villanes and 
bondemen, getting their goods from them by hooke and by 

aliter probatur. Nam eandem vim populari regimine plebiscita obligant 

habent latae leges a rege, ac si ferantur ipsum populum : ergo similiter leges 

a tota republica, ut supra declaratum regiae obligant ipsum regem : et licet 

est. Sed leges latae a republica obli- sit voluntarium regi condere legem, 

gant omnes, ergo etiam si ferantur a tamen non est in voluntate sua non 

rege, obligant ipsum regem. Et con- obligari, aut obligari. Sicut in pactis. 

firmatur, quia in aristoeratico princi- Libere enim quisque paciscitur, pactis 

patu, senatus-consulta obligant ipsos tamen tenetur." 
senatore6, authores illorum, et in 



330 



THE LATER SIXTEENTH CENTURY. 



[PAKT IV. 



crooke, with ' sic volo sic jubeo,' and spending it to the 
destruction of their subjectes ; the miserie of this tyme re- 
quirith to examyne whether they doe it rightfully or wrong- 
fully " (Id. id., Part II. p. 17). 

He answers the question first by pointing out that political 
authority was ordained by God Himself, to the end that 
justice should be maintained by men. " Before, ye have 
heard how for a long tyme, that is until after the general 
flood, there was no civille or politike power, and how it was 
first ordayned by God Himself, and for what purpose He 
ordayned it : that is (to comprehende all briefly) to mayntene 
justice : for every one, doing his deutie to God, and one to 
another, is but justice " (Id. id., Part. II. p. 18). 

It is, however, his constitutional principles which are 
most fully and emphatically developed. He asks the question 
again, whether kings and princes have an absolute authority 
over their subjects, and answers confidently : "Ye have 
heard also, how States, Bodies politike, and Commonwealths, 
have authority to make lawes for the maintenance of the 
Policie, so that they be not contrary to Goddes lawe, and the 
lawes of Nature, which if ye note well the question before 
propounded, whether kings and princes have an absolute 
power, shall appear not doubtful, or if any wolde affirm it, 
that he shall not be able to maintain it " (Id. id., Part II. p. 18). 

And this leads him to make the same distinction, with 
which we are familiar in Fortescue, between those States 
which arc governed by laws made by the prince, and those 
in which the community has retained the legislative power in 
its own hands. There are two kinds of princes, " the one, 
who alone maye make positive laws, because the whole State 
and body of the country have geven and resigned to them 
their authoritie so to do. Which nevertheless is rather to be 
compted a Tiranne than a king. . . . And thother be suche 
unto whom the people have not geven such an authority, but 
keep it themselves ; as we have before sayed concerning the 
mixte State " (Id. id., Part. II. p. 21). 

Ponet recognised that the Eoman Empire had the first 
character, but this Empire had long ceased to exist, and ho 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 331 

exclaims impatiently, " I beseech thee, what certayntie should 
there be in anything, when all should depend on one's will and 
affectione ! " (Id. id., Part II. p. 24). 

He had already pointed out that it was just in order to 
prevent the oppression of the members by the head, that the 
various constitutional forms had been created in various states : 
Ephors in Sparta, the Tribunes in Eome, the Council or Diet 
in Germany ; " in Fraunce and England, Parliamentes, wherein 
there mette and assembled of all sortes of people, and nothing 
could be done without the knowledge and consent of all " 
(Id. id., Part I. p. 10). 

In a later section of the treatise Ponet considers the 
question whether it is lawful to depose a wicked ruler and to 
kill a tyrant, and his answer is very explicit. He cites the 
deposition of Chilperic by the Pope, the depositions of 
Edward II. and Eichard II. in England, and the recent 
deposition of the King of Denmark, and he urges that " the 
reasones, argumentes and lawe that serve for the deposing 
and displacing of an evil governour, will doe as muche for 
the proof e that it is lawful to kill a tiranne " (Id. id., Part 

VI.). 

With special reference to England, he says that it pertained 
to the authority of the High Constable, " not only to summone 
the king personally before the Parliament or other Courtes 
of Judgment (to answer and receave according to justice), 
but also on just occasion to commit him unto warde " (Id. id., 
Part VI.) ; and in more general terms, " Kings, princes and 
governours have their authoritie of the people, as all lawes, 
usages and policies declare and testifie . . . and, is any man 
so unreasonable to denie that the hole maie do as much as 
they have permitted one member to doo ? or those that have 
appointed an office upon trust, have not authoritie upon 
juste occasion (as the abuse of it) to take awaie that they 
gave ? " (Id. id., Part VI.). 

The only limitation he makes is that no private person 
may kill the tyrant except by public authority, except in the 
case that the public authority is utterly negligent ; but the 
prince, committing crimes against any of his people, such as 



332 THE LATER SIXTEENTH CENTURY. [PART IV. 

murder, theft, rape, &c, should be punished like any other 
criminal (Id. id. id.). 

The theories of Ponet are, especially in this last part of 
his treatise, developed in terms far removed from Sir Thomas 
Smith's restrained and judicious manner, but the substance of 
his constitutional position is the same, and serves to indicate 
the importance in England of the political tradition of Bracton, 
Fortescue, and St Germans ; and even some of Ponet's 
most drastic contentions were, after all, founded upon political 
traditions which were not unimportant. 

So far we have been dealing with writings which are not 
related to the great political controversies of the latter part 
of the century. We must now turn to the literature which 
belongs to these. We turn to that great Humanist, George 
Buchanan, who vindicated the deposition of Mary, Queen of 
Scots. In his treatise, ' De Jure Begni apud Scotos,' pub- 
lished in 1578, he deals first with the origin and nature of 
Law, for, as he evidently thought, until this had been made 
clear it was not possible to discuss properly the place and 
authority of the ruler. 

The treatise is in the form of a dialogue between Buchanan 
and a person he calls Maetellanus (presumably Maitland). 
God, he says, is the author of human society, and He im- 
planted in man the Law of Nature, of which the sum is that 
man should love God and his neighbour as himself ; it is 
this Divine Law which is the source of human society. This 
society must have an authority to maintain peace and harmony, 
and this authority is that of the king. If the qualities re- 
quired for a king were fully and properly developed in one 
man, we should recognise him as king by Nature, not by 
( lection, and give him an unrestrained power ; even if these 
qualities are not perfect, we shall still call the ruler king, but 
we should give him as companion and restraint the Law. 
" Metellanus " asks whether, then, Buchanan does not think 
that the prince should have a complete authority, and Buch- 
anan answers that he should by no means have this, for he 
is not only a king but a man, and liable to err through ignorance 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 333 

or sin, and therefore the wisest men have thought that the 
law should be added, to enlighten his ignorance, and to bring 
him back into the right way if he errs. 1 

Buchanan expresses this again in more general terms, and 
says that kings were created to maintain " aequitas," and 
if they had done this they would have retained an authority 
free and " legibus solutus " ; but, as is natural in human 
things, the authority which was intended for the public 
good changed into a " proud lordship." Laws therefore were 
made by the people, and the kings were compelled to obey 
the law which the people had created. They had found, by 
much experience, that it was better to entrust their liberty 
to the law than to the king. 2 

The king is subject to the law, and Buchanan then dis- 
cusses the question, who is the legislator ? The people, he 
says, who have conferred authority upon the prince should 
have the power to impose a limit upon this authority. He 
explains that he did not mean that this power should be 
given to the whole mass of the people, but that, as " our " 

1 George Buchanan, ' De Jure Regni et odii auram facile mutabile. . . . 

apud Scotos.' Quamobrem legem ei adjungendam 

(p. 8): " B. Haec igitur (prudentia), censuerunt homines pruclentissimi, quae 
si summa et perfecta in quopiam vel ignoranti viam ostendat, vel aber- 
esset, turn natura, non suffragiis rantem in viam reducat. Ex his 
regem esse diceremus ; liberamque opinor, intelligis, iis ev tutto), quodnam 
rerum omnium potestatem ei tra- ego veri regis officium esse reor." 
cleremus : sin talem non reperiamus, 2 Id. id. (p. 8) : " Illud igitur, quod 
qui proxime ad illam eccellentem initio diximus, tenere semper oportet, 
naturae praestantiam accesserit, simili- reges primum tuendae aequitati fuisse 
tudinem quandam in eo veri regis constitutes. Id illi si tenere potuissent, 
amplexi, etiam regem appellabimus imperium, quale acceperant, tenere 
. . . Et quoniam adversus animi affec- perpetuo potuissent, hoc est liberum 
tiones, quae possunt et plerumque et legibus solutum. Sed (ut humana 
solent avertere a vero, ne satis firmus sunt omnia) statu rerum in pejus pro- 
sit, timemus, legem ei, velut collegam, labente, quod publicae utilitatis causa 
aut potius moderatricem libidimim, fuerat constitutum imperium, in super - 
adjiciemus. bam dominationem vertit. . . . Leges 

M. Non censes igitur rerum omnium igitur, hac de causa, inventae sunt a 

arbitrium penes regem esse debere ? populis, regesque coacti, non sua in 

B. Minime. Nam eum, non solum judiciis licentia, sed, quod populus in 

regem, sed etiam hominem esse memini, se dedisset, jure uti. Multis enim 

multa per ignorantiam errantem, multa edocti erant experimentis, melius liber - 

sponte peccantem, multa prope invi- tatem legibus quam regibus credi." 
turn ; quippe animal ad omnem favoris 



334 THE LATER SIXTEENTH CENTURY. [pabt IV. 

custom is, men chosen from all the " orders " should enter 
into counsel with the king, and only after this irpofiovXev/jLa 
should the final judgment be given by the people. 1 Maitland 
objected that the people were rash and inconstant, and 
says that these advisers will be no better. Buchanan replies 
that he thinks differently. For the many not only know more, 
and are wiser than any one of them, but they are wiser and 
know more than any single person, even if he excel every one 
of them in prudence and intelligence ; the multitude judges 
all questions better than any one man. 2 

Buchanan also maintains that the interpretation of the 
Law must not be left to the judgment of the king. 3 

We shall return to Buchanan later when we deal with the 
whole question of the position of the king, but in the mean- 
while it is clear where he stands with regard to the source 
and the authority of the Law. He is, under his own terms, 
setting out the normal mediaeval conceptions. 

We must turn to the treatment of law in the great and 
complex mass of the political tracts of the period of the civil 
wars in France. The immediate occasion of these civil wars 
was, no doubt, the question of religion ; but it is also evident 
that the religious conflict was the occasion rather than the 
cause of the development of a very emphatic constitutionalism. 

1 Id. id. (p. 13): " M. Quando regem in concilium coirent. Deinde, 

igitur regom solvere legibus non licet, ubi apud eos, irpofjouKevfAa factum esset, 

quis tandem est legislator, quem ei id ad populi judicium deferetur." 

tanquam pedagogum dabimus ? . . . 2 Id. id. (p. 13) : " B. At ego 

13. Neminem ergo ei dominum impono, longe aliud ac tu opinaris exspecto. . . . 

sed populo, qui ei imporium in se dedit, 1'rimum, non omnino verum est, quod 

licere volo, ut ejus imperii modum ei tu putas, nihil ad rem facere multi- 

prescribat : eoque jure, quod populus tudinis advocationem, quorum e 

in se dederif, ut rex utatur, postulo. numero nemo fortassis erit excellenti 

Neque has leges per vim, ut tu inter- sapientia praeditus. Non onim solum 

pretaris imponi volo, sed communicato plus vident et sapiunt multi, quam 

cum rege consilio, communiter statuen- unus quilibet eorum seorsum, sed etiam 

dum arbitror, quod ad omnium salu- quam unus, qui quemvis eorum ingenio 

tem communiter facial. . . . Ego et prudontia praecedat. Nam multi- 

nunquam existimavi universi populi tudo fere melius quam singuli de rebus 

judicio, earn rem permitti deberi ; omnibus judicat." 

sed ut, prope ad consuetudinem nos- s Id. id., p. 121. 
tram, ex omnibus ordinibus selecti ad 



CHAP. I.] THE SOUItCE AND AUTHORITY OF LAW. 335 

It was between the years 1573 and 1579 that there appeared 
several tracts or pamphlets, the ' Remonstrance aux Seigneurs 
Gentilshommes et autres,' the ' Droit des Magistrats,' the 
1 Franco Gallia,' the ' Archon et Politie ' (or ' la Politique '), and 
the ' Vindiciae contra tyrannos,' and others which are related 
to each other in subject-matter and in principles. The general 
principle, which they seek to assert, is well expressed in the 
' Remonstrance.' This work is addressed, primarily, to the 
nobles and gentlemen of the Reformed Religion in France, 
but also to all those Frenchmen who sought the preservation 
of the kingdom, and it begins with the declaration that the 
name of Frenchman (Francs) was a proper description of 
men who desired to maintain an honourable liberty under the 
authority of their kings. 1 

It goes on a little later to denounce the flatterers and 
parasites who tell the king that if he were under the rule and 
order of the Law he would be nothing but a ' valet " of the 
people, and to lament the fact that the Courts of Parlement, 
which were formerly over the kings and resisted their absolute 
power, were now basely servile to the commands of those 
from whom they expected rewards. 2 The statement that 
the king was under and not over the Law, and that the 
Parliament was the organ of the supremacy of the Law, may 
seem somewhat extreme, but it should be remembered that 
it is practically what had been said in the early years of 
the sixteenth century by de Seyssel in the ' La Grant Monarchic 
de France.' 3 

The same principle is restated in the ' Droit des Magis- 
trats.' It is the part of a detestable flatterer, and not of 

1 "Remonstrance aux Seigneurs, et ordre present par les loix e'est autant 
gentils hommes, et autres, faisans pro- que les faire valets da peuple. . . . 
fession de la Religion reformee en (p. 74) : Les cours de parlement qui 
France, et tous autres bons Franc ais anciennement estoyent pardessus les 
desirant la conservation de ce royaume." Rois, et s'opposoient avec grande 
(In ' Memoires de 1'estat de France,' integrite a leur puissances absolues, 
Ed. 1576, vol. iii. p. 64.) aujourd'hui se laschent servilement aux 

2 Id. id. (p. 73) : " Voyons nostre commandements de tous ceux dont ils 
roi, environne de tels flattereaus et esperent proufit." 

parasites, qui pour lui gratifier, osent 3 Cf. pp. 219-225. 

dire, que de reduire les Roys a la reigle 



336 



THE LATER SIXTEENTH CENTURY. 



[part rv. 



a loyal subject, to tell the prince that sovereigns are not 
bound by the Laws. On the contrary, they are bound 
to govern by them, for they have sworn to maintain and 
to protect them. 1 In a later passage of the same work we 
find a good illustration of the circumstances under which 
the Huguenots thus appealed to the supremacy of the 
Law. The author admits that subjects have not the right 
to force their lord to change the order of the State in matters 
of religion, but must submit to persecution, if the laws com- 
mand it, for their religion. It is, however, wholly different 
if by public edicts, lawfully issued and confirmed by public 
authority, they have been permitted to exercise their religion. 
In that case the prince is bound to obey them, or by the 
same authority to revoke them. Otherwise he is exercising 
a manifest tyranny, and it is lawful, under proper conditions, 
to resist. 2 

The same conceptions are restated and further developed in 
the treatise called ' La Politique, Dialogue de l'authorite des 
Princes, et de la liberte" des peuples,' generally cited as ' Archon 
et Politie.' Tyranny, Politie says, in an hereditary kingdom, 
is when a legitimate prince is not content with what he has 



1 " Du Droit des Magistrats " (in 
' M6moires de l'estat de France,' Ed. 
157G), vol. ii. p. 750 : " Car, pour 
certain, c'est vine parole tres fausse, 
et non poinot d'un loyal sujet a son 
Prince, mais d'un detestable flatteur, 
de dire que les souverains ne sont 
astraints a nulles loix. Car, au con- 
traire, il n'y en a pas une, par laquelle 
il ne doyve et soit tenu de regler 
son gouvernement, puis qu'il a juro 
d'estre le mainteneur et protecteur de 
toutes." 

* Id. id. (p. 788) : " En tel cas, donc- 
ques, assavoir, si on veut forcer les 
consciences d'idolatrer, que ferons les 
sujet s ? Cortainement, de vouloir 
contraindre leurs seigneur a changer 
l'estat public il n'y auroit ordre : et 
pourtant il faut que tous endurent 
patiemmcnt la persecution, ce neant- 



moins servans a Dieu, ou bien qu'ils 
se retirent d'ailleurs. 

Mais, les Edits, estans legitimement 
dressez et emologuez par authority 
publique, par lesquels sera permis 
d'exercer la vraye Religion : je dis 
que le prince est d'autant plus tenu 
de les observer, que nuls autre, que 
l'estat de la Religion est de plus grande 
consequence que nul autre : ou bien 
par mesme ordre, et telle connaissance 
de cause qu'il appartient, les revoquer. 
Sinon, jo dis, qu'il use de manifesto 
tyrannie, a laquelle il est permis de 
s'opposer, avec les distinctions ci- 
dessus mentionnees ; voire par raison 
d'autant mcillouro, que nos ames et 
nos consciences nous doyvent estre 
plus cheres que tous les biens de ce 
mondo." 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 337 

lawfully acquired, but violates the ancient laws and customs 
of his country. 1 

Archon protests that this is to put the king under the 
law, but there is a sentence in the Pandects which says that 
he is not under the law, though " par honnestete - " he should 
carry it out. For it is he who makes the law, and he does 
not submit to it except so far as he pleases, otherwise his 
power is not sovereign but bridled and restrained. 2 

To this contention Politie replies by considering the real 
source of laws. He cites the definitions of law by Papinian, 
Demosthenes, and Chrysippus (' Dig.,' i. 3. 1, and 2), and 
the opinion of Cicero that the deliberation and consent of the 
commonwealth are implied in the laws, and that the prince 
must therefore be subject to them. 3 

When Archon contends that the Civil Law is composed of 
the ordinances of princes, and that in all its parts it is subject 
to their power, Politie replies that in general terms the Law 
includes all ordinances which are just ; these have been 
formed by the people in their customs. If they are not suit- 
able, the prince can adjust them to the needs of particular 
times and persons, but must not usurp the power to do this 
without the consent of those who are most concerned. 4 Archon 
objects that this is very far indeed from the opinion of many 
kings, who consider that their subjects, their lives, and 
property are completely under their power. Politie agrees 
that they are under their jurisdiction, but only by process of 

1 "Archon et Politie," in ('Me- ioi, combien que par honnestete, il 
moires de l'etat de France,' Ed. 1576), s'y doit ranger. Par ainsi, puis que 
vol. iii. p. 102 : " Politie. Mais celle c'est lui qui la donne, il ne s'y submet 
(tyrannie) qui survient en une royaume pas s'il ne luy plait ; ou autrement 
qui est tenu pour hereditaire, est, on ne doit pas nommer sa puissance, 
quand un prince, legitimement pour- souveraine, mais bridee et restrainte." 
venu, ne se contente pas de ce qu'il 3 Id. (p. 110): "Politie. Ciceron 
trouve de droit equitable luy estre . . . dit que l'entretenement et con- 
acquis, ains pour dominer plus seig- seil de la republique estans situez 
neurialement viole les anciennes loix dans les loix, faut necessairement que 
et coutumes de ses pays." le prince y soit sujet : d'autant que 

2 Id. id. (p. 110) : "Archon. Tout son autorite soit de la, et se maintient 
cecy tend a mettre le Roi sous la par la conservation de justice qui est 
loi, touteffois il y a un axiome aux descrite en icello." 

Paudectes, qui dit qu'il n'est sous la * Id. (p. 117). 

VOL. VI. Y 



338 THE LATER SIXTEENTH CENTURY. [PART IV. 

law, 1 and he adds a reminiscence of the Feudal Law, that the 
Lord owes the same faith and love to his vassal as the vassal 
to him, and loses his lordship for the same causes and crimes 
as the vassal loses his fief. 2 

In another place the author of this treatise, like the author 
of the ' Droit des Magistrate,' appeals to the supremacy of 
the Law as justifying the resistance of the Huguenots to 
persecution, when the exercise of their religion had been 
granted them by formal laws and edicts ; and he extends 
this principle to the general legal rights of the people, for, 
as he says, there are few kingdoms or principalities where 
the chief rulers are not restrained by many laws to which 
they have sworn, when they were accepted, and which they 
have promised to the sovereign power to obey — that is, to 
the estates which are formed by the whole body of the people. 3 
(We shall have much more to say later of the conception of the 
sovereign power which is represented in these words.) 

The best known of these Huguenot works is the ' Vindiciae 
Contra Tyrannos,' published in 1579. There has been much 
discussion of its authorship, but we are not here concerned 
with this but with the judgment of the author on the origin 
of law and its relation to the prince. His judgment is very 
clearly expressed. Men would have been satisfied to have 
received law from one good and just man, but the judgment 

1 Id. (p. 120) : " Archon. Quoy, les apres. 

roys n'ont-ils pas puissance sur la Cela se doit estendro aussi aux 

mort et sur la vie de leurs sujets ? autres droits du peuple, lesquels ne 

" Politie. Oui bien, mais avec con- peuvent estre abolis sans manifesto 

naissance de cause et informations confusion et aneantissement des Estats, 

valables, ot non autrerneni." et a plus forte raison quand les lois 

2 Id. id. reiglent des longtemps la grandeur des 

3 Id. (p. 128) : " Politie : Et si par princes et magistrate souverains : 
loix et edits solonnels, le peuple a obtenu comme il se trouvera bien peu de 
de ses princes l'exercice de la vraye royaumes et principautez, dont les 
Religion ; et puis apres par mauvais principaux gouvernours ne soyent liez 
conseil, lo prince se veut desdire et et retonus en limitos par beaucoup do 
oster tyranniquement ce qu'il avait lois, queux mesmes jurent a leur 
sainctement accord6, les sujots out reception, et promettent a la souver- 
double raison de no luy obeyr en cest ainete (c'est a dire aux Estats com- 
endroit, et de consorver leur vraye posez du corps de tout le peuple) de 
liberty, par les moyeus 16gitimes sus garder inviolablemont." 

declarez, dont nous parlerons encore 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 



339 



of kings was too uncertain and variable. Laws were therefore 
made by the wise men and the magistrates. The principal 
function of the king is to keep and maintain the law. It is 
better to obey the law than the king ; the law is the soul 
of the king, while the king is the instrument of the law. The 
law represents the combined reason and wisdom of the many, 
for the many see and understand more than the one. It 
has thus come about that while in the earliest times kings 
reigned absolutely and their will was law, this now only 
continues among barbarians, while the more polite and 
civilised people are bound by laws. We do not accept the 
saying of Caracalla that the emperor makes laws but does 
not receive them ; rather in all well-ordered kingdoms the 
king receives the law from the people, and does not obtain 
the kingdom until he has promised to give every man his 
right (jus) according to the laws of the country. He can 
only amend or add to the laws when this has been approved 
by the people, or the chief men of the people, formally or 
informally, called together. 1 



1 ' Vindiciae Contra Tyrannos ' (Ed. 
Edinburgh, 1579), Q. III. (p. 114): 
" Certe cum populus jus aequabile 
quereret, id si ab uno justo et bono 
viro consequebatur, eo contentus erat. 
At quia vix id fieri poterat, et raro 
contingebat ; saepe vero, dum arbitria 
Regum, legum instar essent, eveniebat, 
ut alia aliis loquerentur. Leges turn 
quae cum omnibus una eademque voce 
loquuntur, a prudentioribus et ceteris 
magistratibus proximo inventae fuer- 
unt. Regibus vero id precipua muneris 
commendatur, ut legum custodes, 
ministri et conservatores essent. Inter - 
dum etiam, quia lex in omnem eventum 
prospicere non potuerat, quaedam ex 
eadem aequitate naturali suppler ent. 
... (p. 115) Quis vero ambigat, quin 
legi, quam regi parere, id est homini, 
utilius et honestius sit ? Lex est boni 
regis anima : per hanc movetur, sentit, 
vivit. Rex legis organum est, et 
quasi corpus, per qviod ilia suas vires 



exerit, sua munera obit, sua sensa 
eloquitur. Animae vero, quam corpori 
parere justius est. 

Lex est multorum prudentum in 
unum collecta ratio et sapientia. Plures 
autem oculatiores et perspicaciores 
sunt quam unus. ... (p. 117) Inde 
vero pactum est, inquit idem, ut 
quum primis temporibus reges absolute 
imperarent, quorum arbitrium lex 
erat, paulo post inter politiores et 
civiliores passim legitimi fierent, id est, 
legibus servandis custodiendisque obli- 
garentur ; absoluta vero ilia potestas, 
penes barbarorum reges tantum man- 
eret. ... (p. 119) Non denique quod 
ipse Caracalla, Imperatores leges dare, 
non accipere. Quin potius in omnibus 
regnis bene constitutis, regem a populo 
leges, quas tueatur quasque intueatur, 
accipere. . . . (p. 121) Neque enim 
Imperator, Rex Franciae, Reges His- 
paniae, Angliae, Poloniae, Hungariae et 
omnes legitimi principes . . . prius in 



340 THE LATER SIXTEENTH CENTURY. [PAST IV. 

The author of the ' Vindiciae ' adds some important observa- 
tions on the actual or traditional practice of some of the 
more important countries of Western Europe. In the empire 
the emperor " rogat in concilio," and, if they approve, the 
princes, barons, and representatives of the cities sign the 
decree, and only then is the law valid ; the emperor swears 
to observe the laws which have been thus made, and not 
to make other laws except with the common consent. In 
France, where the authority of the king is commonly thought 
to be higher than elsewhere, laws were formerly made in the 
Assembly of the three Orders, and all commands of the king 
were void, unless the Senate (i.e., the Parlement) ratified 
them. In England, Spain, and Hungary the custom is the 
same as it always was. He concludes that if it is true that 
the laws are greater than the king, if kings must obey the 
law as the slave does his master, who would not prefer to 
obey the law rather than the king ? Who would obey the 
king if he violated the law, or would refuse to defend the 
law which had been violated ? 1 

These writers are agreed in maintaining that the king 
was under the law and not over it, for his authority was 
derived from the law, and the law proceeds ultimately from 

principatum recipiuntur, quam . . . se turum, et novas non nisi de communi 

secundum leges patrias jus cuique consensu, ullas laturum. . . In Francia, 

suum reddituros promiserint. . . . (p. ubi tamen amplissima vulgo censetur 

122) In summa, principes legitimi, regum auetoritas, ferebantur olim 

leges a populo accipiunt, diadema vero leges in trium ordinum conventu, 

honoris, sceptrum potestatis, insigne, regiove consilio ambulatorio. Ex quo 

ut et acceptas tueatur et ex earum vero Parlamentum statarium est, 

praecipua tutela gloriam sibi quaerant. trust ra sunt omnia regum edicta, ni 

... Si quid abrogandum, surrogan- senatus ilia comprobet, cum tamen 

dum, derogandum, putabit, populum, senatus seu Parlamenti areata, si lex 

populive optimates, aut ordinarios, desit, lej_'is vim passim obtincant. 

uiii i extra ordine convocatos, admonebit Et in Anglico, Hispanico, Hungarico, 

mquo rogabit. At sane non prius et caeteris idem juris est, ut et in 

jubebit, quam ab iisdem rite expensa antiquis quoque fuit. . . . Quod si 

comprobataquo fueril." vero, ut ostendimus, leges regibus 

' Id. (p. 123) : " Imperator rogat pri- potiores sunt, si reges legibus, ut Bervi 

mum in Comitiis. Si probatur, Prin- dominis, parere tenentur ; quis non 

cipes, Barones, civitatum legati sub- legi, quam regi parere malit ? quis 

signent ac demum lex rata esse solet. regi legem violanti obsoquatur. Quis 

Jurat vero se loges (p. 124) latas scrva- violatae auxilium ferre recusct ? " 






CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 341 

the community. They admit that, in the earliest stages of 
human life, men may have submitted to the authority of 
rulers, uncontrolled by law ; but they found long ago that it 
was impossible to submit to the arbitrary and capricious 
rule of one man, and this only now survives among barbarous 
and uncivilised people ; and, as we have just seen, the author 
of the ' Vindiciae ' asserts this principle of the supremacy of 
the Law of the community as representing the normal con- 
ception of the greater European countries. 

It may be suggested that these writers were Protestants, 
though, as we have observed, there is nothing in these con- 
tentions which represents an appeal to distinctively Pro- 
testant opinions. We turn, therefore, to a group of writers 
who belonged to the Order of the Jesuits. 

We begin with Molina, an important Spanish Jesuit, whose 
work, ' De Justitia et Jure,' was published in 1592. He 
maintains that the light of nature teaches that it is in the 
power of the commonwealth to entrust authority over itself 
to one or more persons, as it judges best. This authority is 
greater or less according to its judgment, and if the ruler 
endeavours to exercise more authority than is given to him, 
he acts tyrannically. 1 

Having thus set out clearly the source and limits of the 
authority of the ruler, Molina approaches the subject with 
which we are here immediately concerned — that is, the con- 
ditions of the legislative authority. 

One of the functions of the king is to make laws, but the 
question must be considered whether the people gave him 
the power to make laws only with their approval, or without 

1 Molina, ' De Justitia et Jure,' tratu, poterit sane in unaquaque 

vol. i., Tract ii., Disp. 23 : " Lumen reipublicae specie, derivari amplior, et 

ipsum naturae docet, in reipublicae minus ampla, neque est maior in 

arbitrio esse positum, committere reipublicae rectoribus quam a republica 

alicui, vel aliquibus, regimen et potes- fuerit illis concessa. Quin potius, si 

tatem supra se ipsum, prout voluerit, rectores earn extendant, maioremque 

expedireque judicaverit. ... (3) Cum sibi usurpant, in tyrannidem per in- 

autem potestas a republica in rectores justitiam, quam ea in parte committunt, 

derivetur, pro ipsius reipublicae arbi- degenerant." 



342 THE LATER SIXTEENTH CENTURY. [PAKT IV. 

it ; and Molina thinks that if it is the custom that laws have 
no force unless they are approved by the people, it must be 
assumed that the commonwealth only granted to the king 
the legislative power, subject to this condition ; for it is more 
probable that the king increased his power, the subjects not 
venturing to resist, than that they had diminished the power 
which they had given him. If, as Castro suggested, the 
custom was that the commonwealth should obey all the laws 
of the prince which were not actually unjust, it would have 
to be concluded that it had granted all its authority to the 
king, but it could scarcely be believed that any commonwealth 
had done this. 1 Molina's principle seems to be clear, that 
it is almost incredible that the commonwealth should have 
completely surrendered all that authority, which originally 
belonged to it, to the ruler. 

It must not indeed be supposed that Molina was an enemy 
of monarchy ; indeed, he clearly holds that it is the best 
form of government, for it tends more to internal peace than 
any other form, 2 and he maintains that the authority of the 
monarch is greater, not merely than that of individuals in 
the commonwealth, but than that of the whole commonwealth 
— that is, within the limits of the authority which has been 
granted to him. 3 But again, it must be observed that this 
authority is limited, and if the king attempts to take more 

1 Id. id. id., Tract ii., Disp. 23, 6 : ampliasse suam potestatem, subditis 

'■ Cum potestate regia ad rempublicam non audcntibus resistere, quam sub- 

moderandam coniuncta est potestas ditos restrinxisse illi potestatem semel 

ferendi leges, quibus gubernetur. . . . concessaru. Quare fas erit roipublicae 

Si namque usus liabeat, ut tales legos non acceptare leges, quae ipsam nota- 

vim non habeant, nisi a populo appro- biliter gravent, quando ad commune 

bcntur, censendum est rempublicam bonum necessariae omnino non sunt. 

non maiorem potestatem regibus con- Quod si princeps ad id cam cogit, in- 

cessisse, quam condendi eas leges de- justitiam committet. Si vero, inquit 

p^ndontes ab approbationo populi. Castrus, usus receptus habcat, ut lcgi- 

Yerisimile esto, si populi ad id adver- bus principum non iniquis omnino 

terunt, non maiorem potestatem regibus pareatur, censendum est, rempublicam 

concessisse ; imo esto non adverteront, omnom omnino suam potestatem regi 

haec vidctur fuisso reipublit ;io intcntio, conccssis.se, quod vix de aliqua credi 

sibi regem constituentis, quando aliud potest." 

non expressit, semperquo est potius 2 Id. id. id., Tract ii., Disp. 23. 14. 

presumendum regem pi r potentiam 3 Id. id. id., Tract ii., Disp. 23, 8. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 343 

than had been granted to him, the commonwealth is entitled 
to resist him as a tyrant. 1 

Molina very emphatically maintains that the royal power, 
or any other supreme civil power which the commonwealth 
may create, is derived immediately from the commonwealth, 
and only " mediately " from God. For it is by the natural 
light and the authority which God has granted to the common- 
wealth that it should choose that form of civil power which 
it thinks most expedient. 2 He adds that there always remain 
two powers : one in the king, the other in the commonwealth. 
The latter is indeed restrained in action, so long as the former 
continues, but restrained only as far as the commonwealth 
has granted power to the king. If this power is abolished, 
the commonwealth resumes its whole power ; and even while 
it continues, the commonwealth can resist the king if he 
behaves unjustly or exceeds the power granted to him. 3 

It is clear that Molina does not acknowledge any absolute 
" Divine Eight," or indeed any form of absolutism. His 
language is grave and measured, but his conclusions are 

1 Id. id. id., Tract ii., Disp. 23, 10: pro arbitratu sibi deligentis, non 
" Si tamen rex potestatem sibi non solum personam aut personas quibus 
concessam, vellet assumere, posset tribuit potestatem, sed etiam modum, 
quidem respublica ei tanquam tyranno quantitatem, ac durationem talis potes- 
ea in parte, resistere, perinde ac tatis." 

cuivis alteri extraneo, qui reipublicae 3 Id. id. id., Tract ii., Disp. 26, 6 : 

injuriam vellet inferre. Ratio vera est, " Nihilominus negandum non est 

quia neque rex ea in parte est reipub- manere duas potestates, unam in 

licae superior, neque respublica est Rege, alteram vero quasi habiUialem 

illo inferior : sed manet, ut se habeat, in republica, impeditam ab actu 

antequam illi unam concederet potes- interim dum ilia alia potestas perdurat 

tatem." et tantum praecise impeditam, quan 

2 Id. id. id., Tract ii., Disp. 23, 4 : turn respublica independenter in pos 
" Dicendum est tamen cum Durando. terum a se Regi illi earn concessit 
. . . Turn regiam turn quamvis aliam Abolita vero ea potestate potest res 
supremam civilem potestatem, quam publica integre uti sua potestate 
pro arbitratu respublica sibi elegerit, Praeterea, ilia perdurante, potest 
esse immediate a republica, et mediate respublica illi resistere, si aliquid 
a Deo, per lumen naturale et potes- injuste in rempublicam committat, 
tatem quam reipublicae concessit, ut limitesve potestatis sibi concessae ex- 
sibi deligeret civilem potestatem prout cedat. Potest etiam respublica exer- 
vellet, expedireque judicaret. Quare cere immediate quemcunque usum suae 
descendit a jure naturali, est tamen potestatis quern sibi reservaverit." 
simpliciter de jure humano reipublicae, 



344 



THE LATER SIXTEENTH CENTURY. 



[PAKT IV. 



clear. He does not indeed refer directly to the constitutional 
traditions of Spain, as we shall presently see, that Mariana 
does, but it is at least probable that he has them in mind. 
He believes in monarchy, but a monarchy of limited powers — 
limited by the conditions imposed by the commonwealth ; 
and that these limitations can be enforced by the action of 
the commonwealth. The terms in which he states his argu- 
ments and conclusions are, no doubt, much more restrained 
than those of George Buchanan, or of the French Huguenot 
pamphlets, but the principles are the same. The community 
is the immediate source of all political and legislative authority, 
and the king has only a limited authority which is determined 
by the conditions under which the community has granted it. 

From Molina we turn to Suarez, one of the most famous 
Jesuit writers of that time. The most important of his works 
for our purpose, ' De Legibus ac De Legislatore,' was indeed 
only published in 1613, but it appears to us that it may 
reasonably be put alongside the work of Molina. 

The authority to make law, he says, from its very nature, 
resides not in one man but in the community, for all men 
are by nature born free, and no man therefore has by nature 
jurisdiction or lordship over other men, and he repudiates 
the conception that political authority was bestowed im- 
mediately by God. 1 He is careful indeed to point out that 
it is not any chance body of men without order or definite 
purpose which has this authority, but a community united 
by the common consent and special intention to form a 
political and mystical body and to pursue one political end. 2 



1 Suarez, ' De Legibus ac De Legis- 
latore,' iii. 2, 3: " Dicendum ergo 
est, hane potestatem (condendi legis), 
ex sola rei natura in nullo singulari 
homine existere, Bed in hominum 
collectione " (he cites St Thomas 
Aquinas, i. 2. 90, 3, and i. 2. 97, 3) . . . 
" Ratio prioris partis evidens 
quae in principio est tacta, quia ex 
natura rei omnes homines naseuntur 
Mm ri, et ideo nullus habet juri 
tionem politicam in alium, sicut nee 
dominium. . . . Potestas ergo domin- 



andi seu regendi politico homines, 
nulli homini in particulari data est 
immediate a Deo . . . (4). Hinc facile 
concluditur altera pars assertionis, 
nimirum, potestatem hanc ex solius 
juris natura esse in hominum com- 
munitate." 

2 Id. id., iii. 2, 4: "Alio ergo modo 
consideranda est hominum multitudo, 
quatenus speciali voluntate seu com- 
muni consensu in unum corpus politi- 
cian rongregantur uno societatis vin- 
culo, et ut mutuo se juvent in ordine 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 



345 



This community has the power to transfer its jurisdiction 
to one person, but the nature and form of the authority thus 
created is created by human will. Suarez seems to prefer 
monarchy, but he seems to think that this may often be 
combined with other forms of political authority ; and he 
adds a little later that while a monarchy may be strictly 
hereditary, it also has first been derived from the community, 
and is subject to those conditions under which it was first 
created. 1 

He had already said that political authority was not given 
by God to any one man directly ; he corrects this by 
saying that God had only done this in rare cases, but that 
generally when the Scriptures say that God gave the kingdom 
to some definite person, this only meant that the Divine 
Providence had so ordered or permitted, and this did not 
exclude human action. 2 



ad unnm finem politicum, quomodo 
efficiunt unum corpus mysticum, quod 
moraliter dici potest per se unum ; 
illudque consequentes indigent uno 
capite." 

1 Id. id., iii. 3, 8 : " Communitas 
autem humana potest suum jurisdic- 
tionem transferre in unam personam, 
vel aliam communitatem . . ." 

iii. 4, 1. : " Ex dictis in superiore 
capite possumus aliqua inferre. . . . 
Primum est, quod licet haec potestas 
absoluta sit de jure naturae, determi- 
natio ejus ad certum modum potestatis 
et regiminis est ex arbitrio humano. 
Declaratur ; nam triplex est politica 
gubernatio simplex, Monarchia . . . 
Aristocratia . . . Democratia. Ex 
quibus confici possunt varii modi 
gubernationis mixte, seu composite ex 
illis simplicibus per participationem 
vel omnium, vel duorun ex illis. . . ." 

iii. 4, 3 : " Qua propter necesse est 
ut primus (Rex) habuerit potestatem 
supremam immediate a republics ; 
successores autem illius ab ilia ..^beant 
mediate et radicaliter. Et quia res 
transit ad successorem cum suo 
onere, conditiones illae cum qu bus 



primus rex a republica regnum accepit, 
ad successores transeunt, ita ut cum 
eisdem oneribus regnum habeant." 

* Id. id., iii. 4, 2 : " Ratio ex 
dictis est, quia haec potestas ex natura 
rei est immediate in communitate ; 
ergo ut iste incipiat esse in aliqua 
persona, tanquam in supremo principe, 
necesse est, ut ex consensu com- 
munitatis illi tribuatur. Deinde ex- 
plicatur a sufficiente partium enumera- 
tione : nam haec postestas potest 
intelligi data regibus immediate ab 
ipso Deo, sed hoc, licet aliquando sit 
factum ut in Saul, et Davide, tamen 
illud fuit extraordinarium, et super- 
naturale quoad modum ; iuxta com- 
munem autem, et ordinariam providen- 
tiam non ita fit, quia homines iuxta 
naturae ordinem non revelationibus, 
sed naturali ratione reguntur in his 
quae civilia sunt 

Neque obstat quod scriptura inter - 
dum dicit, Deum dare regna. ... In 
his enim solum significatur, haec omnia 
non fieri sine speciali providentia Dei, 
vel ordinantis vel permittentis. . . . 
Hoc tamen non excludit quin per 
homines fiant." 



346 



THE LATER SIXTEENTH CENTURY. 



[part rv. 



The first important aspect of Suarez' political theory is 
then clear. The community is the ultimate source of all 
political authority, and therefore of Law, and the conception 
that the authority of the prince was directly derived from God, 
while it may have been true in some exceptional cases, was 
not normally true ; normally his authority was derived from 
the community, and was subject to such conditions as the 
community may have imposed. 

We turn to another question when we consider the prin- 
ciples of Suarez with regard to the legislative power of the 
prince when he has been created by the community. It is, 
however, not at all easy to arrive at a quite clear conception 
of his position, and we give our opinion subject to correction. 
In one place he says that the power of making laws belongs 
to all supreme kings, but this is subject to the conditions 
under which the power was given him by the community. 
We must therefore ask whether the consent of the people 
is required when the king makes law. Suarez seems to us to 
answer that in principle, and normally this power belongs to 
the king alone, but custom may require the consent of the 
people. 1 

In another place he says that in some countries the absolute 
power of making laws, as it was said, was not given to the 
king, but that he could only do this with the consent of the 
kingdom, expressed in public assemblies, and this was said 
to be the case in Aragon. But in other countries the power 
of the prince was not thus limited ; and this was the case 
" in perfecta monarchia," for in this the people transferred 



1 Id. id., iii. 9, 2 : " Primo ergo 
constat ex dictis, hanc potestatem 
(eondondi leges) esse in omnibus regibus 
upremis. . . . 

4. Atque hi no sequitur secundo, 
etiam in principe supremo esse banc 
potestatem eo modo et sub ea condi- 
tione, sub qua data est, et translata 
per communitatom. Ratio est clara 
ox superioribus dictis, quia haec est 
veluti conventio quaedam inter com- 
munitatom et principem, et ideo 



potestas recepta non excedit modum 
donationis vel conventionis. . . . Et 
juxta hoc etiam definiendum est, an 
requiritur consensus populi ad ferendas 
hujusmodi leges, quando scilicet, popu- 
lus per reges gubernatur. Nam per 
se loquendo, et jure communi, potestas 
legislative proprie est in solo supremo 
principe. . . . Juxta consuetudinem 
autem, roquiri potest consensus populi, 
saltern quoad acceptionem, de quo 
infra videbimus." 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 



347 



its power absolutely. Suarez seems to mean that this was 
the ordinary character of monarchical authority. 1 

Finally, we must ask what Suarez held about the relation 
of the prince to the law when made, but again it is difficult 
to feel confident that we understand his meaning. He is 
aware that some think that the prince or legislator, whether 
Ecclesiastical or Civil, is bound to obey his own laws ; and 
he seems to mean that it is the will of God that the legislator 
should be bound by his own laws, but he refuses to accept 
the interpretation of the phrase that the prince is " legibus 
solutus " as applying only to some " leges caducarii ' : (as 
Cujas maintained 2 ), and explains it as meaning that the 
prince is exempt from the " vis legum coactiva." 3 

It must, however, be observed that just as St Thomas 
must be understood as meaning that while there was no 
ordinary process of law against the king, the community 
has the right and power to restrain him or, if need be, to 
depose him if he becomes a tyrant, so Suarez had said in an 
earlier passage of this treatise that the king cannot be de- 

1 Id. id., iii. 19, 6 : " In primo similiter amrmari potest, nisi ubi ex 



notanter dixi, ' in supremo legislatore,' 
quia inferior magistrates potest habere 
facultatem limitatum, sub tali vel tali 
limitatione. Imo in aliquibus pro- 
vinces, beet per reges gubernentur, 
dicitur non esse translata in regem 
absoluta potestas ferendi leges, sed 
solum consensu regni in comitiis 
ejus, ut dicitur esse in regno Aragoniae. 
. . . Nam ibi supremus legislator non 
est solus rex, sed rex cum regno. 

Ubi autem tale pactum non inter - 
cessit inter regem et populum, nee de 
illo potest usu aiit scripta lege constare, 
non est data principi potestas cum ilia 
limitatione, sed absolute constituitur 
caput reipublicae. Et ita servatur in 
perfecta monarchia, in quo suprema 
potestas est in imperatore vel rege, vel 
quocunque alio, qui in temporalibus 
non habet superiorem : nam in ilium 
transtulit populus suam potestatem 
absolute et simpliciter, ut ex ordinario 
modo regimen constat, nee aliud veri- 



consuetudine constiterit." 

2 Cf. pp. 315-318. 

3 Id. id., iii. 35, 4 : " Nihilominus 
communis et constans sententia est, 
teneri principem, seu legislatorem, 
tarn civilem quam ecclesiasticum, ad 
servandas suas leges, quando materia 
communis et ejusdem rationis est in ipso 
et in aliis. . . . 

11. Deus autem non solum ut 
auctor gratiae, sed etiam ut auctor 
naturae vult, legislatorem humanum 
non habere potestatem ad ferendas 
leges, nisi cum universali obligations 
illarum, qua totam rempublicam ut 
constantem ex corpore et capite com- 
prehendat." . . . 

27. He repudiates the conception 
that the phrase ' legibus solutus ' only- 
applied to ' leges caducarii.' . . . 

28. " Vera ergo est communis inter- 
pretatio, quae leges has intellegit de 
exceptions principis a vi legum coac- 
tiva." 



348 



THE LATER SIXTEENTH CENTURY, 



[PABT IV. 



prived of his power unless lie becomes a tyrant, but that, if 
this happened, the kingdom could justly make war upon him. 1 

Suarez clearly agrees with Molina in repudiating the theory 
of the " Divine Eight " and recognising that the community 
is the immediate source of all political and legislative authority, 
and has the power to determine the form of this, according to 
its own judgment. But he is not so clear about the question 
whether the community normally retains a share in legisla- 
tion. As we understand him, he inclines to the view that 
normally this belongs to the prince. 

We turn to a more determined constitutional thinker in 
Mariana, also a member of the Society of Jesuits, whose work, 
' De Eege,' was brought out in 1598. He conceived of men 
as having originally been without any fixed order or society, 
but as having been driven into society by their own weakness, 
by their deplorable confusions, and by the crimes of men 
against each other. 2 

The first government of the community was that of a 
king, appointed for his good qualities, and at first there were 
no laws. 3 These were finally made because men doubted 
the justice and impartiality of the prince, while the law 
always speaks with the same voice. Mariana adds an important 
description of law : it is reason drawn from the mind of God, 
and free from all changeableness, which enjoins things honour- 
able and useful, and forbids what is contrary to these. 4 

It must not be thought that Mariana was an enemy of 
monarchy ; on the contrary, he carefully discusses the advan- 
tages and disadvantages of monarchy, and concludes that it 
is the best form of government, provided that it is of a con- 
stitutional kind. 5 We shall deal with the meaning of this in 



1 Id. id., iii. 4, 6 : " Et eadem ratione 
non potest rex ilia potestato privari, 
quia verum illius dominium acquisivit, 
nisi fortasso in lyrnnnidem declinet, 
ob quam possit regnum justum bellum 
contra ilium agere." 

* Mariana, ' De Rege,' i. 1. 

» Id. id., i. 2 (p. 18). 

« Id. id., i. 2 (p. 18): " Scribendi 
leges duplex causa extitit. Principis 



aequitate in suspicionem vocata, quod 
unus vir non praestabat ut pari 
studio omnes complect eretur, ira odio- 
que vacaret : leges sunt promulgatae, 
quae cum omnibus semper at que una 
voce loquereniur. Est enim lex ratio 
omni perturbatione vacua, a mente 
divina hausta, honesta et salutaria 
prescribens, prohibensquo contraria." 
s Id. id., i. 2 (pp. 19-27). 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 349 

a later chapter. In the meanwhile we are concerned with 
the relation of the king to the Law, and on this point Mariana 
says very emphatically that when the monarchy is con- 
trolled by Law, nothing can be better ; when it is free from 
that control, nothing can be worse. 1 

The authority of the king is derived from the people ; it 
is they who determine the laws of succession, and they 
have given him an authority restrained by the laws. 2 And, 
in another place, Mariana says the prince must show an 
example of obedience to the laws : no one may disobey 
them, least of all the king. He may indeed, if circumstances 
require it, propose new laws, may interpret and mitigate old 
ones, and may provide for cases not determined by the law. 
To overturn laws at his pleasure, to show no reverence for 
the customs and ordinances of the country, is the peculiar 
vice of the tyrant ; legitimate princes may not behave as 
though they had obtained an authority free from the laws. 3 
The prince should remember that most laws have not been 
made by the prince, but by the will of the whole common- 
wealth, whose authority in commanding and forbidding 

1 Id. id. id. (p. 23) : " Ad haec, sanctas, quibus publica salus stat, turn 
coustricto legibus prineipatu nihil est demum fore stabiles si suo ipse eas 
melius ; soluto, nulla pestis gravior ; exemplo sanciat. Ita ergo vitam in- 
et est argurnentum oppressae per stituat, ut neque quemquam alium 
tyrannidem reipublicae, cum contemp- plus legibus valere patiatur, eum enim 
tis legibus ad rectoris nutum vertitur." fas jusque legibus contineatur in 

2 Id. id., i. 3 (p. 36) : " Praeser- omni vitae parte, qui leges violat, ab 
tim cum leges successionis mutare non aequitate discedat, et a probitate, 
ejus (regis) sed reipublicae est, quae necesse est ; quod nulli conceditur. 
imperium dedit iis legibus constrictum. Regi multo minus. . . . Licebit 

Id. id., i. 4 (p. 38) : Leges, quibus quidem regibus, rebus exigentibus, 

constricta est successio, mutare nemini novas leges rogare, interpretari veteres 

licet, sine populi voluntate, a quo atque emollire, supplere si quis 

pendent jura regnandi. eventus lege comprehensus non est. 

Id. id., i. 5 (p. 44): Rex quam a Pro suo tamen arbitratu leges invertere, 
subditis accepit potestatem, singulaii ad suam libidinem et commodum 
modestia exercit. . . . Sic fit, ut referre quae agit omnia, nulla moris 
subditis non tanquam servis dominetur, patrii institutorumve reverentia, pro- 
quod faciunt tyranni sed tanquam prium tyrannorum esse vitium credat : 
liberis praesit : et qui a populo potes- neque in legitimos principes cadere ita 
tatem accepit." se gerere, ut legibus solutam potesta- 

3 Id. id., i. 9 (p. 79) : " Postremo tem obtinere et exercere videantur." 
sit principi persuasum, leges sacro- 



350 THE LATER SIXTEENTH CENTURY. [PART IV. 

is greater than that of the prince, and as the prince must 
obey the laws, he may not change these without the consent 
and decision of the whole body (" universitas "J. 1 

In another chapter, which deals more generally with the 
relation of the authority of the king to that of the common- 
wealth, he not only contends that the authority of the king 
is limited by the laws, but refers to the constitution of Aragon 
as providing a special officer, the " justitia," who had 
been created for the purpose of restraining the king by 
the authority of the law, and even as sanctioning the 
principle that the chief men could meet together without 
the knowledge of the king for the purpose of maintaining the 
laws and defending their liberty. 2 

We turn to a greater, more massive, more restrained political 
thinker in Eichard Hooker. It may indeed be doubted 
whether any political thinker of the sixteenth century is 
equal to him in breadth and justice of thought. It is true that 
his work was concerned primarily with law as related to the 
Church and Church order, but, like Gratian and Aquinas, he 
recognised that it was impossible to form an adequate con- 
ception of Church law without taking into account the prin- 
ciples of law in general. It is true also, as we shall point out in 
later chapters, that he said much which is of great import- 

1 Id. id., i. 9 (p. 81): " Praeser- subditorum perniciem, degoneretque 

tim, quum plures leges non a prineipe in tyrannidem. . . . Idem recentiori 

latae sint, sed universae reipublicae memoria in Hispania Aragonii prae- 

voluntate constitutae : cujus major siterunt, studio tuendao libertatis acres 

auctoritas jubendi vetandique est et incitati, nequo ignari a parvis initiis 

raajus imperium quam principis ; si multum imminui jura libertatis. Med- 

vera sunt, quae supcriore disputatione ium itaquc magistratum crearunt, 

posuimus. Atque iis legibus non modo tribunitiao potestatis ad instar (vulgo 

obediro princeps debet, sed neque eas hoc tempore Aragoniae Justitia dieitur) 

mutare licebit, nisi universitatis eon- qui legibus, auctoritate et populi 

eensu certaque sententia." studiis armatus regiam potestatem 

8 Id. id., i. 8 (p. 69): "Me tamen certis hactenus iinibus inclusam tenuit ; 

auctore, quando regia potestas, si legi- ac proceribus praesertim erat datum, 

tirna est, a civibus ortum habet, iis con- ut fraudi non esset, si quando inter 

cedentibus primi reges in quaque ropub- ee consilio communieato per causam 

lica in rerum fast igiocollocati sunt ; cam tuondarum legum, defendendae libcr- 

legibus et sanctionibus circumscribent tatis, inscio rege, conventus haberent." 
ne sese nimie cfferat, luxuriet in 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 351 

ance with regard to the political order in general, but his 
conception of this is dominated by his conception of law. 

Hooker was a great and independent thinker, but his 
independence consisted not in ignoring the past and the 
great political writers of the past, but in gathering together 
and putting into clear and intelligibly ordered form the 
principles and implications of the past, not as one who was 
bound and restricted by its authority, but as one who thought 
out again for himself the great principles and traditions of 
mediaeval society. For it is indeed perhaps the most inter- 
esting aspect of his work that he repeated, restated, and 
enlarged the normal conceptions of the political civilisation 
of mediaeval Europe and handed them down to the modern 
world. 

It is, we think, clear that it is from St Thomas Aquinas 
that, directly or indirectly, Hooker took the analysis of the 
general nature of law, and he therefore accepted the division 
of law in the most general sense into the Eternal Law of God, 
the Natural Law, the Divine Law, and Human Law. 

His definition of the Eternal Law is : " This law therefore 
we may name Eternal, being that order which God, before 
all ages, has set down with Himself to do all things by." 1 
This law is not a mere command of God's will, but the ex- 
pression of His wisdom. " They err therefore who think of 
the will of God to do this or that, there is no reason besides 
His will . . . That law Eternal which God Himself hath made 
to Himself . . . that law in the admirable frame whereof 
shineth with most perfect beauty, the countenance of that 
wisdom which hath testified concerning herself. ' The Lord 
possessed me in the beginning of His way, even before His 
works of old I was set up.' " 2 

This is clearly in substance the same judgment as that of 
St Thomas Aquinas : " Et secundum hoc, lex eterna nihil 
aliud est, quam ratio divinae sapientiae, secundum quod est 
directiva omnium actuum, et motionum." 3 

1 R. Hooker, ' Of the Laws of 3 St Thomas Aquinas, ' Summa 
Ecclesiastical Polity,' i. 2, 6. Theologies,' i. 2. 93, 1. 

2 Id. id., i. 2, 5. 



352 THE LATER SIXTEENTH CENTURY. [PART IV. 

When Hooker turns to the Natural Law he follows the 
same tradition by saying that while all things were governed 
by the Eternal Law, the relation to this of the rational crea- 
ture differed from that of the unrational. 1 By the law of 
nature, therefore, Hooker means the law which man's reason 
recognises as binding upon him ; and it might properly be 
called the law of reason. 2 This is practically the same as 
Aquinas' " lex naturalis nihil aliud est quam participatio 
legis aeternae in rationali creatura." 3 

We go on to the question of human law. This brings us 
to the conception of the nature and purpose of the Common- 
wealth or State. Hooker's conception of the origin of political 
society is expressed in a well-known passage : " The laws 
which have been hitherto mentioned (i.e., the Natural Laws) 
do bind men absolutely even as they are men, although they 
have never any settled fellowship, nor any solemn agreement 
among themselves what to do or not to do. But, forasmuch 
as we are not by ourselves supplied with competent store of 
things needful for such a life as our nature doth desire, a life 
fit for the dignity of man, therefore, to supply the defects 
and imperfections which are in us, living single and solely 
by ourselves, we are naturally inclined to seek communion 
and fellowship with others. This was the cause of men's 
uniting themselves in politic societies, which societies could 
not be without government, nor government without a dis- 
tinct kind of law from that which hath been already declared. 

Two foundations there are which bear up public societies : 
the one, a mutual inclination, whereby all men desire sociable 
life and fellowship ; the other, an order expressly or secretly 
agreed upon, touching the manner of this union in living 
together. The latter is that which we call the law of a common 
weal, the very soul of a politic body, the parts whereof are 
by law animated, held together, and set on work in such 
actions as the common good requireth. 

Laws politic, ordained for external order and regiment 
amongst men, are never framed as they should be, unless 

1 Hooker, id., i. 3, 1. luinas, 'Sum. Theol.,' i. 2. 91, 2. 

* Id. id., i. 8, 4, 8 and 9. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 353 

presuming the will of man to be inwardly obstinate, rebellious, 
and averse from all obedience imto the sacred laws of his 
nature ; in a word, unless presuming man to be, in regard of 
his depraved mind, little better than a wild beast, they do 
accordingly provide, notwithstanding, so to form his outward 
actions, that they be no hinderance unto the common good 
for which societies are instituted : unless they do this, they 
are not perfect." x 

If we add to this passage another which follows a little 
later, we have a fairly complete view of Hooker's conception 
of the origin and purpose of political society. " We all make 
complaint of the iniquity of our times ; not unjustly, for the 
days are evil. But compare them with those times when 
there were no civil societies, with those times when there 
was as yet no manner of public regiment established, with 
those times wherein there were not above eight persons 
righteous living upon the face of the earth ; and we have 
surely good cause to think that God hath blessed us exceed- 
ingly and hath made us behold most happy days." 2 

Hooker's statement has a little of Cicero's conception of 
the naturally sociable disposition of men, something also of 
Aristotle, that the State is necessary for the good life, but 
also very clearly it represents the Stoic and Patristic tradition 
of the coercive State as the necessary remedy for the Fall ; 
and it is interesting to observe that Hooker thinks of the 
period between the Fall and the Flood as illustrating the 
lamentable disorder which followed from the absence of this. 

The character of human nature in Hooker's view requires 
government and law. How then were these created ? He 
sets aside very emphatically the notion which was later 
developed in a somewhat absurd work of Sir Eobert Filmer, 
that political authority was related to that of the father of a 
family. " To fathers within their private families nature has 
given a supreme power. . . . Howbeit over a whole grand 
multitude having no such dependence upon any one . . . im- 
possible it is that any should have complete lawful power, but 
by consent of men, or immediate appointment of God ; 

1 Id. id., i. 10, 1. « Id. id., i. 10, 3. 

VOL. VI. Z 



354 THE LATER SIXTEENTH CENTURY. [PART IV. 

because, not having the natural superiority of fathers, this 
power must needs be either usurped and thus unlawful ; or 
if lawful, then either granted or consented unto by those 
over whom they exercise the same, or else given extraordinarily 
from God, unto whom all the world is subject." 1 And, 
equally emphatically, Hooker derives all political authority 
from an agreement among men to set up some " government 
public," to which they granted authority to rule and 
govern. 

" To take away all such mutual grievances, injuries, and 
wrongs, there was no way but only by growing unto com- 
position and agreement amongst themselves, by ordaining 
some kind of government public, and by yielding themselves 
subject thereunto ; that, unto whom they granted authority 
to govern, by them the peace, tranquillity, and happy estate 
of the rest might be procured. . . . Without which consent 
there were no reason that one man should take upon him 
to be lord or judge over another ; because, although there 
be, according to the opinion of some very great and judicious 
men, a kind of natural right in the noble, wise, and virtuous, 
to govern those which are of servile disposition ; nevertheless, 
for manifestation of this, their right, and men's more peace- 
able contentment on both sides, the assent of those who are 
governed seemeth necessary." * 

Hooker here represents the normal conception of the 
Middle Ages, which had been only reinforced by the revived 
study of the Roman Law, that all political authority is in 
some sense derived from the community. He seems here 
also to suggest that behind this grant of authority by the 
community there lies some agreement or " contract " between 
men to form a political community, the conception with which 
we are familiar in Hobbes and Locke. 

Hooker thinks that at first the government was left in the 
hands of one man, but men soon began to feel the incon- 
venience of this. " They saw that to live by one man's will 
becomes the cause of all men's misery. This constrained them 
to come unto laws, wherein all men might see their duties 

» Id. id., i. 10, 4. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 355 

beforehand, and know the penalties of transgressing them." 1 
We have already seen this opinion as expressed by Buchanan 
and Mariana. 2 

This leads Hooker to consider more fully the nature of 
law and its coercive authority, for " laws do not only teach 
what is good, but they enjoin it ; they have in them a certain 
constraining force." 3 He makes a distinction, a very im- 
portant distinction, between those whose function it is to 
" devise " laws and those who give them coercive authority. 
It is the wise men by whom laws should be " devised." 
Men of ordinary capacities are not competent to do this, 
but it is not the wisdom of these " devisors " which gives 
these laws coercive authority. This can only be given by the 
whole community, for, " by the natural law, to which God 
has made all men subject, the power to make laws belongs to 
the whole community, and therefore it is mere tyranny for 
any prince to take this upon himself, unless he has received 
this authority from the community, or immediately and 
personally from God Himself." " Laws they are not, therefore, 
which public approbation hath not made so." 4 

He is indeed careful to add that the community may 
give its consent, not directly but by representation, "as in 
Parliaments, Councils, and the like Assemblies, although we 
be not personally ourselves present, notwithstanding our 
assent is by reason of other agents there in our behalf " ; and 
he extends this even to the position of an absolute king, on 
the assumption that he had received his authority from the 
community ; and this authority continues so long as it is 
not revoked by the same authority as that which gave it. 
" Laws, therefore, human, of what kind soever, are available 
by consent." 5 

Hooker's words do not suggest a direct reference to any 
one political writer, but it seems to us reasonable to say 
that his very careful but dogmatic judgment is founded, first, 
upon the doctrine of the Roman Law that the legislative 

1 Id. id., i. 10, 5. « Id. id., i. 10, 7 and 8j 

2 Cf. pp. 332, 348. » Id. id., i. 10, 8. 
2 Id. id., i. 10, 7. 



356 THE LATER SIXTEENTH CENTURY. [PABT IV. 

power is derived from the " populus " (i.e., the community) ; 
while his conception of the place of the wise men in " devising " 
Law may be related to the terms of the famous definition of 
Papinian. 1 In the second place, it is probably related to the 
saying of St Thomas Aquinas that the power of making laws 
belongs either to the whole multitude or to him who " gerit 
vicem " and has the care of the whole multitude. 2 

Hooker's statement is drastic aud far-reaching ; if his 
principle that it is the community, and only the community, 
which can give the Law its coercive power, is derived from 
the Eoman Law, he is explicitly and dogmatically generalising 
this principle as applying naturally to all political societies, 
as in the famous phrase we have just quoted : " Laws they 
are not, which public approbation hath not made so." 

In a later Book of the ' Ecclesiatical Polity ' he again deals 
with this subject, and in one place he cites the well-known 
words of Bracton : " Attribuat lex legi, quod lex attribuat ei, 
potestatem et dominium," and " Eex non debet esse sub 
homine, sed sub Deo et lege." 3 Hooker admits, indeed, that 
there are different kinds of kingdoms, some by conquest, 
some by " agreement and composition " ; and in this last 
case the authority depends upon the nature of the agreement ; 
but he concludes : " Happier that people where Law is their 
king in the greatest things, than that whose king is himself 
the Law," and " Most divinely therefore Archytas maketh 
unto public felicity these four steps . . . 6 fxev fiaaiXevs 
vo/xi/mos, 6 Be apx<*v a/co\ov8o<;, 6 8e «p%o/ievo<? iXevOepo?, << 
b oka Koivwvia evoaificav. 

These are Hooker's general principles, but it is important 
to observe that he applies them specially to England. In a 
passage which follows immediately upon that just cited, he 
says : " In which respect, I cannot choose but commend 
highly their wisdom, by whom the foundations of this common- 
wealth have been laid ; wherein, though no manner person 

1 ' Digest,' i. iii. 1 : " Lex est sio." 

commune preceptum, virorum pru- * St Thomas Aquinas, ' Summa 

dentum consultum, dolictorum quae Thoologica,' i. 2. 90, :s. 

sponte vel ignorantia contrahuntur s Hooker, viii. 2, 3. 

eoercitio, communis roipublicae spon- * Id. id., viii. 2, 12. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 357 

or cause be un-subject to the king's power, yet so is the power 
of the king over all and in all, limited, that unto all its pro- 
ceedings the Law itself is a rule. The axioms of our royal 
government are these : ' Lex f acit regem, ' the king's grant 
of any favour made contrary to the law is void ; ' Eex nihil 
potest, nisi quod jure potest.' Our kings, therefore, when 
they take possession of the room they are called unto, have 
it painted out before their eyes, even by the very solemnities 
and rites of their inauguration, to what affairs by the said 
law their supreme authority and power reacheth." x 

And again, in a passage which is primarily related to 
Church Law in England, but has a general application : " The 
Parliament of England, together with the Convocation 
annexed thereunto, is that whereupon the very essence of 
all government within this kingdom doth depend ; it is even 
the body of the whole realm, it consisteth of the king and of 
all that within the land are subject to him, for they are all 
there present, either in person, or by such as they volun- 
tarily have derived their power unto. . . . Touching the 
supremacy of power, which our Kings have in the case of 
making laws, it resteth principally in the strength of a nega- 
tive voice ; which, not to give them, were to deny them that 
without which they were but Kings by mere title, and not 
in exercise of dominion. . . . Which laws, being made amongst 
us, are not by any of us so taken or interpreted, as if they 
did receive their force from the power which the Prince doth 
communicate unto the Parliament, or to any other Court 
under him, but from power which the whole body of the 
Eealm, being naturally possessed with, hath by free and 
deliberate assent derived unto him that ruleth over them, so 
far forth as hath been declared." 2 

Finally, we must consider the treatment of the source and 
authority of Law as it is presented by that most important 
jurist of Lower Germany, Johannes Althusius, whose work, 
first published in 1603, was for a long time almost forgotten, 
but was recovered by Professor von Gierke, and which again 

1 Id. id., viii. 2, 13. 2 Id. id., viii. 6, 11. 



358 



THE LATER SIXTEENTH CENTURY. 



[PAST IV. 



serves to bring out very clearly the fact that the conception 
of an ordered or constitutional liberty was not asserted merely 
by controversial writers like George Buchanan or Mariana, 
or the pamphleteers of the Huguenot Party and the Catholic 
League in France, but by a writer learned, judicious, and 
measured in his thought and in his language, who also, like 
Hooker, sets out, not only philosophical principles, but 
also what he conceived to be the actual constitutional system 
of a great country. For, as Hooker finds an embodiment of 
the principles of a free and ordered society in the English 
constitution, Althusius finds the same in the Government 
of the German Empire and of the States and cities which 
formed it. 1 

In order to understand Althusius' conception of Law, we 
must observe his conception of the nature and origin of 
political society. He accepts the Aristotelian principle that 
a solitary man is not capable of a self-sufficing life, but also 
traces the origin of political society to an express or tacit 
contract between those who are to live together. He accepts 
the Ciceronian definition of the people as being a society of 
men living under a common system of law, and working for 
the common good. The object of the government of society 
is the common good, and its final end is a life in which men 
quietly and rightly serve God. 2 

Althusius accepts the Aristotelian conception of the neces- 
sity of society, but he also clearly asserts that the formation 
of political society rested upon the contract or agreement 
between those who formed it. The statement of this con- 
ception is interesting and important in relation to the political 



1 Our citations from Althusius are 
taken from the text of the edition of 
his work published in 1614, and re- 
cently republished by Professor C. I. 
Friedrich of Harvard University, and 
we desire to express our obligations 
to him for having made this edition 
oasily accessible to students. We 
follow his numeration of paragraphs 
in each book. The scope of our work 
does not allow us to deal with the 



political theory of Althusius as com- 
pletely as we should desire, but that 
is t he loss necessary because Professor 
von Gierke has handled the subject in 
a masterly and comprehensive fashion 
in his work, 'Johannes Althusius und 
die Entwicklung der naturroeht lichen 
Staatstheorien.' 

- Althusius, ' Politica methodioe 
digesta,' i. 3, 4, 7, 19, 30. 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 



359 



theory of the seventeenth and eighteenth centuries, but it 
belongs rather to those times than to the history of mediaeval 
political theory, and we refer our readers to the discussion 
of this subject by von Gierke in his ' Althusius,' especially 
Part II., Chap, ii., 2. 

We turn to what is here properly our subject when we con- 
sider Althusius' conception of law and its place in the State. 
The administration and government of the commonwealth, 
he says, is nothing else than the execution of the Law, and 
he illustrates this principle by citing Aristotle as saying that 
there is no commonwealth where the Laws are not supreme ; 
and again, the supremacy of the Law is the supremacy of 
God, while that of a man is the supremacy of a beast. 
Cicero calls the magistrate the servant and interpreter of the 
law ; we are all servants of the law that we may be free ; 
Plato says that the Law is queen, and should control not 
only the other citizens but kings themselves. 1 In another 
place Althusius says that the magistrates are bound by the 
civil laws of the kingdom and of the " Majestas." The 
magistrate may be called a living law for he does nothing 
except by the Law's commands. 2 

It is important to observe that from these principles 
Althusius draws the conclusion that it was right to say 
that the magistrate is not " legibus generalibus solutus " ; 
he is not free from either the natural law or the civil laws. 
Althusius was, of course, aware that many thought differently, 
but he is only willing to concede that the prince was in such 



1 Id. id., xxi. 16 : " Sic itaque 
administratio et gubernatio reipub- 
licae, nihil aliud est quam legis 
executio. . . . 

17. Aristotle Lib. Pol. iv. 4 : Res- 
publica nulla est ubi leges non tenent 
imperium ! Cicero Pro Cluentio. Legum 
ministri magistratus, legum interpretes, 
judices, legum denique idcirco omnes 
servi sumus ut liberi esse possimus. 
. . . Arist. Lib. iii. Polit. dicit, eum 
qui legem praeesse jubet, deum prae- 
esse jubet, qui hominem, bestiam. . . . 
Plato : Epist. vii. " Lex regina esse 



debet, ac dominari, non aliis tantum 
civibus sed ipsis etiam regibus." 

2 Id. id., xxiv. 48 : " In adminis- 
tratione hac sua, magistratus obligatus 
est legibus Decalogi . . . atque civili- 
bus regni et Majestatis legibus . . . 
ad quas tanquam ad cynosuram, nor- 
mam et regulam, omnia negocia admiu- 
istrationis suae referre debet. . . . 
Unde magistratus lex viva, exsecutor, 
custos et minister legis dicitur ; qui 
nihil nisi lege jubente velit, faciat, vel 
omittat, ut recte dicit Vasquez, c. 14 
d. Lib. 1." 



360 THE LATER SIXTEENTH CENTURY. [PART IV. 

a sense exempt from the penal laws, that he was not to 
be punished unless he violated the fundamental laws, and 
his own agreement with the people ; and Althusius refers to 
Cujas as holding this opinion. 1 The prince cannot do any- 
thing against the law of the commonwealth, for the law is 
of the nature of a contract by which the prince is bound, 
and the authority which the people have conferred upon the 
prince is by its own nature limited to that which is for the 
good of the citizens. 2 We shall return to the subject of the 
contract between the prince and people in the next chapter ; 
in the meanwhile it is worth while to observe that Althusius 
conceives of the Law as having this character. We have 
seen this conception in writers of the fourteenth and fifteenth 
centuries. 3 Althusius admits, indeed, that the prince is 
" legibus solutus," but only in the sense that the Law may 
in some cases give him the right of " dispensation." 4 

In order, however, to appreciate fully Althusius' principle 
of the supremacy of law over the prince, we must consider 
his conception of the " Majestas " or sovereign power in the 
commonwealth. It is probable that he takes this term from 
Bodin, 5 ^and he agrees with him in interpreting it as meaning 
that authority which recognises no other as equal or superior 
to itself. 6 So far he does not differ from Bodin, but, having 

1 Id. id., xxiv. 49: "Qua dc causa i. 3, 1) . . . ex quo contractu princeps 
recte dicitur, magistratum non esse obligatur. . . . Ergo concessio imperii 
legibus generalibus solutum . . . non a populo principi facta etiam verbis 
tantum naturalibus sed etiam eivilibus. generalissimis, ex materia, subjecta, 
. . . Dissentiunt plurime, per I. 31. limitata, et restricts est ad meram 
Do Legibus ('Dig.,' i. 3, 31) quae utilitatem civium." 

tamen non obstat, si earn intelligis do 3 Cf. Part I. c. 2 ; Part II. c. 2. 

legibus poenariis, quibus magistratus ' Id. id., xxiv. 50 : " Princeps 

est solutus, non respectu obligationis, etiam solutus est legibus in casibus, in 

eed executionis. Nam si dcliquorit (at quibus jus ipsi dispensationem con- 

non contra leges fundamentals et con- cedit." 

ventionem propriam cum populo 6 For the discussion of Bodin's 

initam), non punitur. Cujas. Lib. 36, position, cf. Chap. III. 

Obs. c. 35." s Id. id., ix. 15 : " Ideo potestas 

2 Id. id., xxiv. 50 (The princo imperandi universalis dicitur, quae 
cannot do anything ngnin^i the law aliam superiorem vel parem aut 
of the State): "Turn quia lex est sociam non agnoscit. Atque ! 
contractus, 1. 1, ibi. communis reipub- supremum jurisdictions universalis 
licae sponsio, de legibus {i.e., ' Dig.,' jus, est forma et substantialia essentia 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 361 

said this, he begins to develop a sharply marked contradiction 
of Bodin's theory. No single persons, he says, can receive 
this complete authority (" plenitudo potestatis ") ; they must 
recognise that it lies in the consent and agreement of the 
associated body. 1 

We must turn to a long passage in which Althusius draws 
out his own conception in opposition to that of Bodin. Bodin, 
he says, contradicted the principle that the supreme power 
belonged to the whole community. He begins by pointing out 
that even Bodin admits that the supreme power is subject to the 
Natural and Divine law ; and he urges that a really absolute 
power would be a mere tyranny. He refuses dogmatically to 
attribute the supreme power to the king or the " optimates," 
and maintains that it can belong only to the whole body of 
the " universal " association — that is, to the commonwealth 
or kingdom, for it is from this body that, after God, all legiti- 
mate authority comes. The king, princes, or " optimates " 
recognise that the commonwealth by which they are set up 
or removed is superior to them, and that they are bound 
by a contract to obey it. The king, therefore, has no supreme 
and perpetual power which is free from the law, and does not 
hold the " Jura Majestatis," but only, and that by the grant 
of the society, the administration of these. The monarch 
therefore must render an account of his administration and 
may be deposed. 2 

Majestatis, seu majoris illius status quod regni jus appellavimus, dicit e3se 

quern diximus, quo sublato, vel ad- summam et perpetuam potestatem, 

empto Majestas ilia coneidit." nee lege, neque tempore definitam, 

1 Id. id., ix. 19 : " Administrators quam majestatis affectionem late ex- 
potestatis hujus plures esse possunt, ita plicat Bonnet. Lib. 1, ' De Maj estate 
ut singuli, impositae solicitudinis, non Politica.' Ego in eo, quo Bodinus haec 
in plenitudinem potestatis adsumantur. sensu accipit, nullum horum requisitum 
. . . Et singuli hi non habent penes so genuinum in jure hoc Majestatis ag- 
supremam potestatem, sed omnes simul noseo. Non enim est summa potesta*, 
unam agnoscant in consociatorum cor- non perpetua, neque lege soluta. 
porum consensu et concordia." 21. Summa non est, quia legem 

2 Id. id., ix. 20 : " Huic sententiae divinam naturalemque agnoscat omnis 
nostrae, qua regno seu universali con- humana potestas, arg. Rom. c. 13. 
sociatione summa potestas tribuitur, Minister Dei est tibi in bonum. Si 
contradicit Bodinus Lib. 1, c. 5, ' De minister Dei est, ergo contra Domini 
Repub.' Ibi enim ille jus Majestatis, sui mandantis prescripta nihil facere 



:m 



THE LATER SIXTEENTH CENTURY. 



[PART IV. 



We have dealt with this aspect of political theory in the 
sixteenth century at some length, for, as it seems to us, the 
conception of the nature and authority of law was still, as in 
the Middle Ages, the most important element of political 

Corpus igitur hoc consociatum, rex, 



potest. . . . Absoluta vero summa, et 
legibus omnibus soluta potestas tyrannis 
dieitur. . . . Remota, ait (Augustinus) 
justitia, quid sunt regna nisi magna 
latrocinia. In quo quidem, nee 
Bodinus a nobis dissentit . . . Quaes- 
tio igitur nobis est, de civili lege et 
jure, an huic etiam imperium et fasces 
subijiciat, qui summam dieitur habere 
potestatem. Negat Bodinus, et plur- 
imi alii cum eodem. Erit igitur ex 
horum sententia summa potestas quae 
civili lege non est definita ; quod ego 
non dixerim. Nam lege civili potesta- 
tem solvere, est etiam aliquatenus 
naturalis et divinae legis vinculis 
eandem exuere. Nulla enim est, nee 
esse potest, lex civilis quae non aliquid 
naturalis et divinae aequitatis im- 
mutabile habeat admixtum. . . . Quod 
si igitur lex civilis generalis a principe 
lata est aequa et justa, quis eundem 
ab obligatione istius legis solvere 
potest ? . . . Quatenus vero lex ilia 
civilis in quibusdam discedit a naturali 
aequitate . . . fatebor, eum qui sum- 
mam habet potestatem, nee superiorem 
nisi Deum et naturalem equitatem et 
justitiam agnoscit, ilia lege non 
teneri. . . . 

22. Atque in hoc sensu accepta 
lege, soluta summa potestate, concedo 
in sententiam Bodini . . . Cujacii . . . 
et aliorum jurisconsultorum. Sed 
hanc summam potentiam nequaquam 
possum tribuere regi aut optimatibus, 
quam sententiam tamen Bodinus acer- 
rimo propugnare conatur, sed jure, ilia 
tantum corpori universalis consocia- 
tionis nimirum reipublicae vel regno, 
tanquam propria est odscribenda. Ab 
hoc eorpore, post Deum, profluit omnis 
poteslas legitima, in hos, quos reges, 
optimatesve vocamus, 1. 1. Do 
Const. Prin. ('Dig.,' i. 4, 1). . . . 



princeps, optimatesve supenus ag- 
noscunt, a quo iidem constituntur, 
removentur, dejiciuntur, et exauctor- 
antur, sicuti latius probaverim in 
dictis locis. 

Quis vero summam dicit potestatem, 
quae superiorem agnoscit aliam ? Quod 
et Bodinus probat. Quis lege solvet 
eum, in quam ipsemet consensit, et 
ad cujus obedientiam se per modum 
contractus obligavit. . . . 

23. Quantacunque enim est potestas, 
quae alii conceditur, semper tamen 
minus est ejus potestate, qui eandem 
concessit, et in ea praeeminentia et 
superioritas concedentis reservata in- 
telligitur. . . . Unde efficitur, regem 
summam, perpetuam, legeque solutam 
potestatem non habere, et per conse- 
quens nee illius jura Majestatis esse 
propria, quamvis eorundem adminis- 
trationem et exercitium ex corporis 
consociati concessione habeat. . . . 

24. Quod si igitur etiam secundum 
Bodinum duplex est Majestas, regni 
et regis, quaero, utra ex hisce, sit 
altera major et superior ? Negari non 
potest, illam majorem esse, quae 
alteram const ituit, quaoque immortalis 
est in subjecto suo, populo scilicet, et 
alteram minorem, quae in unius per- 
sona consistit et cum eadem moritur. 
. . . Unde fit, ut etiam summus mon- 
archa rationem reddere teneatur ad- 
ministrationis suae . . . atque etiam 
exauctorari possit. . . . Sed infert 
Bodinus : Inanis est potentia regis . . . 
si comitiorum ac populi jussis tenetur. 
. . . Atque hoc modo incipiet ease 
aristocrat ia vel democratia, quae ante 
erat monarchia. Negamus hoc, et 
Bodini opiniones allatas in c. 39, ubi 
de monarchae potestate dieitur, re- 
fulamus." 



CHAP. I.] THE SOURCE AND AUTHORITY OF LAW. 363 

theory, and it will, we hope, be clear that the mediaeval 
principle of the supremacy of law was still asserted and 
understood. 

We shall in a later chapter inquire how far there had also 
developed in the sixteenth century a conception that the 
king was absolute and above law. 



364 



CHAPTER II. 

THE PRINCE UNDER THE LAW. 

We have, in the last chapter, considered some aspects of the 
conceptions of the source and authority of law, that is, of 
those who were clear that the law was greater than the ruler. 
We shall, in a later chapter, discuss the position of those who 
look the opposite view. But, before we do this, we must 
deal with the conceptiou of the source and nature of the 
authority of the prince. 

We think it will be found to make for greater clearness if 
we treat this subject under the following heads : (1) The 
Source of the Authority of the Euler ; (2) The Conception 
of a Sovereign Power behind the Euler ; (3) The Eelation 
of the Euler to the Courts of Law ; (4) The Theory of the 
Contract between the Euler and the People ; (5) The Eight 
to resist, and even to depose the Euler ; (6) The Magistrates 
or Ephors. 

(1) The Source of the Authority of the Euler. — There is 
no need to discuss this at any great length, for while there were 
a few, with whom we shall deal in a later chapter, who trace 
the authority of the king to the direct appointment of God, 
these were quite exceptional. The great mass of opinion was 
clear, that is, that while God was the ultimate source of all 
authority, the immediate source was the Community itself, 
and it should be remembered that this judgment was con- 
firmed by the whole tradition of the Roman Law and by the 
mediaeval and contemporary Civilians. 

This was the current opinion, apart entirely from the politi- 
cal controversies of the time. We may begin by observing 



CHAP. II.] THE PRINCE UNDER THE LAW. 365 

again the words of the Spanish Dominican, Soto, the Con- 
fessor of Charles V. and Professor at Salamanca. The public 
civil authority is the ordinance of God, the commonwealth 
creates the prince, but it was God who taught men to do this. 1 
We find the same principle stated by his Dominican con- 
temporary and colleague in Salamanca, Franciscus Victoria, 
in the terms of a careful distinction between " Potestas " 
and " Authoritas." The Eoyal " Potestas " is not derived 
from the commonwealth, but from God Himself, for though 
he is established by the commonwealth, for the common- 
wealth creates the king, it transfers not " Potestas " but its 
own " Authoritas " to him. 2 

The same judgment is expressed by such a careful and 
experienced politician as Sir Thomas Smith. In a passage 
already cited, he contrasts the king and the tyrant, not only 
with reference to their relation to the law, but also to the 
source of his authority. The king is one who has attained 
the royal power by hereditary succession or by election, with 
the consent of the people, while the tyrant is one who has 
obtained power by force, and without the consent of the 
people. 3 

We have cited these opinions, not as being in themselves 
very important, but merely as illustrations of what we think 
was the normal opinion, apart from the controversies of the 
later part of the century. When we pass to those who wrote 
under these later conditions, we naturally find all this much 
more sharply asserted. George Buchanan, for instance, in 
his work, ' De Jure Eegni apud Scotos,' which is in the form 

1 Soto, ' De Justitia et Jure,' iv. 4, 1 respublica regem), non potestatem, sed 
(p. 309) : " Ecce quemadmodum propriam authoritatem in regem trans- 
publica civilis potestas ordinatio Dei fert." 

est ; non quod respublica non creaverit 3 T. Smith, ' De Republica Anglo- 

piineipos, sed quod id fecerit divinitus rum,' I. 7 : " Rerum summam ad 

erudita." unum aliquem delatam potestatem, 

2 Franciscus Victoria, ' Relationes regiam esse perhibent, qui vel natalium 
de Potestate Civili,' viii. : " Videtur splendore, vel suffragiorum prerogativa, 
ergo quod regia potestas sit non a per consentientem populi voluntatem, 
republica, sed ab ipso Deo, ut Catholici earn adeptus. . . . Tyrannum appel- 
doctores sentiunt. Quamvis enim a lant, qui per vim absque consensu 
republica constituatur (creat namque populi nactus principatum." 



366 THE LATER SIXTEENTH CENTURY. [PART IV. 

of a dialogue between himself and " Metellanus " (Maitland), 
in asserting the subordination of the King of Scotland to the 
laws, maintains that though the kings of Scotland received 
the throne by hereditary succession, they were created by 
the laws and the will of the people just as much as those 
kings who were elected. 1 

The Huguenot writers of the period between 1573 and 1580 
set out this conception in different ways. Hotman does this, 
with reference primarily to history, in his work ' Franco 
Gallia,' originally published in Latin in 1573. 2 We are not 
here concerned with the historical value of his contentions 
about the nature of the Merovingian and Carolingian mon- 
archies, but only with the conclusions which he drew from 
his study of history. He contended that the supreme 
authority in the time of these monarchies belonged to the 
general assembly of the whole people, which he relates to the 
States General of later times, 3 and that it was this assembly 
which elected and deposed kings. 4 He gives a number of 
examples of the authority of the States General, including a 
statement that it was the States General which decided 
between the claims to the French crown of Edward III. and 
Philip of Valois. 5 In one place he says roundly that the 
" Concile des Btats " (the States General) had the power to 
elect and to depose kings, and to entrust the administration 
of the kingdom during a minority to such a person as it thought 

best. 6 

The treatise entitled ' La Politique, Dialogue d'Archon et 
de Politie,' published in 1576, 7 has a very high conception of 
monarchy, and speaks of the Prince as the Image and Vicar 
of God ; but if he has this character, he must also represent 
the goodness and justice of God. 8 Hereditary succession or 

1 Goorge Buchanan, ' De Jure Regni ' electos." 
(p. 26) : " B. Equibus omnibus facile 2 Cf. Allen, op. cit. (p. 309). 

intelligi potest, qualem a majoribus 3 Hotman, ' Franco Gallia,' x. (page 

acceperunt potest atem : non aliam 647). 
videlicet, quarc qui euffragiis electi in * Id. id., xi. (p. 661). 

leges jurant. . . . Illud autem, opinor, 6 Id. id., xvii. (p. 701). 

vides qui nascuntur nobis rcges, eos et • Id. id., xx. (p. 712). 

legibus et populi suffragio creari, non 7 Cf. Allen, op. cit. (p. 314). 

minus quam quos ab initio diximus 8 - La Politique,' &c. (p. 90). 



CHAP. II.] THE PRINCE UNDER THE LAW. 367 

election are both tolerable : the best is to combine the two, 
but even in the case of those who hold by hereditary succession 
the peoples who have the right to place magistrates over them- 
selves have also the right to depose them. 1 The best known 
of these works, the ' Vindiciae Contra Tyrannos,' published in 
1577, also speaks of kings as the Vicars of God, 2 and says 
that it is God Who has " instituted " kings, but it is the 
people who constitute them, who bestow kingdoms and 
approve their election. Kings must remember that they 
reign " a Deo sed per populum et propter populum." There- 
fore if in some countries kingship has become hereditary, it is 
still the custom that the children do not succeed their fathers 
till they have been constituted anew by the people, and are 
only held to be kings when they have received the investiture 
of sceptre and crown from those who represent the " Majestas r 
of the people. 3 

George Buchanan and the Huguenot writers express this 
judgment in strong and unqualified terms, but we find the 
same opinions expressed in as thorough-going a fashion by 
some of the Eoman Catholic writers of the last years of the 
sixteenth century. Among the most important tracts written 
in defence of the deposition of Henry III. of France is that 
of Boucher, ' De justa Abdicatione Henrici Tertii,' published 

1 Id. (p. 96) : " Politie. II me comprobare. . . ." (P. 79) : Quo sem- 
semble que efc l'un et l'autre ne sont per recordantes reges ee a Deo quidem, 
si louablea que ceux qui sont par elec sed per populum et propter populum 
tion et succession tout ensemble. . . . regnare. . . ." (P. 82) : Etsi vero, ex 
Politie. J'avoue bien que par cous- quo virtutem patrum imitati filii, 
tume la chose est tenement reclue nepotesve, regna sibi quasi haeredi- 
qu'elle (hereditary succession) est re- taria fecisse videntur, in quibusdam 
pute pour droit, mais puis que les regionibus electionis libera facultas 
peuples ont le droit do mettre les desiisse quodammodo videatur ; man- 
magistrats sur eux . . . il faut con- sit tamen perpetuo in omnibus regnis 
clurre qu'ils les peuvent demettre, et bene constitutis ea consuetudo, ut de 
par la sont electeurs de leurs princes." mortuis non prius succederent liberi, 

2 ' Vindiciae Contra Tyrannos.' Qu. quam a populo quasi de novo constitu- 
I. (p. 9). erentur, nee tanquam suis haeredes 

3 Id., Q. III. (p. 76): " Oftendi- patribus agnoscerentur, sed turn demum 
mus antea Deum Reges instituere, reges censerentur, cum ab iis qui populi 
regna regibus dare, reges eligere. Dici- majestatem representant, regni in- 
mus jam, populum reges constituere, vestituram, quasi per sceptrum et 
regna tradere, electionem suo suSragio diadema accepissent." 



368 



THE LATER SIXTEENTH CENTURY. 



[PAKT IV. 



in 1589. Boucher was a theologian of some eminence, and 
his work is largely concerned with the question of the power 
of the Pope to depose kings. We are not, however, here 
concerned with this question, but with his conception of the 
relation of the authority of the king to that of the community. 
With regard to this, he expressed himself as clearly and dog- 
matically as the Huguenot writers. 

It is the people or commonwealth which establishes the 
king, but while it bestows this authority upon him, the final 
authority and " Majestas " remains with the people. It 
resided with them before there were any kings, and even 
kings must render their account for any offence against it. 1 
This " Majestas " is embodied in the Estates. 2 

It is the people, then, from whom the king derives his 
authority, and not from God only, and he repudiates the 
interpretation of St Paul's words in Eomans xiii. 1 as imply- 
ing the latter. We recognise, he says, that kings, like all 
good things, come from God, but in accordance with the Jus 
Gentium, it is through the people. 3 

It would be difficult to find a more explicit repudiation of 
what we call the " Divine Eight," and a more thorough- 
going affirmation of the principle that the royal authority 



1 J. Boucher, ' De Justa Henrici 
Tertii Abdicatione,' I. 9 : " Jus autem 
illud cum in duobus positum sit, ut et 
a populo seu republica constituuntur 
reges, et regibus constitutis, sic penes 
eos summam potestatem esse constct, 
ut summa in eos tamen populi seu 
reipublicae jus ac majestas remaneat, 
huiusque adeo laesae vel imminutae, ei 
res ita ferrat, rex teneri possil." 

Id., ITT. 7 : " Maiestas reipublicae ac 
populi quae sit, dictum antea est. 
Quae ut prima per se ac regibus anti- 
quior est, ita authenticum quid penes 
se, vcl teste scriptura habet, quod 
deponere, quodque abiicere a se nee 
possit nee debeat. Cuj usque legibus 
omnos omnis generic homines ac reges 
teneantur. Quippe, cum penes 
eos non aliunde majestas sit, quam 
quia publica ab iis potestas referatur. 



Quae Caesar ab iis semel, ut sceptro 
reos amonneat, lege Julia constat, quae 
poenam majestatis, non dignitatis 
tantum, sed et animae amissionem esse 
jubet," 

2 Id. id., III. 8 : " Porro majesta- 
tem illam cum penes ordines seu 
comitia esse constet, id quoque sequi- 
tur, qui ordines laeserit, publicao 
majestatis supra omnes teneri atque 
reum esse. Nam pones comitia ut 
rogni majestas sit, cum universa 
regnorum consuetudo docet, turn quia 
porpetua in Gallia sarrosancta eorum 
auctoritas esse consuevit." 

3 Id. id., I. 13: " Et nos, quidem, 
ut reges a Deo, ut et bonum omne, 
esse agnoscimus, ita intermedio iure 
gentium, et per populum, ut sunt, ita 

. sune fateamur." 



CHAP. II.] THE PRINCE UNDER THE LAW. 369 

was inferior to the sovereign authority, or " Majestas," of the 
community ; it was derived from it, and was answerable to 
it. Boucher adds, dogmatically, that no one is born a king ; 
there is no Christian kingdom where hereditary succession has 
such a force that the right of establishing the king does not 
remain with the people. 1 

Boucher does not, however, state these principles as merely 
abstract, but maintains that they were embodied in the actual 
constitutional systems of the European countries, and he 
refers specially to the Empire, to Aragon, and to the authority 
of Parliament in England, and he attributes the comparative 
absence in France of the constitutional forms of this supreme 
authority of the commimity to the recent tyrannical 
innovations of Louis XL 2 He cites the deposition of 
Merovingian and Carolingian kings in France, of Bichard 
II. in England, and the recent deposition of the King of 
Denmark. 3 

With these writers we may place Mariana, the Spanish 
Jesuit of the late sixteenth century. He also considers the 
monarchy to be the best form of government, and he care- 
fully discusses the advantages and disadvantages of succession 
by inheritance or by election. He finally concludes that 
hereditary succession is best, but the succession should be 
determined by law, not by the will of the king, for the common- 
wealth gave him an authority restrained by laws, and any 
change therefore must be made with the consent of the 
" Ordines " (the Estates or Cortes). 4 In another place, 
discussing the relation of the commonwealth to a king who 
becomes a tyrant, he argues that the commonwealth, from 
which the royal authority arises, may call the king to account, 
and may deprive him of his authority. When it transferred 

1 Id. id., I. 17 : " Omnino rex nemo " Sic commodius fere cogitabam, here- 
nascitur. Neque ullum omnino vel ditarium esse principatum." ... (p. 
inter Christianos regnum est, in quo 37) : " Neque pro regis arbitrio succes- 
hereditario successio sic polleat, quin sionem etiam inter filios mutandam 
penes populum constituendi jus re- videri. Praesertim cum leges succes- 
maneat." sionis mutare non ejus, sed reipub- 

2 Id. id., I. 21, 22. licae sit, quae imperium dedit, iis 

3 Id. id., I. 23, 24. legibus constrictum, ordinum consensu 

4 Mariana, ' De Rege,' I. 3 (p. 34) : id faciat opus est." Cf. I. 4 (p. 38). 

VOL. VI. 2 A 



370 THE LATER SIXTEENTH CENTURY. [PART IV. 

its authority to the prince, it reserved to itself a greater 
authority. 1 

It may, no doubt, justly be said that these writers, especi- 
ally the Huguenots and Mariana, express a highly contro- 
versial mood. But it should be observed that the same 
judgment is expressed by Hooker, substantially, but in 
characteristically measured terms. Hooker deals with the 
subject in the first book of the ' Ecclesiastical Polity,' when 
he discusses the origins and first forms of political society. 
The first form of social authority was, he thinks, that of the 
father over his family, but that is not the nature of authority 
in a political society. " Howbeit over a whole general multi- 
tude, having no such dependency upon any one, and con- 
sisting of so many families as every political society doth, 
impossible is it that any should have complete lawful power, 
but by consent of man or immediate appointment of God ; 
because, not having the natural authority of fathers, this 
power must needs be either usurped, and thus unlawful ; or, 
if lawful, then, either granted or consented unto by those 
over whom they exercise the same, or else given extraordi- 
narily from God, unto Whom all the world is subject." 2 

He returns to the subject in the eighth book, where he is 
dealing with the relation of the king to the Church. " First, 
unto me it seemeth almost out of doubt and controversy, that 
every independent multitude, before any certain form of 
regiment established, hath, under God's supreme authority, 
full ' dominium ' over itself, even as a man, not tied with the 
bond of subjection as yet, unto any other, hath over himself 
the like power." 3 

Hooker is indeed careful to defend the right of hereditary 
succession to kingship, but he is also clear in asserting that 
this hereditary right arises from the " original conveyance " 
by the community. " The case thus standing, although we 
judge it as being most true that ldngs, even inheritors, do 

1 Id. id., I. 6 (p. 57) : " Certe a in principem jura potestatis transtulit, 

republics, undo ortum habet regia ut non sibi majorem reservavit potes- 

potestas, rebus exigent ibus rogem in tatem." 

jus vocari posse, et si sanitatem res- 2 Hooker, ' Eccles. Polity,' I. x. 4. 

puat, principatu spoliari. Neque ita 3 T<). id., VIII. 2, 5. 



CHAP. II.] THE PRINCE UNDER THE LAW. 371 

hold their right to the power of dominion with dependency 
upon the whole body politic, over which they rule as kings ; 
yet so it may not be understood, as if such dependency did 
grow, for that every supreme governor doth personally take 
from them his power by way of gift, bestowed of their own 
free accord upon him at the time of his entrance into the said 
place of government. But the cause of dependency is in that 
first original conveyance, when power was derived by the 
whole unto one ; to pass from him unto them, whom out of him 
nature by lawful birth should produce, and no natural or legal 
inability make uncapable. Neither can any man with reason 
think but that the first institution of kings is a sufficient 
consideration wherefore their power should always depend 
on that from which it did then flow. Original influence of 
power from the body into the king is the cause of the king's 
dependency in power upon the body." x Hooker denies that 
the individual king must be elected, but affirms that it was 
from the community that the right of hereditary succession 
was derived. 

We have discussed the position of Althusius with regard to 
the supremacy of the law, in the last chapter, and need only 
here draw attention to an important passage in which he sets 
out the origin and nature of the authority of the adminis- 
trator or prince. He recognises that while the common- 
wealth is formed by the free association of all its members, 
and establishes the laws necessary for this, it cannot itself 
administer them ; and therefore it appoints ministers and 
rulers, and transfers to them the necessary authority and 
power ; it gives them the power of the sword and commits 
itself to their care and rule. 2 Althusius is clear that there 
must be rulers or princes in the commonwealth, but the rulers 
are appointed by the commonwealth, and their authority is 

1 Id. id., VIII. 2, 9. nulio modo fungi potest, postea minis- 

2 Althusius, ' Politica,' xviii. 10 : tris et rectoribus a se electis demanda- 
" Nam populus primo se in corpus vit, atque in eos ad munaris sui ex- 
quoddam certis logibus consociavit, peditionem necessariam auetoritatem 
jura necessaria et utilia ad banc con- et potestatem transtulit, gladioque ad 
soeiationem sibi constituit, eorumque earn rem illos accinxit, iisque se re- 
administrationem qua ipse populus gendum curandumque commisit." 



372 



THE LATER, SIXTEENTH CENTURY. 



[PART IV. 



always less than that which the commonwealth reserves to 
itself. Their authority is only to rule according to the just 
laws of the commonwealth, and they are only God's ministers 
if they rule for the common good. The prince is not above 
the laws, but the laws above the prince. There neither is, nor 
can be, any such thing as that absolute power which, as it is 
sometimes said, is given to the prince. 1 

Finally, we may put beside Hooker and Althusius the 
judgment of the great Jesuit, Bellarmine. He is no doubt 
arguing, not for the direct, but for the indirect authority of 
the Papal See in temporal matters ; but his judgment is clear 
that, while it is true that the royal or imperial power is from 
God, it must be understood that it does not normally come 
immediately from Him, but mediately through the consent of 
men, for as St Thomas Aquinas had said, lordship and princi- 
palities belong not to the Divine, but to the Human Law. 2 

(2) The Conception of the " Sovereignty ' : of the Com- 
munity. — We shall, in a later chapter, consider the theory of 
sovereignty as set out by Bodin, and we do not wish here to 
anticipate this. It is enough, for the moment, to say that in 
Bodin's view there must be in every political community 
some supreme power which makes all laws and magistrates, 



1 Id. id., xviii. 27 : " Quantum- 
cunquo enim est imperium et jus quod 
alteri conceditur, minus tamen semper 
est eo quod concedens sibi reservavit. 
. . . 28. Transfertur vero in hosce 
administratoros et rectores a membris 
universalis consociationis sola pod 
secundum justas leges administrandi 
et regondi corpus, et jura universalis 
hujus consociationis. . . . 32. Hoc 
agens, minister Dei dicitur, Rom. c. 13. 
. . . 37. Non est print-ops supra legem, 
sed leges supra principem. . . . 38. Nam 
contra leges aliquid posse non est 
potestatis, sed impotcntiao nota. . . . 
39. Undo et quod dicitur absoluta et 
pit uissima potostas principi concessa, 
i ilia est, nee esse potest ." 

2 Bellarmine, ' De Potestate Summi 



Pontifisis,' III. (p. 51): " Porro 
quod scribit sanctus Gregorius datam 
f uisse imperatori coelitus, non significat 
imperatoriam potcstatem esse imme- 
diate a Deo, sed esse a Deo in eo sensu, 
quo dicit apostolus ad Rom. xiii., non 
est potestas nisi a Deo. Omnis enim 
potestas a Deo est ; sed aliqua im- 
mediate, ut Moisis, ut Sancti Petri, ut 
Sancti l'auli ; aliqua mediante con- 
sensu hominum, ut potestas Regum, 
Consulum, Tribunorum — nam (ut Sanc- 
tus Thomas docet in 2. 2. Q. 10. Art. 
10. et Q. 12. Art. 2) dominia et princi- 
patus humani, de jure humano sunt, 
non de jure divino." Cf. Id. id., xxi. 
(page 174). For the same principle as 
hold by Molina and Suarez, cf. pp. :>43, 
3i4. 



CHAP. II.] 



THE PRINCE UNDER THE LAW. 



373 



and which is subject to no law, except that of God and of 
nature, and to this power he gives the name of " Majestas." l 
Bodin's work was published in French in 1576, but it is im- 
portant to observe that some of the Huguenot pamphlets 
were published a little earlier, or about the same time, 
Hotman's ' Franco Gallia ' in 1573, the ' Droit des Magistrats ' 
in 1574, and the ' Archon et Politie ' in 1576, and in some of 
these we find already developed a conception of a power 
belonging to the community or its representative authority, 
which is supreme over all other powers, even that of the king, 
and this supreme authority they call the " Souverainete," 
while they speak of the king as " Souverain." 

Hotman, in discussing the power of what he calls the 
" Concile des Estats," meaning the States General, maintains 
that it had power to elect and to depose kings, and he goes on 
to say that even after the election of the king, it reserved and 
retained in its own hands the " sovereign authority " of the 
government of the kingdom. 2 

It is, however, in the ' Droit des Magistrats ' of 1574 that 
the distinction between the " Souverain " and the " Souver- 
ainete - " is first carefully and completely drawn out. There 
are magistrates or officers, who are indeed inferior to the 
" Souverain," and are appointed by him, but do not properly 
hold from the " Souverain," but from the " Souverainete." 3 
The distinction is clear, but is made even clearer when the 
author adds that the " Souverain " himself, before he is put 
in " real possession " of his sovereign administration, swears 
fidelity to the " Souverainete." 4 And again, empires and 



1 Cf. pp. 418 ff. 

2 Hotman, ' Franco Gallia,' xx. 
(in ' Memoires de l'Estat,' vol. i. p. 
712) : " Que plus est, mesme apres 
l'election du roi, le Concile se reservoit 
encores et retenoit par devers soy la 
souveraine authorit6 du gouvernement 
des affaires du Royaume." 

8 " Du Droit des Magistrats " (ed. in 
' Memoires de l'Estat,' vol. ii. p. 748 : 
" Or faut-il entendre que tous ceux cy 
(the magistrates) encores quils soyent 



au-dessous de leur souverain (duquel 
aussi ils recoyvent commandement, et 
lequel les installe et approuve) toutes 
fois ne dependent proprement du 
souverain, mais de la souverainete." 

4 Id. id., vol. ii. p. 748 : " Le 
souverain mesmes, avant qu'estre mis 
en vraye possession de son administra- 
tion souveraine, jure fidelite a la 
souverainete, sous les conditions ap- 
posees a son serment." 



374 



THE LATER SIXTEENTH CENTURY. 



[PART IV. 



kingdoms are fiefs, which owe homage and fidelity to the 
" Souverainete." 1 

These are trenchant sayings, and the conception of the 
king as a vassal of the " Souverainete " is unusual, to say the 
least, though not unintelligible ; but what we are here con- 
cerned with is the sharp distinction between the king who is 
" Souverain," and some greater authority behind him, which 
holds the " Souverainete," for there are those who represent 
the " Souverainete " and it is for them to provide for the tenure 
of the sovereign's fief, if he has lost it by his offences against 
his subjects. 2 The king or " Souverain " is not above the 
laws, but is subject to them, for he has sworn to maintain 
and defend them. 3 While it is not lawful for any private 
person to resist the tyrant, there are magistrates, inferior 
indeed to him, but whose function it is to act as bridles and 
restraints upon the sovereign magistrate. There are such 
officers in several Christian kingdoms, such as dukes, mar- 
quesses, counts, &c. ; they were formerly " estats et charges 
publiques," and were appointed " par ordre legitime," and 
though these offices have become hereditary, the nature of 
their right and authority has not changed : such are also 
the elective officers of the cities, such as mayors, consuls, 
syndics, &c. 4 



1 Id. id., vol. ii. p. 776 : " Outre 
tout cela, puisque ies royaumes et 
empires mesmes sont fiefs, devons 
hoirirnagcs et services a la souverainete. 

1 Je di done au cas oil nous sommes, 
qu'un roi, ou meme un Empcrcur, 
relevant de la souverainete, commet- 
fcanl felonie centre ses vassaux, assavoir 
ses sujets (co que jamais ne puisse 
advenir) perd son fief, non pour etre 
adjudge aux vassaux, mais pour y 
, , ,, 1,1,111 \ ii <t ln rcpresentent 

la souveri ... Or est il ainsi 

que I'Empereur meemes, ™inme nous 
1'avons cy devant not6, doit hommage 
a l'Empin , duquel il est le premier et 
souverain vassal (co que doit estre 
encores a plus forte ou pour le moins 
aussi forte raison estimo de Ijl con- 



dition des Roys a l'endroit du 
Royaume)." 

3 Id. id. (p. 750) : " Car pour certain 
e'est uno parole tres fausse, et non 
poinet d'un loyal sujet a son prince, 
mais d'un d6testablo flatteur, de dire 
que les souverains sont contraints a 
nulles lois. Car, au contraire, il n'y 
en a pas une, par laquelle il ne 
doyve et soit tenu de regler son 
gouvernement , puis qu'il a jur6 

- re le mainteneur et protect cur de 
fcoutes." 

This is followed by a citation of the 
' Digna Vox' (Cod. I. xiv. 4) and (he 
story of Trajan giving (he sword to be 
used against him if necessary. 

4 Id. id. (p. 746) : " II n'est licite 
a aucun particulier d'opposer force & 



CHAP. II.] 



THE PEINCE UNDER THE LAW. 



375 



It is of these officers that the author of the treatise says, as 
we have seen, that they hold not from the " Souverain " but 
from the " Souverainete"," to which the " Souverain " himself 
has sworn fidelity ; and he goes on to say that there is a 
mutual obligation between the king and these officers of the 
kingdom, for the whole government is not in the hands of the 
king, but only the " souverain degre " of the government, 
while each of these inferior officers has his part in it according 
to his rank. 1 

The pamphlet generally known as ' Arcbon et Politie,' 
which was published in 1576, represents the same conception. 
In discussing the limitations on the arbitrary power of the 
prince it says that there are inferior authorities, " deputies " 
of the people ; these create the prince and can depose him, 
and they would be traitors to their country if they suffered 
the " principaute " to become a tyranny. They, as " souver- 
ains magistrats," are above the prince (in their public capacity), 
while as private persons they are below him. 2 And again, 



la force du tyran, de son authorit6 
privee." 

Id. id. (p. 745) : " Tiercement, il 
y en a d'autres, lesquels encores qu'ils 
n'ayent la puissance souveraine et 
ordinaire a manier, toutes fois sont 
ordonnez pour servir comme de brides 
et freins au souverain magistral." 

Id. id. (p. 747) : " Je viens mainte- 
nant aux magistrats inferieurs. . . ." 
(p. 748) : " Tels sont aujourdhui les 
officiers de plusieurs royaumes Chres- 
tiens, entre lesquels il est raisonnable 
de conter les Dues, Marquis, Contes, 
Vicomtes, Barons, Chastelains, qui ont 
jadis este estats et charges publics, qui 
se commettoyent par ordre legitime, et 
qui depuis, pour estre devenues dignitez 
hereditaires, n'ont pourtant change la 
n iture de leur droit et authority : aussi 
il faut comprendre en ce nombre les 
officiers electifs des villes, tels que sont 
les Maires, Viguiers, Consuls, Capitous, 
Syndiques, Eschevins et autres sem- 
blables." 

1 Id. id. (p. 748) : " Par cela il 



appert qu'il y a une mutuelle obligation 
entre un Roy et les officiers d'un 
royaume : auquel royaume tout le 
gouvernement n'est pas mis entre les 
mains du Roy, ains seulement le 
souverain degre de ce gouvernmement , 
comme aussi les officiers inferieurs y 
ont cliacun leur part selon leur degre, 
et le tout a certaines conditions d'une 
part et d'autre." 

2 " La Politique. Dialogue entre 
Archon et Politie " (ed. in ' Memoires de 
l'Estat,' vol. hi. (p. 127): "Carilyades 
puissances inferieures et deputez du 
peuple, autheurs des princes, qui les 
ayant faits les peuvent defaire, et tels 
ne peuvent laisser par raison la prin- 
cipaute decliner a tyrannie, car ila 
trahiroyent la patrie qui a constitue tels 
estats pour empescher la Tyrannie. 
Si elle survient, e'est aux sujets par- 
ticnliers de recourir humblement et 
sans confusion au remede vers ceux 
la qui sont comme souverains Magis- 
trats pardessus le prince en cest 
en droit, quoi quils soyent privez et 



376 



THE LATER SIXTEENTH CENTURY. 



[PART IV. 



after discussing the right of subjects, who have by solemn 
edicts obtained from the prince the right to exercise their 
religion, to refuse obedience if the prince attempts tyranni- 
cally to violate these, and to defend their liberty by all lawful 
means ; the author of the tract goes on to say that this 
applies also to the other rights of the people. There are, 
indeed, few kingdoms or principalities whose rulers are not 
bound and restrained by many laws, to which they have 
sworn at their " reception," and they have promised the 
" Souverainete," that is, the " Estates " composed of the 
body of all the people, to keep these inviolably. 1 

This conception, that behind the authority of the king or 
prince there is a greater authority still, and that this resides 
in the community, was also carefully set out by Mariana. 
After saying in general terms that the prince should understand 
that the authority of the whole commonwealth is greater than 
that of any one person, 2 Mariana devotes a whole chapter to 
the consideration of this question in detail. He was aware 
that there were different opinions, that some learned men 
maintained that the king was greater not only than the 
individual citizen, but than all the citizens, and that the 
commonwealth could transfer the supreme power to the prince 
without any limitation. 3 And, he continues, this seems to 



au dessous par un regard ordinaire. 
Et ne faut point penser que le prince 
puisse eans tyrannie, oster cest ordre : 
car cela vient de la premiere source du 
gouvernemens establis de Dieu et de 
nature, comme il en a est6 parle." 

1 Id. (p. 128) : " Cela se doit esten- 
dre aussi aux autres droits du peuple, 
lesquels ne peuvent estre abolis sans 
manifesto confusion <> an^antissement 
des ostats, et a plus forte raison, 
quand les loix reiglent des long temps 
la grandeur des princes et magistrats 
souverains : comme il se trouvera bien 
peu de royaumes et principautez, dont 
les principaux gouverneurs ne soient 
liez ot retenus en limit es par beaucoup 
de loix, qu'eux mesmes jurent k leurs 
reception, et promettent a la souver- 



ainto (e'est-a-dire, aux Estats com- 
poses du corps de tout le peuple) de 
gardor inviolablement." 

2 Mariana, ' De Rege,' I. 6 (p. 61) : 
" Quod caput est, sit principi per- 
suasum totius reipublicae majorem 
quam unius auctoritatem esse, neque 
pessimis hominibus credat diveroum 
allirmantibus, gratificandi studio : quae 
magna pernicies est." 

3 Id. id., I. 8 (p. 71) : "Video 
tamen non deesse viros eruditionis 
opinione praestantes, qui secus statu- 
ant ; Regem non singulis modo civibus, 
sed etiam universis majorem esse. . . ." 
(p. 72) : " Praeterea cum negare nemo 
jios.st't, quin respublica supremam et 
maximam potestatem possit sine excep- 
tione principi deferrc." 



CHAP. II.] 



THE PRINCE UNDER THE LAW. 



377 



be the form of government among some peoples where there 
is no public " consensus," where the people or the chief men 
never assemble to deliberate about the affairs of the common- 
wealth, where men must obey whether the king's government 
is just or unjust. Such an authority, Mariana, however, says, 
is excessive, and tends to tyranny ; Aristotle had indeed said 
that it existed among barbarous peoples, but " we " are not con- 
cerned with barbarians, but with the government of Spain and 
with the best form of government. 1 He concedes that the 
king is supreme in those matters which by the law and custom 
of the nation are left to his judgment, such as making war 
and administering justice ; in those matters the king has an 
authority greater not only than the individual citizen, but 
than all. On the other hand there are matters, such as 
legislation and taxation, in which the authority of the common- 
wealth is greater than that of the prince. Finally, and this is 
the most important part, the commonwealth has authority to 
coerce the prince if he is vicious and wicked, if he prefers to 
be feared rather than loved, and becomes a tyrant. 2 



1 Id. id., I. 8 (p. 72) : "Est autem 
perspicuum, id institutum in quibus- 
dam gentibus vigere, ubi nullus est 
publicus consensus, nunquam populus 
aut proeeres de republica deliberaturi 
conveniunt : obtemperandum tantum 
necessitas urget, sive aequum sive 
iniquum regis imperium sit. Potestas 
nimia proculdubio, proximeque ad 
tyrannidem vergens, qualem inter 
gentes barbaros vigere Aristoteles 
amrmatum reliquit . . . nos hoc loco 
non de barbaris, sed de principatu qui 
in nostra gente viget, et vigere aequum 
est, deque optima et saluberrima im- 
perandi forma disputamus." 

2 Id. id., I. 8 (p. 72) : Ac primum 
libenter dabo, regiam potestatem 
supremam in regno esse in rebus 
omnibus, quae more gentis, instituto, 
ac certa lege, principis arbitrio Bint 
permissa, sive bellum gerendum sit, 
sive jus dicendum subditis, sive duces 
magistratusque creandi : majorem 
non singulis modo, sed universis 



habebit potestatem, nullo qui resistat, 
aut facti rationem exigat. Quod mori- 
bus populorum ferme omnium fixum 
videmus, ne a rege constituta retractare 
cuiquam liceat, aut de ipsis disceptare. 

Credam tamen, in di verso quamvis 
genere, majorem reipublicae quam 
principis esse auctoritatem, modo 
universae in unam conspirantis senten- 
tiam. Certe ad tributa imperanda, 
abrogandasque leges, ac praesertim 
quae de successione in regno sunt, 
mutandas, resistente multitudine impar 
unius principis auctoritas sit, et si 
quae alia gentis moribus universitati 
reservata haudquaquam principis in 
arbitrio posita sunt. 

Postromo, quod caput est, principis 
malo coercendi potestatem in republica 
residere, si vitiis et improbitate infectus 
sit, ignoransque verum iter gloriae, 
metui a civibus quam amari malit : 
metuque paventibus et perculsis im- 
perare, injuriam facere pergat factus 
tyrannus." 



378 THE LATER SIXTEENTH CENTURY. [PART IV. 

These writers may seem to represent somewhat extreme 
opinions, and it is therefore important to observe that Hooker 
and Althusius affirm the same principles. In one passage 
Hooker says : " Besides, when the law doth give him (the 
long) dominion, who doubteth but that the king who receiveth 
it must hold it of and under the law % According to that 
axiom, ' Attribuat rex legi, quod lex attribuat ei, potestatem 
et dominium ' ; and again, ' Eex non debet esse sub homine, 
sed sub Deo et lege.' Thirdly, whereas it is not altogether 
without reason that kings are judged to have by virtue of 
their dominion, although greater power than any, yet not 
than all the states of those societies conjointly wherein such 
sovereign rule is given them." 1 And again, with special 
reference to England : " This is therefore the right whereby 
kings do hold their power ; but yet in what sort the same 
doth rest and abide in them it somewhat behoveth to search. 
Wherein, that we be not enforced to make over-large dis- 
courses about the different conditions of sovereign or supreme 
power, that which we speak of kings shall be with respect 
unto the state and according to the nature of this kingdom, 
where the people are in no subjection, but such as willingly 
themselves have condescended unto, for their own most behoof 
and security. In kingdoms, therefore, of this quality the 
highest governor hath indeed universal dominion, but with 
dependence upon that whole entire body, over the several 
parts whereof he hath dominion ; so that it standeth for an 
axiom in this case. The king is " major singulis, universis 
minor." 2 

We have already seen that Althusius is clear that the 
" Majestas " or sovereign authority which recognises no other 
as superior or equal to itself, belongs and can only belong 
to the whole political community, and we need only refer here 
to another passage, as expressing this judgment. The 
" Majestas " belongs to the people and it cannot transfer this 
to any other person. It cannot be divided or transferred, it 
is created by the whole body of the members of the kingdom, 

1 Hooker, * Ecclesiastical Polity,' 2 Id. id., viii. 2, 7. 

\iii. 2, 3. 



CHAP. II.] 



THE PRINCE UNDER THE LAW. 



379 



and without them it cannot stand. The king, therefore, 
however great his authority, can never deprive the members 
of his kingdom of the right to resist him if he acts unjustly. 
This "Jus," that is, the "Majestas," is the very soul and 
vital spirit of the commonwealth, and it can never grant 
it to anyone else without destroying itself. 1 

(3) The Eelation of the King to the Courts of Law.— We 
have seen in former volumes and in the earlier parts of this 
one that in constitutional theory and practice it was a 
generally accepted principle that the king could, in normal 
circumstances, take action against his subjects only by 
process of law. The famous clause of Magna Carta (39) 
represents the normal conception of feudal law, and the normal 
practice of mediaeval society. It is therefore important to 
inquire whether this principle continued to be recognised in 
the later sixteenth century. 

George Buchanan deals with this question under two 
terms ; and first, whether the king should have the power of 
interpreting the law. Maitland had urged that the king 
should have this power, but Buchanan replies that he was 
asking more than the most " imperious " of kings demanded. 
This power belonged to the judges ; to give this power to the 
king would give him the opportunity to twist the law to his 
own convenience. If this were once permitted, it would be 
useless to have good laws ; it would be better to have no laws 
at all than such a " liberum latrocinium," under colour of 



1 Althusius, ' Politica,' xxxviii. 127: 
" Quis item dicet populum tale jus 
majestatis in alium a se transferre 
potuisse. Stat enim ilia communis 
juris-conbultorum sententia, jus majes- 
tatis nee cedi nee distrahi, nee ulla 
ratione annullari posse a suo domino. 
. . . Est enim individuum et incom- 
municabile, neque temporis diuturni- 
tate praescribi potest ullo modo. Nam 
jus hoc majestatis a membris universis 
et singulis regni constitutum est, ab 
illis incepit et sine illis consistere et 



conservari non potest. Nequaquam 
vero cum rege nascitur, qui etiam 
plenissimam potestatem habens, non 
potest membris sui regni sibi inique 
agenti potestatem et voluntatem re- 
sistendi adimere. Unde jus hoc 
dicitur anima et spiritus vitalis regni 
et reipublicae, quern alii, citra interi- 
tum sui ipsius, communicare nequa- 
quam potest. Natura ergo hujus 
administrationis regi demandata est, 
ut imperium suum submittat legi et 
justitiae." Cf. pp. 360, 361. 



380 



THE LATER SIXTEENTH CENTURY. 



[PAKT IV. 



law. 1 In the second place, Buchanan contends that any 
private person had the right to appeal to the courts of law in 
a dispute between himself and the king about his property ; 
and that it makes no difference in principle whether it is the 
king himself or his " Procurator " whom he calls into court. 2 
When we turn to the French Huguenot writers we find 
some very important assertions of the same principles. The 
" Eemonstrance ' : says that the Courts of " Parlement ' : 
were once above the kings, and opposed themselves to their 
absolute power, while " to-day " they submitted servilely to 
the commands of these from whom they hoped for advantage. 3 
The other Huguenot tracts are clear and emphatic in asserting 
the principle that the king could only take action against his 
subjects by process of law. In the tract ' Archon et Politie,' 
" Archon " asks indignantly whether the king has not got the 
power of life and death over his subjects, and " Politie ,; 



1 George Buchanan, ' De Jure 
Regni ' (p. 14) : " B. Sed tu mihi 
regum nomine plus postulare videris, 
quam qui eorum inaperiosissimi sunt 
sibi sumant. Scis enim ad jndices 
rejici solere hoc genus quostionum, 
cum aliud lex dicere, aliud legis auctor 
voluisse videtur, perinde atque illas 
quae de ambiguo jure aut legurr. inter 
86 discordia oriuntur . . . cum regi 
legum interpretionem concedis, hanc 
tribuis ei licentiam, ut lex non dicat 
quod lator sentit, aut quod in com- 
muno sit aequum et bonum, sed quod 
in rem sit interprets ; utque is ad 
omnes earn actiones, commodi sui 
causa, velut Lesbiam regulam in- 
flectat. . . . 

Vides, opinor, quoniam uno versu 
des principi licentiam : nempe ut 
quod vult iJlo, dicat lex ; quod 
nolit, non dicat. Id si semel recipia- 
mus, nihil proderit bonas leges condere, 
quae principcm bonum sui officii 
admoneant, malum circumscribant. 
Imo, ut dicam apertius, nullas omnino 
leges habcro proeslaret, quam liberum 
lalrocinium, atque ctiam honoratum. 



sub legis praetextu, tollerari." 

2 Id. id. (p. 35) : " B. Si privatus 
quispiam praedium, aut agri sui 
partem, contra quam aequum est, a 
rege teneri contendat, quid hie privato 
faciendum censis ? Codetne agro, 
quoniam regi judicem ferre non 
poterit ? 

M. ' Minime.' Sed non regem, sed 
proeuratorem ejus adesse jubebit. 

B. Jam istud perfugium, quo tu 
uteris quam vim habeat, vide, mea 
enim nihil refert, an ipse rex advenit, 
an ejus procurator ; utroque enim 
modo regis periculo litigabitur : ei, 
non procurator!, ex eventu judicii 
damnum aut lucrum accedet. Ipse 
denique reus est, id est, is cujus res 
agitur." 

3 ' Remonstrance aux Seigneurs,' 
&c. (p. 74) : " Les cours de Parlement 
qui aneionnemont estoyent par dessus 
les roys, et s'opposoyent avec grande 
integrit6 a leur puissance absolue, 
uujourdhui se laschent servilement 
aux commandement de tous ceu^ dont 
i!s esperent proufit." 



CHAP. II.] THE PRINCE UNDER THE LAW. 381 

answers that they have this power, but only " avec conoissance 
de cause, et informations valables," that is, if one may ven- 
ture a paraphrase, by legal process and on proper evidence. 1 
The author of the ' Vindiciae Contra Tyrannos ' contends 
that even to-day the " Senatus Lutetiarum " (the Parlement 
of Paris) is set in a certain sense as a judge between the king 
and the people, even between the king and any private 
person ; and he adds that, lest the Parlement should be afraid 
of the king, the judges could not formerly be appointed except 
with the nomination of the Parlement, or removed from their 
office except for a legitimate (legal) cause. 2 

It may indeed again be suggested that Buchanan and the 
Huguenot pamphleteers represented an extreme and revolu- 
tionary position ; and it is therefore very important to 
observe that Bodin, who certainly asserted the doctrine of 
the absolute authority of the king of France in the strongest 
terms (as we shall see in a later chapter), sets out a conception 
of the relation of the courts of law to the king, which is at 
least analogous to that of Buchanan and the Huguenots. 
In the first place, it should be observed that Bodin considers 
at some length the question whether the prince should him- 
self act as a judge, and he is very clear that the prince should 
not do so. 3 In the second place, Bodin discusses at length 
the question whether the judges should be perpetual or 
removable at the pleasure of the prince. He admits that 
there had been different opinions about this, and even refers 
to Michel l'Hopital as having been in favour of their being 
removable. 4 He admits that under a monarchy certain 

1 ' Archon et PoKtie ' (p. 120) : privatum quemlibet, singulos adversus 
" Archon. Quoy, les rois, n'ont ils regis procuratorem asserere, si quid 
pas puissance sur la mort et sur la vie contra jus invadat quasi obligatione 
de leurs sujets ? Politie. Ouy, bien, tenetur. ... (p. 98) : Ne vero regem 
mais avec connaissance de cause, et metuerent Senatores, neque olim in 
informations valables et non autre- eum gradum, nisi a Senatu nominati 
ment." co-optabantur, neque absque ejusdem 

2 ' Vindiciae Contra Tyrannos,' Q. auctoritate, legitima de causa exauc- 
III. (p. 97) : " Hinc etiam hodie torari poterant." 

Senatus Lutetiarum qui curia Parium, 3 Bodin, ' De Repiiblica,' iv. 6 

seu Patriciorum nuncupatur ; quasi (p. 450). 

judex inter regem et populum quadam- ' Id. id., iv. 4 (p. 438). 

tenus constitutus, imo inter Regem et 



382 



THE LATER SIXTEENTH CENTURY. 



[PART IV. 



offices, such as those of the governor of the provinces, should 
be terminable ; but, with regard to the judges, his opinion is 
very different : the judges, and especially those who have to 
decide on the life, the reputation, and the fortunes of the 
citizens, and from whom there is no appeal, should hold by 
a perpetual tenure. 1 He gives an interesting account of the 
history of the actual practice in France, with reference 
especially to a law of Louis XI. He admits that the practice 
had varied, and that by long custom the document appointing 
judges contained a clause which said that they should hold 
their office at the king's pleasure ; but this clause, he holds, 
was merely formal. 2 Again, he admits that some maintained 
that it would be better that the tenure of magistrates should 
be terminable, but this he says is false, and would be per- 
nicious, for it is evident that princes are beset by flatterers 
and courtiers, and would make merchandise of the magis- 
tracies or take them away from the best men, who hate such 
courtiers and their vices. 3 This custom of appointing ter- 
minable magistracies, Bodin says, savours of a tyranny or 



1 Id. id., iv. 4 (p. 439) : " Cum 
autem juris dicendi aequalitate civi- 
tates et imperia maxime omnium 
egere videantur, collegia judicum per- 
petua creabantur, ea potissimum quibus 
de capite, fama ac fortunis omnibus 
civium judicandi sit potestas, provoca- 
tione semota : non solum ut diuturno 
usu judicandi prudentiam ac peritiam 
sibi comparcret, vorum etiam ut plures 
eadem potestate conjugati, perindo ut 
magna vis aquarum, difficilius corrum- 
pantur." 

2 Ld. id., iv. 4 (p. 441): " Magis- 
trates omnos ot ministros magis- 
tral uum sua lege perpetuos esse 
(Louis XI.) jussit, . . . sod ilia do 
toto gonero officialium lata lex, ne 
cuiquam imperium nisi volenti, aut 
morte, aut scelore admisso eriperetur, 
immobilis hactonus cxtitit : cui ctiam 
subrogatum ost uno capile quo cavctur, 
magistratus abdicare cogendum nemi- 
nem cujuscunquo c-riminalis causa, 



nisi judicatus et damnatus sit: cui 
legi locum esse jussit, non solum se 
vivo ac spirante, verum etiam Caroli 
filii principatu : quod etsi jure non po- 
terat, successores tamen legi paruerint : 
tametsi majorumf ormula magistratuum 
tabulis inseritur, ut imperio vel munere 
frnantur quoad regi libuerit. . . . 
Clausula tamen restat inanis ilia 
quidem." 

3 Id. id., iv. 4 (p. 442): li Putant 
plerique magistratus meliores futuros 
ac imperia sanctiora, si more majorum 
precaria darentur, id tamen falsum 
esse docuimus, et, ut verum sit, per- 
niciosum tamen esset : quia satis 
unicuique porspicuum est principos 
adiilatoribus et canibus aulicis fere 
semper obsessos, turpissimum questum 
ac morcaturam magistratus facturos : 
aut imperia optimis quibusque qui 
fere semper aulicorum hominum vitam 
vitare, vitiis omnibus inquinatum 
oderunt, identidem erepturos." 



CHAP. II.] THE PRINCE UNDER THE LAW. 383 

" domination," not of a monarchy, for a kingdom must, so 
far as possible, be governed by laws, not by the caprice or 
mere will of the prince. 1 

(4) The Conception of a Contract between the Ruler and 
the People. — We can now approach the consideration of this 
subject, for we have considered its presuppositions ; that is, 
first, that the authority of the ruler was derived from the 
community ; second, the theory of the sovereignty of the 
community ; third, the principle that the person and rights 
of the individual members of the community were protected 
even against the ruler by the courts of law. 

It is even more necessary to remember that the conception 
of a contractual relation was the fundamental principle of 
all feudal society, and was therefore an important part of 
the normal political tradition of the Middle Ages. We have 
endeavoured to set this out in previous volumes. 2 It will 
therefore be convenient to begin our consideration of the 
development of the theory of a contract between ruler and 
people in the later sixteenth century by observing the terms 
in which the resistance of the Low Countries to Philip II. of 
Spain was justified by William of Orange. We are not here 
concerned with the great religious movements of that time, 
nor with the complex or economic conditions and national 
feeling which no doubt had their place in that resistance ; we 
are concerned with the constitutional principles which were 
set forward in justification of it ; and, in the first place, in the 
' Apologie ' of William of Orange. 

1 Id. id., iv. 4 (p. 142) : " Haec ditis aroari potius quam metui oportet : 

autem precaria tribuendorum magis- eius autem amandi ratio compendiaria 

tratuum ratio, tyrannidem aut domi- futura est, si praemia idem omnia, 

nationem non regalem monarchicam omnes item honores et ae magistratus, 

sapit. Regnum enim legibus oportet paucis quae denotavimus exceptis, ab 

(quantum fieri poterit), non principis eo tribuantur, nee nisi judicio con- 

arbitrio ac voluntate gubernari ; ut stituto eripiantur. Quibus enim jure 

quidem domino licet, quern subditi ac legibus erepta potestas est, de 

velut aliquem Deum de coelo delapsum, principe queri non possunt." 

adorant ac metuunt, eiusque arbitria 2 Cf. especially vol. iii. part 1 chaps, 

pro naturae legibus habent. De rege 2 and 4 ; part 2 chaps. 5 and 6 ; 

aliter statuendum est, quern a sub- vol. v. part 1 chaps. 7 and 8. 



384 THE LATER SIXTEENTH CENTURY. [PART IV. 

It should be clearly understood that to William, Philip was 
simply the Duke of Brabant, and lord of the other provinces 
of the Netherlands, that is, that he conceived of their relations 
to him as the relations of feudal vassals to their feudal lord, 
bound to each other by mutual obligations and mutual oaths. 

William sets out this conception in one passage in specific 
and detailed terms. Does Philip, he says, not know the 
condition on which he holds his authority % Does he not 
remember the oath which he took before they swore allegiance 
to him, for he has no such power to do whatever he wishes, as 
he has in the Indies. He cannot violently constrain any one 
of his subjects, except so far as the customs of his " domicile " 
allow ; he cannot change the " estat " of the country by his 
ordinance ; he cannot impose taxation without the express 
consent of the country ; he cannot bring soldiers into the 
country without the consent of the coimtry ; he cannot 
arrest any of his subjects without inquiry by the magis- 
trate of the place ; and when he has made him prisoner he 
cannot send him out of the country. 1 William not only 
set out these and other conditions on which, as he maintained, 
Philip II. held his authority in the Netherlands, but he also 
made it plain that these conditions were, if necessary, to be 
enforced. If the nobles do not fulfil their oath and compel 
the Duke to do right to the coimtry, they should be con- 
demned as guilty of perjury, faithlessness, and rebellion 

1 William of Orange, : Apologie,' leur domicile le permettent. Ne peult 

(p. 46) : " Ne scait-il pas a quoi il est par aulcune ordonnance ou decret en 

oblige a moi, mes freres et mes compag- facon queleonque alterer l'estat du 

nons et aux bonnes villes du pais? pais. So doibtcontenterdeses revenues 

A quello condition il tient cest ostat ? ordinairea. Ne poult faire lever ni 

Ne se souvient-il non plus de son oxiger auccunes impositions, sans le 

sorment ? . . . II ne serait pas besoing, gre et du consentement expres du 

messieurs, que je vous represenlasso ce pais, et selon les privileges dicelui. 

qu'il nous a promis devant que nous Ne peult faire entrer gens de guerre 

lui aions donno le sorment. . . . Vous au pais, sans le consentement d'icelui. 

scavez, messieurs, a quoi il est oblige, Ne poult toucher a 1'evaluation des 

ot commo qu'il n'est en sa disposition monnoios sans le consentement des 

de faire co quo bon lui semble, ainsi Estats du pais. II ne peult faire appre- 

qu'il faict es Indes. Car il ne peust par hendre aulcun subjet sans information 

violence contraindre un seul de 6es faicte par le magistrat du lieu. L'aiant 

subjects a chose queleonque, sinon que prisonnier il ne peult 1'envoycT hors du 

les coustumes du Banc Justicial de pais." 



CHAP. II.] THE PRINCE UNDER THE LAW. 385 

against the estates of the country. By his own oath Philip 
had admitted that, if he violated it, no service or obedience 
should be rendered to him. Certainly between lords and 
vassals there is a mutual obligation, and among other rights 
the vassals have the right of the Ephors in Sparta, that is to 
maintain the royal authority of a good prince, and to bring to 
reason the prince who violates his oath. 1 

It is clear that William of Orange looked upon the relation 
between Philip and the Netherlands in the terms of the tra- 
ditions of feudal law, as founded upon contractual conditions ; 
these were embodied in their mutual oaths, and the com- 
munity had not only the right but the duty of enforcing 
these conditions. 

We find the same conceptions expressed in the declaration 
of the Netherlands to the Diet of the Empire at Worms in 
1578. Their representatives, suspecting the intentions of Don 
John of Austria, proposed to put the government of the 
Netherlands in the hands of the Archduke Matthias of Austria, 
and they maintained that they were within their legal rights, 
for it had been provided by the " Privileges de Brabant " 
that if the prince or his lieutenant violated the laws and 
rights of the country, it was lawful for the Estates, and also 
for those to whom the duty specially belonged, to refuse him 
homage and obedience until he had amended and conformed 
to that which was prescribed by the laws. They cited his- 
torical examples of such action, and added that these " Privi- 
leges," which had originally belonged particularly to Brabant, 
had been extended to all the Low Countries in the time of 

1 Id. id. (p. 47) : " Si, dis-je, les tainement entre tous seigneurs et vas- 

nobles suivants leur serment et obliga- saux y a obligation mutuelle, et le 

tion, ne contraignent le Due a faire dire du Senateur a un Consul sera 

raison au pais, ne doibventils pas toujours loue ; si tu ne me tiens pour 

eus mesmes estre condamnez de per- Senateur, aussi je ne te tiendrai pour 

jure, infidelite et rebellion envers les Consul. . . . Entre aultres droits, 

Estats du pais. ... (p. 48) : En nous avons ce privilege de servir a 

somme, par son serment, il veult qu'en nos Dues, ce que les Ephors servoient a 

cas de contravention nous ne lui soyons Sparte a leur Rois, e'est de tenir la 

plus obligez, nous ne lui rendions roiaute ferme en la main du bon 

aucun service ou obeissance, comme Prince, et faire venir a la raison celui 

appert par l'article dernier . . . Cer- qui contrevient a son serment." 

VOL. VI. 2 P 



386 



THE LATER SIXTEENTH CENTURY. 



[PART IV. 



the Duchess Mary. 1 We are not here concerned with the 
historical validity of these contentions, but with the nature 
of the conception which they represented. It is obvious that 
while there is no direct reference to a contract, it was implied 
that the prince who violated the laws was liable to be suspended 
or deposed ; that is, that there was an implicit contract. 

It is significant that in the Articles of Agreement which 
were laid before the Duke of Anjou in the year 1581 by the 
envoys of the Estates sent to offer him the government, it is 
clearly stated that, if the Duke or his successors were at any 
time to violate the terms of the Agreement, the estates would 
be ipso facto released from their fidelity and would be at 
liberty to appoint another prince or to make such other 
arrangements as they might think suitable. 2 



1 Philip Marnix de Sle. Aldegonde 
(Euvres, vol. vii., ' Oraison des 
Ambassadeurs du Serenissime Prince 
Matthias Archiduc d'Autriche' (p. 134): 
" En tant que par les privileges de 
Brabant est expressement pourvue et 
dicte, que si, je ne di point le lieu- 
tenant du prince, mais aussi le prince 
mesme, viole les loix et droictes du 
pays, il est en ce cas loisible, non seulo- 
ment aux Estats en general, mais 
aussi particulierement, a ceux aux- 
quels appartiendra, de quelques con- 
ditions qu'ils soyent, de refuser au 
roi tout homage et obeissance, si 
longuement et jusquo a tant qu'il ait 
cogner et amende sa faute, et qu'il 
ait en tout satisfait a ce qui est pre- 
script ot limite par les loix et ordon- 
nances. 

Au reste, si quelqu'un, est ant 
au noni du prince establi au gouverne- 
ment du pays, alloit a l'encontre 
desdictes privileges, il est par le mesme 
faict declare' <■ ur <|. . hi a de son rou- 
vernement et dignit6, ot doibt est re de 
tous tenu pour depose, de maniere 
qu'aucun ne ee pout-joindre a luy, 
comme a celuy qui de faict et sans 
aucune forme de droict ou solemnit6 
de loix, doibt otre juge non idoine a 



exercer aucun office en la Republique, 
mais aussi tenu pour inhabile a faire 
testament et infame." 

(They give as an example the deposi- 
tion by the Estates of John, Duke of 
Brabant, grand-nephew of Philip le 
Hardi, Duke of Burgundy, and the 
appointment of his brother Philip, 
until John should amend ; and they 
say that John recognised by letters 
under his seal that this action was 
legitimate.) 

" Laquello loy estant particuliere au 
pays de Brabant au temps de la serenis- 
sime Marie, espouse de Maximilien. . . . 
Empereur Auguste . . . fut.partraicte 
et couvenant public, faicte commun et 
univorsel par tout le pais bas, ainsi 
qu'il so trouvo par ecrit es annates 
publiques. 

Semblable maniere de faire a est6 
jadis practiquee, par les Hollandais et 
Zelandais et souvent usurpee en 
Flandres, comme la fidelite des his- 
toriens le nous tesmoigne." 

2 Id., vol. vii. (p. 214), Art. 2 : 
" Et en cas que S.A. ou ses successeurs 
contrevinssent a ce-dit traite, en aucuns 
parts d'icelui, les Etats seront de fait 
absous ot decharges de toute obeis- 
sance serment et fidelite, et pourront 



CHAP. II.] THE PRINCE UNDER THE LAW. 387 

We think that it is with the impression of such a survival 
in the sixteenth century of the contractual conceptions of the 
feudal state in our minds that we shall best understand the 
treatment of the contract between ruler and people in other 
writers of the century. 

George Buchanan asserts the conception of a contract in 
precise and dogmatic terms, in a discussion of the right to 
depose a king who becomes a tyrant. Maitland urged that 
subjects are bound by their oath of obedience to obey the 
king. Buchanan admits this, but replies that kings also 
promise to administer the law " ex aequo et bono," and that 
there is therefore a mutual contract between the king and the 
citizens. A contract is void if one of the parties violates its 
provisions, and therefore if the king breaks the bond which 
united him to the people, he loses whatever rights he had by 
the contract, and the people is free as it was before the 
agreement. 1 

The Huguenot pamphlets assert the principles of the 
contract with equal emphasis. The ' Droit des Magistrats ' 
contends that so far from its being true that the people had 
wholly surrendered their liberty to the king, it is rather true 
that they only accepted him on certain conditions, and thus 
it follows that, if these conditions were violated, those who 
had power to give this authority had the right also to with- 
draw it. And again, it was on certain promises and conditions 
that a king was accepted by his people, conditions founded 
on equity and natural reason, that he should conduct the 
government according to the laws, of which he is or ought to 
be the supreme protector. 2 It is again worth observing that 

prendre un autre prince, ou autrement venta solvit ? . . . Soluto igitur 

pourvoir aux affaires, comme ils vinculo, quod regem cum populo con- 

trouveront convenir." tinebat, quicquid juris ex pactione 

1 George Buchanan, ' De Jure ad eum qui pacta solvit, pertinebat, 

Regni ' (p. 38) : " B. Obstricti sumus ; id, reor, amittitur. ... Is etiam, cum 

sed illi (the kings) contra, priores pro- quo erat conventum, aeque fit, atque 

mittunt se ex aequo et bono jus ante stipulationem erat, liber." 
dicturos. . . . Mutua igitur regi cum - ' Droit des Magistrate ' (p. 753) : 

civibus est pactio. . . . Qui prius a " Je nie qu'il puisse apparoir d'une 

conventis recedit, contraque quam telle quittance (the contention that the 

pactus est facit, nam is pacta et con- people had wholly surrendered their 



388 THE LATER SIXTEENTH CENTURY. [PART IV. 

the ' Droit des Magistrats,' in a passage to which we have 
already referred, in which it speaks of kingdoms and empires 
as fiefs of the " Souverainete," refers to the feudal law as 
declaring that the lord loses his fief if he commits " felonie " 
against his vassals, and applies this to the case of an emperor 
or king in his relations to his subjects. 1 

The ' Archon et Politic ' speaks of the reciprocal pacts 
and conventions between the. prince and the people which 
may not be violated by either party. 2 The ' Vindiciae Contra 
Tyrannos ' sets out the principle of a "foedus " between king 
and people. It was the people who made the king, and the 
people imposed a condition which the king promised to ob- 
serve. The condition was that the king should reign justly 
and according to the laws, and when he had promised to do 
this the people promised that they would faithfully obey him, 
but, if the king did not fulfil his promise, they would be free 
from all obligation to him. There are indeed two contracts, 
one between God and the king and people, the other between 
the king and the people. God is the avenger if the king does 

liberty), et dis au contraire, que les puisque les royaumes et empires 

nations, tant que le droit et equite a mesmes sont fiefs, devons hommages 

eu lieu, n'ont cre6 ni accept6 leur et services a la souverainete, venous 

Roys qu'a certaines conditions, les- a considerer ce que porte les droits des 

quelles estans manifestement violees fiefs. II est dit au livre II. Tit. xxvi. 

par eux, ils s'ensuit que ceux qui ont Par. 24, et Tit. 47, que le seigneur 

en puissance do leur bailler telle auto- commet felonnie contre son vassal 

rito n'ont en moin de puissance de les oomme le vassal contre son seigneur, 

en priver." . . . Je di done au cas oil nous sommes, 

Id. (p. 769) (After citing the terms qu'un Roi ou mesme un Emporeur, 

of the Treaty of Arras between Charles rel6vant de la souverainte commettant 

Vll. and the Duke of Burgundy, that felonie contre ses vassaux, a savoir ses 

if Charles violated the Treaty his sujets (ce que jamais no puisse advenir) 

vassals and subjects would bo absolved perd son fief, non pour estre adjuge 

from their oath of allegiance to him) : aux vassaux, mais pour y estre pourveu 

" Devons-nous en moins estimer par ceux qui representent la souve- 

d'une promesse ot condition sous rainete." 

ilo un Roy aura este accepte par 2 'Archon et Politie ' (p. 114) : 
son peuplo, et qui est mesme fondee "Politic. Mais il y a loi entre les deux 
sur equite et raison naturello, assavoir parties qui ordonno actions et con- 
do reigler son administration selon venancesrociproques, qui nose peuvent , 
les loix, desquols il est ou doit estre ni par le Prince, ni par les sujets, sans 
le souverain protecteur." justice violer." 

1 Id. (p. 770): "Outre tout cela, 



CHAP. II. J THE PRINCE UNDER THE LAW. 389 

not keep the first pact, while the whole people and those persons 
who are responsible for the protection of the people have the 
same authority if the king does not fulfil his contract with 
them. 1 It is, however, perhaps more important that the 
author of the ' Vindiciae ' maintains that a contract of this 
kind was a part of the constitution of almost all contemporary 
states (imperia) which were worthy to be called states ; and 
he illustrates this from the Empire and other elective 
monarchies, and then from hereditary monarchies like France, 
England, and Spain, and smaller states like Brabant. He 
finds the essential expression of this in the coronation cere- 
monies and especially in the coronation oaths, and concludes 
that no one can deny that there is a mutual and binding 
contract between kings and their subjects. 2 

The author of the ' Vindiciae ' sums up the whole matter by 
declaring emphatically that the king who violates the contract 
is perjured and unworthy of his office, and that the people 
who refuse obedience to him have violated no obligation, and 
he appeals to the principle of the feudal law that the vassal 
is free from the service if the lord has committed " felonie " 
against him. And finally he says that even if there were no 
ceremonies of coronation, if the king had taken no oaths, 
nature itself would teach men that kings were created by the 
people that they should rule justly, and that if they do not 

1 ' Vindiciae Contra Tyrannos,' Q. non impleretur, populus ipso jure 

III. (p. 159) : " Diximus in con- omni obligatione solutus censeretur. 

stituendo rege duplex foedus initum In primo foedere seu pacto pietas in 

fuisse ; primum inter Deum et regem obligationem venit ; insecundo justitia; 

et populum, de qua super : secundum illo promittit rex, se pie obediturum 

inter regem et populum de quo nobis Deo : hoc se juste imperaturum 

jam agendum est. ... (P. 160) : In populo ; illo, se gloriam Dei ; hoc, 

eo pacto agebatur de creando Rege. utilitatem populi curaturum ; in 

Populus enim regem faciebat, non illo inest conditio, si legem meam 

Rex populum. Itaque non dubium observaris ; in hoc, si jus unicuique 

est quin populus stipularetur, Rex suum tribueris. Illius, ni impleatur 

promitteret Stipulabatur Deus proprie vindex est ; hujus legi- 

ille a rege, an non juste et secundum time universus populus, quive univer- 

leges regnaturus esset ? Hie facturum sum populum tuendum susceperint, 

spondebat. Populus demum se juste regni proceres." 

imperanti fideliter obsequuturum re- 2 Id. id. (p. 162): "Quod si vero 

spondebat. Itaque promittebat rex hodierna imperia spectemus, nullum 

pure, populus sub conditione ; quae si sane est, quod eo nomine dignum con- 



390 



THE LATER SIXTEENTH CENTURY. 



[PAUT IV. 



do this they are no longer kings and should not be acknow- 
ledged by the people. 1 



seatur, in quo inter principem et 
subditoa pactum ejusmodi non inter- 
cedat." 

He cites the oath of the Emperor 
Charles V. : "Leges latas custodit- 
urum ; novas, inconsultis elcctoribus 
non laturum ; publica publico consilio 
curaturum ; nil alienaturum oppig- 
neraturumve ex iis, quae ad imperium 
pertinent, et caetera." 

The Archbishop of Cologne requires 
the emperor at his coronation to swear 
to defend the Church, to administer 
justice, &c, and when the emperor has 
done this, he asks the princes whether 
they will take the oath to him. He 
refers to Poland, and the recent corona- 
tion of the Duke of Anjou ; to Bo- 
hemia and to Hungary ; and maintains 
that the same practice obtained even 
in hereditary kingdoms like France. 

(p. 164): "Rex Franciae, quando 
inauguratur, rogant primo Laudunensis 
et Bellovacencis, Pares Ecclesiastici. 
populum qui adest universum, eum ne 
regem esse cupiat, jubeatquo ? Unde 
etiam a populo tunc eligi in ipsa in- 
augurationis formula, dicitur. Ubi 
populus consensisse videatur, jurat se 
leges Franciae privilegiaque ac jura 
in univorsum omnia et tuiturum, 
domanium non alienaturum et cetera. 
. . . Nee vero prius accingitur gladio, 
ungitur, coronatur a paribus . . . aut 
Rex proclamatur, quam populus jus- 
serit : nequo etiam prius ei pares 
jurant, quam ipsis fidem dederit, se 
leges accurate tustoditurum. Eae vero 
sunt, no patrimonium publicum dila- 
pidet, ne vectigalia, portoria, tributa 
suopto arbitrio imponat, indicatve, ne 
bellum decernat, paeemve faciat : 
(Icnique ne quid in publicum, nisi 
publico consilio statuat. Item sua 
senatui, sua Comitiis, sua regni offi- 
ciariis constot auctoritas ; ot cetera, 
quae perpetuo in regno Francico 



observata fuere." 

When the king enters any province 
for the first time, he confirms and swears 
to observe its privileges — e.g., Toulouse, 
Dauphine, Brittany, Provence. 

The conditions in England, Scotland, 
Sweden, and Denmark were much the 
same as in France, while in Spain they 
were even more definite, and he cites 
the tradition that in Aragon the 
" Proceres " addressed the king at his 
coronation as follows : — 

(p. 160) " Nos qui tantum valemus 
quantum vos, et plus possumus 
quam vos, regem vos eligimus cum 
his et his conditionibus. Inter vos et 
nos unus imperat magis quam vos " 
(referring, no doubt, to the Justiza). 

If the king violated his oath he was 
to be excommunicated, and his sub- 
jects were released from their oath 
like the vassals of the excommunicated 
lord. 

This was also the rule in smaller 
States such as Brabant. 

(p. 167): "In Duce enim suo 
inaugurando, conventionibus antiquis, 
quibus nil fere ad reipublicae conser- 
vationem deest, coram Duce perlectis, 
ni eas omnes observaverit, sibi integrum 
esse alium quemlibet suo arbitratu 
eligere, palam ei diserteque protes- 
tantur. Ipse vero turn in eas, accepta 
conditione ultroquo agnita, sese Sacra- 
mento devincit. Quod etiam pos- 
tremo in Philippi Hispaniarum Regis 
inauguratione observatum fuit. In 
summa : inter regem et subditos con- 
tractum mutuo obligatorium esse, 
nomo negare possit ; nempe ut bene 
imperanti, bene obediatur, qui quidem 
jure jurando ab illo primum, deinde ab 
his ronfirmari solet." 

1 Id. id. (p. 168): " Quodsi vero 
conditionis implendae defectu, con- 
tractus ipso jure solutus est, quis 
perjurum populum vocet qui regi 



CHAP. II.] THE PRINCE UNDER TELE LAW. 391 

We find a -writer of the Catholic League like Boucher setting 
out the same conception of the contractual relation between 
the prince and the people; and again with relation to the 
tradition of the feudal law as to the mutual obligations of 
lord and vassal, and the doctrine of the feudal law books that 
the lord would lose his rights for the same offences as those for 
which the vassal would lose his fief. 1 And, in justification of 
the deposition of Henry III., Boucher contended that the 
royal authority depended upon the mutual contract between 
king and people, in such a sense that, if the king were to vio- 
late it, he could not be recognised as king. 2 

It may again be urged that the works which we have just 
cited were the outcome of violent and revolutionary move- 
ments and it is therefore very important to observe that 
Bichard Hooker, in a passage of which we have already 
quoted part, affirms the same principle of the " compact ' : 
between the ruler and the community. 

" The case thus standing," he says, " albeit we judge it a 
thing most true that kings, even inheritors, do hold the right 

conditionem, quae implere debuit et ipsi fiunt ; ut reges non sunt ita nee 

potuit, negligenti, legemque, in quam agnosci a populo debere." 

juravit, violanti, obsequium deneget ? x J. Boucher, ' De justa abdicatione 

Quis vero contra, eum regem foedi- Henrici III,' i. 19. 

fragum, perjurum, eo beneficio prorsus 2 Id. id., iii. 3 : " Adde quod cum 

indignum non censeat. Rege publica fides necessario con- 

(p. 169) : Etenim, si vassallum juncta est, ut ne Rex quidem sine ea 

clientelae nexu lex liberat, in quern esse posset. Pendet enim id ex mutuo 

senior feloniam commisit, etsi sane contractu illo, quo Rex populo fidem 

senior fidem proprie non dat vassallo, suam, huic vicissem suam populus 

sed vassallus ipse. . . . An non multo obligavit. Mutuumque adeo promis- 

magis solutus erit populus ea fide, quam sum est, ut dum populus summum ei 

regi praestitit, si rex, qui primus ipsi imperium defert, et ut in publicum 

tamquam domino procurator, solemniter oommodum vertat obtestatur, id, 

juravit, fidem fregerit. vicissim princeps facturum so recipiat, 

An non vero etiam si non isti ritus, ac iuramento firmet, tanto existima- 

non ea sacra, non ea sacramenta inter- tionis studio, ut fidei nomine ac laude, 

venirent ; satis tamen ipsa natura nihil antiquius reges habere perpetuo 

docet, reges ea conditione a populo velint. ... Ex quo fit, ut qui fidem 

constitui, ut bene imperent 1 Judices illam semel abjiceret, ei reliquum 

ut jus dicant ? Duces belli, ut exercitus nihil sit, quo regis nomine tueri iure 

adversus hostes educant ? Quodsi posset, ut ob id, titulo isto merito sit 

vere saeviunt, injuriam inferunt, hostes privandus." 



392 THE LATER SIXTEENTH CENTURY. [PART IV. 

to the power of dominion, with dependency upon the whole 
entire body politic over which they rule as kings, yet so it 
may not be understood, as if such dependency did grow, for 
that every supreme governor doth personally take from them 
his power