1 Albert
the Great seems also to refer to the same doctrine when he
says that the edict of the Prince which is maintained by
custom has the force of written law.
the Great seems also to refer to the same doctrine when he
says that the edict of the Prince which is maintained by
custom has the force of written law.
Thomas Carlyle
id.
, 2.
2, 58, 1 : "Ad Primum
sic prooeditur. Videtur quod incon-
venienter definiatur a jurisperitis,
quod justitia est ' perpetua et constans
voluntas jus suum uniouique tri-
buendi' . . . Respondeo dicendum,
quod predicta justitise definitio con-
veniens est, si recto intelligatur . . .
et si quia vellet eam in debitam formam
definitionis reducere, posset sic dicere,
quod justitia est habitus, secundum
quem aliquis constant! et perpetua
voluntate jus suum unicuique tribuit;
et quasi est eadem definitio cum ea,
quam Philos ponit in v. Ethic (cap. v. )
dicens, ' Quod justia est habitus,
secundum quem aliquis dicitur opera-
tivus, secundum electionem justi. ' "
* Id. id. , 2. 2, 61, 1: " Sed contra
est quod Philos in v. Ethic (c. 2) ponit
duas partes justitise, et dicit, quod
una est directiva in distributionibus,
alia in commutationibus.
Respondeo dicendum, quod sicut
dictum est, justitia particularis ordina-
tur ad aliquam privatam personam :
quio comparatur ad communitatem,
sicut pars ad totum: potest autem
ad aliquam partem duplex ordo attendi:
unus quidem partis ad partem ; qui
similis est ordo unius privatse personse
ad aliam; et hunc ordinem dirigit
commutative justitia, quse consistit
in his quse mutuo fiunt inter duas
personas ad invicem; alius ordo
attenditur totius ad partes: et huio
ordini assimilatur ejus quod est com-
mune ad singular personas: quem
quidem ordinem dirigit justitia dis-
tributiva, quse est distributiva com-
munium secundum proportionalitatem :
et ideo duse sunt justitise species:
scilicet -. distributiva, et commutativa. "
s Id. id. , 2. 2, 57, 1: "Sed contra
est quod laid. : dicit in eodem libro
(' Etym. ,' v. 3), quod jus dictum est
quia est justum: sed justum est
objectum justitise: dicit enim Philos
in v. Ethic (cap. i. ) quod ' omnes
talem habitum volunt dicere justum
a quo operativi justorum sunt'; ergo
jus est objectum justitise. "
? ? 4 Id. id. id. , Resp.
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? CHAP. IV. ]
43
THE NATURE OF LAW.
assertion by St Thomas of the relation between law and
justice may be found in another " Article " of the same " Ques-
tion," where he asks whether the judgment of the judge must
always be in accordance with the law. He decides that
while normally this must be so, this will only hold if the
law is just. Laws which are contrary to the natural law
are unjust, and have no force. It may even happen that laws
which are in themselves right may not be adequate to certain
cases, and would, in such cases, be contrary to the natural
law. In such circumstances men must not judge according
to the letter of the law, but must recur to that equity which
the legislator desired to attain. 1
est: judex autem dicitur, quasi jus
dicens : jus autem est objectum justi-
tise, ut supra babitum est: et ideo
judicium importat, secundum prim am
nominis impositionem, definitionem vel
determinationem justi, sive juris:
quod autem aliquis bene defmiat
aliquid in operibus virtuosis, proprie
procedit ex habitu virtutis: sicut
cast us recto determinat ea, quse perti-
nent ad cartitatem ; et ideo judicium,
quod importat rectum determinationem
ejus, quod est justum, proprie pertinet
ad justitiam: propter quod Philos, in
v. Ethic (cap. 4) dicit, quod homines
ad judicem confugiunt, sicut ad quan-
dam justitiam animatam. "
1 Id. id. , 2. 2, 60, 5: " Respondeo
dicendum, quod sicut diotum est,
judicium nihil aliud est quam qusedam
definitio, vel determinatio ejus quod
justum est: fit autem aliquid justum
dupliciter, uno modo ex ipsa natura
rei quod dicitur jus naturale: alio
modo ex quodam condicto inter ho-
mines ; quod dicitur jus positivum
ut supra habitum est (Q. 57, 2): leges
autem scribuntur ad utriusque juris
declarationem : alitor tamon, et alitor :
nam legis scriptura jus quidem natu-
rale continet, sed non instituit: non
enim - ha bet robin- ex lege, sed ex
natura : jus autem positivum scriptura
legis et continet, et instituit, dans ei
auctoritatis robur; et ideo necesse
est, quod judicium fiat secundum legis
scripturam, aloquim judicium deficeret
vel a justo naturali vel a justo positivo.
Ad primum ergo dicendum, quod
lex scripta sicut non dat robur juri
naturali, ita nec potest ejus robur
minuere, vel auferre : quia nec volun-
tas hominis potest immutare naturam :
et ideo si scriptura legis oontineat
aliquid contra jus naturale, injusta
est, nec habet vim obligandi; ibi enim
jus positivum locum habet, ubi quan-
tum ad jus naturale nihil difiert, utrum
sic vel aliter fiat, sicut supra habitum
est (Q. 57, 2); et ideo nec tales scrip-
ture leges dicuntur, sed potius legis
corruptiones, ut supra dictum est
(1. 2, 95, 2): et ideo secundum eas
non est judicandum.
? ? Ad secundum dicendum, quod
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? 44
[PABT (.
POLITICAL PRINCIPLES.
St Thomas' conception of the nature of law is, then,
founded upon two principles, that it is the expression of
reason, and that its purpose is justice. It is interesting to
compare his conception with that of the mediseval Jurists,
with which we have dealt especially in the second and third
volumes of this work. 1 His treatment represents a very im-
portant development of the significance of the rational element
in law, while it also brings out very emphatically the funda-
mental mediseval conception of its moral or ethical nature.
ea nos duriore interpretatione contra Cf. id. id. , 1. 2, 95, 2, Resp,
ipsorum commodum producamus ad 1 Cf. vol. ii. part i. chaps. 1 and 2 ;
severitatem': et in talibus etiam legia- part ii. chap. 3 ; vol. iii. part i. chap. 2 ;
lator alitor judicaret; et si conside- part ii. chap. 5.
russet, lege determiuasset. "
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? 45
CHAPTER V.
THE SOURCE OF THE LAW OF THE STATE--I.
We have so far considered the mediseval conceptions of the
nature of law as representing the principles of reason and
justice, or, to put it into the other terms of that time, human
law as limited and controlled by the law of nature. We
must now consider the more immediate source of the law of
the State, the authority from which it proceeded, and upon
which it rested. In this chapter and the following, we shall
endeavour to set out what we venture to think were the
normal mediseval conceptions upon the subject, and to trace
the beginnings of another mode of thought.
We have in previous volumes set out what appears to us
the first and in some sense the most fundamental aspect of
the mediseval conception of the nature and source of the law
of the State--that is, that it was custom. We have seen that
this was the conception of the feudal jurists,1 and that this
was also the first principle of the Canon Law. 2 We shall
have presently to deal with the question of the relation of
the Civilians of Bologna and the revived study of the Eoman
law to the question of the source of law ; but for the moment
it is enough to observe that the Civilians also were clear that
custom had once been its source. 3 The principle is admirably
expressed by Beaumanoir for France, when he says that all
pleas are determined by custom, and by Bracton for England,
when he asserts that England is governed by unwritten law
1 Cf. vol. iii. part i. chap. 3. 8 Vol. ii. part i. chaps. 6 and 7.
* Cf. vol. ii. part ii. chap. 8.
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? 40
[PABT L
POLITICAL PRINCIPLES.
and custom. It is no doubt true that Bracton thought that
this was peculiar to England--a curiously inaccurate judg-
ment, probably due to an impression that the other European
countries lived under Eoman law. 1 What is thus affirmed
for their own countries by Beaumanoir and Bracton became
a sweeping and all-including generalisation in Gratian, when
he opened his ' Decretum' with the famous words, founded
upon Isidore of Seville, " The race of mankind is ruled by two
things, by natural law and by custom. " 2
We venture to urge that it is quite impossible to under-
stand the political structure of mediseval society and the
nature of mediseval government unless we begin by taking
account of this conception. We are so much and so naturally,
if not very intelligently, influenced by the belief in the
existence of a conscious sovereign authority, of which law
is the expression, that we find it difficult to understand
the state of mind of those ages when the conception of
the sovereign, in the modern sense of the word, hardly
existed.
The first question to which we must here address ourselves
is how far this conception of law, as proceeding from or con-
trolled by custom, was maintained in the thirteenth century
by writers with whom we have not yet dealt, or in countries
whose laws we have not yet examined.
And first, we may observe the careful and yet confident
mode in which St Thomas Aquinas sets out the principle of
the authority of custom. In a discussion of the question
whether law can be changed, he considers the question whether
custom has the force of law. He cites various objections
which could be alleged, and then states his own conclusion.
He first cites the famous words of St Augustine that the
custom of the people of God and the institutions of men's
ancestors are to be accepted as law, and then proceeds to
say that law is the expression of the reason and will of the
legislator, but these are declared as plainly by men's actions
as by their words, and therefore the frequently repeated
1 Cf. vol. iii. pp. 41, 42. * Cf. vol. ii. p. 98.
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 47
actions of men which constitute custom can change or estab-
lish or interpret law. 1
He goes on to contend that, as human laws may not cover
all cases, it may be right sometimes to take action which is
outside of the law, and when such cases are multiplied owing
to some change in men, custom shows that the law is
no longer useful. And he even adds that, while normally,
if the conditions remain the same, the law founded upon
these conditions will prevail over custom, there may be
cases where the law is useless, simply because it is contrary
to the custom of the country, for this is one of the conditions
of law--it is difficult to change the custom of the multitude. 3
It is clear that while St Thomas recognises other forms
of law besides the custom of the people, he does substantially
represent the conception of custom as a main source of
1 St Thomas Aquinas, ' Summa
Theologica,' 1. 2, 97, 3 : " Sed contra
est quod Augustinus dicit in Epistola
ad Casulanum : ' mos populi Dei et
instituta ma jorum pro lege sunt
tenenda ; et siout prevaricatores legum
divinarum. ita et contemptores con-
suetudinum ecclesiasticarum coercendi
sunt. ' Respondeo dioendum, quod
omnia lex proficiscitur a rations, et
voluntate legislatoris: lex quidem
divina, et naturalis, a rationabili Dei
voluntate, lex autem humana a volun-
tate hominis ratione regulata: sicut
autem ratio et voluntas hominis mani-
festantur verbo in rebus agendis, ita
etiam manifestantur facto : hoc enim
unusquisque eligere videtur ut bonum,
quod ope re implet. Manifest :t est
autem, quod verbo humano potest et
mut&ri lex, et etiam exponi, inquantum
manifestat interiorem motum, et con-
ceptum rationis humanse ; unde etiam
ct per actus maxime multiplicatos, qui
consuetudinem efficiunt, mutari potest
lex, et exponi et etiam, aliquid causari,
quod legis virtu tem obtineat; inquan-
tum scilicet per exteriores actus multi-
plicatas interior voluntatis motus, et
rationis conceptus efficacissimo decla-
ratur: quum enim aliquid multoties
fit, videtur ex deliberato rationis
judicio proveniri: et secundum hoc
consuetudo et habet vim legis, et
legem abolet, et est legum inter-
pretatrix. "
Cf. Julianus in * Dig. ,' i. 3, 32, and
vol. i. p. 64.
2 Id. id. id. : " Ad secundum di-
cendum, quod, sicut supra dictum est,
leges human se in aliquibus casibus
deficiunt; unde possibile est quando-
que prater legem agere, in casu scilicet
in quo deficit lex; et tamen actus
non erit malus : et cum tales casus
multiplicantur propter aliquam muta-
tionem hominum, tunc manifestatur
per consuetudinem, quod lex ulterius
non est utilis ; sicut etiam manifesta-
retur, si lex contraria verbo promul-
garetur. Si autem adhuc maneat
ratio eadem, propter quam prima lex
utilis erat, non consuetudo legem sed
? ? lex consuetudinem vincit: nisi forte
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? 48
[PABT L
POLITICAL PRINCIPLES.
law. It is, however, clear that St Thomas Aquinas implies
that there were other forms of law besides custom, and we
shall presently deal with these. The important point of the
passages which we have just considered is that, whatever
other forms of law there might be, he was clear that custom
lay behind them, and was still paramount over them.
This is also the position of some other very important
writers of the later thirteenth century. Vincent of Beauvais,
in his ' Speculum,' cites the significant words of Gratian, in
which he laid down the principle that even when laws were
instituted by a competent authority, they needed to be con-
firmed by the custom of those who were concerned.
1 Albert
the Great seems also to refer to the same doctrine when he
says that the edict of the Prince which is maintained by
custom has the force of written law. 2 What is, however,
much more significant is the treatment of the authority of
custom by the most important Canonist, and the most authori-
tative Civilian of the second half of the century.
Hostiensis, in his ' Commentary on the Decretals,' describes
the nature and the authority of custom, and clearly accepts
the judgment of Gregory IX. that custom if it is " rationabilis
et legitime prsescripta," prevails over other forms of positive
law. 3 Odofridus, in his ' Commentary on the Digest,' draws
attention to the divergence between this judgment of Gregory
and the passage in the ' Code ' (viii. 52 (53)), in which Con-
stantine had apparently maintained that custom could not
1 Vincent of Beauvais, ' Speculum,'
it 7. 35. Cf. vol. ii. pp. 155, 166,
186.
2 Albert the Great, ' Ethica,' x. iii.
2: " Sin autem illse (leges) scriptse
aint vel non scriptse, nihil videtur
differre ad prsesens: edictum enim
principia consuetudine servatum script:! !
legis habet vigorem. "
* Hostiensis, ' In Primum Librum
Decretalium Commentaria,' i. * De
Consuetudine,' 8, 9: " Ad quod
sciendum quod quatuor sunt species
consuetudinis, scilicet generalissima, ut
est consuetudo inter omnes Catholicos,
versus orientem orare. . . . "
Id. id. , 10 : " Item est consuetudo
genoralis, quando scilicet nedum civitas
sed tota provincia ita generaliter
servat. "
Id. id. , 8, 11 : " Et hae duo species
derogant juri, sive in provincia, sive
in loco in quo obtinct hoc, si post
legem introducta sit consuetudo. "
Id. id. , 10, 9: " Quid est consue-
tudo. . . . TJsus rationabilis competente
tempore confirmatus. . . . "
Id. id. , 11: " TJtrum autem ait
rationabilis vel non, relinquo judici,
cum non regula posset tradi. "
Cf. ' Decretals,' i. 4, 11. Cf. vol. ii.
p. 158.
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 49
over-ride law. 1 Odofridus says that there had been much
controversy over this question, and cites the opinion of
Placentinus that, while in earlier times the Eoman people
could make law and its custom could abrogate it, nowadays
it was only the Emperor who could make law, and therefore
the custom of the people could no longer annul it. Odofridus
himself, however, emphatically repudiated the opinion of
Placentinus, and maintained that the Eoman people could
still make law, and that, therefore, its custom could still
annul it. 2 Odofridus was, as it is thought, a pupil of Azo,
and represented the tradition of his master. 3
The opinions of these writers are interesting and important,
but, after all, they are of little importance as compared with
the clear and dogmatic statements of the great feudal lawyers
like Bracton and Beaumanoir on the principles of the system
of law which they had to interpret and administer in the
latter part of the thirteenth century. We may add that the
same judgment as to the legal authority of custom is clearly
1 Cf. vol. ii. p. 158.
2 Odofridus, * Commentary on Di-
gest,' i. 3, 32 (fol. 15 r. ): "Dixit
Pla. (Placentinus) Olim consuetudo
vincebat legem, et ita loquitur lex
nostra in fi . . . nam olim populus
Roman us poterat legem condere, vft
lex est quod populus Romanus, etc.
. . . Non est ergo mirum si contraria
ejus consuetudo tollat legem, quia ejus
est tollere cujus est condere. . . . Sed
hodie solus princeps potest legem con-
dere, ut C. de le. et consti. 1. f. (Code
i. 14, 12) unde non debet consuetudo
populi posse leges imperatoris tollere,
et sic loquitur 1. nostra quia hoc esset
inconveniens quod consuetudo populi
tolleret legem principis. Sed, signori,
banc solutionem non approbamus,
quia sicut olim populus poterat legem
condere, sic et hodie potest, vn debet
posse consuetudo populi legem tollere,
nec obstat quod dicitur quod solus
princeps sive imperator potest legem
condere, quia ilia dictio, solus, excludit
singularem personam, non populum,
VOL. V.
nam populus beno potest hodie legem
condere, sicut olim poterat, ut ibi
dixi. S. E. Ti. L. I. (i. e. , his ' Com-
mentary on Digest,' i. iii. 1). Item
non obstat quod alibi dicitur quod
populus omne imporium legis condere
transtulit in principem, ut id. f. p. p. 1.
una, in. pn. ('Digest,' i. 4, 11), quia
intelligo ' transtulit,' i. concessit, non
tamen de se abdicando ut 7. de consti.
principum, 1. 1 (' Digest,' 1, 4, 1). . . .
Sed, signori, spretis omnibus aliis
solutionibus dicendum est, ut dixi
in casu ; duplex est consuetudo, ut
consuetudo generalis que obtinet per
totum imperium Romanum, et ilia
generalis consuetudo 1. contraria, uni-
que vincit legem, ut in ll. contrariis;
est consuetudo specialis alicujus civi-
ta tis, et ilia specialis consuetudo in
illo solummodo loco vincit legem, in
alio non . . . et sic intelligitur lex
nostra. "
? ? s Cf. for a full discussion of the
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? 50
[FAST I.
POLITICAL PRINCIPLES.
laid down in the great law book of Castile, which we know
as the ' Siete Partidas ' of Alfonso X. There are, it says,
only three things which can hinder the force of law: the
first is " uso," the second is " costumbre," and the third is
"fuero. "1 We shall, however, presently return to the con-
ception of law in Spain, and treat it in detail.
Enough, we think, has been said to make it clear that the
first and, as we think, the fundamental principle of the Middle
Ages was that the law was the expression, not so much of the
deliberate and conscious will of any person or persons who
possessed legislative authority, but rather of the habits and
usages of the community. It is not our part here to endeavour
to trace the whole significance of this conception, but we
may be allowed to point out that this does not mean that
law as custom was something unintelligible or irrational. It
does not require any great consideration to enable us to
understand that the custom of a community was deter-
mined by the conditions or environment under which it
lived, and by the moral ideas such as they were, and how-
ever they arose, which possessed the community. We may
be allowed to point out that this is true not only of the cus-
tomary law of a primitive community, but in the long run
of all systems of law.
It is also important to remember that this customary law
was not really unchangeable and fixed. On the contrary, it
is evident that at least in what we call progressive countries
it was continually changing with the change of circumstances
or ideas. It is probably, on the other hand, reasonable to
think that this unconscious movement was not always suffi-
cient to accommodate itself to such a development of civilisa-
tion as took place in the centuries from the eleventh to the
thirteenth.
1 ' Siete Partidas,' i. 2, Introduction: costumbre, et la tercera fuero : et
" Embargar non puede ninguna cosa estas naxon unas do otras, et han
las leyes que non hayan la fuerza et derecho natural en si, segunt que en
el poder que habemos dicho sinon tree esto libro se muestra. "
cosas: la primera uso, et la segunda
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 51
However this may be, it is clear that in the twelfth and
thirteenth centuries we can trace the appearance and develop-
ment of another method of conceiving of the source of law--
that is, the beginning of the conception that law is the ex-
pression of the will of some conscious legislative authority.
We have arrived, that is, at the beginnings, for the modern
world, of the conception of sovereignty--that is, that there
exists in every independent society some power of making
and unmaking laws.
We have, a few pages back, referred to the statement of
Bracton that England was governed by custom and not by
written law ; but the same passage which contains these
words contains also words which express a different con-
ception of the nature of the authority on which law is founded.
Other countries, he says, are governed by written laws, Eng-
land by unwritten law and custom; but these English laws
may properly be called " leges," for that has the force of
law which has been justly determined and approved with
the counsel and consent of the great men, the approval of
the whole commonwealth, and the authority of the King. 1
Such laws, he adds in another place, when they have been
approved by the consent of those who are concerned (utantium)
and have been confirmed by the oath of the King, cannot be
changed or annulled without the counsel and consent of those
by whose counsel or consent they were promulgated. 2
Here we have a clear statement of the conception that
there is a definite legislative authority which enacts and
1 Bracton, ' Do Legibus,' i. 1, 2:
" Cum autem fere in omnibus regionibus
utatur legibus et jure non scripto, sola
Anglia usa est in suis finibus jure non
scripto et consuetudine. In ea quidem
ex non scripto jus venit, quod usus
comprobavit. Sed absurdum non erit
leges Anglicanas, licet non scriptas,
leges appellare, cum legis vigorem
habeat, quicquid de consilio et con-
sensu magnatum et reipublicss com-
muni sponsione, authoritate regis, sive
principis precedente, juste fuerit de-
finition et approbatum. "
2 Id. id. , i. 2, 6 : " Hujusmodi vero
leges Anglicanse et consuetudines, re gum
auctoritate jubent quandoque, quan-
doque vetant, et quandoque judicant,
et puniunt transgressores ; quse qui-
dem, cum fuerint approbate consensu
utentium, et sacramento re gum con-
firmatse, mutari non poterunt, nec
destrui sine communi consensu eorum
omnium, quorum consilio et consensu
fuerunt promulgatse. In melius tamen
converti possunt, etiam sine eorum
consensu, quia non dcstruitur quod iu
melius oonvertatur. "
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? 52
[PAKT I.
POLITICAL PRINCIPLES.
promulgates laws. What was, then, the nature of this
authority ? We have in the third volume set out our con-
clusion that the feudal and national jurists of the twelfth
and thirteenth centuries clearly held that the legislative
authority resided not in any one person, but belonged to the
whole community, acting through all its parts, the King, the
great men, and the whole body of the people;1 and in the
first volume we have endeavoured to show that this principle
was already firmly established in the ninth century. 2
The words of Bracton which we have just quoted are only
one expression of a general principle. Lest, however, it
should be thought that this was only an abstract or specu-
lative principle of the jurists, we will briefly examine the
legislative forms of the twelfth and thirteenth centuries in
the various European countries, and we shall see that nowhere
in the constitutional methods of the great European countries
is there any sign that the legislative power belonged to the
king alone, but always that the king acted with the advice
and consent of the great men, and behind them we see from
time to time the whole community. We must bear in mind
that it is impossible in the Middle Ages to draw a sharp line
between what we should call legislative and administrative
action.
If we go through the constitutions of the Empire, we shall
find that they are issued not by the emperors alone, but
with the advice and consent of the princes. This is obvious
even of the great Frederick II. He renewed in 1213 the
promises made by Otho IV. to Innocent HI. with respect
to the territories claimed by the Papacy, and did this with
the counsel and consent of the princes of the Empire. 3 It
is with the same counsel that in 1226 he annulled the com-
munal privileges of the citizens of Cambrai. * He proclaimed
the ban against various Lombard towns in the same year
with the deliberation and judgment of the princes and other
chief men of the Eoman Empire. 8
1 Ci. vol.
sic prooeditur. Videtur quod incon-
venienter definiatur a jurisperitis,
quod justitia est ' perpetua et constans
voluntas jus suum uniouique tri-
buendi' . . . Respondeo dicendum,
quod predicta justitise definitio con-
veniens est, si recto intelligatur . . .
et si quia vellet eam in debitam formam
definitionis reducere, posset sic dicere,
quod justitia est habitus, secundum
quem aliquis constant! et perpetua
voluntate jus suum unicuique tribuit;
et quasi est eadem definitio cum ea,
quam Philos ponit in v. Ethic (cap. v. )
dicens, ' Quod justia est habitus,
secundum quem aliquis dicitur opera-
tivus, secundum electionem justi. ' "
* Id. id. , 2. 2, 61, 1: " Sed contra
est quod Philos in v. Ethic (c. 2) ponit
duas partes justitise, et dicit, quod
una est directiva in distributionibus,
alia in commutationibus.
Respondeo dicendum, quod sicut
dictum est, justitia particularis ordina-
tur ad aliquam privatam personam :
quio comparatur ad communitatem,
sicut pars ad totum: potest autem
ad aliquam partem duplex ordo attendi:
unus quidem partis ad partem ; qui
similis est ordo unius privatse personse
ad aliam; et hunc ordinem dirigit
commutative justitia, quse consistit
in his quse mutuo fiunt inter duas
personas ad invicem; alius ordo
attenditur totius ad partes: et huio
ordini assimilatur ejus quod est com-
mune ad singular personas: quem
quidem ordinem dirigit justitia dis-
tributiva, quse est distributiva com-
munium secundum proportionalitatem :
et ideo duse sunt justitise species:
scilicet -. distributiva, et commutativa. "
s Id. id. , 2. 2, 57, 1: "Sed contra
est quod laid. : dicit in eodem libro
(' Etym. ,' v. 3), quod jus dictum est
quia est justum: sed justum est
objectum justitise: dicit enim Philos
in v. Ethic (cap. i. ) quod ' omnes
talem habitum volunt dicere justum
a quo operativi justorum sunt'; ergo
jus est objectum justitise. "
? ? 4 Id. id. id. , Resp.
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? CHAP. IV. ]
43
THE NATURE OF LAW.
assertion by St Thomas of the relation between law and
justice may be found in another " Article " of the same " Ques-
tion," where he asks whether the judgment of the judge must
always be in accordance with the law. He decides that
while normally this must be so, this will only hold if the
law is just. Laws which are contrary to the natural law
are unjust, and have no force. It may even happen that laws
which are in themselves right may not be adequate to certain
cases, and would, in such cases, be contrary to the natural
law. In such circumstances men must not judge according
to the letter of the law, but must recur to that equity which
the legislator desired to attain. 1
est: judex autem dicitur, quasi jus
dicens : jus autem est objectum justi-
tise, ut supra babitum est: et ideo
judicium importat, secundum prim am
nominis impositionem, definitionem vel
determinationem justi, sive juris:
quod autem aliquis bene defmiat
aliquid in operibus virtuosis, proprie
procedit ex habitu virtutis: sicut
cast us recto determinat ea, quse perti-
nent ad cartitatem ; et ideo judicium,
quod importat rectum determinationem
ejus, quod est justum, proprie pertinet
ad justitiam: propter quod Philos, in
v. Ethic (cap. 4) dicit, quod homines
ad judicem confugiunt, sicut ad quan-
dam justitiam animatam. "
1 Id. id. , 2. 2, 60, 5: " Respondeo
dicendum, quod sicut diotum est,
judicium nihil aliud est quam qusedam
definitio, vel determinatio ejus quod
justum est: fit autem aliquid justum
dupliciter, uno modo ex ipsa natura
rei quod dicitur jus naturale: alio
modo ex quodam condicto inter ho-
mines ; quod dicitur jus positivum
ut supra habitum est (Q. 57, 2): leges
autem scribuntur ad utriusque juris
declarationem : alitor tamon, et alitor :
nam legis scriptura jus quidem natu-
rale continet, sed non instituit: non
enim - ha bet robin- ex lege, sed ex
natura : jus autem positivum scriptura
legis et continet, et instituit, dans ei
auctoritatis robur; et ideo necesse
est, quod judicium fiat secundum legis
scripturam, aloquim judicium deficeret
vel a justo naturali vel a justo positivo.
Ad primum ergo dicendum, quod
lex scripta sicut non dat robur juri
naturali, ita nec potest ejus robur
minuere, vel auferre : quia nec volun-
tas hominis potest immutare naturam :
et ideo si scriptura legis oontineat
aliquid contra jus naturale, injusta
est, nec habet vim obligandi; ibi enim
jus positivum locum habet, ubi quan-
tum ad jus naturale nihil difiert, utrum
sic vel aliter fiat, sicut supra habitum
est (Q. 57, 2); et ideo nec tales scrip-
ture leges dicuntur, sed potius legis
corruptiones, ut supra dictum est
(1. 2, 95, 2): et ideo secundum eas
non est judicandum.
? ? Ad secundum dicendum, quod
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? 44
[PABT (.
POLITICAL PRINCIPLES.
St Thomas' conception of the nature of law is, then,
founded upon two principles, that it is the expression of
reason, and that its purpose is justice. It is interesting to
compare his conception with that of the mediseval Jurists,
with which we have dealt especially in the second and third
volumes of this work. 1 His treatment represents a very im-
portant development of the significance of the rational element
in law, while it also brings out very emphatically the funda-
mental mediseval conception of its moral or ethical nature.
ea nos duriore interpretatione contra Cf. id. id. , 1. 2, 95, 2, Resp,
ipsorum commodum producamus ad 1 Cf. vol. ii. part i. chaps. 1 and 2 ;
severitatem': et in talibus etiam legia- part ii. chap. 3 ; vol. iii. part i. chap. 2 ;
lator alitor judicaret; et si conside- part ii. chap. 5.
russet, lege determiuasset. "
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? 45
CHAPTER V.
THE SOURCE OF THE LAW OF THE STATE--I.
We have so far considered the mediseval conceptions of the
nature of law as representing the principles of reason and
justice, or, to put it into the other terms of that time, human
law as limited and controlled by the law of nature. We
must now consider the more immediate source of the law of
the State, the authority from which it proceeded, and upon
which it rested. In this chapter and the following, we shall
endeavour to set out what we venture to think were the
normal mediseval conceptions upon the subject, and to trace
the beginnings of another mode of thought.
We have in previous volumes set out what appears to us
the first and in some sense the most fundamental aspect of
the mediseval conception of the nature and source of the law
of the State--that is, that it was custom. We have seen that
this was the conception of the feudal jurists,1 and that this
was also the first principle of the Canon Law. 2 We shall
have presently to deal with the question of the relation of
the Civilians of Bologna and the revived study of the Eoman
law to the question of the source of law ; but for the moment
it is enough to observe that the Civilians also were clear that
custom had once been its source. 3 The principle is admirably
expressed by Beaumanoir for France, when he says that all
pleas are determined by custom, and by Bracton for England,
when he asserts that England is governed by unwritten law
1 Cf. vol. iii. part i. chap. 3. 8 Vol. ii. part i. chaps. 6 and 7.
* Cf. vol. ii. part ii. chap. 8.
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? 40
[PABT L
POLITICAL PRINCIPLES.
and custom. It is no doubt true that Bracton thought that
this was peculiar to England--a curiously inaccurate judg-
ment, probably due to an impression that the other European
countries lived under Eoman law. 1 What is thus affirmed
for their own countries by Beaumanoir and Bracton became
a sweeping and all-including generalisation in Gratian, when
he opened his ' Decretum' with the famous words, founded
upon Isidore of Seville, " The race of mankind is ruled by two
things, by natural law and by custom. " 2
We venture to urge that it is quite impossible to under-
stand the political structure of mediseval society and the
nature of mediseval government unless we begin by taking
account of this conception. We are so much and so naturally,
if not very intelligently, influenced by the belief in the
existence of a conscious sovereign authority, of which law
is the expression, that we find it difficult to understand
the state of mind of those ages when the conception of
the sovereign, in the modern sense of the word, hardly
existed.
The first question to which we must here address ourselves
is how far this conception of law, as proceeding from or con-
trolled by custom, was maintained in the thirteenth century
by writers with whom we have not yet dealt, or in countries
whose laws we have not yet examined.
And first, we may observe the careful and yet confident
mode in which St Thomas Aquinas sets out the principle of
the authority of custom. In a discussion of the question
whether law can be changed, he considers the question whether
custom has the force of law. He cites various objections
which could be alleged, and then states his own conclusion.
He first cites the famous words of St Augustine that the
custom of the people of God and the institutions of men's
ancestors are to be accepted as law, and then proceeds to
say that law is the expression of the reason and will of the
legislator, but these are declared as plainly by men's actions
as by their words, and therefore the frequently repeated
1 Cf. vol. iii. pp. 41, 42. * Cf. vol. ii. p. 98.
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 47
actions of men which constitute custom can change or estab-
lish or interpret law. 1
He goes on to contend that, as human laws may not cover
all cases, it may be right sometimes to take action which is
outside of the law, and when such cases are multiplied owing
to some change in men, custom shows that the law is
no longer useful. And he even adds that, while normally,
if the conditions remain the same, the law founded upon
these conditions will prevail over custom, there may be
cases where the law is useless, simply because it is contrary
to the custom of the country, for this is one of the conditions
of law--it is difficult to change the custom of the multitude. 3
It is clear that while St Thomas recognises other forms
of law besides the custom of the people, he does substantially
represent the conception of custom as a main source of
1 St Thomas Aquinas, ' Summa
Theologica,' 1. 2, 97, 3 : " Sed contra
est quod Augustinus dicit in Epistola
ad Casulanum : ' mos populi Dei et
instituta ma jorum pro lege sunt
tenenda ; et siout prevaricatores legum
divinarum. ita et contemptores con-
suetudinum ecclesiasticarum coercendi
sunt. ' Respondeo dioendum, quod
omnia lex proficiscitur a rations, et
voluntate legislatoris: lex quidem
divina, et naturalis, a rationabili Dei
voluntate, lex autem humana a volun-
tate hominis ratione regulata: sicut
autem ratio et voluntas hominis mani-
festantur verbo in rebus agendis, ita
etiam manifestantur facto : hoc enim
unusquisque eligere videtur ut bonum,
quod ope re implet. Manifest :t est
autem, quod verbo humano potest et
mut&ri lex, et etiam exponi, inquantum
manifestat interiorem motum, et con-
ceptum rationis humanse ; unde etiam
ct per actus maxime multiplicatos, qui
consuetudinem efficiunt, mutari potest
lex, et exponi et etiam, aliquid causari,
quod legis virtu tem obtineat; inquan-
tum scilicet per exteriores actus multi-
plicatas interior voluntatis motus, et
rationis conceptus efficacissimo decla-
ratur: quum enim aliquid multoties
fit, videtur ex deliberato rationis
judicio proveniri: et secundum hoc
consuetudo et habet vim legis, et
legem abolet, et est legum inter-
pretatrix. "
Cf. Julianus in * Dig. ,' i. 3, 32, and
vol. i. p. 64.
2 Id. id. id. : " Ad secundum di-
cendum, quod, sicut supra dictum est,
leges human se in aliquibus casibus
deficiunt; unde possibile est quando-
que prater legem agere, in casu scilicet
in quo deficit lex; et tamen actus
non erit malus : et cum tales casus
multiplicantur propter aliquam muta-
tionem hominum, tunc manifestatur
per consuetudinem, quod lex ulterius
non est utilis ; sicut etiam manifesta-
retur, si lex contraria verbo promul-
garetur. Si autem adhuc maneat
ratio eadem, propter quam prima lex
utilis erat, non consuetudo legem sed
? ? lex consuetudinem vincit: nisi forte
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? 48
[PABT L
POLITICAL PRINCIPLES.
law. It is, however, clear that St Thomas Aquinas implies
that there were other forms of law besides custom, and we
shall presently deal with these. The important point of the
passages which we have just considered is that, whatever
other forms of law there might be, he was clear that custom
lay behind them, and was still paramount over them.
This is also the position of some other very important
writers of the later thirteenth century. Vincent of Beauvais,
in his ' Speculum,' cites the significant words of Gratian, in
which he laid down the principle that even when laws were
instituted by a competent authority, they needed to be con-
firmed by the custom of those who were concerned.
1 Albert
the Great seems also to refer to the same doctrine when he
says that the edict of the Prince which is maintained by
custom has the force of written law. 2 What is, however,
much more significant is the treatment of the authority of
custom by the most important Canonist, and the most authori-
tative Civilian of the second half of the century.
Hostiensis, in his ' Commentary on the Decretals,' describes
the nature and the authority of custom, and clearly accepts
the judgment of Gregory IX. that custom if it is " rationabilis
et legitime prsescripta," prevails over other forms of positive
law. 3 Odofridus, in his ' Commentary on the Digest,' draws
attention to the divergence between this judgment of Gregory
and the passage in the ' Code ' (viii. 52 (53)), in which Con-
stantine had apparently maintained that custom could not
1 Vincent of Beauvais, ' Speculum,'
it 7. 35. Cf. vol. ii. pp. 155, 166,
186.
2 Albert the Great, ' Ethica,' x. iii.
2: " Sin autem illse (leges) scriptse
aint vel non scriptse, nihil videtur
differre ad prsesens: edictum enim
principia consuetudine servatum script:! !
legis habet vigorem. "
* Hostiensis, ' In Primum Librum
Decretalium Commentaria,' i. * De
Consuetudine,' 8, 9: " Ad quod
sciendum quod quatuor sunt species
consuetudinis, scilicet generalissima, ut
est consuetudo inter omnes Catholicos,
versus orientem orare. . . . "
Id. id. , 10 : " Item est consuetudo
genoralis, quando scilicet nedum civitas
sed tota provincia ita generaliter
servat. "
Id. id. , 8, 11 : " Et hae duo species
derogant juri, sive in provincia, sive
in loco in quo obtinct hoc, si post
legem introducta sit consuetudo. "
Id. id. , 10, 9: " Quid est consue-
tudo. . . . TJsus rationabilis competente
tempore confirmatus. . . . "
Id. id. , 11: " TJtrum autem ait
rationabilis vel non, relinquo judici,
cum non regula posset tradi. "
Cf. ' Decretals,' i. 4, 11. Cf. vol. ii.
p. 158.
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 49
over-ride law. 1 Odofridus says that there had been much
controversy over this question, and cites the opinion of
Placentinus that, while in earlier times the Eoman people
could make law and its custom could abrogate it, nowadays
it was only the Emperor who could make law, and therefore
the custom of the people could no longer annul it. Odofridus
himself, however, emphatically repudiated the opinion of
Placentinus, and maintained that the Eoman people could
still make law, and that, therefore, its custom could still
annul it. 2 Odofridus was, as it is thought, a pupil of Azo,
and represented the tradition of his master. 3
The opinions of these writers are interesting and important,
but, after all, they are of little importance as compared with
the clear and dogmatic statements of the great feudal lawyers
like Bracton and Beaumanoir on the principles of the system
of law which they had to interpret and administer in the
latter part of the thirteenth century. We may add that the
same judgment as to the legal authority of custom is clearly
1 Cf. vol. ii. p. 158.
2 Odofridus, * Commentary on Di-
gest,' i. 3, 32 (fol. 15 r. ): "Dixit
Pla. (Placentinus) Olim consuetudo
vincebat legem, et ita loquitur lex
nostra in fi . . . nam olim populus
Roman us poterat legem condere, vft
lex est quod populus Romanus, etc.
. . . Non est ergo mirum si contraria
ejus consuetudo tollat legem, quia ejus
est tollere cujus est condere. . . . Sed
hodie solus princeps potest legem con-
dere, ut C. de le. et consti. 1. f. (Code
i. 14, 12) unde non debet consuetudo
populi posse leges imperatoris tollere,
et sic loquitur 1. nostra quia hoc esset
inconveniens quod consuetudo populi
tolleret legem principis. Sed, signori,
banc solutionem non approbamus,
quia sicut olim populus poterat legem
condere, sic et hodie potest, vn debet
posse consuetudo populi legem tollere,
nec obstat quod dicitur quod solus
princeps sive imperator potest legem
condere, quia ilia dictio, solus, excludit
singularem personam, non populum,
VOL. V.
nam populus beno potest hodie legem
condere, sicut olim poterat, ut ibi
dixi. S. E. Ti. L. I. (i. e. , his ' Com-
mentary on Digest,' i. iii. 1). Item
non obstat quod alibi dicitur quod
populus omne imporium legis condere
transtulit in principem, ut id. f. p. p. 1.
una, in. pn. ('Digest,' i. 4, 11), quia
intelligo ' transtulit,' i. concessit, non
tamen de se abdicando ut 7. de consti.
principum, 1. 1 (' Digest,' 1, 4, 1). . . .
Sed, signori, spretis omnibus aliis
solutionibus dicendum est, ut dixi
in casu ; duplex est consuetudo, ut
consuetudo generalis que obtinet per
totum imperium Romanum, et ilia
generalis consuetudo 1. contraria, uni-
que vincit legem, ut in ll. contrariis;
est consuetudo specialis alicujus civi-
ta tis, et ilia specialis consuetudo in
illo solummodo loco vincit legem, in
alio non . . . et sic intelligitur lex
nostra. "
? ? s Cf. for a full discussion of the
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? 50
[FAST I.
POLITICAL PRINCIPLES.
laid down in the great law book of Castile, which we know
as the ' Siete Partidas ' of Alfonso X. There are, it says,
only three things which can hinder the force of law: the
first is " uso," the second is " costumbre," and the third is
"fuero. "1 We shall, however, presently return to the con-
ception of law in Spain, and treat it in detail.
Enough, we think, has been said to make it clear that the
first and, as we think, the fundamental principle of the Middle
Ages was that the law was the expression, not so much of the
deliberate and conscious will of any person or persons who
possessed legislative authority, but rather of the habits and
usages of the community. It is not our part here to endeavour
to trace the whole significance of this conception, but we
may be allowed to point out that this does not mean that
law as custom was something unintelligible or irrational. It
does not require any great consideration to enable us to
understand that the custom of a community was deter-
mined by the conditions or environment under which it
lived, and by the moral ideas such as they were, and how-
ever they arose, which possessed the community. We may
be allowed to point out that this is true not only of the cus-
tomary law of a primitive community, but in the long run
of all systems of law.
It is also important to remember that this customary law
was not really unchangeable and fixed. On the contrary, it
is evident that at least in what we call progressive countries
it was continually changing with the change of circumstances
or ideas. It is probably, on the other hand, reasonable to
think that this unconscious movement was not always suffi-
cient to accommodate itself to such a development of civilisa-
tion as took place in the centuries from the eleventh to the
thirteenth.
1 ' Siete Partidas,' i. 2, Introduction: costumbre, et la tercera fuero : et
" Embargar non puede ninguna cosa estas naxon unas do otras, et han
las leyes que non hayan la fuerza et derecho natural en si, segunt que en
el poder que habemos dicho sinon tree esto libro se muestra. "
cosas: la primera uso, et la segunda
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? CHAP. V. ] SOURCE OF THE LAW OF THE STATE--I. 51
However this may be, it is clear that in the twelfth and
thirteenth centuries we can trace the appearance and develop-
ment of another method of conceiving of the source of law--
that is, the beginning of the conception that law is the ex-
pression of the will of some conscious legislative authority.
We have arrived, that is, at the beginnings, for the modern
world, of the conception of sovereignty--that is, that there
exists in every independent society some power of making
and unmaking laws.
We have, a few pages back, referred to the statement of
Bracton that England was governed by custom and not by
written law ; but the same passage which contains these
words contains also words which express a different con-
ception of the nature of the authority on which law is founded.
Other countries, he says, are governed by written laws, Eng-
land by unwritten law and custom; but these English laws
may properly be called " leges," for that has the force of
law which has been justly determined and approved with
the counsel and consent of the great men, the approval of
the whole commonwealth, and the authority of the King. 1
Such laws, he adds in another place, when they have been
approved by the consent of those who are concerned (utantium)
and have been confirmed by the oath of the King, cannot be
changed or annulled without the counsel and consent of those
by whose counsel or consent they were promulgated. 2
Here we have a clear statement of the conception that
there is a definite legislative authority which enacts and
1 Bracton, ' Do Legibus,' i. 1, 2:
" Cum autem fere in omnibus regionibus
utatur legibus et jure non scripto, sola
Anglia usa est in suis finibus jure non
scripto et consuetudine. In ea quidem
ex non scripto jus venit, quod usus
comprobavit. Sed absurdum non erit
leges Anglicanas, licet non scriptas,
leges appellare, cum legis vigorem
habeat, quicquid de consilio et con-
sensu magnatum et reipublicss com-
muni sponsione, authoritate regis, sive
principis precedente, juste fuerit de-
finition et approbatum. "
2 Id. id. , i. 2, 6 : " Hujusmodi vero
leges Anglicanse et consuetudines, re gum
auctoritate jubent quandoque, quan-
doque vetant, et quandoque judicant,
et puniunt transgressores ; quse qui-
dem, cum fuerint approbate consensu
utentium, et sacramento re gum con-
firmatse, mutari non poterunt, nec
destrui sine communi consensu eorum
omnium, quorum consilio et consensu
fuerunt promulgatse. In melius tamen
converti possunt, etiam sine eorum
consensu, quia non dcstruitur quod iu
melius oonvertatur. "
? ? Generated for (University of Chicago) on 2014-12-19 10:47 GMT / http://hdl. handle. net/2027/uc1. b3318617 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 52
[PAKT I.
POLITICAL PRINCIPLES.
promulgates laws. What was, then, the nature of this
authority ? We have in the third volume set out our con-
clusion that the feudal and national jurists of the twelfth
and thirteenth centuries clearly held that the legislative
authority resided not in any one person, but belonged to the
whole community, acting through all its parts, the King, the
great men, and the whole body of the people;1 and in the
first volume we have endeavoured to show that this principle
was already firmly established in the ninth century. 2
The words of Bracton which we have just quoted are only
one expression of a general principle. Lest, however, it
should be thought that this was only an abstract or specu-
lative principle of the jurists, we will briefly examine the
legislative forms of the twelfth and thirteenth centuries in
the various European countries, and we shall see that nowhere
in the constitutional methods of the great European countries
is there any sign that the legislative power belonged to the
king alone, but always that the king acted with the advice
and consent of the great men, and behind them we see from
time to time the whole community. We must bear in mind
that it is impossible in the Middle Ages to draw a sharp line
between what we should call legislative and administrative
action.
If we go through the constitutions of the Empire, we shall
find that they are issued not by the emperors alone, but
with the advice and consent of the princes. This is obvious
even of the great Frederick II. He renewed in 1213 the
promises made by Otho IV. to Innocent HI. with respect
to the territories claimed by the Papacy, and did this with
the counsel and consent of the princes of the Empire. 3 It
is with the same counsel that in 1226 he annulled the com-
munal privileges of the citizens of Cambrai. * He proclaimed
the ban against various Lombard towns in the same year
with the deliberation and judgment of the princes and other
chief men of the Eoman Empire. 8
1 Ci. vol.
