No More Learning

he 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,
iii. 9, 3).
> Id. , i. 17, 7 (cf. Bracton, iii. 9, 3).
>> Fleta, i. 17, 9: "Nemo enim de
facto regis presumat disputare, neo
contra factum euum venire. Ye rum
tamen in populo regendo superiores
ha bet, ut legem, per quam f actus est
Rex, et curiam suam, videlicet comites
<<t barones; comites enim a comitiva
dicuntur, qui cum viderint Re gem
sine fraeno, fraenum sibi apponere
tenentur. . . . 11. Temperent igitur
reges potentiam suam per legem, quod
fraenum est potentiae, quod secundum
leges vivant, quia hoo sanxit lex
humana, quod leges euum ligent
latorem, et alibi, digna vox majostate
regnantis est, logibus alligatum so
principem profiteri. "
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 32
[PABT I.
FOURTEENTH CENTURY.
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. " 1
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. 73.
* Id. , iv. 2, 20: "Contra dominum
vero Regem non habetur remedium per
Assisam, quamvis in elections epoliati
sit, vel providers sibi persupplicationem
versus ipsum Regem, vel quod omnino
proeedat Assisa versus spoliatorem, hoc
exccpto, quod ipse Rox in Assisa non
comprehendatur. Et si spoliator dixit
quod sine Rege respondere non poterit,
cujus nomine fecit id quod fecit, non
propter hoc differatur Assiza, sed
capiatur. Et si spoliator evidentem
rationem et manifestam ha beat, dif-
feratur in judicium donee cum Roge
fuorit inde tractatum; sin autem, eeis-
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, m. ]
33
THE AUTHORITY OF THE RULER.
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
? nam recuperet cum dampnia duplicatia
vereua tam Escaetorem, Vicecomitem
et alios ministros Kegis, quam versus
quascunque privates peraonas. "
1 Britton, i. , Introduction: "Eduard
par la grace Deu, roi de Engleterre,
. . . Desirauntz pes entre le poeple qe
est en ncetre proteccioun, par la suf-
fraimce de Deu, la quele pes ne poot
mte ben estre sauntz leys, si avoma les
leys, qe hom ad use en noster reaume
avant ces hores, fet mcttro en escrit
solum ceo qe cy est ordeyne? . Et volums
e commandums qe par tut Engleterre
at tut Hyrelaunde aoint iasi usez et
tcnus en touz poyntz, sauve a nous de
repeler les et de enoyter et de amenuser
et de amender a totes lee f oiz qe nous
VOL. VI.
verums qe bon sorra, par le assent de
nos countes et barouns et autres do
noster conseyl, sauve les usages a coux
qe par prescripcioun de tens ont autre-
ment use en taunt qe lour usages ne
soynt mie descordauntz a dreiture. "
? Id. , i. 23, 8: "Et quant a la juris-
diccioun put-il dire, qe il n'est mie
tonu a respoundre en place ou le jugo
est partie, disium nul jugement ne se
put fere de meyna qe de DTI. porsone. M,
ceo est a saver de un juge, de un
pleyntif, et de un defendaunts; et en
cas ou nous sums partie, voloms nous
qe not re court soit juge, sicum countes
et barouns en tens de Parlement. " Cf.
vol. iii. part i. chap. 4.
0
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 34
[PABT I.
FOURTEENTH CENTURY.
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. *
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, ho says, called
1 * Mirror of Justices,' s. v. 1: "Abu-
sion ost desus ou mesus do droits usages,
tournsnt on 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 serement. "
Cf. p. 8, and Bracton, 'De Legibus,'
iii. 9, 2.
* Id. , i. 2: "Al corounement le firent
jurer q'il meintendreit la sainte foi
cristiene a tut son poer, e son poeple
guieroit par droit, saunz regard a
nule persone, e serreit obeissant a
Seint Eglise, e justisiable a suftrir
droit com autre de son poeple. "
* Id. , i. 3: "Ordene fu qe la curt
le Rei fust overte a touz pleintifs,
par quei il usent aanz delai brefs
remedials aussi sur le Rei ou sur la
Heine comme sur autre del poeple, de
choscun injurie, forpris en vengeance
de vie ou de membre, ou pleint tient
leu sans bref. "
4 Id. , v. 1. 153: "Abusion est que
nul ne ad reooverer del tort le Rei
ou de la Reine si non a la voluntie
le Rei. "
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, m. ]
35
THE AUTHORITY OF THE RXILER.
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 npon 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
ne de ut aver nul pier en sa terre, pur
ce(C) neqedent que le Roi do son tort,
s'il peeche vers ascun de son poeple,
ne nul de ces commissaires, ne poet
est re juge e partie, convenist par droit
que li Roi ust compaignouns pur oir et
terminer as Parlementz trestuz les
bred e les pleintes do tore le Roi, de
la Reyne, e de leur enfanz, et de leur
especiaus, de qi tore len ne poet aver
autrement comun droit. Cous com-
psi gnons sunt ore appeliez contes apres
le Latin de comites. "
>> Id. , iv. 11.
* Id. , v. 1, 2: "Abusion est qe ou
les parlement! se duissent fere sur les
sauvacions les aimes des treepassours,
et ceo a` Londres e as deux fois par an,
la ne se funt il ore forque rarement e
a la volontie le Roi sur eides e cueil-
lettes de tresor. E ou les ordonnances
se duisent fere de comun assent del Roi
et de ses countes, la ce funt ore par le
Roi e ces cleres e par aliens et autres qi
n'osent contreriner le Roi, einz de? sirent
del plere et de li conseiller as son
promt, tut ne soit mie lur conseil
covenable ai comun dol poeple, sanz
appeler les countes e saunz suivre les
riulos de droit; e donc plusours orden-
aunces se fondent ore plus sur la
volontio qe sur droit. "
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 36
[PABT I.
FOURTEENTH CENTURY.
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
'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
1 Cf. Ganshof's Essay in 'M61anges
d'histoire offerts a Henri Pirenne. ' Cf.
vol. v. , page 111 of this work.
1 For a discussion of the date and
character of this work, we would refer
the reader to the edition by Sir T.
Duff us Hardy, 1846. He dates the
work as probably written between
1294 and 1327. Professor Pollard, in
his' Evolution of Parliament,' expresses
the opinion that it belongs to tho early
years of Edward III.
* 'Modus tenendi Parliamentum,'
page 41: "Rex non solebat petere
auxilium de regno suo nisi pro guerra
instante, vel filios suos milites faciendo,
vol filias suas maritando, et tunc
debent hujusmodi auxilia peti in pleno
Parliamento, et in scriptis cuilibet
gradui Parliamenti liberari et in
scriptis responderi; et sciendum est
quod si huiusmodi auxilia concedenda
oportet , quod omnes pares parliamenti
consentiant. "
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. III. ]
37
THE AUTHORITY OF THE RULER.
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 L, 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. *
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 King 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 difficilibus. " 'Monarehia,' 1611, vol. i. p. 58.
>> Id. , page 23. ? Cf. p. 80.
>> Id. , page 45.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 38
[PABT I.
FOURTEENTH CENTURY.
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 do causa isti (ordinarii) redditus
fuerunt principi concesei, scilicet, pro
defensione patriae, pro justitia inter
populum exercenda, et similibus de
cauris: ita tamen quod dominus
compleat illud, propter quod dicti
redditus fuerunt instituti.
Si enim princeps justitiam dene-
garet subditis, utpote appellantes non
recipe ret, vel pat nam non defenderet,
tales redditus ordinarii, gabellae, im-
positiones, foagia, et similia, si sint in-
duct! tales redditus extraordinarii justa
do causa, scilicet pro defensione patriae,
nec eo modo defendatur quo possit et de-
bet, nec redditus ad ilium usum, sed in
alium convertantur, tunc tales redditus
ordinarii juste possent denegari, imo jure
scripto, super dictamine roctae rationis
fundato, merito a regimine tamquam
indignus foret deponendus. Et si in
regimine totius regni, sic negligeret,
omnino deponendus: et lice ret populo
alium sili principem oligere: si in parte
regni solum hoe negligeret, liceret
populo illius loci alium sibi principem
eligere, maxima 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 reetitu-
tionem tenetur. . . . Si sit rex,
potest auctoritate sua propria pro
utilitate boni communis de novo tallias
imponere, compensata subditorum
facultate. . . Quod debet intelligi,
nisi facultates sufficiant regi vel prin-
cipi pro defensione reipublicae. Si
autem illae talliao nullo modo sint ad
utilitatem boni communis, nee rex,
neo princeps potest eas imponere.
Quod, si imposuerit, subditi non
? ? tenentur obedire, quia potestatis suae
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, in. ]
39
THE AUTHORITY OF THE RUXER.
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
anthority. 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-
tor vel rex committit crimen dilapida-
tionU vol destructionis imperii vel
regni, ant damnabilis negligentiae
imperii vel regni, vel tyrannidis, seu
quodeunque aliud propter quod non
immerito deponi meruerit. Papa non
deberet eum deponere, sed populus, a
quo euam recepit potestatem, tacite
vel expreese, nisi illi, ad quos spectat,
nollent, aut non possent facere justitiae
complementum. Non obstat e. Alius
15, q. 3. quia Gallici dubii forsitan do
propria potestate Papam tanquam
sapientem duxerunt consulendum. Non-
dum, tunc tomporis, vigebat studium
Parisias, nec Francia tot prudentibus,
prout nuno est adhuc, erat repleta. "
* Lupoid of Bebenburg, 'De Jure
Regni et Imperii Romani,' v. (p. 179):
"Quilibet populus carona rege, potest
sibi regem eligere do juro gentium, ex
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 40
[PAET I.
FOURTEENTH CENTURY.
Again, he says that some maintained that the translation of
the empire received its authority, not from the Eoman 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 regna condita sunt. . . . Et
principes electores ratione jam dictae
inatitutionis, habent eligere regem
seu imperatorem, representantes 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 peraonas.
Sed ego aalva reverentia tanti viri, non
credo hoc verum. Credo enim quod
ad eos pertinet talia 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 eligere vice et auctori -
tate universitatis principum, et populi
praodictorum. "
* Id. id. , xii. (p. 195): Some main-
tain "quod predicta tranlatio non ab
ecclesia Romans, sed potius a populo
Romano robur habuit et vigorem. "
Id. id. , xvii. (p. 206): "Circa opposi-
tiones istas earumque solutiones, scien-
dum est quod quaedam solennia opinio
magnorum legist orum, quae habet, quod
populus Romani imperii posset hodio
legem condere in absentia principis, vel
vacante imperio: dicentium quod
populus est major imperatore, ita quod
ex ftbausa just a possit imperatorem
deponere . . . Et respondunt ad 1.
fin. c. de legibus (Cod. i. 14, 12) in qua
lege dicitur aoli imperatori concessum
esse legos condere, quod id quod dicitur
ibi, aoli, dicatur ad exclusionem inferi-
orum, non ad exclusionem populi, qui
major est principe secundum eos. Et sie
intelligo populum Romani imperii, con-
numeratia principibus electoribus ac
ctiam aliis principibus, comitibus et
baronibus regni et imperii Romanorum.
Nam appellatione populi continentur
etiam patritii et eenatores. "
Cf. Engelbert of Admont: 'De Ortu
? ? et Fine Romani Imperii. ' (Ed: Offen-
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. HI. ]
41
THE AUTHORITY OF THE RULER.
theory ia 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. * Marsilius appeals to Aristotle as con-
1 Marsilius of Padua, 'Defensor
Paris,' i. 8.
? Id. , i. 1, 4.
? Id. , i. 8.
? Id. id. , i. 15, 1: "Consequenter
atrtem dictis restat oetendero prinei-
pantis factivam causam, per quam
videlicet alicui vol aliquibus datur
auctoritas principatus, qui per elec-
cionem statuitur. Hac onim auctoritate
fit princeps secundum actum, non per
legum scienciam, prudenciam, aut
moralem virtu'em, licet sint hae quali-
tates principantis perfecti. Contingit
cnim has multos habere, qui tamen
auctoritate carentes, non sunt prin-
cipos nisi forte propinqua potencia.
2. Ad quaesitum orgo redeuntes,
dicamus secundum veritatem et sen-
tenciam Aristotelis 3? Politico Cap.
6? potestatem factivam institucionis
principatus seu eleccionis ipeius ad
legislatorem seu civium universitatem,
quomadmodum ad eandom legumla-
cionem diximus pertinero, 12? huius,
principatus quoque correpcionem
quamlibot, eciam depositionem, si ex-
pediens fuerit propter commune con-
ferens, eidem similiter convenire. "
Cf. i. 10.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 42
[PABT I.
FOURTEENTH CENTURY.
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.