No More Learning

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? 106
[PABT I.
POLITICAL PRINCIPLES.
Magna Carta, in which it is laid down that no free man
should be imprisoned or disseized or destroyed, or even attacked
without the legal judgment of his peers, or the law of the
land. 1 We are not here concerned with the detailed inter-
pretation of all the phrases of the famous passage, or with
the question how far it may be thought to embody some
legal principles which are distinctly English. It is enough
for us to observe that it was not an isolated attempt to estab-
lish some new principle of the law and the constitution, but
that it was in its most essential principle nothing but a re-
statement of the fundamental principle of the feudal and con-
stitutional system of the Middle Ages ; that whatever authority
was possessed by the lord or prince, it was limited and con-
trolled by the law, and that this law had as its guardian a
properly constituted court, and that this applied to the king
or emperor as much as to any lesser lord.
It is, then, from this standpoint that we can consider and
understand some mediseval forms of constitutional machinery,
which at first sight may appear to t he student merely eccentric
or merely theoretical.
In the third volume we have drawn attention to the very
interesting but apparently rather paradoxical doctrine of the
' Sachsenspiegel,' that there is a judge even over the emperor
--that is, the Count Palatine; this is repeated by the ' Schwa-
benspiegel. ' 2 We did not in that volume discuss the doctrine
with any special reference to the German Empire or
kingdom, but we must now return to it, for we shall find
1 ' Magna Carta,' 39 : " Nullus liber
homo capiatur vel imprisonetur, aut
dissaisiatur, aut utlegatur, aut exule-
tur, aut aliquo modo destruatur, nee
super eum ibimus, neo super eum
mittemus, nisi per legale judicium
parium suorum vel per legem terrse. "
* ' Sachsenspiegel,' iii. 62, S:
" Wenne klaget man over den Richtere,
he sal antwerden vor deme Scultheiten,
wen die Schultheite is richter siner
Scult; als is die Palenzgreve over den
Keiser, unde die Burchgreve over den
Marcgreven. "
' Schwabenspiegel,' 100 : " Der Ru-
nic sol mit rehte dieser herschefte
deheine in siner gewalt han iar und
tao; er sol si bin lihen. Und tut er
des nibt, daz klagen die herren und
anders daz in gebrist, dem Phalenz-
graven von dem Rine ; wan der ist,
ze rehte, richter iiber den Kiinic, und
da von hat diu Phalenz vil eren. "
Of. vol. iii. p. 61.
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? CHAP. TO. ] THE AUTHORITY OF THE RULER.
107
a most important illustration of its practical significance in
the history of the later thirteenth century.
At the Council or Diet of Nuremberg in the year 1274
Eudolph of Habsburg asked the Council to determine who
was to be judge if the king of the Eomans had a complaint
to make against any of the princes of the empire with regard
to the Imperial property, or any injury inflicted upon the
kingdom or the king. The princes and barons, who were
present, formally determined that from ancient times it had
been held, and still continued to be held, that the Count
Palatine was the judge in any case which the emperor or
king might bring against any prince of his empire. 1 Eudolph
accordingly brought before the Count Palatine the question
of various possessions of the empire, which were detained by
violence, and especially the question what was to be done
about the King of Bohemia, who had contumaciously neglected
to ask for enfeoffment. Judgment was given that any one
neglecting to do this for a year and a day would lose his fief,
and that the King of Bohemia should be summoned to appear
before the Count Palatine to answer to the complaints
of Rudolph, and the King of Bohemia was accordingly
summoned. 2
We can find further and very interesting illustrations of
such methods of the limitation of the royal power in the law-
books and history of the Spanish kingdoms.
1 M. G. H. , ' Const. ,' vol. iii. 72:
" In publico consistorio tempore sol-
lempnis et regalia curie Nurenberc
celebrate, consedentibus principibus ac
honorabili caterva comitum et baronum,
maximaque multitudine nobilium et
plebeiorum, astante coram serenissimo
domino Rudolfo Romanorum Rege,
ad exhibendum unicuique justicia? com-
plement um : (1) Primo petiit rex sen-
tencialiter diffiniri, quia deberet ease
judex, si Romanorum rex super bonis
imperialibus et ad fiscum pertinentibus
et aliia injuriia regno vel regi irrogatis
contra aliquem prinoipem imperii habet
proponere aliquid questionia. Et diffi-
nitum fuit ab omnibus principibus et
baronibus qui aderant, quod Palatinus
Comes Reni auctoritatom judicandi
super questioni bus quas Imperator vel
Rex movero vult principi imperii,
obtinuit et obtinet ex antiquo. "
We would refer our readers to an
important monograph by Weizaacker
in ' Abhandlingen der Koniglichen
Gesellachaft der Wiasenschaften zu
G&ttingen,' vol. 33 (1886), in which
he especially discusses the relation of
the prmciples laid down here to the
procedure of the deposition of Adolf
in 1298.
<< Id. id. , 72 and 73.
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? 108 POLITICAL PRINCIPLES. [PABT L
The ' Siete Partidas ' asserts emphatically the general feudal
principle that in the case of a dispute between the lord and
his vassal about the fief, the case cannot be decided by the
lord. It then prescribes a method of determination different
from that of the other law-books. Instead of the reference of
such disputes to the Court, it provides that the lord and his
vassal are to choose one or two of the other vassals to whom
the case shall be referred, and the parties will then be bound
to accept this decision. And then it is added that this holds
of disputes between the king and his vassals just as much as
it does in the case of other lords. 1
In the proceedings of the Court or Cortes of Benavente
of the year 1202, there is the record of a judgment given
under these conditions upon a question at issue between the
king and certain knights. 2
In the proceedings of the Cortes of Leon of 1188, we have
an example of the more normal mediseval method for the
decision of cases between the king and his subjects. Alfonso IX.
swears that he would never take measures against the persons
or property of any one, of whom evil had been reported to
him, until he had summoned them to his Court, to do right
1 ' Siete Partidas,' iv. 26, 11 : " Con-
tienda acaesciendo entre el sen? or et el
vasallo sobre el feudo, deciendo el
sen? or que habie fecho el vasallo por
que lo debie perder, et el otro dixie&e
que non era asi et quel querie complir
de derecho, entonce tal pleyto como
este o? otro semejante de? l non debe
seer librado por el sen? or, ante si el
sen? or hobiese otros vasallos que
tengan feudo de? l, deben el sen? or et el
vasallo tomar uno o? dos dellos en
que se accordaren amos a? dos que lo
oyan et lo libren : et desque asi los
escogieren et les dieren poder de lo
librar, debe cada uno dellos haber por
firme et estar por lo que ellos judgaren.
. . . Et lo que dixiemos en este titulo
de los vasallos, entie? ndese tambien
de los vasallos que tienen feudo de
las otros sen? ores como de los que los
tienen de los reyes. "
' ' Collecion de Cortes de los reinos
de Leon y de Castiella,' 8 : " Ideiroo
ego Adefonsus Dei gratia rex Legionis
et Galletie, una cum uxore mea . . .
per hoc scriptum notum facio, vobis
universis presentibus et futuris, quod
me existente apud Beneventum et
presentibus episcopis et vassallis meis,
et multis de qualibet villa regni mei,
in plena curia, tunc audita ratione,
tam partis mee, quain militum et
aliorum, datum est judicium inter me
et ipsos ab electis judicibus, sio etiam
iam fuerat judicatum inter antecessores
meos et suos ; quod hereditas quam
milites tenent do episcopatu vel aba-
denguis vel aliis ordinibus in vita sua
per capitulum, dum ilia tenuerint
debet habere ilium forum et consuetu-
dinem quam habent aliie he redi ta tes
proprie ipsorum militum. "
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? CHAP. VII. ]
109
THE AUTHORITY OF THE RULER.
according to the judgment of the Court. Another clause of
the proceedings of the same Cortes affirms the principle that
not even the king himself is to use any form of violence against
a man or his property except by process of law. 1
This is expressed in still broader terms in the proceedings
of the Cortez of Valladolid in 1299. No one is to be killed or
deprived of his property till his case has been heard and
decided by " fuero " and law, those who have been imprisoned
are to be properly judged, and the Alcaldes and other officers
are strictly forbidden to act against this rule. 2 These phrases
are almost curiously like those of the famous clause of Magna
Carta.
We can find illustrations of the same principles and methods
in the records of the other Spanish States. There are several
examples of the judgments given by the " Curia " in cases
between Eaymond, Count of Barcelona, and his vassals,3 and
1 Id. , 7, 2: "Juravi etiam quod
nunquam propter mezclam mihi dictam
de aliquo, vel malum quod dicatur de
illo, face rem malum vel damnum vel
in persona vel in rebus suis, donee
vocem eum per litteras meas, ut veniat
ad curiam meam facere directum,
secundum quod curia mea mandaverit;
et si probatum non fuerit, ille qui
mezclam fecit, patiatur penam supra-
dictam et solvat insuper expensas,
quas fecit mezclatus in eundo et re-
deundo. . . .
4. Statui insuper quod ego, neo
alius de regno meo destruat domum,
vel invadat, vel incidat vineas vel
arbores alterius; sed qui rancuram
de aliquo habuerit, conqueratur mihi
vel domino terrse aut justitiis qui ex
parte mea vel episcopi vel domini
terre cons ti tu ti fuerint. "
* Id. , 26, 1 : " Premieramiento tene-
mos por bien que se faga justicia
egualmientre e en todos, e que ninguno
non sea muerto nin despechado sin
ser oydo e librado por fuero e por
derecho, e los que fiueren presos que
fata que sean librados como dicho es,
quelos sus bienes non los sean tomados
nin enganados, mas quo sean puertos
en rrecabado ; e que los ffagamos luego
librar, en manera que non duren mucho
en las prisiones, e queles den delo sugo
lo que ovieren mester para su proue-
miento mientre que estudieren enla
prision. Et defendemos que alcalldes
nin merinos nin otro ninguno non sean
osados de yr contra esto, e si alguno
o algunos quisieren pasar contra ello,
mandamos a los conseios que gelo non
consientan. "
Cf. id. , 26, 3. " Otrosi me pidieren
mercet que mandase facer la justizia en
aquelos que la merecen comunialmente
con fuero e con derecho : e los omes
que non sean presos nin muertos, nin
tomado lo que an sin seer oidos por
derecho e por fuero de aquel lugar do
acaeziorc, e quo sea guardado meior
que so guardo fasta aqui. A esto uos
? ? digo, quelo tengo, por bien e quelo
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? 110
[PABT I.
POLITICAL PRINCIPLES.
we have an account of the settlement of a dispute between
James, King of Aragon, and his seneschal in 1263 ; the king
and his seneschal submitted their case to the decision of four
arbitrators, and promised to accept their judgment. 1
When we take account of these obvious parallels between
the general principles and methods of the political organisa-
tion of the Spanish States with those of Northern Europe,
we find ourselves in a position to recognise the nature of that
judicial officer, the " Justicia" of Aragon. At first sight his
position may seem to us strange; that there should be an
official whose jurisdiction extended even over questions at
issue between the king and his nobles may seem paradoxical
and anomalous. An interesting attempt has indeed been
made to suggest that the office was in its nature of Moorish
or Saracen origin, and it is very possible that some influence
of this kind may be traced in its development in Aragon. 2
We would, however, urge that the difficulty in understanding
the character of the functions of the Justicia really rests upon
the failure to observe such an important parallel to the office
as the position of the Count Palatine in Germany, and the
general principle that the feudal Court was normally supreme
in all questions between the king and his vassals.
We have, then, endeavoured in this chapter to set out briefly
and with special reference to the thirteenth century the
principle that the authority of the mediseval ruler was a
strictly limited authority, that the conception of an absolute
or arbitrary monarchy was wholly alien to the mode of think-
ing of that age, and that the legal or constitutional forms of
mediseval political societies embodied this constitutional con-
1 Id. , vol. vi. pp. 159-161: " Nove-
rint universi quod cum contentio
fuiaset, inter illustrem dominum Jaco-
bum, Dei gratia Regem Aragonensem,
etc. , et nobilem Petrum de Monti-
chateno, senescalium ejusdem domini
regis. . . . Et super hoc dictus dominus
rex et dictus Petrus de Montichateno
mieerunt predictam causam in posse
domini eximii Petri de Arenoso, et
Thomasei de Sancto Clemente, et
Gulielmi de Seala, et Amaldi de
Boschio, quod quidquid ipsi arbitri
cognoscerent quod dominus rex de-
beret faoere in predicto facto major-
domie, quod dictus dominus rex et
dictus Petrus de Monte Cateno starent
in cognitione eorumdem arbitrorum. "
1 Cf. Julian Ribera, ' Origenes del
Justicia de Aragon' (Saragossa, 1897).
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? CHAP. VII. ] THE AUTHORITY OF THE RULER.
Ill
ception--that is, that this was not merely a theory or ideal of
government, but that the medisBval law provided in various
ways for its enforcement. The imperfection or inadequacy of
the machinery must not blind us to the recognition of the
principle or of its practical importance. 1
1 We should like to draw the attention
of students of mediseval political prin-
ciples to a very interesting and sugges-
tive study by M. Francois L. Ganshof
(in the ' Melanges d'Histoire offerta a
Henri Pirenne') which has only just
come into our hands, by the courtesy
of the author. M. Ganshof has col-
lected a large amount of evidence
which goes to show that the subordina-
tion of the Superior and even of the
King to the judgment of the Court
can be traced back at least to Carolin-
gian times, and is thus much older
than the developed feudal system.
M. Ganshof*s contention is one of
great interest and importance, and
we venture to hope that he will
continue his most valuable study of
the question.
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? 112
CHAPTER VIII.
METHODS AND EXPERIMENTS IN THE CONTROL
OF THE RULER.
We have endeavoured in the previous chapters to make it
clear not only that the authority of the ruler, in mediseval
theory was a strictly limited authority, but that there was an
appropriate legal machinery to enforce these limitations.
We must, however, in order to appreciate the significance
of these principles, go somewhat further, and observe that
not only the theorists but the Jurists recognised the pro-
priety of what to the modem mind might seem extra-con-
stitutional methods, by which in the last resort the ruler,
if he were to refuse to submit to legal authority, might pro-
perly be coerced and even deposed. We must bear in mind
that many actions which to us may seem extra-constitutional,
would have been considered in the Middle Ages proper and
legitimate methods, which were well within the principles
of the political order.
We must consider, first, the meaning of the principle that
in certain circumstances the subject had the right to renounce
his allegiance and even to resist the prince by force. We
must be careful lest we should misunderstand this, and look
at it from the standpoint of modern conditions and ideas ;
to us, no doubt, the refusal to obey the authority of the State
appears as, normally, little better than anarchism ; to the
mediseval mind it had not necessarily any such character.
The refusal to obey, the withdrawal of allegiance, might
be to them nothing more than the legal maintenance of a
legal right against an arbitrary and illegal action or demand.
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? CHAP. VIII. ]
113
THE CONTEOL OF THE RULEE.
The prince, no doubt, had his legal rights, but so also had the
subjects; to them the prince was not normally a sovereign
power behind and beyond the law, for he could only act
within the law.
This is the meaning of what might at first sight seem the
extravagant and eccentric constitutional methods which are
set out in the ' Assizes of Jerusalem,' both by Jean d'Ibelin
and Philip of Novara.
They both maintain that, if the king
were to refuse to allow any one of his vassals to bring a claim
against him in the feudal Court, or were to refuse to carry
out the decision of the Court, or if he were to seize and im-
prison his vassal without the judgment of the Court, then
the vassals were to declare to the lord that they were bound
by their obligations to each other and by their duty to main-
tain the honour of the Court, and that therefore they would
renounce all service to him until he had submitted the matter
in dispute to the judgment of the Court, and had carried out
its decisions. 1
This is the constitutional meaning of the agreement which
Matthew Paris represents the English barons as making at
St Edmund's in 1214. The barons had received from Arch-
bishop Stephen Langton a charter of Henry I. , and they
agreed that if King John refused to grant them the laws
and liberties contained in this charter, they would withdraw
their allegiance, and would make war upon him until he
should confirm, by a charter under his own seal, what they
demanded. 2 The barons were acting within the general
principles of the feudal law in threatening to withdraw their
allegiance, but it may be doubted whether they were not
going beyond, at least, the letter of it, in threatening to
1 Philip of Novara, 61, 62 ; Jean
d'Ibelin, 201, 244. Cf. vol. iii. pp.
56-69.
* Matthew Paris, ' Chonica Majora,'
vol. ii. p. 683 : " Nam cum diu simul
et seoretius tractare coepissent, pro-
ducts est in medium carta qusedam
regis Henrici primi, quam idem
barones a Stephano Cantuarensi Archie-
piscopo, ut predictum est, in urbe
VOL. V.
Londoniarum acceperant. . . . Itaque
convenerunt ad ecclesiam Sancte Ead-
mundi, et incipientibus majoribus
juraverunt super majus altare, quod
si rex leges et libertates jam diotas
concedero diffugeret, ipsi ei werram
tam diu moverent et ab ejus fidelitate
se subtraherent, donee eis per cartam
sigillo suo munitam confirmaret omnia
quse petebant. "
H
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? 114
[PABT I.
POLITICAL, PRINCIPLES.
make war upon the king. Jean d'Ibelin, in the ' Assizes of
Jerusalem,' while, as we have said, clearly maintaining that,
if the king would not accept the decision of the Court, the
vassals were to withdraw their allegiance, is also clear in
saying that they could not bear arms or use force against
him personally. 1 The right of a vassal, to whom the king
refuses to do justice in the Court, to make war upon the
king, and to require his own vassals to follow him, was,
however, recognised by that compilation of the later part
of the thirteenth century which we know as the ' Etab-
lissements de St Louis. ' 2
We may compare the somewhat intricate provisions of the
' Siete Partidas. ' If the king refuses any of his " Eicos
Hombres " the judgment of the Court, he must give him
thirty days within which he may leave the kingdom accom-
panied by his sub-vassals, and he can then make war upon
the king until he has succeeded in getting possession of the
equivalent of that which the king took from him. 3
In other Spanish documents of the thirteenth century we
find the admission or assertion of a more general right of
resistance to any attempt to violate the "fueros" and usages.
In a privilege granted in 1282 by Sancho, who was in revolt
against his father, Alfonso, to the "Concejo de Briones," we
find him approving resistance not only to the king, but to
himself, and all others who should refuse to respect the
" fueros " and customs. *
There is, however, a greater constitutional significance in
the formation and purpose of the " hermandades " or leagues
1 Jean d'Ibelin, 201 : " Sire, voz
estes notre seignor, ne contre vostre
core noz ne portercmes armee, ni ne
ferions chose a force. Et puisque voz
noz defendes a force a delivrer nostra
per qui est pris e emprisonnes sans
esgart ne sans conoisance de court,
noz voz gajons toz ensemble et chacun
par sei dou servise que noz voz
devons tant que voz aies nostra per
tel delivrer ou fait delivrer, ou dite
reison por quei voz ne le doves
faire, e tel que court l'esgarde ou
conoise. "
Cf. vol. iii. p. 58.
* Cf. vol. iii. p. 63.
5 ' Siete Partidas,' iv. 25, 10-13.
* ' Documentos de la Epoca de Don
Alfonso e el Sabio' (in ' Memorial
historico Espanol,' Royal Academy of
History of Madrid, vol. n. 199) :
" Mandovos que vos emparedes 6 vos
defendades tambien del Rey oomo
de mi. "
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? CHAP, m] THE CONTROL OF THE RULER.
115
between various cities and others. We have an excellent
illustration of the nature and purpose of these leagues in the
documents concerning the formation in 1282 of a "her-
mandad " between the towns of Cordova, Jahen, Baeza,
Ubeda, Andujar, Arjona, and Sant Esteban, together with
Gonzalo Iban? ez, Sancho Sanchez, and Sancho Perez. They
unite and form a " hermandad " among themselves to pro-
tect their " fueros " privileges and franchises, and they agree
that if any lord either in the present or the future should
attack them, they were bound to come to each other's
assistance. 1
We have said enough, we think, to make it clear that the
feudal law of the Middle Ages not only recognised that the
ruler or prince was subject to the law, and that there was a
proper Court to decide what was law, and to judge in cases
of dispute between the prince and his vassals, but also that
it recognised clearly that there was a legal method of enforcing
the authority and judgment of the Court--that is, by the
withdrawal of allegiance, and also that, at least in some cases,
direct resistance to the arbitrary and illegal action of the
ruler was itself legal.
1 Id. , vol. ii. 205: " Sepan quantos
esta carta vieren, como nos los con-
cejos de Cordova, de Jahen, de Bseza
da Ubeda, de Andujar, de Arjona, e?
de Sant Esteban, e? yo Gonzalo Iban? ez
de Anguilar, e? yo Sancho Sanchez fijo
de D. Sancho Martinez de Iodar, e?
yo Sancho Perez de Iodar, todos a ser-
vicio de Dios, e? del muy noble Sen? or
Infante D. Sancho, fijo majo heredero
del mui noble e? alto rey D. Alfonso,
otorgamos nos por vassallos del Infante
D. Sancho, et metemos nos so su
sen? ori? o con las villas e? con los castiellos
e? con quanto que avemos e? avremos ;
e? a pro, e? a honra de nos, todos face-
mos tal pleito a tal postura que
seamos unos, e? facemos hermandad
entre nos que guardemos nuestros
fueros e? nuestros privilegios, e nuestras
franquezas, e? todas las libertades e? los
buenos usos, e? las buenas costumbres
que aviemos en el tiempo del re D.
Fernando, que nos el dio, ques en
Paradia0 ; e? que nos dio e? nos otorgo
el re Don Alfonso, e? nos otorgo nuestro
Sen? or el Infante Don Sancho; e? si
alguno sen? or de los que son, o? de tos
que seran, o? otros qualesquier vinieren
contra esto por menguer o? quebrantar
nuostros fueros, e? nuestros privilegios,
e? nuestras franquesas, e? nuestras liver-
tades, e? los buenos usos, e? las buenas
costumbres en todos o? en ellos que
nos paremos todos amanparallo, e? a?
defendello, e? con qualquier de nos que
desto falleciessen faciendolo saver los
unos a las otros, que los que lo sufieren
e? non quisieren venir aiudallos a
aquellos, e? que ficieren el tuerto des tas
cosas sobredichas que sean traidores
como quien mata sen? o/, o? traie castiello ;
e? que sera? mostrado cada an? o en la
? ? junta. '*
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? 116
[PART 1.
POLITICAL PRINCIPLES.
The refusal of obedience was then the first aspect of what
we may call the legitimate method of enforcing the limita-
tion of the authority of the ruler. It is necessary to distinguish
this, from the principle that in the last resort the prince
who refused to obey the law might be deposed. To the
modern mind the renunciation of obedience or the with-
drawal of allegiance may seem indistinguishable from de-
position, but it was not so in the Middle Ages.
Having then observed this, we must turn to the question
of the deposition of the ruler. We are not here concerned
with the mere fact of deposition, or with the justice or ex-
pediency of particular cases of deposition, but with the question
how far this was thought of as being in principle legal and
constitutional. We must begin by dismissing from our minds
such a conception as that of the modern constitutional doctrine
of England, that the king can do no wrong. Those who
have any acquaintance with the English history do not need
to be reminded that this doctrine, which might seem to re-
present a theory of absolutism, actually represents the method
by which the arbitrary power of the monarch has been
destroyed. In the Middle Ages this doctrine, however, had
no place ; the king, like any other person in the community,
was responsible for his own actions.
We have in a previous volume dealt with the deposition
of the Emperor Henry IV. and the theory of that deposition
as expressed by various persons, and especially by Manegold
of Lautenbach ; we have also discussed the theory of John of
Salisbury that the unjust and tyrannical ruler has lost all
right to authority, and may properly be attacked and even
slain. 1 We are now concerned with the question how far
this principle continued to be held in the thirteenth century.
We may begin by observing some words of a writer who
held what we have seen to be an unusual and even abnormal
view of the nature of the regal authority--that is, Egidius
Colonna. As we have seen, he maintained that the best form
of political authority was that of a monarchy which was
itself the source of law, and was above law. 2 It was the same
1 Cf. vol. iii. part ii. chaps. 5 and 6. s Cf. p. 74.
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? CHAP, vm. ] THE CONTROL OF THE RULER. 117
Egidius Colonna, however, who, as we have seen, in his tract
on the resignation of the Papal throne by Celestine V. , main-
tained that as the authority of the ruler must be established
by the consent of men, so also by the same consent he might
resign or even be deposed. 1 With this we should compare
the very careful discussion by St Thomas Aquinas of the
circumstances under which and the methods by which the
tyrannical ruler should be deposed, with which we have
already dealt. 2
We may now turn to the legal works and the records of
constitutional proceedings, and we may begin by observing
some words of the ' Sachsenspiegel. ' No man may
proceed against the king's life until he has been by proper
sentence deprived of his kingdom. 3 This is repeated in
the compilation which we know as the ' Schwabenspiegel,'
but it adds that no one can declare judgment on the
king's life or honour, except the princes. * It is clear
that both these works assume in principle that there
is a legal process by which the king can be deposed. At
first sight we might very well suppose that these were little
more than the phrases of a theoretical system of law, but
it is noticeable that even the great Frederick II. used, if only
incidentally and under circumstances which might well make
such a statement diplomatically convenient, words which
have the same implication. In the Encyclical letter which
he addressed to St Louis of France and to the " Magnates
Anglian," as well as to the princes of the empire, he protested
1 Egidius Colonna, ' De Renuntia-
tione Papse,' xvi. 1 : " Sed quamvis
sic requirit natura negotii, quod scientes
melius pericula prsevidere, aliis prscfi-
ciantur, ut sub eorum gubernacula
multitudo servetur, oportet tamen
quod hoo compleatur per consonsum
hominum. Et siout per assensum
hominum perficitur et completur, ut
quia aliis prseficiatur, sie per consensum
hominum contrario modo factum fieri
potest, quod prsefectus cedat, vel quod
etiam deponatur. "
2 Cf. p. 96
3 * Sachsenspiegel,' iii. 54, 4 : M Also
ne mach deme Konige neman an sin
lif spreken, ime ne si dat rike vore
mit ordelen verdelt. "
' 'Schwabenspiegel,' 104: "Den Ku-
nige mac nieman an den lip ges-
prechen, im werde daz riche e verteilet
mit der Fiirsten urteile. Uber des
Kunigee lip und iiber sin ere mac
nieman urteil sprechen wan die Fiir-
sten. "
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? 118
[PART I.
POLITICAL PRINCIPLES.
against his deposition by Pope Innocent IV. as being the
action of a " judex incompetens," and urged that the sentence
and the whole proceedings were null and void, for none of
the princes of Germany " a quibus assumptio status et de-
pressio nostra dependit," had confirmed them by their presence
and counsel. 1
In the proceedings related to the deposition of Adolf of
Germany in 1298, we find that the princes concerned assumed
that they were acting by due process of law, and it is worth
while to observe the procedure in a little detail. The Arch-
bishop of Maintz called a Council to consider the troubled
condition of Germany, and to this he summoned both the
princes who had the right of election, and Adolf himself.
The important princes present were the Archbishop himself,
who was said to be acting also for the King of Bohemia;
the Duke of Saxony, holding also the proxy of the Count
Palatine; and the Margrave of Brandenburg. They enum-
erated various charges against him, the violation of Churches
and ecclesiastics, the toleration of violence against women,
the interference with ecclesiastical liberties, especially by
demanding gifts before he would grant the " Eegalia " to
the bishops, and various acts of aggression upon the rights of
the German princes, counts, barons, &c. They found Adolf
guilty of these crimes, and declared that he had proved him-
self to be incompetent and useless for so great an authority,
and therefore, after careful deliberation and by the common
council and will of all the electoral princes, the bishops, dukes,
counts, barons, and wise men present, the electoral princes
declared Adolf deposed, and also absolved all men from
their oath of allegiance to him. 2
1 M. G.