No More Learning

He submits to law of his own free
will, not as subject to it, 439.
Repudiates the conception of a
contract between king and
people, as embodied m the
coronation oath, 439, 440.
If he breaks his promise there is
no one to act as judge, 440.
Jason de Mayno--
Cites Baldus as saying that prince
has "plenitudo potestatis,"
what he wills " ex certa scientia"
cannot be questioned, 149.
Cites Baldus as saying that the
Pope and the prince can do
anything "supra ius, et contra
ius et extra ius,'' 149.
Explains away the Rescript of
Theodosius and Valentin ian
about "Rescripta contra jus,"
he need only insert a "non-
obstante " clause, 149.
Cites Baldus as saying that it is
sacrilegious to dispute the auth-
ority of the prince, but lawful to
discuss his intention, 150.
Cites Baldus as saying that prince
desires his acts regulari a
justitia poli et fori," 150.
Prince is bound by his contracts,
and hereditary prince by those
of his predecessors, but not
eleotive prince, 155.
John Major--
Authority of king derived from
community, 247.
King is "regulariter" over king-
dom, 247, 248.
Kingdom is "casualiter" and
"virtualiter" over him and
can depose him, 248.
In France and Scotland supreme
power is in the people, authority
of the king is honourable, but
"ministerial," 248, 249.
The Threo Estates direct the king,
248.
A free peoplo can for reasonable
cause alter the form of the
Polity, 248.
Juan I. of Castile-
Complaint of Cortes at Burgos,
? ? 1379, that certain persons pro-
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
by citing the 'Bekenntniss' of
the Magdeburg clergy (see under
"Bekenntniss "), 398, 399.
Conception of the supremacy of
law in the Middle Ages, 3, 129,
133, 227, 326-363, 506.
Law . as the embodiment of
justice, 3, 505, 506.
Royal briefs contrary to law,
null and void in Castile, 4, 5,
133-135, 462-464.
Laws made in Castile with advice
of Cortes, 5, 6.
Method of legislation in France in
fourteenth century, 6, 7.
Method of legislation in Empire in
fourteenth century, 7.
Method of legislation as described
by Britten, Fleta, and 'Mirror
of Justices,' 7, 8.
No "Politia" where low is not
supreme, Marsilius, 9.
"Populus," " universitas civium,"
or its "valencior pars" is
source of law, Marsilius, 9.
Meaninc of "valencior pars,"
Marsilius, 9.
Proceedings against persons or
property only by process of law
m France, Castile, and England
in fourteenth century, 63-66.
Violation of law by Richard II. ,
alleged as justifying his de-
position, 72.
Laws should be made by those
who are bound by them "quod
omnes tangit," Cusa, 136.
Legislative power given to em-
peror by Roman people and can
bo taken away by them, Cusa,
137.
Important ordinance of 1439
made in Franco after repre-
sentations from States General,
138.
Laws must be approved " moribus
utentium," Gorson, 140.
King of France cannot slay a man
except by process of law, Gerson
and D'Ailly, 140, 141.
King of France submitted to judg-
ment of "Parlement," Gerson,
140.
Law in England made by king and
Estates, Fortescue, 142.
Judges in England must carry out
the law, even agains t the king's
command, Fortescue, 142.
'' Dominium politicum ot regale,"
whon, as in England, the king
can only make laws with con-
sent of Estates, Fortescue, 142.
Source and authority of law in
Civilians and Canonists of the
fifteenth century, 144-159.
Difference between "Oitra Mon-
tani" and "Ultra Montani,"
on question whether Roman
? ? people could still make a general
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
541
Liberty related to supremacy of
law, Machiavelli, 251.
Liberty protected by Great Parlia-
ment, Starkey, 261.
Authority to make law resides in
immunity, for men are by
nature born free, Suarez, 344.
Liberty protected by representative
assemblies, Althusius, 499, 500.
Limited Monarchy--
De Seyssel, 219-225, 326.
French monarchy neither com-
pletely absolute, nor too much
retrained, 220.
French monarchy restrained by
religion, "la justice" and "la
police," 219-225.
King of France subject to " Parle-
mens" in respect of "Dis-
tributive justice," 221.
And virtually in criminal
matters, 221.
Judges are removable only "par
forfaiture," 222.
If kings attempted to derogate
from laws, they would not be
obeyed, 223.
The preheminenccs" of each
Estate, 223.
The Great Council, its composition,
223, 486.
Excellence of French constitution,
for king is under law and
"Parlement," 225, 251.
Lupoid of Bobenburg--
People without kmgcan elect one, 39.
Electors of emperor act as repre-
sentatives of princes and people
of Germany, 39.
They act not as individuals, but
as a "collegium," 39.
Some great jurists maintain that
Roman people can still make
laws, for people are greater than
prince, 40.
People can for just cause depose
the emperor, 40.
By Roman people he means the
whole community, including the
princes and nobles as well as
the others, 40.
Luther--
Asserts the theory of "Divine
Right," and denves this from
St Paul and St Peter, and
like Gregory the Great from
1 Sam. , 272.
Coorcive authority required by
sin, 273-275.
Elector of Saxony must not resist
emperor, 275.
League of reformed princes to
defend themselves against the
emperor is contrary to God's
will, 276.
Condemns resistance of peasants
to "Obrigkeit," even to defend
? ? their religion, 276.
Generated for (University of Chicago) on 2014-12-19 10:35 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
? 542
INDEX.
Magistrates bound by the civil
laws of the kingdom and of the
"Maiestas," Althusius, 359.
Nature of Maiestas, "potestas
imperandi universalis/ which
does not recognise an equal or
superior, Althusius, 360.
Does not belong to king or " Opti-
mates," but to the whole
commonwealth, Althusius, 361,
362, 500.
Kings receive investiture of sceptre
and crown from those who
represent the "Maiestas" of
tho people, "Vindiciae," 367.
There must be in every political
country some supreme power
which makes laws and magis-
trates and is subject to no laws,
except those of God and nature.
This Bodin calls "Maiestas,"
372, 373, 418, 421, 422, 425.
Maiestas belongs to whole people,
cannot be transferred to one
man, Althusius, 378, 379.
Bodin repudiates 1 Sam. viii. as
an interpretation of "iura
maiestatis," 425.
Supreme authority of prince must
not be shared with nobles or
people, or "Maiestas imperii"
will give place to anarchy,
Bodin, 428.
Majority--
Meaning of "valencior pars" in
Marsuius, 11.
Series of monographs on thesubject
by E. Ruffini Avondo, 11, note 1.
Mariana--
Men driven into society by their
weakness and crimes, 348.
Earliest government that of kings
without laws, 348.
Laws made because men doubted
justice and impartiality of prince,
348.
Law is reason drawn from the
mind of God, and free from all
changeableness, 348.
Monarchy the best form of govern-
ment when controlled by laws,
the worst when free from that
control, 349.
Authority of king is drawn from
the people, 349.
Prince under law, or else a tyrant,
349.
Refers to "justitia" of Aragon,
350, 494.
Hereditary succession to be de-
termined by law, any change
must be made with consent of
Cortes, 369, 494.
Commonwealth may depose kings,
369, 402, 403.
The community is greater than the
king, 376.
? ? Only in barbarous countries havo
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
543
The supremacy of justice, and law
as the embodiment of it, 505-
507.
The source of Positive Law. The
custom of the community, 507,
508.
Laws as the expression of the
deliberate will of the community,
508-511.
Laws supreme over the whole
community, including the king
or prince, 511-513.
Influence of the revived study of
the Roman law, 513-517.
The theory of the " Divine Right,"
517-519.
The theory of the contract between
the prince and the people, 519-
523.
The mixed constitution, 523-524.
The supremacy of the com-
munity, 524.
The embodiment of this in the
representative system, 524-526.
Melanchthon, Philip--
Agreement at first with Luther's
early opinion of the "Divine
Right," 284.
Joined Luther in Declaration of
1536 that resistance to emperor
was in certain cases lawful,
284.
Letter of 1539, 284.
Declaration with Bugenhagen and
others in 1546 that it was law-
ful for the "Stande" to defend
themselves, if emperor attacked
them on account of their religion,
285.
Letter of 1546, on Rom. xiii. 1.
Only a just Power is an "Or-
dinance of God," 285.
Reference in the same letter to
mutual obligations of lord and
vassal in feudal law, 285.
Resistance to unjust violence of the
superior is lawful, for the Gospel
does not annul the political
order which is in accordance
with the laws, 1559, 286.
'Mirror of Justices'--
King subject to law, 8, 34.
"Parlementz" should meet twice
every year, 35.
Laws to be made by king and his
counts, not by king and his
clerks, 35.
King is not judge in cases of
wrong done by the king to his
subjects, these must be de-
termined in "Parlementz" by
his counts (comites), 34, 35.
Mixed Government--
Best government will be composed
of monarchy, aristocracy, and
timocracy, Gerson and D'Ailly,
161-164.
? ? Turrecremata takes from Aquinas
Generated for (University of Chicago) on 2014-12-19 10:35 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
? 544
INDEX.
Doubts whether monarchy oi the
first kind existed in his time, 45.
Emperor or king, "solutus legi-
bus," but is under "natural
equity," 45.
Aro men bound to obey the
emperor "in omnibus licitis "?
Not in cases where it is contrary
to the " utilitas " of the people,
46.
In what sense is emperor lord of
all property 1 47.
Has emperor "plenitudo potes-
tatis " in temporal things ? 48.
He can only make laws for the
public good, not for his private
convenience, 48.
"Octo Quaestiones. " King is
superior in kingdom in some
cases, but in others inferior,
for he may be deposed and held
prisoner, 48.
Authority of emperor derived from
the Roman people, they did
not givo him an authority to
rule despotically and they retain
the right to dispose of the
empire " casualiter," 49.
Comparison of Occam and Mar-
silms, 50.
Panormitanus (Nicolas de Tudeschis)--
Custom superior to "Positive
Law. " Different opinions as to
whether it required the consent
of Pope, 152.
Political authority a consequence
of sin, 164.
Parliament of England--
Its authority in all important
matters, 1322, 4, 108.
Should meet twice a year, ' Mirror
of Justices,' 35.
Not merely to furnish aids, but to
legislate, 'Mirror of Justices,'
35.
No taxation without consent of
Parliament, 'Modus Tenendi
1'arliamentum,' 36.
All important matters should go
to Parliament, 'Modus Tenendi
Parliamentum,' 37.
Must not adjourn till all petitions
are heard, 'Modus Tenendi
Parliamentum,' 37.
Proceedings in Parliament for
deposition of Richard II. , 71-75.
Control of ministers by Parliament,
1341, revoked in 1343, 109.
Prosecution of ministers and
officials, 1376, 109.
No legislation or taxation without
Parliament, Fortescue, 217.
Law of England not made by the
will of king, but by 300 elected
men, that is by the consent of the
whole kingdom, Fortescue, 217.
Those laws of England which do
? ? not proceed from custom are
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
545
People--
"Universitas civium" is legis-
lator, Marsilius, 9.
It is competent to make law,
Marsilius, 11.
Has transferred its authority to
prince, cannot make "lex,"
but its custom has authority of
law, Faber, 22.
Has made and can depose princes,
Faber, 22.
Could resume authority they had
granted to prince and make
law, J. Butrigarius, 23.
Some said that peoplo could take
away the authonty granted to
emperor, "Archdeacon," 24.
I'oople who are without a king
can elect one. The electors
of emperor do this "vice om-
nium, princes and people.
Lupoid, 39.
Some great Jurists say that Roman
people could still make laws, for
people were greater than the
emperor and could for just
reason depose him. Lupoid, 40.
The "Principans " derives his auth-
ority solely from the "univer-
sitas civmm," which can also
correct or depose him, Marsilius,
41-44.
Power of emperor (Charlemagne)
given him by the Roman people,
Occam, 49.
They did not give him power to
rule despotically, and retained
their right to dispose of Empire
"casualiter," Occam, 49.
Can revoke authority of emperor
and make laws, Porcius and Jac.
Butrigarius, 145, 146.
Cannot do this, Saliceto and
Paulus de Castro, 146, 147.
Authority of king granted by
consent of community, and
limited by obligations to them,
Oerson, 159, 160.
Rule of State belongs to the
"congregatio civium" or their
"valentior pars," Zabarella,
165.
Refers to "Lex Regia" and
tablet in Lateran, Zabarella,
165.
Electors of Empire represented
the " universitas " of the Roman
>le, Zabarella, 166, 167.
political authority rests on
election by the subjects, Cusa,
169, 170.
In the beginning kings wore
created by tho "suffragium"
of the people. Pot, 176.
In minority of king responsibility
VOL. VI.
for the kingdom returns to
? ? people. Pot, 177.
Generated for (University of Chicago) on 2014-12-19 10:35 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
? 546
INDEX.
States General were the elected
Procurators of all Estates of
the realm, 178.
The large general powers of States
General, not only in taxation,
178.
States General decided between
Philip of Valois and Edward III.
of England, 178.
States General appointed regency
when King John was prisoner,
and in ministry of Charles VI. ,
178.
Prerogative--
In England---an extraordinary and
absolute authority, not subject
to law, Albericus Gent il is, 452.
Refers to Baklus as having made
this distinction between the
ordinary and ext raordinary auth-
ority of the prince, Albericus,
452.
Prerogative is an ultimate and
reserved power possessed by
King of England over and
above his ordinary powers,
which was comparable with tho
"absolute" power of other
kings, Cowell, 457.
Prince, King and Emperor--
Prince and poople; see undor
People.
Prince and law: see under Law.
Prince and "Divine Right ": see
under " Divine Right. "
Prince and taxation: see under
Taxation.
Source and nature of his authority
--pasrim.
Provincial Estates in Franco--
Met frequently in fourteenth
century, 6.
Their relation to taxation in four-
teenth century, 98-101.
Their relation to taxation in fif-
teenth century, 193-195, 197-
199.
Their relation to legislation in
fifteenth century, 469-471.
Somotimes limited by crown in
sixteenth century, 471.
Relation to taxation in sixteenth
century, 480, 481.
"Quod omnes tangit, ab omnibus
debet communiter approbari "--
Durandus, 24, 25.
Nicolas of Cusa, 136.
Gerson, 161.
"Remonstrance aux Seigneurs "--
Addressed to those who sought
the preservation of the kingdom
of France and an honourable
liberty under the king, 335.
King of France was under the law.
335.
Tho Courts of "Parlement" were
formerly over the kings, but
? ? now basely servile, 335.
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
547
K king neglects his duty or abuses
his authority he should be
deposed by the peoplo, not the
Pope, 39.
Soto,D. --
Nature of Eternal Law, Natural
Law, "Jus Gentium," and Civil
Law, 229.
Princcs normally do not derive
their authority directly from
God, but from the people, 255,
365.
Authority of king is great, he is
not merely M dispensator offi-
ciorum," but is the Respublica,"
255.
King has power of making laws,
"Quod Principi placuit, etc. ,
255, 258.
King cannot be deposed except for
tyranny, 256.
Discussion of tyrannicide and
Council of Constance, 256.
Prince is "legibus solutus," he is
subject to "vis directivaM
of the laws, not to " vis coerciva,"
257.
"Souverainete " and '' Souverain "--
There must be in every community
some supreme power which
makes all laws and magistrates
and is subject to no law, except
that of God and nature, and
"Jus Gentium. " This is " Maies-
tas," Bodin, 372, 418, 419.
Distinction between the "Souver-
ainet6" and the "Souverain"
in Huguenot treatises, 373.
The "Souverainete? " resides in
the community, or its repre-
sentative authority, while the
king is "Souverain," Huguenot
treatises, 373.
"Concile des Estats" retains in
its hands the sovereign authority
of the kingdom, Hotman, 373.
There are magistrates inferior to
the " Souverain " and appointed
by him, but who " ne de? pendent
proprement du souverain, mais
de la 'souverainete? ,'" 'Droit
des Magistrate,' 373.
The "Souverain " himself, before
he is put in possession of his
sovereign administration, swears
fidelity to the "Souverainete? ,"
'Droit des Magistrate,' 373.
Kingdom and empires are " fiefs,"
and owe homage and servicos
to the "Souverainete? ," 'Droit
des Magistrate,' 373, 374.
The "Souverain " is not above the
laws, but subject to them,' Droit
des Magistrats,' 374.
There are inferior powers, "de-
puties " of the people who create
and can depose prince. They
? ? as "souverams magistrate " are
Generated for (University of Chicago) on 2014-12-19 10:35 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
? 548
INDEX.
arehy was better in England,
261.
If prince is hereditary there must
be a "Great Parliament" to
repress seditions and defend
the liberty of the people, 261.
This is to appoint a Council, not
the ordinary Council of the king
--its composition, 261, 262.
Its function to maintain "Laws
and good Policy," even against
the king, to make war and
peace, &c, 262.
Authority of evil government is
not derived from God, 262
A mixed government the best, 262.
States General, France--
Met frequently in fourteenth
century, 6, 96-108.
Manifold powors and functions,
96-108.
The Templars, renunciation of
obedience to Benedict XIII. ,
war and peace, 96-98.
Taxation in fourteenth century,
98-104.
Abolition of illegal taxation, 1381,
101.
The constitutional crisis, 1355-
1358, 105-108.
Taxation in fifteenth century,
192-201.
Commines condemns all taxation
without consent of subjects,
201-203.
Their various functions in fifteenth
century, 210-214.
States General of Tours, 1484,
213, 214.
Commines, his high opinion of their
value, 214, 215.
Fortescue says that neither St
Louis nor his ancestors imposed
taxes without consent of Three
Estates, 217.
Supremo authority in Merovingian
and Carolingian timos belonged
to assemblies of the people,
which he relates to States
General of later timos, Hotman,
366.
These assemblies elected and
deposed kings, and States
General had the same powers,
Hotman, 366.
"Maiestas" remains with the
people, and is embodied in
Estates, Boucher, 368, 369.
Retained in its own hands tho
"souveraine authorite? ," Hot-
man, 373.
Identifies "la souverainte" with
the "Estats compose? s du corps
de tout le peuple," 'Archon et
Politic," 376.
They were not wholly forgotten
or ignored in early part of
? ? sixteenth century, examples,
Generated for (University of Chicago) on 2014-12-19 10:35 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
? INDEX.
549
vincial Estates, States General,
and assembly of notable persons,
1499 to 1597, 480-484.
Suarez--
Repudiates conception that
political authority normaily
came immediately from God;
this only happens rarely, 344,
348.
Community may transfer its juris-
diction to one man, but the
nature and form of this auth-
ority is determined by human
will, 345.
Legislative power belongs to king,
but this depends upon the
conditions under which his power
was given him by the com-
munity, 345, 346.
Prince ought to obey his own
laws, but repudiates the con-
ception that the phrase " legibus
solutus " applies only to "leges
caducarii," 347.
King ought to obey the laws, but
is exempt from "vis legum
coactiva, 347.
Kingdom can justly make war
upon a tyrant, 347, 348.
Taxation--
No taxation without Parliament,
"Modus Tenendi Parliamen-
tum," 36.
King can impose taxation for
public purposes, not private,
Somnium Viridarii,' 37.
If he uses them for private pur-
poses, he may be deposed,
Somnium Viridarii,' 38.
King has the right to impose
taxation for royal expenses,
Bartolus, 77.
Prince has the right to impose
"oollecta," but only if it is
useful to the commonwealth;
but there is no "obligatio
naturalis" to pay them, if it
is made accordmg to the
prince's "effrenata voluntas,"
Baldus, 85, 86.
See under Cortes of Castile,
States General of France, and
Provincial Estates of France.
It is tyranny to impose taxation
without consent of subjects,
Commutes, 201.
King of France can impose
"novum vectigal," Ferrault,
297.
See under L'Hopital, Bodin, Thos.
Smith, 'Droit des Magistrate,'
Parliament, ' Vindiciae. '
Tudeschis, Nicolas de: see Panor-
mitanus.
Turrecremata--
Laws derive their authority from
legislator, but are void unless
? ? confirmed by custom, 153.
Generated for (University of Chicago) on 2014-12-19 10:35 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
? 550
INDEX.
are to bo rejected by Courts of
Law, unless they injure no one,
307.
'Vindiciae contra Tyrannos'--
Laws made by wise men and
magistrates to restrain kings,
338, 339.
The many are wiser than the one,
339.
King receives the law from the
people, 339.
Only among barbarians is king
absolute, 339.
Legislation in Empire, England,
Spain, Hungary--by representa-
tive bodies--it was formerly the
same in France, 340, 494.
Kings the Vicars of God, God
'' mstitutes" them, but people
"constitute" them, 367.
Even hereditary monarchs are only
hold to be kings when they
have been invested by those
who represent the "Maiestas"
of the people, 367.
The two "foedera," God, king,
and people, and king and
people, 388, 389.
God is the avenger of the first, the
people of the second, 388, 389.
Such a contract between king and
people exists in almost all
countries. Empire, France, Eng-
land, Spain, Brabant, &c, 390.
It is related to mutual oaths at
coronation, 390.
There are officers of the kingdom
whose function it is to maintain
this contract, 410.
The Three Estates (of France)
met every year formorly, 493.
Their authority in war and peace,
and taxation, they could even
change the succession and de-
pose the king if he was a tyrant,
493.
Taxes could formerly only be
imposed by the authority of
the Throe Estates in France.
Cites law of Philip of Valois, 494.
Wenceelas, Emperor: deposition by
the electors, 182, 183.
Wesselius of Groningen--
Contract between people and ruler,
180.
King not to be obeyed in evil
thmgs, and may lawfully "in
regno turbari," 181.
Discusses meaning of St Paul in
Romans xiii. 1. This refers
only to righteous rulers, it is
lawful to resist others, 181, 182.
William of Orango--
Statement of the principles of the
contract between prince and
people in Netherlands, 383-385.
Conceived of them in terms of
? ? feudal law, 384.
Generated for (University of Chicago) on 2014-12-19 10:35 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www.