It is
therefore clear that when he who was elected to restrain the
wicked and to defend the good, actually becomes evil, oppresses
the good, and is guilty of that tyranny which it was his duty to
repel, he justly falls from the dignity which was granted to him,
and that the people are free from their subjection to him,
inasmuch as he has violated that agreement in virtue of which
he was appointed.
therefore clear that when he who was elected to restrain the
wicked and to defend the good, actually becomes evil, oppresses
the good, and is guilty of that tyranny which it was his duty to
repel, he justly falls from the dignity which was granted to him,
and that the people are free from their subjection to him,
inasmuch as he has violated that agreement in virtue of which
he was appointed.
Thomas Carlyle
org/access_use#pd-us-google
? 130 POLITICAL THEORY: 11TH & 12TH CENTURIES, [part II.
We have already1 referred to the terms of the demands
which Lambert of Hersfeld attributes to the Saxons and Thur-
ingians in the revolt of 1073, but we must now consider these
a little more closely. They demand that he should do justice
to the Saxon princes whose properties he had confiscated without
legal process, and that he should do this in accordance with the
judgment of the princes, that he should put away from his court
the lowborn persons by whose counsels he had administered the
state, and should entrust the care of the great affairs of the
kingdom to the princes to whom this belonged, that he should
dismiss his concubines and restore the queen to her proper
position, and that he should do justice to those who asked for
it. If he would do these things they would with ready minds
obey him, under those terms which became free men born in a
free empire, but if he would not amend his ways, they as
Christian men would not associate with one who was guilty of
the worst crimes. They had indeed sworn obedience to him,
but only as to a king who would uphold the Church of God,
and would rule justly and lawfully according to ancestral
custom, and would maintain the rank and dignity, and hold
inviolate the laws proper to every man. If he violated these
things they would not hold themselves bound by their oath, but
would wage a just war against him as a barbarian enemy, and
an oppressor of the Christian name, and would fight till their
last breath for the Church of God, for the Christian faith, and
for their own liberty. 2
1 Cf. pp. 112, 113.
2 Lambert of Hersfeld, 'Annales,'A. D.
1073 (p. 196): "Ut principibus Saxonise
quibus sine legitima discussione bona
sua ademerat, secundum principum
suorum iurisdictionem satisfaceret. . .
ut vilissimos homines, quorum consilio
seque remque publicam praecipiter de-
disset, de palatio eiceret, et regni
negocia regni principibus, quibus ea
competerent, curanda atque adminis-
trada permitteret: ut abdicato grege
concubinarum, quibus contra scita
canonum attrito frontis rubore in-
cubabat, reginam, quam sibi secundum
ecclesiasticas traditiones thori sociam
regnique cousortem delegisset, coniug-
ali loco haberet et diligeret; ut cetera
flagitiorum probra, quibus dignitatem
regiam adolescens infamaverat, nunc
saltem maturato sensu et estate ab-
dicaret. Postremo per Deum rogant,
ut iusta postulantibus sponte annueret,
nec sibi magni cuiusqam et inusitati
facinoris necessitatem imponerat. Si
ita faceret, se promptissimo animo ei
sicut actenus servituros, eo tamen
modo, quo ingenuos homines atque in
libero imperio natos regi servire opor-
teret; sin autem, christianos se esse,
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? CHAP. V. ]
131
JUSTICE AND LAW.
As we have just said, we are not here concerned with the
real nature of the revolt of the Saxons and its ultimate causes
and character, it is not difficult to recognise even in this
passage something of the complexity of the situation, and we
cannot feel any confidence that these particular principles were
urged by the leaders of the revolt against Henry IV. in these
terms. We must indeed take them rather as representing the
ideas and theories and, probably, the literary reminiscences of
Lambert. But they are not the less significant on that account.
The passage contains some constitutional conceptions with
which we shall deal later, but in the meanwhile we can fix our
attention on the sharp and definite character of the distinction
between the king to whom men swear allegiance, and the unjust
ruler who sets at naught the law and rights of his subjects, and
to whom therefore men are under no obligations. It is the
history of this conception which we must trace farther.
We may put alongside of this passage from Lambert the
terms of a speech which Bruno, the author of the 'De Bello
Saxonico,' puts into the mouth of Otto, who had been Duke of
Bavaria. It is represented as addressed to the Saxons at
"Normeslovo" in 1073. He exhorts them to rise against Henry,
and urges upon them that the castles which Henry was building
were intended to destroy their liberty, and in fiery terms he asks
whether, when even slaves would not endure the injustice of their
masters, they who were born in liberty were prepared to endure
slavery. Perhaps, he says, as Christian men they feared to
violate their oath of allegiance to the king; yes! but they were
made to one who was indeed a king. While Henry was a king,
and did those things which were proper to a king, he had kept
the faith which he had sworn to him whole and undefiled, but
when he ceased to be a king he was no longer such that he
nec velle hominis, qui fidem christi- pateretur. Sin ista prior ipse temer-
anam capitalibus flagitiis prodidisset, asset, se iam sacramenti huius religiono
communione maculari. . . . Sacramento non teneri, sed quasi cum barbaro
se ei fidem dixisse, sed si ad sedifica- hoste et christiani nominis oppressore
tionem, non ad destructionem ecclesise iustum deinceps beliem gesturos, et
Dei, rex esse vellet, si iuste, si legitime, quoad ultima vitalis caloris scintilla
si more maiorum rebus moderaretur, si superesset, pro ecclesia Dei, pro fide
suum cuique ordinem, suam dignitatem, Christiana, pro libertate e1ian1 sua
suas leges tutas inviolatasque manere dimicaturos. "
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? 132 POLITICAL THEORY : llTH 4 12TH CENTURIES, [part II.
should keep faith to him. He had taken up arms, and adjured
them to take up arms, not against the king, hut against the
unjust assailant of his liberty, not against his country, but for
his country, and for that liberty which no good man would
consent to lose except with his life. 1
\ Lambert of Hersfeld sets out the same principle, but in more
technical terms. He represents Otto as urging at another
time that herein lay the difference between the king and the
tyrant, that the tyrant compels the obedience of unwilling
subjects by violence and cruelty, while the king governs his
subjects by laws and ancestral custom. 2
Berthold of Constance in his Annals for the year 1077
relates, as we have already mentioned,3 how on Henry's return
to Germany after his absolution by Hildebrand at Canossa, many
of the clergy maintained that no one could judge or condemn a
king however wicked and criminal. Berthold himself holds
that this opinion is absurd, and cites, though without mention-
ing his source, St Isidore of Seville's phrases, that the king
holds his title while he does right, if he acts wrongfully he loses
it; and maintains that those who do wickedly and unjustly are
really tyrants, and are only improperly called kings. 4 The
1 Bruno, 'De Bello Saxonico,' 25:
"Servi sere parati iniusta imperia
dominorum non perferunt, et vos in
libertate nati, sequo animo servitutem
tolerabitis? Fortasse quia Christian!
estis, sacramenta regi facta violare
timetis. Optime, sed regi. Dum
mihi rex erat, et ea quse sunt regis
faciebat, fidelitatem quam ei iuravi,
integram et impollutam servavi, post-
quam vero rex esse desivit, cui (idem
servare deberem, non fuit. Itaque
non contra regem, sed contra iniustum
mese libertatis ereptorem; non contra
patriam, sed pro patria et pro libertate
mea, quam nemo bonus, nisi cum anima
simul amittit, arma capio, et ut vos ea
mecum capiatis expostulo. "
2 Lambert of Hersfeld, 'Annales,'
a. d. 1076 (p. 249): "Hanc regis ac
tiranni esse distantiam, quod hic vi
atque crudelitate obedientiam extor-
queat ab invitis, ille legibus ac more
maiorum moderetur subiectis prsecipi-
atque facienda. "
3 See p. 119.
4 Berthold of Constance, 'Annales,'
1077 a. d. (p. 297): "Recte igitur
faciendo nomen regis tenetur, alioquin
amittitur, unde est hoc vetus elogium:
'Rex eris, si recte facis; si non facis
non eris. ' . . . Si autem nec iuste
iudicent, nec pie condescendant, neque
regulam officii sui vel sola saltem
nominationis imagine minimum quid
attingant, set potius ultra modum et
insamas ethnicorum superlativas, vitss
facinorosse et luxuriosse libertatem
nefandissimi omnifariam et portentu-
osi exerceant, crudelissima dominandi
maiestate populum supprimant, et
miserrime suppressum devoreut, et ad
interneciem usque consumant, cur non
magis proprie tyranni in huiusmodi
fortissimi, quam abusive et absque rei
? ? veritate reges sint nuncupandi. "
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? CHAP. V. ]
133
JUSTICE AND LAW.
same phrases are again quoted by Hugh, Abbot of Flavigny,
in defending the deposition of Henry IV. 1
Herrand, Bishop of Halberstadt, writing in the name of Louis
the Count of Thuringia about 1094 or 1095, expresses the same
conceptions, but in a more developed form, in his answer to a
letter of Waltram the Bishop of Naumburg. Waltram had
urged the authority of the words of St Paul: "Let every soul
be subject to the higher powers, for there is no power but of
God. " Herrand replies that Waltram was misinterpreting St
Paul, for if every authority was from God how could the prophet
(Hosea viii. 4) have spoken of princes who reigned, but not as
of God. They were willing to obey an ordered power, but how
could such a government as that of Henry IV. be called an
order at all; it is not order to confound right and wrong. Again,
in a later passage, answering Waltram's contention that concord
was useful to the kingdom, Herrand replies that it was absurd
to speak thus of a society which could not be called a kingdom,
for a kingdom is something rightful; could that be called a
kingdom where innocence was oppressed, where there was no
place for reason, for judgment, or for counsel, where every desire
was reckoned to be lawful? Such a kingdom should rather be
called a congregation of the wicked, a council of vanity, the
dregs of iniquity; in such a kingdom concord is unprofitable.
Among good men indeed concord is praiseworthy, but among
evil men it is blameworthy; what man in his right mind
would speak with approval of a concord of robbers, of thieves,
of unclean persons ? 2
1 Hugo, Abbas Flaviniacensis,
Chronicon, ii. fol. 111.
2 Herrandus, 'Epistola': "Ad sub-
iectionem domini Henrici; quem im-
peratorem dicunt, nos invitas, et in
quantum intelligere datur, ut per omnia
subditi simus, quasi apostolico argu-
mento necessitates imponis, dicens:
'Omnis anima potestatibus superioribus
eubdita sit; non est enim potestas nisi
a Deo. Qui ergo potestati resistit, Dei
ordinationi resistit. ' Quam apostoli
eententiam te male intelligere, peius
interpretari dicimus. Si enim omnis
potestas a Deo est, ut tu intelligis,
quid est, quod de quibusdam dicit
Dominus per prophetam: 'Ipsi reg-
naverunt, et non ex me, prineipes exti-
terut, et non cognovi. ' . . . Pravidens
per Spiritum sanctum apostolus te tui-
que similes hereticos in ecclesia emer-
suros, qui 'bonum malum, malum
bonum ' dicerent, qui ' teneb1as lucem
et lucem tenebras' ponerent, qui de
sententiis veritatis occasionem indu-
cendi erroris captarent, cum prsemisis-
set: 'Non est potestas nisi a Deo' ut
coniecturam reprobi intellectus ampu-
taret: 'Quse autem sunt,' inquit, 'a Deo
ordinata sunt. ' Da igitur potestatem
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? 134 POLITICAL THEORY : llTH k 12TH CENTURIES, [part II.
The distinction between the true king and the tyrant,
between just and legal authority, which was the characteristic
of the true commonwealth, and mere violence and unjust
power, was indeed firmly fixed in the minds of all mediseval
thinkers, and we find it clearly set out even in the writings of
those who were the strongest upholders of the imperial or royal
authority. We have already had occasion to discuss the opinions
of Hugh of Fleury as represented in his treatise on the royal
and sacerdotal powers, addressed to Henry I. of England. We
have seen how stoutly he maintains, against the apparent
meaning of certain phrases of Hildebrand, that the authority of
the king is from God, and that he even repeats those phrases,
which had been used by Ambrosiaster and Cathulfus, in which
the king is described as bearing the image of God, while the
bishop bears that of Christ. 1 And while, as we have seen, he
holds very clearly that the function of the king is to maintain
justice and equity, he also urges that the honour due to those
in authority must not be measured by their personal qualities,
but by the place which they hold, and that therefore even
heathen rulers must receive the honour due to their position. 2
ordinatam et non resistimus, immo
dabimus ilico manus. Miror autem, si
in te vel gutta sanguinis est, quod non
erubescis dominum Henricum regem
dicere vel ordinem habere. An ordo
tibi videtur ius dare sceleri, fas ne-
fasque, divina et humana confundere.
Quon1odo autem concordiam utilem
asseris regno, quod nullum est? Reg-
num quippe quasi rectum dicitur.
An regnum recte dicitur, ubi omnis
iunocentia laborat, ubi neque rationi,
neque iudicio, neque consilio locus est;
sed quidquid libitum id licitum putatur?
Tale regnum ecclesiam malignantium,
concilium vanitatis, denique totius ini-
quitatis sentinam rectius appellaveris.
Tali regno nos concordiam inutilem
dicimus. Sicut enim inter bonos
laudabilis, ita inter malos repre-
hensibilis concordia est. Quis enim
concordiam latronum, quis furum, quis
immundorum, nisi mente captus, ap-
probat? "
1 See pp. 98, 111.
2 Hugh of Fleury, 'Tractatus de regia
potestate et sacerdotali dignitate,' i. 4:
"Honorandi etiam sunt omnes, qui in
potestate sunt positi, ab his quibus
prsesunt, etsi non propter se, vel prop-
ter ordinem et gradum, quem a Deo
acceperunt. Sic enim iubet apostolus
dicens. 'Omnibus,' inquit, 'potes-
tatibus sublimioribus subditi estote.
Non est enim potestas nisi a Deo.
Quse enim sunt, a Deo ordinatse sunt. '
Ipse nempe, sicut iam superius osten-
sum est, per pravas malorum hominum
voluntates explere nonnumquam con-
suevit suam sequam ac iustissimam
voluntatem, sicut per Judeos malivolos,
bona voluntate Patris, Ohristus pro
nobis occisus est. Quod scientes atque
credentes, et prseceptum apostoli pariter
? ? observantes, etiam gentiles in potestate
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? CHAP. V. ]
135
JUSTICE AND LAW.
And yet he also warns kings and princes and tyrants that those
who refuse to keep the commandments of God are wont to lose
their power and authority, and that it frequently happens that
the people revolt against such a king. 1
The author of the controversial pamphlets which have been
published as the 'Tractatus Eboracenses' sets the temporal
power higher perhaps than any other writer of the Middle Ages,
and in a strange phrase which has some resemblance to that of
Hugh of Fleury he speaks of the priest as representing the
human nature of Christ, while the king represents the divine
nature. ? . But even he recognises that there have been kings
who were no true kings but only tyrants. 3 He does not indeed
say that they are to be resisted, but he is aware of the distinc-
tion between the true and false king. In another passage he
makes the distinction very clear between the authority which
is always good, and the person of the ruler who may be evil.
Our Lord had bidden men give to Csesar that which was
Csesar's, He did not say, render to Tiberius that which is
positos honoramus, et mala quam nobis
ingerunt sequammiter toleramus, ne
Deo iniuriam facere videamur, qui
illos ordinis titulo super homines ex-
tulit atque sublimavit, licet i 11 i indigni
sint ordine quo fruuntur.
1 Id. id. , i. 9: "Porro ipsi reges et
principes atque tyranni, dum Deo
subesse et eius prsecepta custodire
renuunt, dominationis suse vim et
potestatem plerumque solent amittere,
sicut primus homo dominationis suse
vigorem et dignitatis prserogativam post
suam transgressionem cognoscitur ami-
sisse. Postquam nempe divino noluit
esse subiectus imperio, ipsa etiam
corporis sui membra sibi rebellare et
ignites aculeos carnalis concupiscentise
statim contra suam voluntatem in sua
carne sevire persensit. Pisces quoque
maris et volucres cseli et bestise agri,
quse illi ante comissum facinus quasi
privata animalia subiacebant, iugum
dominationis eius a se ceperunt abigere,
et iam ei amplius solito servire nolebant.
Quse tamen omnia vi rationis suse csepit
domum paulatim sibi subigere et ad
buos usus exquisitis artibus retorquere.
Itaque pari modo regi Deo contrario
populus sibi subiectus multocies incipit
adversus eum insurgere et variis ao
multiplicibus insidiis illum appetere et
multis adversitatibus fatigare. "
2 'Tractatus Eboracen6es,' iv. (M. Q.
H. , 'Libelli de Lite,'vol. iii. p. 666):
"Sacerdos quippe aliam prsefigurabat
in Christo naturam, id est hominis, rex
aliam, id est Dei. Ille superiorem qua
equalis est Deo patri, iste inferiorem
que minor est patre. "
3 Id. id. id. : "Similiter et de ceteris
regibus sentiendum est, qui in spiritu
Dei venerunt et virtute, non de illis
qui reguaveruntetnon ex Deo, quoniam
non reges, sed tiranni fuerunt et in
spiritu maligno et contraria virtute
venerunt. Quorum unus fuit Ozias,
qui, quoniam per superbiam usurpa-
? ? vit sacerdotium, lepra percussus est,
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? 136 POLITICAL THEORY : 11TH & 12TH CENTURIES, [part 11.
Tiberius'; render to the authority, not to the person, the person
may be evil, the authority is just, Tiberius may be wicked, but
Csesar is good. Kender, therefore, not to the evil person, to the
wicked Tiberius, but to the just authority, to the good Csesar,
that which is his. 1
If these are the judgments, even of those who defended the
temporal authority against what they conceived to be the un-
reasonable claims of the spiritual power, we need not be surprised
that the supporters of the political or ecclesiastical opposition
pressed them still more emphatically. We shall have occasion
presently to deal with the position of Manegold in detail, but in
the meanwhile we may observe how sharply he draws the dis-
tinction between kingship and tyranny, and how emphatically he
states the conclusion that the ruler who governs tyrannically has
no claim whatever upon the obedience of his people. The people,
he says, did not exalt the ruler over themselves in order that
he should have freedom to tyrannise over them, but in order
that he should defend them from the tyranny of others.
It is
therefore clear that when he who was elected to restrain the
wicked and to defend the good, actually becomes evil, oppresses
the good, and is guilty of that tyranny which it was his duty to
repel, he justly falls from the dignity which was granted to him,
and that the people are free from their subjection to him,
inasmuch as he has violated that agreement in virtue of which
he was appointed. 2
As we have already said, the conception of the fundamental
difference between the king and the tyrant is developed more
1 'Tractatus Eboracenses,' iv. (M. Q.
H. , 'Libelli de Lite,' vol. iii. p. 671):
"Reddite, inquit, quse sunt cesaris
cesari, non quse sunt Tyberii Tyberio.
Reddite potestati, non persone. Per-
sona enim nequam, sed iusta potestas.
Iniquus Tyberius, sed bonus cesar.
Reddite ergo non personse nequam,
non iniquo Tyberio, sed iuste potestati
et bono cesari que sua sunt. "
2 Manegold, 'Ad Gebehardum,' xxx. :
"Necesse est ergo, qui omnium curam
gerere, omnes debet gubernare, maiore
gratia virtutum super ceteros debeat
eplendere, traditam sibi potestatem
summo equitatis libramine studeat
administrare. Neque enim populus
ideo eum super se exaltat, ut liberam
in se exercendse tyrannidis facultatem
concedat, sed ut a tyrannide ceterorum
et improbitate defendat. Atque, cum
ille, qui pro coercendis pravis, probis
defendendis eligitur, pravitatem in se
fovere, bonos conterere, tyrannidem,
quam debuit propulsare, in subiectos
ceperit ipse crudelissime exercere, nonne
clarum est, merito illum a concessa
dignitate cadere, populum ab eius
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? cHAP. V. ]
137
JUSTICE AND LAW.
clearly and completely by John of Salisbury than by any other
writer of these centuries. We have from time to time cited
various passages from his 'Policraticus,' but his position in the
history of political theory is so important and so representative
that we must consider it briefly as a whole.
We have already cited some of the phrases in which he
draws out the distinction between the king and the tyrant;
we must look at these more closely. This, he says, is the only
or the greatest difference between the prince and the tyrant,
that the prince obeys the law, and governs the people, whose
servant he reckons himself to be, according to the law; he
claims, in the name of the law, the first place in carrying out
the public offices, and in submitting to the burdens of the
commonwealth; he is superior to other men in this, that while
others have their particular obligations, he is bound to bear all
the burdens of the State. The prince is endued with the
authority of all, in order that he may the better minister to
the needs of all. The will of the prince is never contrary
to justice. The prince is the public authority, and an image on
earth of the divine majesty, and his authority is derived from
God. The passage concludes with tbose famous phrases of the
Code in which it is said that the authority of the prince
depends upon the law, and that it is a thing greater than
empire to submit the princely authority to the laws. 1
dominio et subiectione liberum existere,
cum pactum, pro quo constitutus est,
constet illum prius irrupisse? . . .
Ut enim imperatoribue et regibus ad
tuenda regni gubernacula fides et
reverentia est adhibenda, sic certe, sic
firma ratione, si tyrannidem exercere
eruperint, absque omni fidei lesione vel
pietatis iactura nulla fidelitas est vel
reverentia impendenda. "
1 John of Salisbury, 'Policraticus,'
iv. 1: "Est ergo tiranni et principis
hsec differentia sola vel maxima, quod
hic legi obtemperat, et eius arbitrio
populum regit cuius se credit minis-
trum, et in rei publicse muneribus
exercendis et oneribus subeundis legis
beneficio sibi primum vendicat locum,
in eoque prsefertur ceteris, quod, cum
singuli teneantur ad singula, principi
onera imminent universa. Unde merito
in eum omnium subditorum potestas
confertur, ut in utilitate singulorum et
omnium exquirenda et facienda sibi ipse
sufficiat, et humanse rei publicse status
optime disponatur, dum sunt alter
alterius membra. In quo quidem opti-
mum vivendi ducem naturam sequimur,
quse macrocosmi sui, id est, mundi
minoris, hominis scilicet, sensus univer-
sos in eapite collocavit, et ei sic universa
membra subiecit, ut omnia recte move-
antur, dum sani capitis sequunturarbi-
trium. Tot ergo et tantis privilegiis
apex principalis extollitur et splen-
descit , quot et quanta sibi ipse necessaria
credidit. Eecte quidam, quia populo
nichil utilius est quam ut principis
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? 138 POLITICAL THEORY: llTH & 12TH CENT DRIES, [part II.
For the definition of the tyrant we must turn to a later pas-
sage, where we find it said that the philosophers have described
him as one who oppresses the people by violent domination, while
the prince is one who rules by the laws. The prince strives
for the maintenance of the law and the liberty of the people;
the tyrant is never satisfied until he has made void the laws
and has reduced the people to slavery. The prince is the image
of God,and is to be loved and cherished; while the tyrant is the
image of wickedness, and often it is meet that he should be
slain. The origin of tyranny is iniquity, and it is this poison
of unrighteousness and injustice which is the source of all the
troubles and conflicts of the world. 1
It is specially important to observe that to John of Salisbury
the essence of the distinction between the tyrant and the prince
lies in his relation to law. In other places he enforces the
principle in very interesting phrases. There are some, he says,
who whisper or even publicly proclaim that the prince is not
subject to the law, and that whatever pleases him has the force
of law; that is, not merely that which he, as legislator, has
established as law in accordance with equity, but whatever he
may chance to will. The truth is, that when they thus with-
necessitas expleatur; quippe cum nec
voluntas eius iustitise inveniatur
adverea. Est ergo, ut eum plerique
diffiniunt, princeps potestas publica et
in terris qusedam divinse maiestatis
imago. . . . Omnis etenim potestas a
Domini Deo est, etoum illo fuit semper,
et est ante evum. . . . Digna siquidem
vox est, ut ait Imperator, maiestate
regnantis se legibus alligatum priu-
cipem profiteri. Quia de iuris auc-
toritate principis pendet auctoritas; et
revera maius imperio est, summittere
legibus principatum (Cod. i. 14. 4); ut
nichil sibi princeps licere opinetur,
quod a iustitue sequitate discordet. "
1 John of Salisbury, 'Policraticus,'
viii. 17: "Est ergo tirannus, ut
eum philosophi depinxerunt, qui vio-
lenta dominatione populum premit,
sicut qui legibus regit princeps est.
. . . Princeps pugnat pro legibus et
populi libertate; tirannus nil actum
putat nisi leges evacuet et populum
devocet in servitutem. Imago qusedam
divinitatis est princeps, et tirannus est
adversarise fortitudinis et Luciferianse
pravitatis imago, siquidem illum imi-
tatur qui affectavit sedem ponere ad
aquilonem et similis esse altissimo,
bonitate tamen deducta. . . . Imago
deitatis, princeps amandus, venerandus
est et colendus; tirannus, pravitatis
imago, plerumque etiam occidendus.
Origo tiranni iniquitas est et de radice
toxicata mala et pestifera germinat et
pullulat arbor securi qualibet succi-
denda. Nisi enim iniquitas et inius-
titia caritatis exterminatrix tirannidem
procurasset, pax secura et quies per-
petua in evum populos possedisset,
nemoque cogitaret de finibus pro-
ducendis. "
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? CHAP. V. ]
139
JUSTICE AND LAW.
draw the king from the bonds of the law they make him an
outlaw. John does not indeed desire to destroy the dispensing
power of the ruler, but he refuses to submit the permanent
commands or prohibitions of the law to his caprice. 1 We may
compare with these words those of another passage in which he
urges that all men are bound by the law; the prince is said to
be free from the law, not because he may do unjust things, but
because his character should be such that he follows equity and
serves the commonwealth, not from fear of punishment, but for
love of justice, and that he always prefers the convenience of
others to his own personal desires. It is indeed meaningless to
speak of the prince's desires in respect to public matters, for
he may not desire anything but what law and equity and the
common good require; his will has indeed in these matters the
force of law, but only because it in ho way departs from equity.
The prince is the servant of the public good and the slave of
equity, and bears the public person, because he punishes all
injuries and crimes with equity. 2
1 Id. id. , iv. 7: "Procedant nunc
dealbatores potentum, susurrent aut,
si hoc parum est, publice prseconentur
principem non esse legi subiectuu1, et
quod ei placet, non modo in iure
secundum formam sequitatis condendo,
sed qualitercumque, legis habere vig-
orem. Regem quem legis nexibus sub-
trahunt, si volunt et audent, exlegem
faciant, ego, non modo his renitentibus
sed mundo reclamante, ipsos hac lege
teneri confirmo. In quo enim, inquit,
qui nec fallit nec fallitur, iudicio
iudicaveritis, iudicabimini. Et certe
iudicium gravissimum in his qui
prsesunt fiet, eo quod men sura bona
conferta coagitata et supereffluens re-
fundetur in sinus eorum. Nec tamen
dispensationem legis subtraho manibus
potestatum, sed perpetuam prseeep-
tionem aut prohibitionem habentia
libito eorum nequaquam arbitror sub-
ponenda. In his itaque dumtaxat quse
mobilia sunt, dispensatio verborum ad-
mittitur; ita tamen ut compensatione
honestatis aut utilitatis mens legis
integra conservetur. "
8 Id. id. , iv. 2: "Omnes itaque neces-
sitate legis servandse tenentur adstricti,
nisi forte aliquis sit cui iniquitatis
licentia videatur indulta. Princeps
tamen legis nexibus dicitur absolutus,
non quia ei iniqua liceant, sed quia is
esse debet, qui non timore penae sed
amore iustitise sequitatem colat, rei
publicse procuret utilitatem, et in
omnibus aliorum commoda privatse
prscferat voluntati. Sed quis in negotiis
publicis loquetur de principis voluntate,
cum in eis nil sibi velle liceat, nisi
quod lex aut sequitas persudet aut
ratio communis utilitatis inducit? Eius
namque voluntas in his vim debet
habere iudicii; et rectissime quod ei
placet in talibus legis habet vigorem,
eo quod ab sequitatis mente eius
sententia non discordet. De vultu
tuo, inquit, iudicium meum prodeat,
? ? oculi tui videant sequitatem; iudex
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? 140 POLITICAL THEORY : 11TH & 12TH CENTURIES, [part II.
It is important to observe, in considering these passages, how
much John of Salisbury is affected by the revived study of the
Roman law; his reference to Vacarius, and the progress of the
influence of the Eoman jurisprudence in England, in spite of the
attempts to restrain it, is well known;1 and the effects of his
own study are very clearly illustrated in the passages we have
just discussed. He is evidently gravely concerned to find a just
meaning for such phrases, as that the prince is "legibus solutus,"
or "quod principi placuit legis habet vigorem," for evidently
they had, by some, been used to defend the conception that the
prince was not subject to the law, and that even his capricious
desires might override the law. Such couceptions seem to him
monstrous and impossible. The will of the prince which is to
have the force of law can only be that which is in accordance
with equity and law. He is only free in relation to law in the
sense that his true character is that of a man who freely obeys
the law of equity. It is specially interesting to notice his
phrase about the result of withdrawing the prince from the
authority of the law, that the true result of this is to make him
an outlaw--that is, a person to whom all legal obligations
cease.
To appreciate the significance of these principles of John of
Salisbury completely, we must bear in mind not only the
traditions which we have considered in this chapter, but also the
whole tradition of the feudal lawyers, culminating in the dog-
matic affirmation of Bracton that the king is under the law. 2
It is evident that John approaches the discussion of these
questions formally through the medium of the Roman law and
other literary traditions, but that his actual judgment corre-
sponds with and expresses the effects of the political traditions
and the practical circumstances and necessities of his own time.
The legitimate prince or ruler is thus distinguished, in John
of Salisbury's mind, by this, that he governs according to law.
minister et sequitatis servus est prin- punit. "
ceps, et in eo personam publicam gerit, 1 John of Salisbury, 'Policraticus,'
quod omnium iniurias et dampna sed viii. 22.
et crimina omnia sequitate media 2 Cf. p. 67.
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? CHAP. V. ]
141
JUSTICE AND LAW.
What is then the law to which he is subject, and which it is his
function to administer? It does not represent the arbitrary
will of the ruler, nor even of the community. John finds ex-
pression for his principles in terms derived partly from the con-
temporary Civilians and partly from the Digest. The prince, he
says, must remember that his justice is subordinate to that of
Grod, whose justice is eternal and whose law is equity. He
defines equity in terms used by a number of the Civilians, as
"rerum convenientia . . . quse cuncta cosequiparat ratione
et imparibus (in paribus) rebus paria iura desiderat," and as
that which gives to every man his own. Law is the interpreter
of this equity, and he cites the words of Chrysippus as quoted
in the Digest, that it is law which orders all things divine and
human, and those of Papinian and Demosthenes, that law is
formed and given by God, is taught by wise men, and estab-
lished by the commonwealth. All, therefore, he concludes, are
bound to obey the law, unless perchance some one claims to
have licence to commit iniquity. 1
In another place John of Salisbury takes from the work
which he knew as the 'Institutio Traiani,' and attributed to
Plutarch, a definition of the commonwealth which represents
the conception that all political authority embodies the
principles of equity and reason. The commonwealth, he
represents the work as saying, is a body which is animated
by the benefit of the divine gift, and is conducted at the
1 Id. id. , iv. 2: "Nec in eo sibi hominum principem et ducem esse,
principes detrahi arbitrentur, nisi Cui Fapinianus, vir quidem iuria
iustitise suse statuta prreferenda experientissimus, et Demostenes,
crediderint iustitise Dei, cuius iustitia orator prsepotens, videntur suffragari
iustitia in evum est, et lex eius saquitas. et omnium hominum subicere obedien-
Porro sequitas, ut iuris periti asserunt, tiam, eo quod lex omnis inventio
rerum convenientia est, quse cuncta quidem est et donum Dei, dogma
cosequiparat ratione et imparibus (in sapientum, correctio voluntariorum
paribus ? ) rebus paria iura desiderat, excessuum, civitatis compositio, et
in omnes sequabilis, tribuens unicuique totius criminis fuga; secundum quam
quod suum est. Lex vero eius in- decet vivere omnes qui in politicse rei
terpres est, utpote cui sequitatis et universitate versantur. Omnes itaque
iustitise voluntas innotuit. Unde et necessitate legis servandse tenentur
eam omnium rerum divinarum et adstricti, nisi forte aliquis sit cui
humanarum compotem esse Crisippus iniquitatis licentia videatur indulta. "
asseruit, ideoque prsestare omnibus Cf. vol. ii. pp. 7, 8, and vol. i. p. 56
bonis et malis et tam rerum quam (Digest, i. 3. 1 and 2).
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? 142 POLITICAL THEORY : llTH & 12TH CENTURIES, [part 11.
bidding of the highest equity, and controlled by the rule of
reason. 1
The authority of the law and the State is the authority of
justice and reason, and it is impossible therefore for John to
conceive of any ruler as being legitimate, or as having any real
claim to authority, unless he is obedient to the law, which is
the embodiment of justice and reason.
What are then the conclusions which John of Salisbury
draws from these principles, in regard to the practical questions
of the relations of subjects and rulers? It is true that he is a
little hampered by the recollection of the Augustinian and
Gregorian tradition; that he remembers that in the patristic
tradition the evil ruler may be the instrument of God's
punishment upon an evil people. 2 And in one passage he
1 John of Salisbury, 'Policraticus,'
v. 2: "Est autem res publica, sicut
Plutarco placet, corpus quoddam quod
diviui muneris beneficio animatur, et
summse sequitatis agitur nutu et regi-
tur quodam moderamine rationis. "
For a discussion of this work see C.
? 130 POLITICAL THEORY: 11TH & 12TH CENTURIES, [part II.
We have already1 referred to the terms of the demands
which Lambert of Hersfeld attributes to the Saxons and Thur-
ingians in the revolt of 1073, but we must now consider these
a little more closely. They demand that he should do justice
to the Saxon princes whose properties he had confiscated without
legal process, and that he should do this in accordance with the
judgment of the princes, that he should put away from his court
the lowborn persons by whose counsels he had administered the
state, and should entrust the care of the great affairs of the
kingdom to the princes to whom this belonged, that he should
dismiss his concubines and restore the queen to her proper
position, and that he should do justice to those who asked for
it. If he would do these things they would with ready minds
obey him, under those terms which became free men born in a
free empire, but if he would not amend his ways, they as
Christian men would not associate with one who was guilty of
the worst crimes. They had indeed sworn obedience to him,
but only as to a king who would uphold the Church of God,
and would rule justly and lawfully according to ancestral
custom, and would maintain the rank and dignity, and hold
inviolate the laws proper to every man. If he violated these
things they would not hold themselves bound by their oath, but
would wage a just war against him as a barbarian enemy, and
an oppressor of the Christian name, and would fight till their
last breath for the Church of God, for the Christian faith, and
for their own liberty. 2
1 Cf. pp. 112, 113.
2 Lambert of Hersfeld, 'Annales,'A. D.
1073 (p. 196): "Ut principibus Saxonise
quibus sine legitima discussione bona
sua ademerat, secundum principum
suorum iurisdictionem satisfaceret. . .
ut vilissimos homines, quorum consilio
seque remque publicam praecipiter de-
disset, de palatio eiceret, et regni
negocia regni principibus, quibus ea
competerent, curanda atque adminis-
trada permitteret: ut abdicato grege
concubinarum, quibus contra scita
canonum attrito frontis rubore in-
cubabat, reginam, quam sibi secundum
ecclesiasticas traditiones thori sociam
regnique cousortem delegisset, coniug-
ali loco haberet et diligeret; ut cetera
flagitiorum probra, quibus dignitatem
regiam adolescens infamaverat, nunc
saltem maturato sensu et estate ab-
dicaret. Postremo per Deum rogant,
ut iusta postulantibus sponte annueret,
nec sibi magni cuiusqam et inusitati
facinoris necessitatem imponerat. Si
ita faceret, se promptissimo animo ei
sicut actenus servituros, eo tamen
modo, quo ingenuos homines atque in
libero imperio natos regi servire opor-
teret; sin autem, christianos se esse,
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? CHAP. V. ]
131
JUSTICE AND LAW.
As we have just said, we are not here concerned with the
real nature of the revolt of the Saxons and its ultimate causes
and character, it is not difficult to recognise even in this
passage something of the complexity of the situation, and we
cannot feel any confidence that these particular principles were
urged by the leaders of the revolt against Henry IV. in these
terms. We must indeed take them rather as representing the
ideas and theories and, probably, the literary reminiscences of
Lambert. But they are not the less significant on that account.
The passage contains some constitutional conceptions with
which we shall deal later, but in the meanwhile we can fix our
attention on the sharp and definite character of the distinction
between the king to whom men swear allegiance, and the unjust
ruler who sets at naught the law and rights of his subjects, and
to whom therefore men are under no obligations. It is the
history of this conception which we must trace farther.
We may put alongside of this passage from Lambert the
terms of a speech which Bruno, the author of the 'De Bello
Saxonico,' puts into the mouth of Otto, who had been Duke of
Bavaria. It is represented as addressed to the Saxons at
"Normeslovo" in 1073. He exhorts them to rise against Henry,
and urges upon them that the castles which Henry was building
were intended to destroy their liberty, and in fiery terms he asks
whether, when even slaves would not endure the injustice of their
masters, they who were born in liberty were prepared to endure
slavery. Perhaps, he says, as Christian men they feared to
violate their oath of allegiance to the king; yes! but they were
made to one who was indeed a king. While Henry was a king,
and did those things which were proper to a king, he had kept
the faith which he had sworn to him whole and undefiled, but
when he ceased to be a king he was no longer such that he
nec velle hominis, qui fidem christi- pateretur. Sin ista prior ipse temer-
anam capitalibus flagitiis prodidisset, asset, se iam sacramenti huius religiono
communione maculari. . . . Sacramento non teneri, sed quasi cum barbaro
se ei fidem dixisse, sed si ad sedifica- hoste et christiani nominis oppressore
tionem, non ad destructionem ecclesise iustum deinceps beliem gesturos, et
Dei, rex esse vellet, si iuste, si legitime, quoad ultima vitalis caloris scintilla
si more maiorum rebus moderaretur, si superesset, pro ecclesia Dei, pro fide
suum cuique ordinem, suam dignitatem, Christiana, pro libertate e1ian1 sua
suas leges tutas inviolatasque manere dimicaturos. "
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? 132 POLITICAL THEORY : llTH 4 12TH CENTURIES, [part II.
should keep faith to him. He had taken up arms, and adjured
them to take up arms, not against the king, hut against the
unjust assailant of his liberty, not against his country, but for
his country, and for that liberty which no good man would
consent to lose except with his life. 1
\ Lambert of Hersfeld sets out the same principle, but in more
technical terms. He represents Otto as urging at another
time that herein lay the difference between the king and the
tyrant, that the tyrant compels the obedience of unwilling
subjects by violence and cruelty, while the king governs his
subjects by laws and ancestral custom. 2
Berthold of Constance in his Annals for the year 1077
relates, as we have already mentioned,3 how on Henry's return
to Germany after his absolution by Hildebrand at Canossa, many
of the clergy maintained that no one could judge or condemn a
king however wicked and criminal. Berthold himself holds
that this opinion is absurd, and cites, though without mention-
ing his source, St Isidore of Seville's phrases, that the king
holds his title while he does right, if he acts wrongfully he loses
it; and maintains that those who do wickedly and unjustly are
really tyrants, and are only improperly called kings. 4 The
1 Bruno, 'De Bello Saxonico,' 25:
"Servi sere parati iniusta imperia
dominorum non perferunt, et vos in
libertate nati, sequo animo servitutem
tolerabitis? Fortasse quia Christian!
estis, sacramenta regi facta violare
timetis. Optime, sed regi. Dum
mihi rex erat, et ea quse sunt regis
faciebat, fidelitatem quam ei iuravi,
integram et impollutam servavi, post-
quam vero rex esse desivit, cui (idem
servare deberem, non fuit. Itaque
non contra regem, sed contra iniustum
mese libertatis ereptorem; non contra
patriam, sed pro patria et pro libertate
mea, quam nemo bonus, nisi cum anima
simul amittit, arma capio, et ut vos ea
mecum capiatis expostulo. "
2 Lambert of Hersfeld, 'Annales,'
a. d. 1076 (p. 249): "Hanc regis ac
tiranni esse distantiam, quod hic vi
atque crudelitate obedientiam extor-
queat ab invitis, ille legibus ac more
maiorum moderetur subiectis prsecipi-
atque facienda. "
3 See p. 119.
4 Berthold of Constance, 'Annales,'
1077 a. d. (p. 297): "Recte igitur
faciendo nomen regis tenetur, alioquin
amittitur, unde est hoc vetus elogium:
'Rex eris, si recte facis; si non facis
non eris. ' . . . Si autem nec iuste
iudicent, nec pie condescendant, neque
regulam officii sui vel sola saltem
nominationis imagine minimum quid
attingant, set potius ultra modum et
insamas ethnicorum superlativas, vitss
facinorosse et luxuriosse libertatem
nefandissimi omnifariam et portentu-
osi exerceant, crudelissima dominandi
maiestate populum supprimant, et
miserrime suppressum devoreut, et ad
interneciem usque consumant, cur non
magis proprie tyranni in huiusmodi
fortissimi, quam abusive et absque rei
? ? veritate reges sint nuncupandi. "
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? CHAP. V. ]
133
JUSTICE AND LAW.
same phrases are again quoted by Hugh, Abbot of Flavigny,
in defending the deposition of Henry IV. 1
Herrand, Bishop of Halberstadt, writing in the name of Louis
the Count of Thuringia about 1094 or 1095, expresses the same
conceptions, but in a more developed form, in his answer to a
letter of Waltram the Bishop of Naumburg. Waltram had
urged the authority of the words of St Paul: "Let every soul
be subject to the higher powers, for there is no power but of
God. " Herrand replies that Waltram was misinterpreting St
Paul, for if every authority was from God how could the prophet
(Hosea viii. 4) have spoken of princes who reigned, but not as
of God. They were willing to obey an ordered power, but how
could such a government as that of Henry IV. be called an
order at all; it is not order to confound right and wrong. Again,
in a later passage, answering Waltram's contention that concord
was useful to the kingdom, Herrand replies that it was absurd
to speak thus of a society which could not be called a kingdom,
for a kingdom is something rightful; could that be called a
kingdom where innocence was oppressed, where there was no
place for reason, for judgment, or for counsel, where every desire
was reckoned to be lawful? Such a kingdom should rather be
called a congregation of the wicked, a council of vanity, the
dregs of iniquity; in such a kingdom concord is unprofitable.
Among good men indeed concord is praiseworthy, but among
evil men it is blameworthy; what man in his right mind
would speak with approval of a concord of robbers, of thieves,
of unclean persons ? 2
1 Hugo, Abbas Flaviniacensis,
Chronicon, ii. fol. 111.
2 Herrandus, 'Epistola': "Ad sub-
iectionem domini Henrici; quem im-
peratorem dicunt, nos invitas, et in
quantum intelligere datur, ut per omnia
subditi simus, quasi apostolico argu-
mento necessitates imponis, dicens:
'Omnis anima potestatibus superioribus
eubdita sit; non est enim potestas nisi
a Deo. Qui ergo potestati resistit, Dei
ordinationi resistit. ' Quam apostoli
eententiam te male intelligere, peius
interpretari dicimus. Si enim omnis
potestas a Deo est, ut tu intelligis,
quid est, quod de quibusdam dicit
Dominus per prophetam: 'Ipsi reg-
naverunt, et non ex me, prineipes exti-
terut, et non cognovi. ' . . . Pravidens
per Spiritum sanctum apostolus te tui-
que similes hereticos in ecclesia emer-
suros, qui 'bonum malum, malum
bonum ' dicerent, qui ' teneb1as lucem
et lucem tenebras' ponerent, qui de
sententiis veritatis occasionem indu-
cendi erroris captarent, cum prsemisis-
set: 'Non est potestas nisi a Deo' ut
coniecturam reprobi intellectus ampu-
taret: 'Quse autem sunt,' inquit, 'a Deo
ordinata sunt. ' Da igitur potestatem
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? 134 POLITICAL THEORY : llTH k 12TH CENTURIES, [part II.
The distinction between the true king and the tyrant,
between just and legal authority, which was the characteristic
of the true commonwealth, and mere violence and unjust
power, was indeed firmly fixed in the minds of all mediseval
thinkers, and we find it clearly set out even in the writings of
those who were the strongest upholders of the imperial or royal
authority. We have already had occasion to discuss the opinions
of Hugh of Fleury as represented in his treatise on the royal
and sacerdotal powers, addressed to Henry I. of England. We
have seen how stoutly he maintains, against the apparent
meaning of certain phrases of Hildebrand, that the authority of
the king is from God, and that he even repeats those phrases,
which had been used by Ambrosiaster and Cathulfus, in which
the king is described as bearing the image of God, while the
bishop bears that of Christ. 1 And while, as we have seen, he
holds very clearly that the function of the king is to maintain
justice and equity, he also urges that the honour due to those
in authority must not be measured by their personal qualities,
but by the place which they hold, and that therefore even
heathen rulers must receive the honour due to their position. 2
ordinatam et non resistimus, immo
dabimus ilico manus. Miror autem, si
in te vel gutta sanguinis est, quod non
erubescis dominum Henricum regem
dicere vel ordinem habere. An ordo
tibi videtur ius dare sceleri, fas ne-
fasque, divina et humana confundere.
Quon1odo autem concordiam utilem
asseris regno, quod nullum est? Reg-
num quippe quasi rectum dicitur.
An regnum recte dicitur, ubi omnis
iunocentia laborat, ubi neque rationi,
neque iudicio, neque consilio locus est;
sed quidquid libitum id licitum putatur?
Tale regnum ecclesiam malignantium,
concilium vanitatis, denique totius ini-
quitatis sentinam rectius appellaveris.
Tali regno nos concordiam inutilem
dicimus. Sicut enim inter bonos
laudabilis, ita inter malos repre-
hensibilis concordia est. Quis enim
concordiam latronum, quis furum, quis
immundorum, nisi mente captus, ap-
probat? "
1 See pp. 98, 111.
2 Hugh of Fleury, 'Tractatus de regia
potestate et sacerdotali dignitate,' i. 4:
"Honorandi etiam sunt omnes, qui in
potestate sunt positi, ab his quibus
prsesunt, etsi non propter se, vel prop-
ter ordinem et gradum, quem a Deo
acceperunt. Sic enim iubet apostolus
dicens. 'Omnibus,' inquit, 'potes-
tatibus sublimioribus subditi estote.
Non est enim potestas nisi a Deo.
Quse enim sunt, a Deo ordinatse sunt. '
Ipse nempe, sicut iam superius osten-
sum est, per pravas malorum hominum
voluntates explere nonnumquam con-
suevit suam sequam ac iustissimam
voluntatem, sicut per Judeos malivolos,
bona voluntate Patris, Ohristus pro
nobis occisus est. Quod scientes atque
credentes, et prseceptum apostoli pariter
? ? observantes, etiam gentiles in potestate
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? CHAP. V. ]
135
JUSTICE AND LAW.
And yet he also warns kings and princes and tyrants that those
who refuse to keep the commandments of God are wont to lose
their power and authority, and that it frequently happens that
the people revolt against such a king. 1
The author of the controversial pamphlets which have been
published as the 'Tractatus Eboracenses' sets the temporal
power higher perhaps than any other writer of the Middle Ages,
and in a strange phrase which has some resemblance to that of
Hugh of Fleury he speaks of the priest as representing the
human nature of Christ, while the king represents the divine
nature. ? . But even he recognises that there have been kings
who were no true kings but only tyrants. 3 He does not indeed
say that they are to be resisted, but he is aware of the distinc-
tion between the true and false king. In another passage he
makes the distinction very clear between the authority which
is always good, and the person of the ruler who may be evil.
Our Lord had bidden men give to Csesar that which was
Csesar's, He did not say, render to Tiberius that which is
positos honoramus, et mala quam nobis
ingerunt sequammiter toleramus, ne
Deo iniuriam facere videamur, qui
illos ordinis titulo super homines ex-
tulit atque sublimavit, licet i 11 i indigni
sint ordine quo fruuntur.
1 Id. id. , i. 9: "Porro ipsi reges et
principes atque tyranni, dum Deo
subesse et eius prsecepta custodire
renuunt, dominationis suse vim et
potestatem plerumque solent amittere,
sicut primus homo dominationis suse
vigorem et dignitatis prserogativam post
suam transgressionem cognoscitur ami-
sisse. Postquam nempe divino noluit
esse subiectus imperio, ipsa etiam
corporis sui membra sibi rebellare et
ignites aculeos carnalis concupiscentise
statim contra suam voluntatem in sua
carne sevire persensit. Pisces quoque
maris et volucres cseli et bestise agri,
quse illi ante comissum facinus quasi
privata animalia subiacebant, iugum
dominationis eius a se ceperunt abigere,
et iam ei amplius solito servire nolebant.
Quse tamen omnia vi rationis suse csepit
domum paulatim sibi subigere et ad
buos usus exquisitis artibus retorquere.
Itaque pari modo regi Deo contrario
populus sibi subiectus multocies incipit
adversus eum insurgere et variis ao
multiplicibus insidiis illum appetere et
multis adversitatibus fatigare. "
2 'Tractatus Eboracen6es,' iv. (M. Q.
H. , 'Libelli de Lite,'vol. iii. p. 666):
"Sacerdos quippe aliam prsefigurabat
in Christo naturam, id est hominis, rex
aliam, id est Dei. Ille superiorem qua
equalis est Deo patri, iste inferiorem
que minor est patre. "
3 Id. id. id. : "Similiter et de ceteris
regibus sentiendum est, qui in spiritu
Dei venerunt et virtute, non de illis
qui reguaveruntetnon ex Deo, quoniam
non reges, sed tiranni fuerunt et in
spiritu maligno et contraria virtute
venerunt. Quorum unus fuit Ozias,
qui, quoniam per superbiam usurpa-
? ? vit sacerdotium, lepra percussus est,
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? 136 POLITICAL THEORY : 11TH & 12TH CENTURIES, [part 11.
Tiberius'; render to the authority, not to the person, the person
may be evil, the authority is just, Tiberius may be wicked, but
Csesar is good. Kender, therefore, not to the evil person, to the
wicked Tiberius, but to the just authority, to the good Csesar,
that which is his. 1
If these are the judgments, even of those who defended the
temporal authority against what they conceived to be the un-
reasonable claims of the spiritual power, we need not be surprised
that the supporters of the political or ecclesiastical opposition
pressed them still more emphatically. We shall have occasion
presently to deal with the position of Manegold in detail, but in
the meanwhile we may observe how sharply he draws the dis-
tinction between kingship and tyranny, and how emphatically he
states the conclusion that the ruler who governs tyrannically has
no claim whatever upon the obedience of his people. The people,
he says, did not exalt the ruler over themselves in order that
he should have freedom to tyrannise over them, but in order
that he should defend them from the tyranny of others.
It is
therefore clear that when he who was elected to restrain the
wicked and to defend the good, actually becomes evil, oppresses
the good, and is guilty of that tyranny which it was his duty to
repel, he justly falls from the dignity which was granted to him,
and that the people are free from their subjection to him,
inasmuch as he has violated that agreement in virtue of which
he was appointed. 2
As we have already said, the conception of the fundamental
difference between the king and the tyrant is developed more
1 'Tractatus Eboracenses,' iv. (M. Q.
H. , 'Libelli de Lite,' vol. iii. p. 671):
"Reddite, inquit, quse sunt cesaris
cesari, non quse sunt Tyberii Tyberio.
Reddite potestati, non persone. Per-
sona enim nequam, sed iusta potestas.
Iniquus Tyberius, sed bonus cesar.
Reddite ergo non personse nequam,
non iniquo Tyberio, sed iuste potestati
et bono cesari que sua sunt. "
2 Manegold, 'Ad Gebehardum,' xxx. :
"Necesse est ergo, qui omnium curam
gerere, omnes debet gubernare, maiore
gratia virtutum super ceteros debeat
eplendere, traditam sibi potestatem
summo equitatis libramine studeat
administrare. Neque enim populus
ideo eum super se exaltat, ut liberam
in se exercendse tyrannidis facultatem
concedat, sed ut a tyrannide ceterorum
et improbitate defendat. Atque, cum
ille, qui pro coercendis pravis, probis
defendendis eligitur, pravitatem in se
fovere, bonos conterere, tyrannidem,
quam debuit propulsare, in subiectos
ceperit ipse crudelissime exercere, nonne
clarum est, merito illum a concessa
dignitate cadere, populum ab eius
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? cHAP. V. ]
137
JUSTICE AND LAW.
clearly and completely by John of Salisbury than by any other
writer of these centuries. We have from time to time cited
various passages from his 'Policraticus,' but his position in the
history of political theory is so important and so representative
that we must consider it briefly as a whole.
We have already cited some of the phrases in which he
draws out the distinction between the king and the tyrant;
we must look at these more closely. This, he says, is the only
or the greatest difference between the prince and the tyrant,
that the prince obeys the law, and governs the people, whose
servant he reckons himself to be, according to the law; he
claims, in the name of the law, the first place in carrying out
the public offices, and in submitting to the burdens of the
commonwealth; he is superior to other men in this, that while
others have their particular obligations, he is bound to bear all
the burdens of the State. The prince is endued with the
authority of all, in order that he may the better minister to
the needs of all. The will of the prince is never contrary
to justice. The prince is the public authority, and an image on
earth of the divine majesty, and his authority is derived from
God. The passage concludes with tbose famous phrases of the
Code in which it is said that the authority of the prince
depends upon the law, and that it is a thing greater than
empire to submit the princely authority to the laws. 1
dominio et subiectione liberum existere,
cum pactum, pro quo constitutus est,
constet illum prius irrupisse? . . .
Ut enim imperatoribue et regibus ad
tuenda regni gubernacula fides et
reverentia est adhibenda, sic certe, sic
firma ratione, si tyrannidem exercere
eruperint, absque omni fidei lesione vel
pietatis iactura nulla fidelitas est vel
reverentia impendenda. "
1 John of Salisbury, 'Policraticus,'
iv. 1: "Est ergo tiranni et principis
hsec differentia sola vel maxima, quod
hic legi obtemperat, et eius arbitrio
populum regit cuius se credit minis-
trum, et in rei publicse muneribus
exercendis et oneribus subeundis legis
beneficio sibi primum vendicat locum,
in eoque prsefertur ceteris, quod, cum
singuli teneantur ad singula, principi
onera imminent universa. Unde merito
in eum omnium subditorum potestas
confertur, ut in utilitate singulorum et
omnium exquirenda et facienda sibi ipse
sufficiat, et humanse rei publicse status
optime disponatur, dum sunt alter
alterius membra. In quo quidem opti-
mum vivendi ducem naturam sequimur,
quse macrocosmi sui, id est, mundi
minoris, hominis scilicet, sensus univer-
sos in eapite collocavit, et ei sic universa
membra subiecit, ut omnia recte move-
antur, dum sani capitis sequunturarbi-
trium. Tot ergo et tantis privilegiis
apex principalis extollitur et splen-
descit , quot et quanta sibi ipse necessaria
credidit. Eecte quidam, quia populo
nichil utilius est quam ut principis
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? 138 POLITICAL THEORY: llTH & 12TH CENT DRIES, [part II.
For the definition of the tyrant we must turn to a later pas-
sage, where we find it said that the philosophers have described
him as one who oppresses the people by violent domination, while
the prince is one who rules by the laws. The prince strives
for the maintenance of the law and the liberty of the people;
the tyrant is never satisfied until he has made void the laws
and has reduced the people to slavery. The prince is the image
of God,and is to be loved and cherished; while the tyrant is the
image of wickedness, and often it is meet that he should be
slain. The origin of tyranny is iniquity, and it is this poison
of unrighteousness and injustice which is the source of all the
troubles and conflicts of the world. 1
It is specially important to observe that to John of Salisbury
the essence of the distinction between the tyrant and the prince
lies in his relation to law. In other places he enforces the
principle in very interesting phrases. There are some, he says,
who whisper or even publicly proclaim that the prince is not
subject to the law, and that whatever pleases him has the force
of law; that is, not merely that which he, as legislator, has
established as law in accordance with equity, but whatever he
may chance to will. The truth is, that when they thus with-
necessitas expleatur; quippe cum nec
voluntas eius iustitise inveniatur
adverea. Est ergo, ut eum plerique
diffiniunt, princeps potestas publica et
in terris qusedam divinse maiestatis
imago. . . . Omnis etenim potestas a
Domini Deo est, etoum illo fuit semper,
et est ante evum. . . . Digna siquidem
vox est, ut ait Imperator, maiestate
regnantis se legibus alligatum priu-
cipem profiteri. Quia de iuris auc-
toritate principis pendet auctoritas; et
revera maius imperio est, summittere
legibus principatum (Cod. i. 14. 4); ut
nichil sibi princeps licere opinetur,
quod a iustitue sequitate discordet. "
1 John of Salisbury, 'Policraticus,'
viii. 17: "Est ergo tirannus, ut
eum philosophi depinxerunt, qui vio-
lenta dominatione populum premit,
sicut qui legibus regit princeps est.
. . . Princeps pugnat pro legibus et
populi libertate; tirannus nil actum
putat nisi leges evacuet et populum
devocet in servitutem. Imago qusedam
divinitatis est princeps, et tirannus est
adversarise fortitudinis et Luciferianse
pravitatis imago, siquidem illum imi-
tatur qui affectavit sedem ponere ad
aquilonem et similis esse altissimo,
bonitate tamen deducta. . . . Imago
deitatis, princeps amandus, venerandus
est et colendus; tirannus, pravitatis
imago, plerumque etiam occidendus.
Origo tiranni iniquitas est et de radice
toxicata mala et pestifera germinat et
pullulat arbor securi qualibet succi-
denda. Nisi enim iniquitas et inius-
titia caritatis exterminatrix tirannidem
procurasset, pax secura et quies per-
petua in evum populos possedisset,
nemoque cogitaret de finibus pro-
ducendis. "
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? CHAP. V. ]
139
JUSTICE AND LAW.
draw the king from the bonds of the law they make him an
outlaw. John does not indeed desire to destroy the dispensing
power of the ruler, but he refuses to submit the permanent
commands or prohibitions of the law to his caprice. 1 We may
compare with these words those of another passage in which he
urges that all men are bound by the law; the prince is said to
be free from the law, not because he may do unjust things, but
because his character should be such that he follows equity and
serves the commonwealth, not from fear of punishment, but for
love of justice, and that he always prefers the convenience of
others to his own personal desires. It is indeed meaningless to
speak of the prince's desires in respect to public matters, for
he may not desire anything but what law and equity and the
common good require; his will has indeed in these matters the
force of law, but only because it in ho way departs from equity.
The prince is the servant of the public good and the slave of
equity, and bears the public person, because he punishes all
injuries and crimes with equity. 2
1 Id. id. , iv. 7: "Procedant nunc
dealbatores potentum, susurrent aut,
si hoc parum est, publice prseconentur
principem non esse legi subiectuu1, et
quod ei placet, non modo in iure
secundum formam sequitatis condendo,
sed qualitercumque, legis habere vig-
orem. Regem quem legis nexibus sub-
trahunt, si volunt et audent, exlegem
faciant, ego, non modo his renitentibus
sed mundo reclamante, ipsos hac lege
teneri confirmo. In quo enim, inquit,
qui nec fallit nec fallitur, iudicio
iudicaveritis, iudicabimini. Et certe
iudicium gravissimum in his qui
prsesunt fiet, eo quod men sura bona
conferta coagitata et supereffluens re-
fundetur in sinus eorum. Nec tamen
dispensationem legis subtraho manibus
potestatum, sed perpetuam prseeep-
tionem aut prohibitionem habentia
libito eorum nequaquam arbitror sub-
ponenda. In his itaque dumtaxat quse
mobilia sunt, dispensatio verborum ad-
mittitur; ita tamen ut compensatione
honestatis aut utilitatis mens legis
integra conservetur. "
8 Id. id. , iv. 2: "Omnes itaque neces-
sitate legis servandse tenentur adstricti,
nisi forte aliquis sit cui iniquitatis
licentia videatur indulta. Princeps
tamen legis nexibus dicitur absolutus,
non quia ei iniqua liceant, sed quia is
esse debet, qui non timore penae sed
amore iustitise sequitatem colat, rei
publicse procuret utilitatem, et in
omnibus aliorum commoda privatse
prscferat voluntati. Sed quis in negotiis
publicis loquetur de principis voluntate,
cum in eis nil sibi velle liceat, nisi
quod lex aut sequitas persudet aut
ratio communis utilitatis inducit? Eius
namque voluntas in his vim debet
habere iudicii; et rectissime quod ei
placet in talibus legis habet vigorem,
eo quod ab sequitatis mente eius
sententia non discordet. De vultu
tuo, inquit, iudicium meum prodeat,
? ? oculi tui videant sequitatem; iudex
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? 140 POLITICAL THEORY : 11TH & 12TH CENTURIES, [part II.
It is important to observe, in considering these passages, how
much John of Salisbury is affected by the revived study of the
Roman law; his reference to Vacarius, and the progress of the
influence of the Eoman jurisprudence in England, in spite of the
attempts to restrain it, is well known;1 and the effects of his
own study are very clearly illustrated in the passages we have
just discussed. He is evidently gravely concerned to find a just
meaning for such phrases, as that the prince is "legibus solutus,"
or "quod principi placuit legis habet vigorem," for evidently
they had, by some, been used to defend the conception that the
prince was not subject to the law, and that even his capricious
desires might override the law. Such couceptions seem to him
monstrous and impossible. The will of the prince which is to
have the force of law can only be that which is in accordance
with equity and law. He is only free in relation to law in the
sense that his true character is that of a man who freely obeys
the law of equity. It is specially interesting to notice his
phrase about the result of withdrawing the prince from the
authority of the law, that the true result of this is to make him
an outlaw--that is, a person to whom all legal obligations
cease.
To appreciate the significance of these principles of John of
Salisbury completely, we must bear in mind not only the
traditions which we have considered in this chapter, but also the
whole tradition of the feudal lawyers, culminating in the dog-
matic affirmation of Bracton that the king is under the law. 2
It is evident that John approaches the discussion of these
questions formally through the medium of the Roman law and
other literary traditions, but that his actual judgment corre-
sponds with and expresses the effects of the political traditions
and the practical circumstances and necessities of his own time.
The legitimate prince or ruler is thus distinguished, in John
of Salisbury's mind, by this, that he governs according to law.
minister et sequitatis servus est prin- punit. "
ceps, et in eo personam publicam gerit, 1 John of Salisbury, 'Policraticus,'
quod omnium iniurias et dampna sed viii. 22.
et crimina omnia sequitate media 2 Cf. p. 67.
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? CHAP. V. ]
141
JUSTICE AND LAW.
What is then the law to which he is subject, and which it is his
function to administer? It does not represent the arbitrary
will of the ruler, nor even of the community. John finds ex-
pression for his principles in terms derived partly from the con-
temporary Civilians and partly from the Digest. The prince, he
says, must remember that his justice is subordinate to that of
Grod, whose justice is eternal and whose law is equity. He
defines equity in terms used by a number of the Civilians, as
"rerum convenientia . . . quse cuncta cosequiparat ratione
et imparibus (in paribus) rebus paria iura desiderat," and as
that which gives to every man his own. Law is the interpreter
of this equity, and he cites the words of Chrysippus as quoted
in the Digest, that it is law which orders all things divine and
human, and those of Papinian and Demosthenes, that law is
formed and given by God, is taught by wise men, and estab-
lished by the commonwealth. All, therefore, he concludes, are
bound to obey the law, unless perchance some one claims to
have licence to commit iniquity. 1
In another place John of Salisbury takes from the work
which he knew as the 'Institutio Traiani,' and attributed to
Plutarch, a definition of the commonwealth which represents
the conception that all political authority embodies the
principles of equity and reason. The commonwealth, he
represents the work as saying, is a body which is animated
by the benefit of the divine gift, and is conducted at the
1 Id. id. , iv. 2: "Nec in eo sibi hominum principem et ducem esse,
principes detrahi arbitrentur, nisi Cui Fapinianus, vir quidem iuria
iustitise suse statuta prreferenda experientissimus, et Demostenes,
crediderint iustitise Dei, cuius iustitia orator prsepotens, videntur suffragari
iustitia in evum est, et lex eius saquitas. et omnium hominum subicere obedien-
Porro sequitas, ut iuris periti asserunt, tiam, eo quod lex omnis inventio
rerum convenientia est, quse cuncta quidem est et donum Dei, dogma
cosequiparat ratione et imparibus (in sapientum, correctio voluntariorum
paribus ? ) rebus paria iura desiderat, excessuum, civitatis compositio, et
in omnes sequabilis, tribuens unicuique totius criminis fuga; secundum quam
quod suum est. Lex vero eius in- decet vivere omnes qui in politicse rei
terpres est, utpote cui sequitatis et universitate versantur. Omnes itaque
iustitise voluntas innotuit. Unde et necessitate legis servandse tenentur
eam omnium rerum divinarum et adstricti, nisi forte aliquis sit cui
humanarum compotem esse Crisippus iniquitatis licentia videatur indulta. "
asseruit, ideoque prsestare omnibus Cf. vol. ii. pp. 7, 8, and vol. i. p. 56
bonis et malis et tam rerum quam (Digest, i. 3. 1 and 2).
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? 142 POLITICAL THEORY : llTH & 12TH CENTURIES, [part 11.
bidding of the highest equity, and controlled by the rule of
reason. 1
The authority of the law and the State is the authority of
justice and reason, and it is impossible therefore for John to
conceive of any ruler as being legitimate, or as having any real
claim to authority, unless he is obedient to the law, which is
the embodiment of justice and reason.
What are then the conclusions which John of Salisbury
draws from these principles, in regard to the practical questions
of the relations of subjects and rulers? It is true that he is a
little hampered by the recollection of the Augustinian and
Gregorian tradition; that he remembers that in the patristic
tradition the evil ruler may be the instrument of God's
punishment upon an evil people. 2 And in one passage he
1 John of Salisbury, 'Policraticus,'
v. 2: "Est autem res publica, sicut
Plutarco placet, corpus quoddam quod
diviui muneris beneficio animatur, et
summse sequitatis agitur nutu et regi-
tur quodam moderamine rationis. "
For a discussion of this work see C.
