It is very \
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice.
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice.
Thomas Carlyle
39015002404211 Public Domain in the United States, Google-digitized / http://www.
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? 498
[PABT IV.
THE LATER SIXTEENTH CENTURY.
unto. "1 Such is Hooker's conception of the nature of
Parliament, and lest there should be any confusion as to the
source of its authority, he adds at the end of this section:
"Which laws being made amongst us, are not by any of us
to be so taken or interpreted as if they did receive their force
from power which the prince doth communicate unto the
Parliament, or to any other court under him, but from power
which the whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived unto him
that ruleth over them, so far forth as hath been already
declared. " 1
The authority of the laws is derived, not from the king,
but from the whole community, as indeed is the authority of
the king himself, as we have seen in an earlier chapter. 3
The authority of the king in regard to the making of laws
had been described a little earlier in the same section as
mainly negative. "The supremacy of power which our kings
have in the case of making laws, it resteth principally in the
strength of a negative voice; which not to give them, were
to deny them that without which they were but kings by
mere title, and not in exercise of dominion. " 1
It is clear that Hooker, like St Germans and Sir Thomas
Smith, had no doubt that in England the supreme power,
that is the legislative, resided not in the king alone, or in
any smaller body of persons, but in that assembly which
contained all, and represented all the community, the king, the
peers, and the whole body of the people.
Finally, we turn once again to Althusius, who is specially
important to us as expressing the continuity of that repre-
sentative theory in Germany which we have seen in Leopold
of Babenberg and in Nicolas of Cusa. 3
Althusius describes the nature and functions of the councils
of the commonwealth, no doubt primarily with the constitu-
tional system of the German Empire in his mind, but also
as the embodiment of a general principle of political society.
1 Id. id. , VIII. 6, 11. >> Cf. pp. 39 and 215.
? Cf. p. 370.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 499
They are composed of the " members " of the political society,
and consider and determine upon all the difficult and weighty
matters which concern the whole "imperium," such as the
fundamental laws, the " iura Maiestatis," the taxes, and other
matters which require the deliberation and consent of the
whole "polity. " All the "members" have the right of
deliberation, but the decision is made by the votes of the
majority. 1
This is clear and important, but of equal importance is
Althusius' statement of the principles (rationes) on which
this representative system rests. First, that which concerns all
should be done by all; second, it is better that these matters
should be considered by many, for many know more and are
less easily mistaken than a few; third, there are some affairs
which cannot be dealt with except by the people in such
councils; fourth, those who have great power are restrained
and corrected by the fear of such councils, in which the
demands of all are freely heard. Finally, it is in this manner
that the liberty of the people is preserved, and the public
officers are compelled to give account of their administration,
and to acknowledge that the people or universal society, by
which they have been created, is their lord. 2
1 Althusius, 'Politica,' XVII. 56:
"Concilia ilia occumenica generalia
regni, seu corporis consociati, sunt
membrorum illius convocatorum con-
ventus, in quo de Republica eiusque
utilitate et commodis . . . deliboratur,
et consilorum communicatione pro salute
communi aliquid concluditur et decer-
nitur.
In bis itaque conciliis et comitiis
generaliter totius consociationis uni-
versalis, regni seu Reipublicae negotia
illius ardua, difficilia et gravia tractan-
tur, examinantur et concluduntur, uti
sunt negotia et causae totum Imperium
politiamve, vel membra illius concer-
nentee, de legibus fundamontalibue
politiae, de iuribus Maiestatis, de con-
tributionibuset collectis indicandis . . .
et de aliis, quae communem delibera-
tionem et consensum totius politiae
postulant.
57. Concilia igitur et comitia haes,
politiae vel regni sunt epitome, ad
quam omnia publica regni negotia
referuntur, et a membris regni discussa
et examinata deciduntur.
58. Ius deliberandi, consultandi, et
examinandi singula, regni et Rei-
publicae membra habent. Ius deci-
dendi vero est penes sufiragia et sen-
tentias plurimorum mombrorum. "
Cf. id. id. , XVII. <<, 44.
* Id. id. , XVn. 60: "Rationo*
horum Comitiorum sunt. Primo,
quod omnes tangit, ab omnibus peragi
aequum est. . . . Deinde, melius
causa a pluribus examinari . . . cum
plures plura sciunt, et minus fall'
possunt. Tertio, quia quaedam sunt
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? 500
[PABT IV.
THE LATER SIXTEENTH CENTURY.
These are drastic and emphatic statements of the principle
that the supreme authority in a political society is not only
derived from, but remains with the whole community or people,
and the assembly which represents it. There is indeed nothing
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
The reference to the representative assembly as protecting
the liberty of the people is interesting, and he returns to this
in a later chapter. It is, he says, a part of liberty that those
at whose risk, and by whose blood and treasure, things are
done, should administer them by their own counsel and
authority. 2
It is also clear that in the judgment of Althusius these
representative councils of the community were to be found
in all the countries of Central and Western Europe, not only
in the Empire but in France, in England (he refers to Sir
Thomas Smith), in the Netherlands, Poland, Castile, Aragon,
Portugal, Denmark, Norway, Sweden, and Scotland; 3 and
it should be observed that he describes the constitutions of
the various territories in the German Empire as having the
same character. *
Althusius was indeed no enemy of monarchy, but he main-
tained, in direct opposition no doubt especially to Bodin,
negotia, quae non possunt nisi a
populo in talibus comitiia tractari.
Quarto, qui sunt in magna potent ia,
horum comitiorum metu, in quo libere
omnium postulate audiuntur, in officio
contineri et corrigi possunt. Denique
hoc modo libertas quaedam populo
superest, at que administratores publici,
rationes suae admimstrationis reddere,
et populum, seu universal em consocia-
tionem, dominum suum, a quo sunt
constituti agnoscere coguntur. "
1 Cf. pp. 360, 378.
? Id. id. , XXXIH. 30: "Deinde
liber tat is pars est, quorum periculo,
facultatibus, auxilio, bonis atque san-
guine res geritur, ilia eorum quoque con-
silio et auctoritate administrator. . . .
Unde libertatis imago in boo comitiorum
habendorum iure retinetur, et poten-
tiorum, adulatorum, iniustorum et
avarorum conatibus remedium pon-
itur. "
1 Id. id. , XXXIH.
* Id. id. , VIII.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 501
that in a good polity the various elements must be combined;
the democratic in the assemblies of the people, the aristocratic
in the senate and councillors, the monarchical in the executive
action of the supreme magistrate, the king. 1 Or, as he put
it in another place, every form of commonwealth was " tem-
pered " and mixed, and he refused to recognise that there could
be any simple and unmixed form of political association,
the infirmity of human nature would prevent its continuance,
nor could it be adjusted to a good and social life. 2
We think that it is clear that in theory as well as in fact
the political representation of the community was important
in the sixteenth as well as in the fourteenth and fifteenth cen-
turies, and it is obvious that it was thought of as existing in
almost all European countries, and not only in Spain or England
or the Empire.
>> Id. id. , XXVII. 44: "Unde in
bona politia temperamentum quoddam
conspicitur. Nam in populi comitiis,
Democratiae imago apparet; in senatu
et consiliariis Aristocratiae, in execu-
tione eummi Magistratus, Regiae potes-
tatis et Monarchiae species. "
>> Id. id. , XXXIX. 18: "Quod cum
ita sit reote dicimus tempera tam et
mixtam esse quamvis Reipublicae
speciem, uti hominis complexio ex
quatuor quos dixi humoribus esse
temperata. . . .
Id. id. , XXXIX. 23: "Constat
enim ex praecedentibus et tota doc-
trina politica, me nullam speciem
Magistratus ab ilia mixtione immunem
statuere.
Simplioem et purum statum in
politica hac consociatione non agnosco,
neque ob naturao humanae imbecillita-
tem esse potest diuturnum, aut bonum,
et sociali vitae accomodatum. "
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? PART V.
CONCLUSION.
We have endeavoured, in the six volumes of this History, to
give some account of the most important elements in the
development of the political principles of Western Europe
during sixteen centuries, a large and, as some may think, an
over-ambitious enterprise. We can only say that we found
ourselves compelled to make the attempt. When we began
this work some forty years ago our intention was much more
restricted; we proposed little more than a careful study of
the political theory of the thirteenth century, and we there-
fore began with a detailed consideration of the political theory
of St Thomas Aquinas. 1 We soon, however, found that in
order to understand the real significance of that great political
thinker, we were compelled to go back to the Eoman Jurists
of the "Corpus Juris Civilis," to the New Testament, the
Christian Fathers, and the literature of the earlier Middle
Ages, and even to make some study of the post-Aristotelian
political theory. Some friendly critics observed, naturally
enough, that the treatises of an eclectic literary man like
Cicero, and a somewhat rhetorical literary philosopher like
Seneca, were inadequate representatives of this, and we were,
and are, very conscious of this. We can only hope that some
scholar more competent than ourselves will some time take
in hand the task of reconstructing from the fragments of the
1 Cf. "The Political Theory of St in the 'Scottish Review,' January
Thomas Aquinas," by R. W. Carlyle, 1896.
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? 504
[PAST V.
CONCLUSION.
post-Aristotelian philosophers an adequate and critical account
of their political theory. We are still convinced that, while
the debt which we owe to the great political thinkers like
Plato and Aristotle is immeasurable, it is also true that it
was during the centuries between Alexander the Great and
the Christian era that some of the most distinctive and im-
portant principles of the mediaeval and modern world took
shape. It was during this period that the Hellenistic world
learned to conceive of mankind as being homogeneous and
rational, or, to put it into the terms of Cicero and other
Eo man writers, all men are alike, for they are rational and
capable of virtue. And it was during the same period that
the older conception of the solidarity of the group began to
be transformed by the recognition of the inalienable liberty
of the human spirit.
We are also very conscious of the fact that, in the attempt
to deal with the vast and complex political literature of six-
teen centuries, we have had to treat of many matters for the
study of which we had little technical qualification. And
especially is this true of the political jurisprudence of the
Eoman and Canonical and Feudal lawyers, and we recognise
with gratitude the forbearance and friendly treatment of our
work by the Jurists. We cannot indeed regret that we ven-
tured to do this, for we feel that without this it is really
impossible to deal adequately with the political ideas of a
period like the mediaeval, which was dominated by the con-
ception of the supremacy of law.
We have at last completed the task which we had set
before ourselves, and must now again make the attempt to
set out what seem to us the most important elements in the
political ideas and theories of the Middle Ages; but now, with
special reference to this volume, we must consider how far
during the centuries from the fourteenth to the sixteenth ?
the principles of the political civilisation of the thirteenth
century were modified, and how far these were continuous. 1
1 An attempt to sum up the principal century will be found in Part III. of
elements in the political theory of the Volume V.
Middle Ages to the end of the thirteenth
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? PABT V. ]
505
CONCLUSION.
The formal aspect of Mediaeval Political Theory is to be found X
in that conception which is implied in the post-Aristotelian
philosophy, in the Christian Fathers, and in the Digest and
Institutes of Justinian, that the political and social order of
society is conventional rather than natural, and represents the
consequences of the fall of man from his primitive innocence.
It is true that St Thomas Aquinas, under the influence of the
Aristotelian "Politics," endeavoured to correct this, but it
is also true that the post-Aristotelian tradition was too
firmly rooted to be shaken even by St Thomas' great authority,
and that the contrast between the conventional and natural
conditions continued to furnish the formal terms of political
thought to the end of the sixteenth century. We can see
this in so great a political thinker as Hooker, though he was
evidently a disciple of St Thomas Aquinas. Indeed, we can
recognise the continuance of this tradition in Locke in the
seventeenth century and in the earlier essays of Eousseau in
the eighteenth. It was not till Eousseau in his later work,
and especially in the ' Contrat Social,' restated the Aristotelian
conception that man is only man in the coercive society of
the State, and urged that apart from this he would be nothing
but a "stupid and limited animal," that the Aristotelian
principle once again became the foundation of all rational
political thinking. 1
This formal mediaeval conception then is interesting, but it
is doubtful how far it had any great importance.
It is very \
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice. St Augustine, in the ' De Civitate Dei,' handed down
to the Middle Ages, not only Cicero's definition of the nature
of the commonwealth, but also his emphatic assertion that
where there is no justice there is no commonwealth. 2 Here x
indeed we are dealing not with a conception which was peculiar
to the post-Aristotelian philosophers, but rather with one
which they carried on from Aristotle and Plato; but it is not
1 Cf. Rousseau,' Conlrat Social,' I, 8.
>> Cf. vol. i. pp. 4-6.
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? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
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? PART V. ]
507
CONCLUSION.
qu'il n'est mie seignor de faire tort," 1 or when John of
Salisbury said that the difference between the king and the
tyrant was, that the king obeys the law while the tyrant
flouts it,2 or when Bracton in memorable words lays down
the principle that, while the king is under no man, he is
under god and the law, and that there is no king when mere
. will rules and not the law. 3 Nicolas of Cusa in the fifteenth
century reinforced this judgment with the authority of
Aristotle, whom he cites as saying that when the laws are
not supreme there is no polity. * This is what was meant
when so wise and prudent a political thinker as St Thomas
Aquinas did not hesitate to say that, while sedition is a
mortal sin, revolt against a tyrant is not to be called sedition;
for his rule is not just. 5 We think that we are justified in
maintaining that the first principle of mediaeval political
society was the supremacy, not of the prince but of the law,
for the law was the embodiment of justice.
5o ^
If, however, we are to understand the mediaeval political
principles, we must now consider the nature of law, not merely
in its relation to justice, but also with regard to its source.
To the people of the Middle Ages the positive law was x
primarily and fundamentally the custom of the community--
that is, the expression of the habit of life of the community; it
was not properly something deliberately or consciously made.
The earlier mediaeval codes, as everyone knows, are not acts
of legislation, but records of custom, revised, no doubt, and
modified from time to time by the ruler and his wise men,
but not, properly speaking, made by them. The feudal laws
in the same way were records of custom. The picturesque
account of the origin of the laws of the kingdom of Jerusalem,
given by Jean d'Ibelin and Philip of Novara,4 is no doubt
literally unhistorical, but it represents admirably the mediaeval
temper. Bracton asserts that English law was custom;
and while he seems to think that other countries used written
1 Cf. vol. Hi. pp. 32, 33. * Of. vol. vi. p. 136.
>> Cf. vol. iii. pp. 137, 138. 1 Cf. vol. v. p. 92.
>> Cf. vol. iii. pp. 38, 67. ? Cf. vol. iii. pp. 43, 44.
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? 508
[PAHT V.
CONCLUSION.
laws, his great contemporary, Beaumanoir, asserts in equally-
broad terms that " all pleas are determined by custom," and
that the King of France is bound to maintain them. 1
When, therefore, we find that the first systematic Canonist,
Gratian, begins his 'Decretum' with the great generalisation
that mankind is governed by two great systems of law, Natural
Law and Custom, and in another place sets out the principle
that, even when the law is made by some person or persons, it
must be confirmed by the custom of those who live under it,a
we recognise that he is not expressing a merely individual
opinion, but is putting into formal phrases the general judg-
^ ment of the Middle Ages. Law was not to them primarily
the expression of the will of the ruler, but of the habit of
life of the community. It is important to observe that even
in the sixteenth century an English Jurist like St Germans
looks upon custom as the normal source of English law, and
that Statutes of Parliament are only added when the customs
y were hot sufficient. 3 The truth is that to think of the medieval
king as making laws by his own personal authority is an
absurdity.
/ It is, however, true that at least from the ninth century we
can see that the conception of definite and deliberate legislation
begins to appear, and, while there was little development of
this in the tenth and eleventh centuries, we can trace its
gradual progress, and can see that while the conception of
law as custom continued to be of great importance, the con-
tption of law as being the expression of the rational and
II moraKwill of the supreme power in the community became
N more and more important. We say the rational and moral
will, for there is no trace of any conception that the merely
arbitrary or capricious will had any real place in law. This is
the real meaning of the principle that the supreme authority
in the community is always limited by the Divine and Natural
laws.
^ Law came, that is, to be thought of as the expression of
1 Cf. vol. iii. p. 42.
2 Cf. vol. ii. pp. 98 and 155.
? Cf. vol. vi. pp. 234-38.
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? PABT V. ]
509
CONCLUSION.
the will of the legislator. Who, then, was the legislator ? **
The answer is that it was the whole community, and this"
was the necessary consequence of the fact that law was
custom before it was command. From the ninth century at
least there can be no doubt about the normal conception of
the Middle Ages. There are some words of Hincmar of Eheims,
the most important ecclesiastical statesman of the ninth
century, which express this very clearly. Kings, he says,
have laws by which they must rule; they have the capitu-
laries of their ancestors, which were promulgated with the
consent of their faithful men; and this corresponds with the
normal forms of legislation as we find them in the Carolingian
Capitularies. 1
This is again the conception of the source of law as we
find it in the twelfth and thirteenth centuries. Glanvill says
that those are properly laws which are made by the king
with the consent of the chief men (proceres). The Norman
"Summa de Legibus " says that laws are made by the prince
and maintained by the people. Bracton lays it down that
that has the force of law which has been determined by the
counsel and consent of the great men, the approval of the
whole commonwealth and the authority of the king; and
again, when the laws have been approved by the custom
of those concerned and by the oath of the king they cannot
be changed or annulled without the common consent of all
those by whose counsel and consent they had been pro-
mulgated. 2 The meaning of this is illustrated by the formulas
of legislation as we find them in the Empire, in France, in
Castile, and in England in the thirteenth century. 3
In this volume we have seen that these conceptions con-
tinued to be normally accepted in the fourteenth, fifteenth,
and sixteenth centuries. Law was still primarily custom,>>/
but when it was made it was thought of as deriving its authority
from the community. This is continually illustrated in the
proceedings of the Cortes of Castile, and is expressed in theory,
not only by an English Jurist like Fortescue, but by one of
1 Cf. vol. i. pp. 233-39. * Cf. vol. v. pp. 51-63.
>> Cf. vol. iii. pp. 46-48, and p. 69.
? 498
[PABT IV.
THE LATER SIXTEENTH CENTURY.
unto. "1 Such is Hooker's conception of the nature of
Parliament, and lest there should be any confusion as to the
source of its authority, he adds at the end of this section:
"Which laws being made amongst us, are not by any of us
to be so taken or interpreted as if they did receive their force
from power which the prince doth communicate unto the
Parliament, or to any other court under him, but from power
which the whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived unto him
that ruleth over them, so far forth as hath been already
declared. " 1
The authority of the laws is derived, not from the king,
but from the whole community, as indeed is the authority of
the king himself, as we have seen in an earlier chapter. 3
The authority of the king in regard to the making of laws
had been described a little earlier in the same section as
mainly negative. "The supremacy of power which our kings
have in the case of making laws, it resteth principally in the
strength of a negative voice; which not to give them, were
to deny them that without which they were but kings by
mere title, and not in exercise of dominion. " 1
It is clear that Hooker, like St Germans and Sir Thomas
Smith, had no doubt that in England the supreme power,
that is the legislative, resided not in the king alone, or in
any smaller body of persons, but in that assembly which
contained all, and represented all the community, the king, the
peers, and the whole body of the people.
Finally, we turn once again to Althusius, who is specially
important to us as expressing the continuity of that repre-
sentative theory in Germany which we have seen in Leopold
of Babenberg and in Nicolas of Cusa. 3
Althusius describes the nature and functions of the councils
of the commonwealth, no doubt primarily with the constitu-
tional system of the German Empire in his mind, but also
as the embodiment of a general principle of political society.
1 Id. id. , VIII. 6, 11. >> Cf. pp. 39 and 215.
? Cf. p. 370.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 499
They are composed of the " members " of the political society,
and consider and determine upon all the difficult and weighty
matters which concern the whole "imperium," such as the
fundamental laws, the " iura Maiestatis," the taxes, and other
matters which require the deliberation and consent of the
whole "polity. " All the "members" have the right of
deliberation, but the decision is made by the votes of the
majority. 1
This is clear and important, but of equal importance is
Althusius' statement of the principles (rationes) on which
this representative system rests. First, that which concerns all
should be done by all; second, it is better that these matters
should be considered by many, for many know more and are
less easily mistaken than a few; third, there are some affairs
which cannot be dealt with except by the people in such
councils; fourth, those who have great power are restrained
and corrected by the fear of such councils, in which the
demands of all are freely heard. Finally, it is in this manner
that the liberty of the people is preserved, and the public
officers are compelled to give account of their administration,
and to acknowledge that the people or universal society, by
which they have been created, is their lord. 2
1 Althusius, 'Politica,' XVII. 56:
"Concilia ilia occumenica generalia
regni, seu corporis consociati, sunt
membrorum illius convocatorum con-
ventus, in quo de Republica eiusque
utilitate et commodis . . . deliboratur,
et consilorum communicatione pro salute
communi aliquid concluditur et decer-
nitur.
In bis itaque conciliis et comitiis
generaliter totius consociationis uni-
versalis, regni seu Reipublicae negotia
illius ardua, difficilia et gravia tractan-
tur, examinantur et concluduntur, uti
sunt negotia et causae totum Imperium
politiamve, vel membra illius concer-
nentee, de legibus fundamontalibue
politiae, de iuribus Maiestatis, de con-
tributionibuset collectis indicandis . . .
et de aliis, quae communem delibera-
tionem et consensum totius politiae
postulant.
57. Concilia igitur et comitia haes,
politiae vel regni sunt epitome, ad
quam omnia publica regni negotia
referuntur, et a membris regni discussa
et examinata deciduntur.
58. Ius deliberandi, consultandi, et
examinandi singula, regni et Rei-
publicae membra habent. Ius deci-
dendi vero est penes sufiragia et sen-
tentias plurimorum mombrorum. "
Cf. id. id. , XVII. <<, 44.
* Id. id. , XVn. 60: "Rationo*
horum Comitiorum sunt. Primo,
quod omnes tangit, ab omnibus peragi
aequum est. . . . Deinde, melius
causa a pluribus examinari . . . cum
plures plura sciunt, et minus fall'
possunt. Tertio, quia quaedam sunt
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? 500
[PABT IV.
THE LATER SIXTEENTH CENTURY.
These are drastic and emphatic statements of the principle
that the supreme authority in a political society is not only
derived from, but remains with the whole community or people,
and the assembly which represents it. There is indeed nothing
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
The reference to the representative assembly as protecting
the liberty of the people is interesting, and he returns to this
in a later chapter. It is, he says, a part of liberty that those
at whose risk, and by whose blood and treasure, things are
done, should administer them by their own counsel and
authority. 2
It is also clear that in the judgment of Althusius these
representative councils of the community were to be found
in all the countries of Central and Western Europe, not only
in the Empire but in France, in England (he refers to Sir
Thomas Smith), in the Netherlands, Poland, Castile, Aragon,
Portugal, Denmark, Norway, Sweden, and Scotland; 3 and
it should be observed that he describes the constitutions of
the various territories in the German Empire as having the
same character. *
Althusius was indeed no enemy of monarchy, but he main-
tained, in direct opposition no doubt especially to Bodin,
negotia, quae non possunt nisi a
populo in talibus comitiia tractari.
Quarto, qui sunt in magna potent ia,
horum comitiorum metu, in quo libere
omnium postulate audiuntur, in officio
contineri et corrigi possunt. Denique
hoc modo libertas quaedam populo
superest, at que administratores publici,
rationes suae admimstrationis reddere,
et populum, seu universal em consocia-
tionem, dominum suum, a quo sunt
constituti agnoscere coguntur. "
1 Cf. pp. 360, 378.
? Id. id. , XXXIH. 30: "Deinde
liber tat is pars est, quorum periculo,
facultatibus, auxilio, bonis atque san-
guine res geritur, ilia eorum quoque con-
silio et auctoritate administrator. . . .
Unde libertatis imago in boo comitiorum
habendorum iure retinetur, et poten-
tiorum, adulatorum, iniustorum et
avarorum conatibus remedium pon-
itur. "
1 Id. id. , XXXIH.
* Id. id. , VIII.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 501
that in a good polity the various elements must be combined;
the democratic in the assemblies of the people, the aristocratic
in the senate and councillors, the monarchical in the executive
action of the supreme magistrate, the king. 1 Or, as he put
it in another place, every form of commonwealth was " tem-
pered " and mixed, and he refused to recognise that there could
be any simple and unmixed form of political association,
the infirmity of human nature would prevent its continuance,
nor could it be adjusted to a good and social life. 2
We think that it is clear that in theory as well as in fact
the political representation of the community was important
in the sixteenth as well as in the fourteenth and fifteenth cen-
turies, and it is obvious that it was thought of as existing in
almost all European countries, and not only in Spain or England
or the Empire.
>> Id. id. , XXVII. 44: "Unde in
bona politia temperamentum quoddam
conspicitur. Nam in populi comitiis,
Democratiae imago apparet; in senatu
et consiliariis Aristocratiae, in execu-
tione eummi Magistratus, Regiae potes-
tatis et Monarchiae species. "
>> Id. id. , XXXIX. 18: "Quod cum
ita sit reote dicimus tempera tam et
mixtam esse quamvis Reipublicae
speciem, uti hominis complexio ex
quatuor quos dixi humoribus esse
temperata. . . .
Id. id. , XXXIX. 23: "Constat
enim ex praecedentibus et tota doc-
trina politica, me nullam speciem
Magistratus ab ilia mixtione immunem
statuere.
Simplioem et purum statum in
politica hac consociatione non agnosco,
neque ob naturao humanae imbecillita-
tem esse potest diuturnum, aut bonum,
et sociali vitae accomodatum. "
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? PART V.
CONCLUSION.
We have endeavoured, in the six volumes of this History, to
give some account of the most important elements in the
development of the political principles of Western Europe
during sixteen centuries, a large and, as some may think, an
over-ambitious enterprise. We can only say that we found
ourselves compelled to make the attempt. When we began
this work some forty years ago our intention was much more
restricted; we proposed little more than a careful study of
the political theory of the thirteenth century, and we there-
fore began with a detailed consideration of the political theory
of St Thomas Aquinas. 1 We soon, however, found that in
order to understand the real significance of that great political
thinker, we were compelled to go back to the Eoman Jurists
of the "Corpus Juris Civilis," to the New Testament, the
Christian Fathers, and the literature of the earlier Middle
Ages, and even to make some study of the post-Aristotelian
political theory. Some friendly critics observed, naturally
enough, that the treatises of an eclectic literary man like
Cicero, and a somewhat rhetorical literary philosopher like
Seneca, were inadequate representatives of this, and we were,
and are, very conscious of this. We can only hope that some
scholar more competent than ourselves will some time take
in hand the task of reconstructing from the fragments of the
1 Cf. "The Political Theory of St in the 'Scottish Review,' January
Thomas Aquinas," by R. W. Carlyle, 1896.
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? 504
[PAST V.
CONCLUSION.
post-Aristotelian philosophers an adequate and critical account
of their political theory. We are still convinced that, while
the debt which we owe to the great political thinkers like
Plato and Aristotle is immeasurable, it is also true that it
was during the centuries between Alexander the Great and
the Christian era that some of the most distinctive and im-
portant principles of the mediaeval and modern world took
shape. It was during this period that the Hellenistic world
learned to conceive of mankind as being homogeneous and
rational, or, to put it into the terms of Cicero and other
Eo man writers, all men are alike, for they are rational and
capable of virtue. And it was during the same period that
the older conception of the solidarity of the group began to
be transformed by the recognition of the inalienable liberty
of the human spirit.
We are also very conscious of the fact that, in the attempt
to deal with the vast and complex political literature of six-
teen centuries, we have had to treat of many matters for the
study of which we had little technical qualification. And
especially is this true of the political jurisprudence of the
Eoman and Canonical and Feudal lawyers, and we recognise
with gratitude the forbearance and friendly treatment of our
work by the Jurists. We cannot indeed regret that we ven-
tured to do this, for we feel that without this it is really
impossible to deal adequately with the political ideas of a
period like the mediaeval, which was dominated by the con-
ception of the supremacy of law.
We have at last completed the task which we had set
before ourselves, and must now again make the attempt to
set out what seem to us the most important elements in the
political ideas and theories of the Middle Ages; but now, with
special reference to this volume, we must consider how far
during the centuries from the fourteenth to the sixteenth ?
the principles of the political civilisation of the thirteenth
century were modified, and how far these were continuous. 1
1 An attempt to sum up the principal century will be found in Part III. of
elements in the political theory of the Volume V.
Middle Ages to the end of the thirteenth
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? PABT V. ]
505
CONCLUSION.
The formal aspect of Mediaeval Political Theory is to be found X
in that conception which is implied in the post-Aristotelian
philosophy, in the Christian Fathers, and in the Digest and
Institutes of Justinian, that the political and social order of
society is conventional rather than natural, and represents the
consequences of the fall of man from his primitive innocence.
It is true that St Thomas Aquinas, under the influence of the
Aristotelian "Politics," endeavoured to correct this, but it
is also true that the post-Aristotelian tradition was too
firmly rooted to be shaken even by St Thomas' great authority,
and that the contrast between the conventional and natural
conditions continued to furnish the formal terms of political
thought to the end of the sixteenth century. We can see
this in so great a political thinker as Hooker, though he was
evidently a disciple of St Thomas Aquinas. Indeed, we can
recognise the continuance of this tradition in Locke in the
seventeenth century and in the earlier essays of Eousseau in
the eighteenth. It was not till Eousseau in his later work,
and especially in the ' Contrat Social,' restated the Aristotelian
conception that man is only man in the coercive society of
the State, and urged that apart from this he would be nothing
but a "stupid and limited animal," that the Aristotelian
principle once again became the foundation of all rational
political thinking. 1
This formal mediaeval conception then is interesting, but it
is doubtful how far it had any great importance.
It is very \
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice. St Augustine, in the ' De Civitate Dei,' handed down
to the Middle Ages, not only Cicero's definition of the nature
of the commonwealth, but also his emphatic assertion that
where there is no justice there is no commonwealth. 2 Here x
indeed we are dealing not with a conception which was peculiar
to the post-Aristotelian philosophers, but rather with one
which they carried on from Aristotle and Plato; but it is not
1 Cf. Rousseau,' Conlrat Social,' I, 8.
>> Cf. vol. i. pp. 4-6.
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? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
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? PART V. ]
507
CONCLUSION.
qu'il n'est mie seignor de faire tort," 1 or when John of
Salisbury said that the difference between the king and the
tyrant was, that the king obeys the law while the tyrant
flouts it,2 or when Bracton in memorable words lays down
the principle that, while the king is under no man, he is
under god and the law, and that there is no king when mere
. will rules and not the law. 3 Nicolas of Cusa in the fifteenth
century reinforced this judgment with the authority of
Aristotle, whom he cites as saying that when the laws are
not supreme there is no polity. * This is what was meant
when so wise and prudent a political thinker as St Thomas
Aquinas did not hesitate to say that, while sedition is a
mortal sin, revolt against a tyrant is not to be called sedition;
for his rule is not just. 5 We think that we are justified in
maintaining that the first principle of mediaeval political
society was the supremacy, not of the prince but of the law,
for the law was the embodiment of justice.
5o ^
If, however, we are to understand the mediaeval political
principles, we must now consider the nature of law, not merely
in its relation to justice, but also with regard to its source.
To the people of the Middle Ages the positive law was x
primarily and fundamentally the custom of the community--
that is, the expression of the habit of life of the community; it
was not properly something deliberately or consciously made.
The earlier mediaeval codes, as everyone knows, are not acts
of legislation, but records of custom, revised, no doubt, and
modified from time to time by the ruler and his wise men,
but not, properly speaking, made by them. The feudal laws
in the same way were records of custom. The picturesque
account of the origin of the laws of the kingdom of Jerusalem,
given by Jean d'Ibelin and Philip of Novara,4 is no doubt
literally unhistorical, but it represents admirably the mediaeval
temper. Bracton asserts that English law was custom;
and while he seems to think that other countries used written
1 Cf. vol. Hi. pp. 32, 33. * Of. vol. vi. p. 136.
>> Cf. vol. iii. pp. 137, 138. 1 Cf. vol. v. p. 92.
>> Cf. vol. iii. pp. 38, 67. ? Cf. vol. iii. pp. 43, 44.
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? 508
[PAHT V.
CONCLUSION.
laws, his great contemporary, Beaumanoir, asserts in equally-
broad terms that " all pleas are determined by custom," and
that the King of France is bound to maintain them. 1
When, therefore, we find that the first systematic Canonist,
Gratian, begins his 'Decretum' with the great generalisation
that mankind is governed by two great systems of law, Natural
Law and Custom, and in another place sets out the principle
that, even when the law is made by some person or persons, it
must be confirmed by the custom of those who live under it,a
we recognise that he is not expressing a merely individual
opinion, but is putting into formal phrases the general judg-
^ ment of the Middle Ages. Law was not to them primarily
the expression of the will of the ruler, but of the habit of
life of the community. It is important to observe that even
in the sixteenth century an English Jurist like St Germans
looks upon custom as the normal source of English law, and
that Statutes of Parliament are only added when the customs
y were hot sufficient. 3 The truth is that to think of the medieval
king as making laws by his own personal authority is an
absurdity.
/ It is, however, true that at least from the ninth century we
can see that the conception of definite and deliberate legislation
begins to appear, and, while there was little development of
this in the tenth and eleventh centuries, we can trace its
gradual progress, and can see that while the conception of
law as custom continued to be of great importance, the con-
tption of law as being the expression of the rational and
II moraKwill of the supreme power in the community became
N more and more important. We say the rational and moral
will, for there is no trace of any conception that the merely
arbitrary or capricious will had any real place in law. This is
the real meaning of the principle that the supreme authority
in the community is always limited by the Divine and Natural
laws.
^ Law came, that is, to be thought of as the expression of
1 Cf. vol. iii. p. 42.
2 Cf. vol. ii. pp. 98 and 155.
? Cf. vol. vi. pp. 234-38.
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? PABT V. ]
509
CONCLUSION.
the will of the legislator. Who, then, was the legislator ? **
The answer is that it was the whole community, and this"
was the necessary consequence of the fact that law was
custom before it was command. From the ninth century at
least there can be no doubt about the normal conception of
the Middle Ages. There are some words of Hincmar of Eheims,
the most important ecclesiastical statesman of the ninth
century, which express this very clearly. Kings, he says,
have laws by which they must rule; they have the capitu-
laries of their ancestors, which were promulgated with the
consent of their faithful men; and this corresponds with the
normal forms of legislation as we find them in the Carolingian
Capitularies. 1
This is again the conception of the source of law as we
find it in the twelfth and thirteenth centuries. Glanvill says
that those are properly laws which are made by the king
with the consent of the chief men (proceres). The Norman
"Summa de Legibus " says that laws are made by the prince
and maintained by the people. Bracton lays it down that
that has the force of law which has been determined by the
counsel and consent of the great men, the approval of the
whole commonwealth and the authority of the king; and
again, when the laws have been approved by the custom
of those concerned and by the oath of the king they cannot
be changed or annulled without the common consent of all
those by whose counsel and consent they had been pro-
mulgated. 2 The meaning of this is illustrated by the formulas
of legislation as we find them in the Empire, in France, in
Castile, and in England in the thirteenth century. 3
In this volume we have seen that these conceptions con-
tinued to be normally accepted in the fourteenth, fifteenth,
and sixteenth centuries. Law was still primarily custom,>>/
but when it was made it was thought of as deriving its authority
from the community. This is continually illustrated in the
proceedings of the Cortes of Castile, and is expressed in theory,
not only by an English Jurist like Fortescue, but by one of
1 Cf. vol. i. pp. 233-39. * Cf. vol. v. pp. 51-63.
>> Cf. vol. iii. pp. 46-48, and p. 69.
