Neither can any man with reason
think but that the first institution of kings is a sufficient
consideration wherefore their power should always depend
on that from which it did then flow.
think but that the first institution of kings is a sufficient
consideration wherefore their power should always depend
on that from which it did then flow.
Thomas Carlyle
, xvii.
(p.
701).
vides qui nascuntur nobis reges, eos et 4 Id. id. , xx. (p. 712).
legibus et populi suffragio creari, non 'Cf. Allen, op. cit. (p. 314).
minus quam quos ab initio diximus ? 'La Politique,' <fcc. (p. 90).
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? CHAP. II. ]
367
THE PRINCE UNDER THE LAW.
election are both tolerable: the best is to combine the two,
but even in the case of those who hold by hereditary succession
the peoples who have the right to place magistrates over them-
selves have also the right to depose them. 1 The best known
of these works, the ' Vindiciae Contra Tyrannos,' published in
1577, also speaks of kings as the Vicars of God,2 and says
that it is God Who has "instituted" kings, but it is the
people who constitute them, who bestow kingdoms and
approve their election. Kings must remember that they
reign " a Deo sed per populum et propter populum. " There-
fore if in some countries kingship has become hereditary, it is
still the custom that the children do not succeed their fathers
till they have been constituted anew by the people, and are
only held to be kings when they have received the investiture
of sceptre and crown from those who represent the " Majestas"
of the people. 3
George Buchanan and the Huguenot writers express this
judgment in strong and unqualified terms, but we find the
same opinions expressed in as thorough-going a fashion by
some of the Eoman Catholic writers of the last years of the
sixteenth century. Among the most important tracts written
in defence of the deposition of Henry III. of France is that
of Boucher, 'De justa Abdicatione Henrici Tertii,' published
1 Id. (p. 96): "Politie. II me
semble que et Pun et l'autre no sont
si louables que ceux qui sont par elec
tion et succession tout ensemble. . . .
Politie. J'avoue bien que par cous-
tume la chose est tellement reolue
qu'elle (hereditary succession) est re-
pute? pour droit, mais puis que les
peuples ont le droit de mettre les
magistrats sur eux . . . il faut con-
done qu'ils les peuvent demettre, et
par la sont electeurs de leurs princes. "
* 'Vindiciae Contra Tyrannos. ' Qu.
I. (P- 9).
>> Id. , Q. III. (p. 76): "Ortendi-
riius antea Deum Reges instituere,
rogna regibus dare, reges eligere. Dici-
mus jam, populum reges constituere,
regna tradere, olectionem suo sum-agio
comprobare. . . . " (P. 79): Quo sem-
per recordantes reges ae a Deo quidem,
sed por populum et propter populum
regnare. . . . " (P. 82): Etai vero, ex
quo virtutem pat rum imitati fiiii,
nepotesve, regna sibi quasi haeredi-
taria fecisse videntur, in quibusdam
regionibus electionis libera facultas
desiisso quodammodo videatur; man-
sit tamen perpetuo in omnibus regnis
bene constitutis ea consuetudo, ut de
mortuia non prius succederent liberi,
quam a populo quasi de novo conatitu-
erentur, nec tanquam suia haeredes
patribus agnoscerentur, sed tum demuni
reges censerentur, cum ab iis qui populi
mnjestatem representant, regni in-
vestituram, quasi per sceptrum et
diadema accepissent. "
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? 368 THE LATER SIXTEENTH CENTURY. [PAST IV.
in 1589. Boucher was a theologian of some eminence, and
his work is largely concerned with the question of the power
of the Pope to depose kings. We are not, however, here
concerned with this question, but with his conception of the
relation of the authority of the king to that of the community.
With regard to this, he expressed himself as clearly and dog-
matically as the Huguenot writers.
It is the people or commonwealth which establishes the
king, but while it bestows this authority upon him, the final
authority and "Majestas" remains with the people. It
resided with them before there were any kings, and even
kings must render their account for any offence against it. 1
This " Majestas " is embodied in the Estates. 2
It is the people, then, from whom the king derives his
authority, and not from God only, and he repudiates the
interpretation of St Paul's words in Eomans xiii. 1 as imply-
ing the latter. We recognise, he says, that kings, like all
good things, come from God, but in accordance with the Jus
Gentium, it is through the people. 3
It would be difficult to find a more explicit repudiation of
what we call the "Divine Eight," and a more thorough-
going affirmation of the principle that the royal authority
'J. Boucher, 'De Justa Henrici
Tertii Abdicatione,' I. 9: "Jus sutem
illud cum in duobus positum sit, ut et
a populo seu republics constituuntur
reges, et regibus constitutis, sic penes
eos Kummam potestatem esse conatet,
ut surnma in eos tamen populi seu
reipublicae jus ac majestas romaneat,
huiusque adeo laesae vel imminutao, ei
res ita ferrat, rex teneri possit. "
Id. , III. 7: "Maiestas reipublicae ac
populi quae sit, diotum antea est.
Quae ut prima per se ac regibus anti-
quior est, ita authenticum quid penes
se, vel teste scriptura habot, quod
deponere, quodque abiicere a se nec
possit nec debeat. Cujusque legibus
omnes omnis generis homines ac reges
ipsi teneantur. Quippe, cum penes
eos non aliunde majestas sit, quam
quia publica ab iis potestas referatur.
Quae Caesar ab iis semel, ut sceptro
reos amonneat, lege Julia constat, quae
poenam majestatis, non dignitatis
tantum, sed et animae amissionem esse
jubet. "
* Id. id. , III. 8: "Porro majesta-
tem illam cum penes ordines seu
comitia esse constet, id quoque sequi-
tur, qui ordines laeserit, publicae
majestatis supra omnes teneri atque
reum esse. Nam pones comitia ut
regni majostas sit, cum uni versa
regnorum consuetudo docet, tum quia
perpetua in Gallia aacrosanota eorum
auctoritas esse consuevit. "
* Id. id. , I. 13: "Et nos, quidem,
ut reges a Deo, ut et bonum omne,
esso agnoscimus, ita intermedio iure
gentium, et per populum, ut sunt, ita
esse, sane fateamur. "
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? CHAP. II. ]
369
THE PRINCE UNDER THE LAW.
was inferior to the sovereign authority, or " Majestas," of the
community; it was derived from it, and was answerable to
it. Boucher adds, dogmatically, that no one is born a king;
there is no Christian kingdom where hereditary succession has
such a force that the right of establishing the king does not
remain with the people. 1
Boucher does not, however, state these principles as merely
abstract, but maintains that they were embodied in the actual
constitutional systems of the European countries, and he
refers specially to the Empire, to Aragon, and to the authority
of Parliament in England, and he attributes the comparative
absence in France of the constitutional forms of this supreme
authority of the community to the recent tyrannical
innovations of Louis XI. 2 He cites the deposition of
Merovingian and Carolingian kings in France, of Eichard
II. in England, and the recent deposition of the King of
Denmark. 3
With these writers we may place Mariana, the Spanish
Jesuit of the late sixteenth century. He also considers the
monarchy to be the best form of government, and he oare-
fully discusses the advantages and disadvantages of succession
by inheritance or by election. He finally concludes that
hereditary succession is best, but the succession should be
determined by law, not by the will of the king, for the common-
wealth gave him an authority restrained by laws, and any
change therefore must be made with the consent of the
"Ordines" (the Estates or Cortes). 4 In another place,
discussing the relation of the commonwealth to a king who
becomes a tyrant, he argues that the commonwealth, from
which the royal authority arises, may call the king to account,
and may deprive him of his authority. When it transferred
1 Id. id. , I. 17: "Omnino rex nemo "Sic commodius fore cogitabam, here-
nascitur. Neque ullum omnino vel ditarium esse principatum. " . . . (p.
inter Christ ianos regnum est, in quo 37): "Neque pro regis arbitrio succos-
hereditario succe&sio sic polleat, quin sionem etiam inter filios mutandam
penes populum constituendi jus re- videri. Praesertim cum leges succos-
maneat. " sionia mutare non ejus, sod reipub-
* Id. id. , I. 21, 22. licae sit, quae imperium dedit, iis
* Id. id. , I. 23, 24. iegibus constrictum, ordinum consensu
* Mariana, 'De Rege,' I. 3 (p. 34): id faciat opus Cst. " Cf. I. 4 (p. 38).
VOL. VI. 2 A
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? 370
THE LATER SIXTEENTH CENTURY. [PABT IV.
its authority to the prince, it reserved to itself a greater
authority. 1
It may, no doubt, justly be said that these writers, especi-
ally the Huguenots and Mariana, express a highly contro-
versial mood. But it should be observed that the same
judgment is expressed by Hooker, substantially, but in
characteristically measured terms. Hooker deals with the
subject in the first book of the 'Ecclesiastical Polity,' when
he discusses the origins and first forms of political society.
The first form of social authority was, he thinks, that of the
father over his family, but that is not the nature of authority
in a political society. "Howbeit over a whole general multi-
tude, having no such dependency upon any one, and con-
sisting of so many families as every political society doth,
impossible is it that any should have complete lawful power,
but by consent of man or immediate appointment of God;
because, not having the natural authority of fathers, this
power must needs be either usurped, and thus unlawful; or,
if lawful, then, either granted or consented unto by those
over whom they exercise the same, or else given extraordi-
narily from God, unto Whom all the world is subject. " 2
He returns to the subject in the eighth book, where he is
dealing with the relation of the king to the Church. "First,
unto me it seemeth almost out of doubt and controversy, that
every independent multitude, before any certain form of
regiment established, hath, under God's supreme authority,
full ' dominium' over itself, even as a man, not tied with the
bond of subjection as yet, unto any other, hath over himself
the like power. " 3
Hooker is indeed careful to defend the right of hereditary
succession to kingship, but he is also clear in asserting that
this hereditary right arises from the "original conveyance"
by the community. "The case thus standing, although we
judge it as being most true that kings, even inheritors, do
1 Id. id. , I. 6 (p. 57): "Certo a in principem jura potestatis transtulit,
ropublica, undo ormm ha bet regia ut non sibi majorem reservavit potee-
potostas, rebus exigentibus regem in tatem. "
jus vocari posse, et si sanitatem res- * Hooker, 'Eocles. Polity,' I. x. i.
puat, principatu spoliari. Neque ita 1 Id. id. , VIII. 2, 5.
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? CHAP. II. ]
371
THE PBINCE UNDER THE LAW.
hold their right to the power of dominion with dependency
upon the whole body politic, over which they rule as kings;
yet so it may not be understood, as if such dependency did
grow, for that every supreme governor doth personally take
from them his power by way of gift, bestowed of their own
free accord upon him at the time of his entrance into the said
place of government. But the cause of dependency is in that
first original conveyance, when power was derived by the
whole unto one; to pass from him unto them, whom out of him
nature by lawful birth should produce, and no natural or legal
inability make uncapable.
Neither can any man with reason
think but that the first institution of kings is a sufficient
consideration wherefore their power should always depend
on that from which it did then flow. Original influence of
power from the body into the king is the cause of the king's
dependency in power upon the body. " 1 Hooker denies that
the individual king must be elected, but affirms that it was
from the community that the right of hereditary succession
was derived.
We have discussed the position of Althusius with regard to
the supremacy of the law, in the last chapter, and need only
here draw attention to an important passage in which he sets
out the origin and nature of the authority of the adminis-
trator or prince. He recognises that while the common-
wealth is formed by the free association of all its members,
and establishes the laws necessary for this, it cannot itself
administer them; and therefore it appoints ministers and
rulers, and transfers to them the necessary authority and
power; it gives them the power of the sword and commits
itself to their care and rule. 2 Althusius is clear that there
must be rulers or princes in the commonwealth, but the rulers
are appointed by the commonwealth, and their authority is
'Id. id. , VIII. 2, 9.
>> Althusius, 'Politic*,' xviii. 10:
"Nam populus primo ae in corpus
quoddam certis l^gibua consociavit,
jura necessaria et utilia ad bane con-
sociationem sibi constituit, eorumque
administrationem qua ipso popuiue
nullo modo fungi potest, po? tea minis-
tris et rectoribus a se electis domanda-
vit, atque in eos ad muneria sui ex-
peditionem necessariani auotoritatem
et potestatem transtulit, gladioque ad
eam rem illos accinxit, iisque se re-
gendum curandumquo commisit. "
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? 372
[past rv.
THE LATER SIXTEENTH CENTURY.
always less than that which the commonwealth reserves to
itself. Their authority is only to rule according to the just
laws of the commonwealth, and they are only God's ministers
if they rule for the common good. The prince is not above
the laws, but the laws above the prince. There neither is, nor
can be, any such thing as that absolute power which, as it is
sometimes said, is given to the prince. 1
Finally, we may put beside Hooker and Althusius the
judgment of the great Jesuit, Bellarmine. He is no doubt
arguing, not for the direct, but for the indirect authority of
the Papal See in temporal matters; but his judgment is clear
that, while it is true that the royal or imperial power is from
God, it must be understood that it does not normally come
immediately from Him, but mediately through the consent of
men, for as St Thomas Aquinas had said, lordship and princi-
palities belong not to the Divine, but to the Human Law. 2
(2) The Conception of the "Sovereignty" of the Com-
munity. --We shall, in a later chapter, consider the theory of
sovereignty as set out by Bodin, and we do not wish here to
anticipate this. It is enough, for the moment, to say that in
Bodin's view there must be in every political community
some supreme power which makes all laws and magistrates,
1 Id. id. , xviii. 27: "Quantum-
cunque enim est imperium et jus quod
alteri conceditur, minus tamen semper
est eo quod eoncedens sibi reservavit.
. . . 28. Transfertur vero in hosce
administratores et rectores a membris
universalis consociationis sola potest us
secundum justas leges administrandi
ot regendi corpus, et jura universalis
hujus consociationis. . . . 32. Hoc
agens, minister Dei dicitur, Rom. c. 13.
. . . 37. Non est princeps supra legem,
sed leges supra principem. . . . 38. Nam
contra leges aliquid posse non est
potestatis, sed impotentiae nota. . . .
39. Undo et quod dicitur absoluta et
plonissima potestas principi concessa,
nulla est, nec esse potest. "
1 Bellarmine, ' Do Potestate Summi
Pontificis,' III. (p. 51): "Porro
quod scribit sanctus Grogorius datam
fuisse imperatori coelitus, non significat
imperatoriam potestatem esse imme-
diate a Deo, sed esse a Deo in eo sensu,
quo dicit apostolus ad Rom. xiii. , non
est potestas nisi a Deo. Omnis enim
potestas a Deo est; sod aliqua im-
mediate, ut Moisis, ut Sancti Petri, ut
Sancti Pauli; aliqua mediant, con-
sensu hominum, ut potestas Regum,
Consulum, Tribunorum--nam (ut Sanc-
tus Thomas docot in 2. 2. Q. 10. Art.
10. et Q. 12. Art. 2) dominia et princi-
patus humani, de jure humano sunt,
non de jure divino. " Cf. Id. id. , xxi.
(page 174). For the same principle as
held by Molina and Suarez, cf. pp. 343.
344.
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? chap, n. ]
373
THE PRINCE UNDER THE LAW.
and which is subject to no law, except that of God and of
nature, and to this power he gives the name of " Majestas. " 1
Bodin's work was published in French in 1576, but it is im-
portant to observe that some of the Huguenot pamphlets
were published a little earlier, or about the same time,
Hotman's ' Franco Gallia ' in 1573, the ' Droit des Magistrate'
in 1574, and the 'Arohon et Politie' in 1576, and in some of
these we find already developed a conception of a power
belonging to the community or its representative authority,
which is supreme over all other powers, even that of the king,
and this supreme authority they call the "SouveraineteV'
while they speak of the king as " Souverain. "
Hotman, in discussing the power of what he calls the
"Concile des Bstats," meaning the States General, maintains
that it had power to elect and to depose kings, and he goes on
to say that even after the election of the king, it reserved and
retained in its own hands the "sovereign authority" of the
government of the kingdom. 2
It is, however, in the 'Droit des Magistrate' of 1574 that
the distinction between the "Souverain" and the "Souver-
ainete- " is first carefully and completely drawn out. There
are magistrates or officers, who are indeed inferior to the
"Souverain," and are appointed by him, but do not properly
hold from the " Souverain," but from the "SouveraineteV'3
The distinction is clear, but is made even clearer when the
author adds that the "Souverain " himself, before he is put
in "real possession" of his sovereign administration, swears
fidelity to the "SouveraineteV'4 And again, empires and
1 Cf. pp. 418 fl.
* Hotman, 'Franco Gallia,' zz.
(in 'Memoires de l'Estat,' vol. i. p.
712): "Quo plus est, mesme apre? s
I'election du roi, le Concile se reservoit
encores et retenoit par devers soy la
souverame authorite? du gouvernement
des affaires du Royaume. "
? "Du Droit des Magistrats " (ed. in
'Memoires de l'Estat,' vol. ii. p. 748:
"Or faut-il entendre que tous ceux cy
(the magistrates) encores quils soyent
au-dessous de leur souverain (duquel
aussi ils recoyvent commandement, et
lequel les installe et approuve) toutes
fois ne de? pendent proprement du
souverain, mais de la souverainete. "
1 Id. id. , vol. ii. p. 748: "Le
souverain mesmos, avant qu'estre mis
en vraye possession de son administra-
tion souveraine, jure fidelite a la
souverainete? , sous les conditions ap-
poseee a son serment. "
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? 374
[PABT IV.
THE LATER SIXTEENTH CENTURY.
kingdoms are fiefs, which owe homage and fidelity to the
"Souverainete? . " 1
These are trenchant sayings, and the conception of the
king as a vassal of the " Souverainete? " is unusual, to say the
least, though not unintelligible; but what we are here con-
cerned with is the sharp distinction between the king who is
"Souverain," and some greater authority behind him, which
holds the " Souverainete? ," for there are those who represent
the " Souverainete? " and it is for them to provide for the tenure
of the sovereign's fief, if he has lost it by his offences against
his subjects. 2 The king or "Souverain" is not above the
laws, but is subject to them, for he has sworn to maintain
and defend them. 3 While it is not lawful for any private
person to resist the tyrant, there are magistrates, inferior
indeed to him, but whose function it is to act as bridles and
restraints upon the sovereign magistrate. There are such
officers in several Christian kingdoms, such as dukes, mar-
quesses, counts, &c. ; they were formerly " estats et charges
publiques," and were appointed "par ordre legitime," and
though these offices have become hereditary, the nature of
their right and authority has not changed: such are also
the elective officers of the cities, such as mayors, consuls,
syndics, &c*
1 Id. id. , vol. ii. p. 776: "Outre
tout cela, puisque les royaumes et
empires mesmes sont fiefs, devons
hommages et services a` la souverainete? .
2 Je di donc au cas ou` nous sommes,
qu'un roi, ou me^me un Empereur,
relevant de la souverainete? , commet-
tant felonie contre ses vassaux, assavoir
ses sujets (ce que jamais ne puisse
advenir) perd son fief, non pour e^tre
adjudge? aux vassaux, mais pour y
e^tre pourvu par ceux qui repre? sentent
la souverainete? . . . . Or est il ainsi
que l'Empereur mesmes, comme nous
l'avons cy devant note? , doit hommage
a` l'Empire, duquel il est le premier et
souverain vassal (ce que doit estre
encores a` plus forte ou pour le moins
aussi forte raison estime? de li con-
dition des Roys a` l'endroit du
Royaume). "
* Id. id. (p. 750): "Car pour certain
c'est une parole tre`s fausse, et non
poinct d'un loyal sujet a` son prince,
mais d'un de? testable flatteur, de dire
que les souverains sont contraints a`
nulles lois. Car, au contraire, il n'y
en a pas une, par laquelle il ne
doyve et soit tenu de regler son
gouvernement, puis qu'il a jure?
d'estre le mainteneur et protecteur de
toutes. "
This is followed by a citation of the
'Digna Vox' (Cod. I. xiv. 4) and the
story of Trajan giving the sword to be
used against him if nocessary.
4 Id. id. (p. 746): "Il n'est licite
a` aucun particulier d'opposer force a`
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? chap, n. ]
375
THE PRINCE UNDER THE LAW.
It is of these officers that the author of the treatise says, as
we have seen, that they hold not from the " Souverain " but
from the "Souverainete? ," to which the "Souverain" himself
has sworn fidelity; and he goes on to say that there is a
mutual obligation between the king and these officers of the
kingdom, for the whole government is not in the hands of the
king, but only the "souverain degre? " of the government,
while each of these inferior officers has his part in it according
to his rank. 1
The pamphlet generally known as 'Archon et Politie,'
which was published in 1576, represents the same conception.
In discussing the limitations on the arbitrary power of the
prince it says that there are inferior authorities, "deputies"
of the people; these create the prince and can depose him,
and they would be traitors to their country if they suffered
the "principaute? " to become a tyranny. They, as " souver-
ains magistrats," are above the prince (in their public capacity),
while as private persons they are below him. 2 And again,
la force du tyran, de son authorite?
privee. "
Id. id. (p. 745): "Tiercement, il
y en a d'autres, lesquels encores qu'ils
n'ayent la puissance souveraine et
ordinaire a` manier, toutes fois sont
ordonnez pour servir comme de brides
et freins au souverain magistrat. "
Id. id. (p. 747): "Je viens mainte-
nant aux magistrats inferieurs.
vides qui nascuntur nobis reges, eos et 4 Id. id. , xx. (p. 712).
legibus et populi suffragio creari, non 'Cf. Allen, op. cit. (p. 314).
minus quam quos ab initio diximus ? 'La Politique,' <fcc. (p. 90).
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? CHAP. II. ]
367
THE PRINCE UNDER THE LAW.
election are both tolerable: the best is to combine the two,
but even in the case of those who hold by hereditary succession
the peoples who have the right to place magistrates over them-
selves have also the right to depose them. 1 The best known
of these works, the ' Vindiciae Contra Tyrannos,' published in
1577, also speaks of kings as the Vicars of God,2 and says
that it is God Who has "instituted" kings, but it is the
people who constitute them, who bestow kingdoms and
approve their election. Kings must remember that they
reign " a Deo sed per populum et propter populum. " There-
fore if in some countries kingship has become hereditary, it is
still the custom that the children do not succeed their fathers
till they have been constituted anew by the people, and are
only held to be kings when they have received the investiture
of sceptre and crown from those who represent the " Majestas"
of the people. 3
George Buchanan and the Huguenot writers express this
judgment in strong and unqualified terms, but we find the
same opinions expressed in as thorough-going a fashion by
some of the Eoman Catholic writers of the last years of the
sixteenth century. Among the most important tracts written
in defence of the deposition of Henry III. of France is that
of Boucher, 'De justa Abdicatione Henrici Tertii,' published
1 Id. (p. 96): "Politie. II me
semble que et Pun et l'autre no sont
si louables que ceux qui sont par elec
tion et succession tout ensemble. . . .
Politie. J'avoue bien que par cous-
tume la chose est tellement reolue
qu'elle (hereditary succession) est re-
pute? pour droit, mais puis que les
peuples ont le droit de mettre les
magistrats sur eux . . . il faut con-
done qu'ils les peuvent demettre, et
par la sont electeurs de leurs princes. "
* 'Vindiciae Contra Tyrannos. ' Qu.
I. (P- 9).
>> Id. , Q. III. (p. 76): "Ortendi-
riius antea Deum Reges instituere,
rogna regibus dare, reges eligere. Dici-
mus jam, populum reges constituere,
regna tradere, olectionem suo sum-agio
comprobare. . . . " (P. 79): Quo sem-
per recordantes reges ae a Deo quidem,
sed por populum et propter populum
regnare. . . . " (P. 82): Etai vero, ex
quo virtutem pat rum imitati fiiii,
nepotesve, regna sibi quasi haeredi-
taria fecisse videntur, in quibusdam
regionibus electionis libera facultas
desiisso quodammodo videatur; man-
sit tamen perpetuo in omnibus regnis
bene constitutis ea consuetudo, ut de
mortuia non prius succederent liberi,
quam a populo quasi de novo conatitu-
erentur, nec tanquam suia haeredes
patribus agnoscerentur, sed tum demuni
reges censerentur, cum ab iis qui populi
mnjestatem representant, regni in-
vestituram, quasi per sceptrum et
diadema accepissent. "
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? 368 THE LATER SIXTEENTH CENTURY. [PAST IV.
in 1589. Boucher was a theologian of some eminence, and
his work is largely concerned with the question of the power
of the Pope to depose kings. We are not, however, here
concerned with this question, but with his conception of the
relation of the authority of the king to that of the community.
With regard to this, he expressed himself as clearly and dog-
matically as the Huguenot writers.
It is the people or commonwealth which establishes the
king, but while it bestows this authority upon him, the final
authority and "Majestas" remains with the people. It
resided with them before there were any kings, and even
kings must render their account for any offence against it. 1
This " Majestas " is embodied in the Estates. 2
It is the people, then, from whom the king derives his
authority, and not from God only, and he repudiates the
interpretation of St Paul's words in Eomans xiii. 1 as imply-
ing the latter. We recognise, he says, that kings, like all
good things, come from God, but in accordance with the Jus
Gentium, it is through the people. 3
It would be difficult to find a more explicit repudiation of
what we call the "Divine Eight," and a more thorough-
going affirmation of the principle that the royal authority
'J. Boucher, 'De Justa Henrici
Tertii Abdicatione,' I. 9: "Jus sutem
illud cum in duobus positum sit, ut et
a populo seu republics constituuntur
reges, et regibus constitutis, sic penes
eos Kummam potestatem esse conatet,
ut surnma in eos tamen populi seu
reipublicae jus ac majestas romaneat,
huiusque adeo laesae vel imminutao, ei
res ita ferrat, rex teneri possit. "
Id. , III. 7: "Maiestas reipublicae ac
populi quae sit, diotum antea est.
Quae ut prima per se ac regibus anti-
quior est, ita authenticum quid penes
se, vel teste scriptura habot, quod
deponere, quodque abiicere a se nec
possit nec debeat. Cujusque legibus
omnes omnis generis homines ac reges
ipsi teneantur. Quippe, cum penes
eos non aliunde majestas sit, quam
quia publica ab iis potestas referatur.
Quae Caesar ab iis semel, ut sceptro
reos amonneat, lege Julia constat, quae
poenam majestatis, non dignitatis
tantum, sed et animae amissionem esse
jubet. "
* Id. id. , III. 8: "Porro majesta-
tem illam cum penes ordines seu
comitia esse constet, id quoque sequi-
tur, qui ordines laeserit, publicae
majestatis supra omnes teneri atque
reum esse. Nam pones comitia ut
regni majostas sit, cum uni versa
regnorum consuetudo docet, tum quia
perpetua in Gallia aacrosanota eorum
auctoritas esse consuevit. "
* Id. id. , I. 13: "Et nos, quidem,
ut reges a Deo, ut et bonum omne,
esso agnoscimus, ita intermedio iure
gentium, et per populum, ut sunt, ita
esse, sane fateamur. "
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? CHAP. II. ]
369
THE PRINCE UNDER THE LAW.
was inferior to the sovereign authority, or " Majestas," of the
community; it was derived from it, and was answerable to
it. Boucher adds, dogmatically, that no one is born a king;
there is no Christian kingdom where hereditary succession has
such a force that the right of establishing the king does not
remain with the people. 1
Boucher does not, however, state these principles as merely
abstract, but maintains that they were embodied in the actual
constitutional systems of the European countries, and he
refers specially to the Empire, to Aragon, and to the authority
of Parliament in England, and he attributes the comparative
absence in France of the constitutional forms of this supreme
authority of the community to the recent tyrannical
innovations of Louis XI. 2 He cites the deposition of
Merovingian and Carolingian kings in France, of Eichard
II. in England, and the recent deposition of the King of
Denmark. 3
With these writers we may place Mariana, the Spanish
Jesuit of the late sixteenth century. He also considers the
monarchy to be the best form of government, and he oare-
fully discusses the advantages and disadvantages of succession
by inheritance or by election. He finally concludes that
hereditary succession is best, but the succession should be
determined by law, not by the will of the king, for the common-
wealth gave him an authority restrained by laws, and any
change therefore must be made with the consent of the
"Ordines" (the Estates or Cortes). 4 In another place,
discussing the relation of the commonwealth to a king who
becomes a tyrant, he argues that the commonwealth, from
which the royal authority arises, may call the king to account,
and may deprive him of his authority. When it transferred
1 Id. id. , I. 17: "Omnino rex nemo "Sic commodius fore cogitabam, here-
nascitur. Neque ullum omnino vel ditarium esse principatum. " . . . (p.
inter Christ ianos regnum est, in quo 37): "Neque pro regis arbitrio succos-
hereditario succe&sio sic polleat, quin sionem etiam inter filios mutandam
penes populum constituendi jus re- videri. Praesertim cum leges succos-
maneat. " sionia mutare non ejus, sod reipub-
* Id. id. , I. 21, 22. licae sit, quae imperium dedit, iis
* Id. id. , I. 23, 24. iegibus constrictum, ordinum consensu
* Mariana, 'De Rege,' I. 3 (p. 34): id faciat opus Cst. " Cf. I. 4 (p. 38).
VOL. VI. 2 A
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? 370
THE LATER SIXTEENTH CENTURY. [PABT IV.
its authority to the prince, it reserved to itself a greater
authority. 1
It may, no doubt, justly be said that these writers, especi-
ally the Huguenots and Mariana, express a highly contro-
versial mood. But it should be observed that the same
judgment is expressed by Hooker, substantially, but in
characteristically measured terms. Hooker deals with the
subject in the first book of the 'Ecclesiastical Polity,' when
he discusses the origins and first forms of political society.
The first form of social authority was, he thinks, that of the
father over his family, but that is not the nature of authority
in a political society. "Howbeit over a whole general multi-
tude, having no such dependency upon any one, and con-
sisting of so many families as every political society doth,
impossible is it that any should have complete lawful power,
but by consent of man or immediate appointment of God;
because, not having the natural authority of fathers, this
power must needs be either usurped, and thus unlawful; or,
if lawful, then, either granted or consented unto by those
over whom they exercise the same, or else given extraordi-
narily from God, unto Whom all the world is subject. " 2
He returns to the subject in the eighth book, where he is
dealing with the relation of the king to the Church. "First,
unto me it seemeth almost out of doubt and controversy, that
every independent multitude, before any certain form of
regiment established, hath, under God's supreme authority,
full ' dominium' over itself, even as a man, not tied with the
bond of subjection as yet, unto any other, hath over himself
the like power. " 3
Hooker is indeed careful to defend the right of hereditary
succession to kingship, but he is also clear in asserting that
this hereditary right arises from the "original conveyance"
by the community. "The case thus standing, although we
judge it as being most true that kings, even inheritors, do
1 Id. id. , I. 6 (p. 57): "Certo a in principem jura potestatis transtulit,
ropublica, undo ormm ha bet regia ut non sibi majorem reservavit potee-
potostas, rebus exigentibus regem in tatem. "
jus vocari posse, et si sanitatem res- * Hooker, 'Eocles. Polity,' I. x. i.
puat, principatu spoliari. Neque ita 1 Id. id. , VIII. 2, 5.
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? CHAP. II. ]
371
THE PBINCE UNDER THE LAW.
hold their right to the power of dominion with dependency
upon the whole body politic, over which they rule as kings;
yet so it may not be understood, as if such dependency did
grow, for that every supreme governor doth personally take
from them his power by way of gift, bestowed of their own
free accord upon him at the time of his entrance into the said
place of government. But the cause of dependency is in that
first original conveyance, when power was derived by the
whole unto one; to pass from him unto them, whom out of him
nature by lawful birth should produce, and no natural or legal
inability make uncapable.
Neither can any man with reason
think but that the first institution of kings is a sufficient
consideration wherefore their power should always depend
on that from which it did then flow. Original influence of
power from the body into the king is the cause of the king's
dependency in power upon the body. " 1 Hooker denies that
the individual king must be elected, but affirms that it was
from the community that the right of hereditary succession
was derived.
We have discussed the position of Althusius with regard to
the supremacy of the law, in the last chapter, and need only
here draw attention to an important passage in which he sets
out the origin and nature of the authority of the adminis-
trator or prince. He recognises that while the common-
wealth is formed by the free association of all its members,
and establishes the laws necessary for this, it cannot itself
administer them; and therefore it appoints ministers and
rulers, and transfers to them the necessary authority and
power; it gives them the power of the sword and commits
itself to their care and rule. 2 Althusius is clear that there
must be rulers or princes in the commonwealth, but the rulers
are appointed by the commonwealth, and their authority is
'Id. id. , VIII. 2, 9.
>> Althusius, 'Politic*,' xviii. 10:
"Nam populus primo ae in corpus
quoddam certis l^gibua consociavit,
jura necessaria et utilia ad bane con-
sociationem sibi constituit, eorumque
administrationem qua ipso popuiue
nullo modo fungi potest, po? tea minis-
tris et rectoribus a se electis domanda-
vit, atque in eos ad muneria sui ex-
peditionem necessariani auotoritatem
et potestatem transtulit, gladioque ad
eam rem illos accinxit, iisque se re-
gendum curandumquo commisit. "
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? 372
[past rv.
THE LATER SIXTEENTH CENTURY.
always less than that which the commonwealth reserves to
itself. Their authority is only to rule according to the just
laws of the commonwealth, and they are only God's ministers
if they rule for the common good. The prince is not above
the laws, but the laws above the prince. There neither is, nor
can be, any such thing as that absolute power which, as it is
sometimes said, is given to the prince. 1
Finally, we may put beside Hooker and Althusius the
judgment of the great Jesuit, Bellarmine. He is no doubt
arguing, not for the direct, but for the indirect authority of
the Papal See in temporal matters; but his judgment is clear
that, while it is true that the royal or imperial power is from
God, it must be understood that it does not normally come
immediately from Him, but mediately through the consent of
men, for as St Thomas Aquinas had said, lordship and princi-
palities belong not to the Divine, but to the Human Law. 2
(2) The Conception of the "Sovereignty" of the Com-
munity. --We shall, in a later chapter, consider the theory of
sovereignty as set out by Bodin, and we do not wish here to
anticipate this. It is enough, for the moment, to say that in
Bodin's view there must be in every political community
some supreme power which makes all laws and magistrates,
1 Id. id. , xviii. 27: "Quantum-
cunque enim est imperium et jus quod
alteri conceditur, minus tamen semper
est eo quod eoncedens sibi reservavit.
. . . 28. Transfertur vero in hosce
administratores et rectores a membris
universalis consociationis sola potest us
secundum justas leges administrandi
ot regendi corpus, et jura universalis
hujus consociationis. . . . 32. Hoc
agens, minister Dei dicitur, Rom. c. 13.
. . . 37. Non est princeps supra legem,
sed leges supra principem. . . . 38. Nam
contra leges aliquid posse non est
potestatis, sed impotentiae nota. . . .
39. Undo et quod dicitur absoluta et
plonissima potestas principi concessa,
nulla est, nec esse potest. "
1 Bellarmine, ' Do Potestate Summi
Pontificis,' III. (p. 51): "Porro
quod scribit sanctus Grogorius datam
fuisse imperatori coelitus, non significat
imperatoriam potestatem esse imme-
diate a Deo, sed esse a Deo in eo sensu,
quo dicit apostolus ad Rom. xiii. , non
est potestas nisi a Deo. Omnis enim
potestas a Deo est; sod aliqua im-
mediate, ut Moisis, ut Sancti Petri, ut
Sancti Pauli; aliqua mediant, con-
sensu hominum, ut potestas Regum,
Consulum, Tribunorum--nam (ut Sanc-
tus Thomas docot in 2. 2. Q. 10. Art.
10. et Q. 12. Art. 2) dominia et princi-
patus humani, de jure humano sunt,
non de jure divino. " Cf. Id. id. , xxi.
(page 174). For the same principle as
held by Molina and Suarez, cf. pp. 343.
344.
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? chap, n. ]
373
THE PRINCE UNDER THE LAW.
and which is subject to no law, except that of God and of
nature, and to this power he gives the name of " Majestas. " 1
Bodin's work was published in French in 1576, but it is im-
portant to observe that some of the Huguenot pamphlets
were published a little earlier, or about the same time,
Hotman's ' Franco Gallia ' in 1573, the ' Droit des Magistrate'
in 1574, and the 'Arohon et Politie' in 1576, and in some of
these we find already developed a conception of a power
belonging to the community or its representative authority,
which is supreme over all other powers, even that of the king,
and this supreme authority they call the "SouveraineteV'
while they speak of the king as " Souverain. "
Hotman, in discussing the power of what he calls the
"Concile des Bstats," meaning the States General, maintains
that it had power to elect and to depose kings, and he goes on
to say that even after the election of the king, it reserved and
retained in its own hands the "sovereign authority" of the
government of the kingdom. 2
It is, however, in the 'Droit des Magistrate' of 1574 that
the distinction between the "Souverain" and the "Souver-
ainete- " is first carefully and completely drawn out. There
are magistrates or officers, who are indeed inferior to the
"Souverain," and are appointed by him, but do not properly
hold from the " Souverain," but from the "SouveraineteV'3
The distinction is clear, but is made even clearer when the
author adds that the "Souverain " himself, before he is put
in "real possession" of his sovereign administration, swears
fidelity to the "SouveraineteV'4 And again, empires and
1 Cf. pp. 418 fl.
* Hotman, 'Franco Gallia,' zz.
(in 'Memoires de l'Estat,' vol. i. p.
712): "Quo plus est, mesme apre? s
I'election du roi, le Concile se reservoit
encores et retenoit par devers soy la
souverame authorite? du gouvernement
des affaires du Royaume. "
? "Du Droit des Magistrats " (ed. in
'Memoires de l'Estat,' vol. ii. p. 748:
"Or faut-il entendre que tous ceux cy
(the magistrates) encores quils soyent
au-dessous de leur souverain (duquel
aussi ils recoyvent commandement, et
lequel les installe et approuve) toutes
fois ne de? pendent proprement du
souverain, mais de la souverainete. "
1 Id. id. , vol. ii. p. 748: "Le
souverain mesmos, avant qu'estre mis
en vraye possession de son administra-
tion souveraine, jure fidelite a la
souverainete? , sous les conditions ap-
poseee a son serment. "
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? 374
[PABT IV.
THE LATER SIXTEENTH CENTURY.
kingdoms are fiefs, which owe homage and fidelity to the
"Souverainete? . " 1
These are trenchant sayings, and the conception of the
king as a vassal of the " Souverainete? " is unusual, to say the
least, though not unintelligible; but what we are here con-
cerned with is the sharp distinction between the king who is
"Souverain," and some greater authority behind him, which
holds the " Souverainete? ," for there are those who represent
the " Souverainete? " and it is for them to provide for the tenure
of the sovereign's fief, if he has lost it by his offences against
his subjects. 2 The king or "Souverain" is not above the
laws, but is subject to them, for he has sworn to maintain
and defend them. 3 While it is not lawful for any private
person to resist the tyrant, there are magistrates, inferior
indeed to him, but whose function it is to act as bridles and
restraints upon the sovereign magistrate. There are such
officers in several Christian kingdoms, such as dukes, mar-
quesses, counts, &c. ; they were formerly " estats et charges
publiques," and were appointed "par ordre legitime," and
though these offices have become hereditary, the nature of
their right and authority has not changed: such are also
the elective officers of the cities, such as mayors, consuls,
syndics, &c*
1 Id. id. , vol. ii. p. 776: "Outre
tout cela, puisque les royaumes et
empires mesmes sont fiefs, devons
hommages et services a` la souverainete? .
2 Je di donc au cas ou` nous sommes,
qu'un roi, ou me^me un Empereur,
relevant de la souverainete? , commet-
tant felonie contre ses vassaux, assavoir
ses sujets (ce que jamais ne puisse
advenir) perd son fief, non pour e^tre
adjudge? aux vassaux, mais pour y
e^tre pourvu par ceux qui repre? sentent
la souverainete? . . . . Or est il ainsi
que l'Empereur mesmes, comme nous
l'avons cy devant note? , doit hommage
a` l'Empire, duquel il est le premier et
souverain vassal (ce que doit estre
encores a` plus forte ou pour le moins
aussi forte raison estime? de li con-
dition des Roys a` l'endroit du
Royaume). "
* Id. id. (p. 750): "Car pour certain
c'est une parole tre`s fausse, et non
poinct d'un loyal sujet a` son prince,
mais d'un de? testable flatteur, de dire
que les souverains sont contraints a`
nulles lois. Car, au contraire, il n'y
en a pas une, par laquelle il ne
doyve et soit tenu de regler son
gouvernement, puis qu'il a jure?
d'estre le mainteneur et protecteur de
toutes. "
This is followed by a citation of the
'Digna Vox' (Cod. I. xiv. 4) and the
story of Trajan giving the sword to be
used against him if nocessary.
4 Id. id. (p. 746): "Il n'est licite
a` aucun particulier d'opposer force a`
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? chap, n. ]
375
THE PRINCE UNDER THE LAW.
It is of these officers that the author of the treatise says, as
we have seen, that they hold not from the " Souverain " but
from the "Souverainete? ," to which the "Souverain" himself
has sworn fidelity; and he goes on to say that there is a
mutual obligation between the king and these officers of the
kingdom, for the whole government is not in the hands of the
king, but only the "souverain degre? " of the government,
while each of these inferior officers has his part in it according
to his rank. 1
The pamphlet generally known as 'Archon et Politie,'
which was published in 1576, represents the same conception.
In discussing the limitations on the arbitrary power of the
prince it says that there are inferior authorities, "deputies"
of the people; these create the prince and can depose him,
and they would be traitors to their country if they suffered
the "principaute? " to become a tyranny. They, as " souver-
ains magistrats," are above the prince (in their public capacity),
while as private persons they are below him. 2 And again,
la force du tyran, de son authorite?
privee. "
Id. id. (p. 745): "Tiercement, il
y en a d'autres, lesquels encores qu'ils
n'ayent la puissance souveraine et
ordinaire a` manier, toutes fois sont
ordonnez pour servir comme de brides
et freins au souverain magistrat. "
Id. id. (p. 747): "Je viens mainte-
nant aux magistrats inferieurs.
