J
63
THE AUTHORITY OF THE RULER.
63
THE AUTHORITY OF THE RULER.
Thomas Carlyle
.
.
p.
26.
Sio inquam gracia requiritur ad usum,
et per consequens ad omne verum
dominium. "
? Id. id. , i. 6 (p. 46): "Sed loquendo
de habitudine que foret dominium, quia
non existit (licet deceptis appareat
ipsum esse), concedendum est simpli-
citer quod injustus non habet domi-
nium, licet habeat bona naturalia,
modo improprio, ut est dictum: et
patet conclusio de carencia dominii
? ? peccatoris. "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, ni. ]
59
THE AUTHORITY OF THE RULER.
him. 1 His meaning is perhaps best illustrated by his comment
on the saying of Christ: There is no man that has left house
or brothers, &c. , for my sake and for the gospel's 6ake, but
he shall receive a thousandfold now in this time, &c. This,
Wycliffe says, must be interpreted spiritually. 2
It is from this standpoint that we must understand Wycliffe's
treatment of the community of goods. His meaning is only
understood when we observe his mode of stating it. Every
man, he says, ought to be in grace, and if he is in grace, he
is lord of the world and all that it contains; therefore every
man ought to be lord of all (universitatis); but this would
be impossible with a multitude of men, unless they had all in
common, therefore all things ought to be common. 3 Christ,
in confirmation of this, rejected (individual) property,
and had all temporal things in common with his disciples;
and after his ascension, all things were common to his
disciples. *
That he does not mean by this that individual property
was to be rejected in the world as it actually is, is evident from
his account in another chapter of the origin of 'Dominium
Civile. ' In his judgment 'Dominium Civile' was instituted
1 Id. id. , i. 7 (p. 47): "Come,
qoenter ad dicta reetat ostendere quod
quilibet justus dominatur toti mundi
senaibili . . . nec turbetur justus quod
Don habet civile dominium in hiia bonis,
quia revero non proficeret sed noceret. "
* Id. id. , i. 7 (p. 51): "Nec dubium
quin i,ta sit conclusio veritatis, quod
omnia relinquens universitatom tern-
poralium, propter Christum in affec-
cione debita debite preponendum, habet
ex adieccione consequenti omnia ilia
melius quam esset possibilo habere ilia
amore prepoetero; unde Marc, x. 29,
? 0 ac testatur: 'Amen dico vobis,
nemo eat qui dimisit domum aut
fr&tres, ete. . . . qui non accipiet
csscies tantum nunc in tempore hoc
domos, ete. . . . (p. 52). Unde quod
1piritualiter debet textus Marci intelligi,
P*tet ex hoc quod nemo ambigit quin
non consequatur virum evangelicum
ex tali commutacione, sequendo Chris-
tum cencies tantum de fratibus, ete. "
1 Id. id. , i. 14 (p. 96): "Pro cuius
intellectu sunt tria dicenda per ordi-
nem: primo quod omnia bona Dei
debent esso communia. Probatur sic:
omnis homo debet esse in grat ia, et si
est in gracia est dominus mundi cum
suia contentis, ergo omnis homo debet
esse dominus universitatis: quod non
staret cum multituuine hominum, nisi
omnes illi deberent habere omnia in
communi; ergo omnia debent esse
communia. "
1 Id. id. , i. 14 (p. 96): "In eujus
confirmacionem Veritas cum suis dia-
cipulis aufugit propriotatom sod habuit
temporalia in communi (ut patet poa-
terius), et post ejus ascensionem erant
eius discipulis omnia communia, 'di-
vide bat ur enim singulis pro ut cui-
? ? cunque opus erat' (Acts v. 35). "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 60
[PART I.
FOURTEENTH CENTURY.
by man on account of sin 1; and a little later he says that,
assuming the fall of the human race, it was necessary to
establish human laws and ordinances, lest a man should take
of the goods of fortune whatever he might wish. 2
It is therefore, we think, clear that when Wycliffe says of
the man who is in mortal sin, or is not in " grace " or " charity,"
that he has not "dominium,'' he means that he has neither
political authority nor property in the full and proper spiritual
sense, but he does not mean that he cannot have these in the
ordinary or legal sense. Political authority and private pro-
perty are institutions which men have been compelled to
create by the fall, by the corruption and vice of human nature,
as it actually is. They are therefore to be regarded as con-
ditions of man's sinfulness.
It is interesting to observe that at first sight Wycliffe's
doctrine of " dominium," as belonging only to men in a state
of grace, seems closely parallel to the principles set out early
in the fourteenth century by two extreme papalists, Egidius
Colonna and James of Viterbo. Egidius maintained that no
one could hold political authority, or private property, who
was an infidel or outside of the communion of the Church.
James of Viterbo mitigated Egidius' political doctrine, but
held that no one could hold private property, "secundum ius
divinum," who was not subject to the Spiritual Power. '
The contention of Egidius was extreme and revolutionary in
character; it was intended to support the most extreme
doctrine of the supremacy of the Spiritual over the Temporal
Power, even in Temporal things; while the doctrine of
Wycliffe had no such revolutionary character.
It is evident that Wycliffe's treatment of "dominium"
is in principle closely related to that of Eichard Fitz Ealph,
the Archbishop of Armagh, in his treatise 'De Pauperie
1 Id. id. , i. 18 (p. 127): "Idoo satis precipue innitendi, necesse fuit leges
signanter dicitur quod dominium civile vel ordinaciones humanas statuere,
oocssiono peccati humanitua inetitu- ne quilibet lapsus do bonis fortunao
tum. " cape ret quantumcunque voluntas in-
1 Id. id. , i. 18 (p. 128): "Unde, debite inclinaret. "
supposito lapsu humani generis et >> Cf. vol. v. pp. 402-417.
ceoitate proclivi bonis sensibilibus
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, m. ]
61
THE AUTHORITY OF THE RULER.
Salvatoris. ' This treatise was probably written between
1350 and 1356, and arose out of the woik of a commission
appointed by Pope Clement VI. to inquire into the disputes
as to the nature of the poverty of our Lord. 1 The Archbishop,
finding the discussion protracted and inconclusive, prepared
a treatise on the whole subject, which includes a detailed
discussion of the meaning of " dominium. " He lays down the
general principle that no one can be said to have "istud
dominium" unless he is purged from sin and has received
grace 1; but this does not mean that the sinner has lost his
natural" titulus " to the use of things 3; and in later passages
Eichard says that the right to the use of things needed to be
safeguarded by "positive " law, and defines the "dominium
positivum" as the right of a man to possess and to use rationally
those things which are subjected to him by "positive" law. *
This seems to be substantially the same position as that of
Wycliffe. It appears to us that their conceptions of "domi-
nium" added little or nothing to the mediaoval theory of
political authority and of private property, that is that neither
of these belonged to the state of innocence, but that they were
the results of the fall, and remedies for it.
1 Cf. Wycliffe: 'De Dominio
Divino. ' Ed. R. L. Poole. Preface, p.
xxxv.
* Richard of Armagh: 'De Pau-
peris Salvatoris,' ii. 8 (p. 348). (Ed.
R. L. Poole, as above. ) "Unde nullus
de stirpe ipeius primi parentis geminalis
fUius, donee a peccato mundetur et
gratiam gratificantom reciperet, istud
dominium potest reeipere seu habere. "
* Id. id. , ii. 21 (p. 363): "Venim est
tamen quod, perdito isto origiuali
dominio per peccatum. . . . Nihilo-
minus tamen material is causa dominii
ipeius remanet in peccante, quoniam
quantumcunque homo delinqust sempor
in ymagine pertransit (intelligo, crea-
toris): ymago vero cum indigencia
corporali (ut su peri us est cxpressum)
est causa quasi materialis istius origi-
nalis dominii: et ob hoc quidam
titulus naturalis licet deformis ad ueum
rerum remanet in peccante, quamvis
dominium per amissionem sui formalis
principii amittatur. "
4 Id. id. , ii. 25 (p. 369): "Cnde
primogenitus Adam, Cayu ex hao
cupiditate invidia stimulatus justum
Abel fratrem suum ocoidit: propter
quem et alios similes tunc futures lex
posit iva necessaria extitit. . . . Ut alii
viam vite sequentes bonis propter eos
creatis liberius uti possent. " Id. id. ,
iv. 3 (p. 440): "Johannes: Jam poto
ut ilia michi dominia positive quo in
primi libri principio nominasti in genere
michi describas. Ricardus: Omnium
dominorum adventiciorum goncrulis
descripcio patet esse rationalis creature
mortalis jus sive radicalis auctoritas
acquisita civiliter possidendi res illi lege
possitiva subjects* et eis plene utendi,
? ? conformiter racioni. "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 62
[PABT 1.
FOURTEENTH CENTURY.
We have felt ourselves compelled to give a considerable
space to the discussion of Wycliffe's political conceptions,
because there has been much controversy about his real
meaning.
As we have just said, it seems to us that his conception of
"dominium" had little real significance, at least in political
theory, and there is nothing new in his conception of the source
of political authority. He evidently accepted the normal
principle of the Middle Ages, that political authority was
derived ultimately from God, but immediately from the
community. When, however, we turn to his conception of the
nature of this authority we find that Wycliffe reasserted that
conception of the duty of absolute obedience to the prince,
and of the wickedness of resistance, which, as we have often
pointed out, was dogmatically stated by Gregory the Great,
but had practically disappeared in the Middle Ages, being
asserted only by a few writers like Gregory of Catino in the
eleventh century. 1 Wycliffe in the ' De Officio Eegis ' states
this dogmatically and without qualification. 2 He held, no
doubt, that the prince ought to obey the law, but, like many
of the Civilians, when they interpreted the "Digna Vox " of
'Cod. ' i. 14, 4, he thought that the obedience of the prince
should be voluntary and was not compulsory.
We shall have much to say in later chapters of this volume
about the development of the conception of the "Divine
Eight"; in the meantime it is obviously important to observe it
in Wycliffe.
It is evident that the writers with whom we have dealt in
this chapter approach the question of the nature of the
authority of the ruler or prince from different points of view,
and that they differ to a considerable extent in their judgment
upon particular questions. If, however, we omit Wycliffe,
whose work indeed cannot well be brought into line with that
of the others, they seem clearly to agree with each other, and
>> Of. vol. i. p. 192; vol. iii. part i. ? Cf. pp. 53-56.
chap. 4.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap. ni.
J
63
THE AUTHORITY OF THE RULER.
with the normal character of mediaeval political thought, in
holding that the authority of the prince was derived from the
community, that it was limited by the law, and that, in the last
resort, the community could resume the authority which it
had given, and. depose the prince who was incompetent or who
wilfully ajid persistently disregarded the law.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 64
CHAPTER IV.
THE NATURE OF THE AUTHORITY OF THE RULER:
CONSTITUTIONAL PRACTICE.
We must turn to the question of the actual nature of the
constitutional practice of Western Europe in the fourteenth
century, and we shall do well to begin by reminding ourselves
of the great importance of the feudal background of the
development of the political constitutions in Western Europe,
and especially of the great importance of the principle that
the authority of the feudal lord was not only limited by law,
but that, in cases of dispute between lord and vassal, the
declaration of the law belonged not to the lord but to the
oourt of the vassals. 1
We may take one or two important examples of the con-
tinuance of this principle in the history of France in the
fourteenth century. The first is the case of Count Eobert of
Flanders in the year 1315. Proceedings were taken against
him before the king's court in Paris, "afforce " by the great
nobles and bishops, and the judgment is represented as being
that of the peers, "et de la cour garnie. " 2 The other is
the case of the Duke of Brittany in 1378. Proceedings were
taken before the king and his " Parlement " in Paris, to which
the peers of France were summoned, and as it is said, the
peers protested that the judgment belonged not to the king
but to themselves. 3
We shall, however, recognise more fully the importance
of the limitations of the prince's authority by the law, when
1 Cf. vol. iii. part i. chap. iv. iii. , No. 491 (pp. 98-102).
>> ' Kocuoil des Anoiennes Lois,' vol. * Id. , vol. v. p. 493.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. IV. ] THE RULER: CONSTITUTIONAL PRACTICE.
65
we consider the frequent references to the principle that no
proceedings can be taken against the person or property of
the subject except by process of law. There is a significant
statement of this in France in an ordinance of Louis X. of
the year 1315. The king's "Baillis," "Prevoz," and other
"Justiciers" are forbidden to seize or imprison any person
or his goods until he has been condemned, and if he demands
"droit" he is to receive this by the men of the " Chastellenie"
in which he lives, according to the usages and customs of the
country. 1 There is an example of this same principle in the
"contirmatio privilegiorum " of Dauphins' issued by Charles V.
in 1367; no "inquisitio " is to be made against any of the
inhabitants of Dauphine except in the case of notorious and
grave crimes, unless there is a legal accuser, but even
these grave crimes must be understood and declared in
accordance with the laws. 2
We find the same principle continually maintained by the
CorteB, and recognised by the king in Castile. In the Cortes
of Valladolid of 1325 the Cortes demanded that no "carta
blanca" should be issued, and the king replied that he
would not issue them, but adds that, if it should be
necessary to do so, in order to seize some evildoers, the
persons thus seized shall not be killed or injured, nor shall
their property be taken until they have been heard and judged
according to "fuero" and law. 3 In the Cortes of Valladolid
1 Id. , vol. iii. 484, 2 (p. 68): legitimus accusator vel denuntiator;
"Nous voullons et octroions que noz et eo oasu reddi debeant articuli in-
bailliz, prevoz, et autres justiciers, de quisitionis predicto accusato, antequam
leur volonte? , no de leur office, ne puis- respondere quomodolibot compellatur;
sent aucun approchier, sans aucun fait, except is tamen gravioribus crinunibus,
de tenir, ne emprisonner, ne faire in quibus possit quandocunque, contra
execution en ses biens, dovant que il quemcunque inquiri ex officio curiae
soit condampnez, mes que se i l requiert Delphinalis; quae quidem, graviora,
droit, que tantost lui soit faiz, par les voluit ipse Dominus Delphinus, in-
hommes de la Chastellenie, oii il serai t telligi secundum leges et etiam de-
couchant et levant, selon les us et clarari. "
coustumes du pays. " * 'Cortes of Castile and Leon,' i.
* Id. , vol. v. 411, 16 (p. 287): 45, 3: "Pero ssi per auentura acaes-
"Quod nulla inquisitio contra ipsos ciere que non pueda escusar de dar
(ubditos Delphinatus aut aliarum ter- carta o aluala para prender algun
rarum suarum, fieri debeat, neque fiat malffochor o malffechores, que aquel
in non notoriis crinunibus, nisi ap parest o aquellos quae ffueren presos per
VOL. VI. E
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 66
[FABT I.
FOURTEENTH CENTURY.
of 1351 the Cortes demanded that no man should be killed
or taken prisoner without an inquiry, according to "fuero"
and law; and the king, Pedro I. , assented and promised to
instruct his officers that they were not to kill or injure anyone
without "razon" and law. 1 This promise was emphatically
renewed by Henry II. at the Cortes of Toro in 1371. The
"merynos majores" and others are not to kill or imprison
except by the judgment of the alcaldes, as was ordered by
King Alfonso in the Cortes of Madrid,2 and in another clause
a similar provision was demanded by the Cortes and granted
by the king, with regard to a man's property. 3 A similar
condition was imposed by the Cortes of Madrid in 1391 upon
the Eegency appointed for the minority of Henry HI. *
It is hardly necessary to argue that the same principle was
continually maintained in England. Bishop Stubbs has dealt
with the matter carefully in his Constitutional History of
England, and we only cite one or two of the passages in the
Eolls of Parliament to which he refers, in order to illustrate
the mode in which the subject was treated. 5
tal carta o por tal almila, que non esta ordenado por el Rey Don Alfonso
nuestro Padre, en las Cortes que fizo
en Madrit. "
* Id. , ii. 14, 26: "Alo que nos ped-
ieron por merced que non mandassemos
prender nin matar nin lisiar nin des-
pechar nin tomar a ninguno, ninguna
cosa delo suyo, sin ser ante llamados
e oydos e vencidos por fuero e por
derecho, por querella nin por querellas
que nos fuessen dadas segunt que esto
estaua ordenado por el re Don Alfonso
nuestro Padre, que Dios perdona, en
las cortes que fizo en Valladolid despues
que fue de hedat. "
A esto respondemos que es grande
nuestro servicio et que nos plazo.
4 Id. , ii. 39, 9: "Otrossy non daran
cartas para matar nin lisiar nin des-
terrar a ningund ome, mas que sea
judgado por sus alcalles. "
? 'Rolls of Parliament,' ii. 228,
239, 270, 280; Statutes, i. 382. Stubbs,
'Constitutional History of England,'
ed. 1877. vol. ii. p. 607.
muertos nin lisiardos nin
despechados, nin tomado ninguna
cosa del suyo, fasta que sean ante
oydos e librados por ffuero e por
derecho. "
'Id. , ii. 1, 21: "Nin maten, nin
manden prender los omes non a viendo
y pesquissa que sea ffocha con fuero e
con derecho contra ellos, o querella,
o accusacion cierta por que deuan ser
presos. " (Tho king replies): "Tengo
por bien e mando al os mis adelantados
e merynps, e alcalles e alos otros
omciales que non prenden nin lisien,
nin tormenten, nin maten a ninguno
ssin razon e ssin derecho. "
* Id. , ii. 13, 19: "Otrosi quelos mery-
nos mayores et los merynos que por
si posieren en el caso dicho es de ssuso
que non maten, nin ssuelten, nin
prendan los omes nin los cohechen nin
los manden prendar nin tomar nin
? ? coherchan, sinon por juizio delos
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. IV. ] THE RULER: CONSTITUTIONAL PRACTICE. 67
The truth is that there was nothing new in this. We have
pointed out in previous volumes thatfthe principle that the
authority of the king was limited by the law with respect to
the property and person of his subjects was part of the normal
conception of the Middle Ages,1 and the constitutional prac-
tice of the fourteenth century corresponds with this. That
does not, of course, mean that the legal principles were not
frequently violated by the rulers; on the contrary, it was
often their violation or neglect which was the occasion of
their affirmation.
The question of the limitation of the royal authority with
regard to private property leads us to another and equally
important aspect of the constitutional practice of the four-
teenth century, and that is to the question of taxation. This
Bubject is, however, so closely related to the development of
representative institutions that we have thought it better to
postpone our discussion of it to a later chapter (VI. ), where
we deal with it in detail. Here we need only say that it
seems to us clear that the limitation of the authority of the
king with regard to taxation was an essential part of the
constitutional tradition and practice both of France and of
Castile in the fourteenth century.
We find some examples of the continuance of what we
have called the contractual conception of the relation
of the ruler and his subjects in the fourteenth century.
We have dealt with this in earlier volumes, and have
pointed out that this was really implied in the whole feudal
atructure of society. 2 The first of these is to be found
in the detailed statement of the conditions under which the
inhabitants of Dauphine? were to accept the Dauphin on his
accession. Charles V. of France in 1367 issued a charter
confirming the privileges and liberties of the people of
Dauphine^ in terms which are significant and important.
When the new Dauphin or his successor comes to assume
the rule of Dauphine? , before he can compel any individual or
'Cf. especially vol. iii. part i. ? Cf. vol. iii. part i. chaps. 2 and 4;
chap. 4; vol. v. part i. ohap. 7. part ii. chap. 6.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 68
[PABT I.
FOURTEENTH CENTURY.
"communitas " to do him homage or "recognition " he must
swear that he will maintain inviolably all the franchises,
liberties, and privileges which are mentioned in this docu-
ment. The barons, nobles, and " communitates " of Dauphine?
are not bound to obey either him or any of his officials
until he has taken the oath in a public form and manner. 1
As though this were not sufficiently drastic, the next clause
adds that all the "baillis," the judges, the procurators and
"castellani" of Dauphine? must in like manner swear that
they will maintain and observe all these liberties, &c, and
if any of them refuse to do this no man need obey them.
If any of them should violate these oaths, he is to be punished
as a perjurer, and in addition must repay any expenses which
the nobles, or communities, or individual persons have incurred
in the measures they have taken against him. 2
1 Recueil, vol. v. , No. 411, 52
(p. 291): "Quandocunque . . . novus
Delphinus vel successor ejus, veniet
ad successionem vel regimen Delphin-
atus, antequam ad homagia seu re-
cognitions feudorum recipienda seu
recipiendas quovismodo procedat, et
antequam aliter compellere possit ali-
quem singularem personam vel Uni-
vorsitatem ad praestandum et facien-
dum sibi homagia, fidelitates seu re-
cognitiones, jurare debet primitus.
. . . Servare, custodire, et attendere
inviolabiliter praemiasas omnes et
singulas declarationes, franchesias,
libertates, ac gratias et privilegia
supra scripta, in omnibus et singulis
clausulis et capitalis eorundem: et si
ita esset, quod in principio regiminis,
ut predicitur . . . praedictum sacra-
mentum facere recusaret, eo casu,
barones, nobiles et universitates qui-
cunque Dclphinatus et cujuslibet ejus
partis, et aliarum terrarum suarum,
eidem novo Domino successori vel
officialibus suis, obedire minime
teneantur, impune, donoo predictum
sacramentum praestiterit et focerit
publico et per publicum instrumentum. "
? Id. id. id. , 53 (p. 291): "Con-
cessit, decrevit, et declaravit supra
dictus dominus Delphinus, quod omnes
et singuli ballivi, judices, procuratoros
et castellani Dclphinatus . . . tene-
antur et debeant, ac efficaciter sint
astricti jurare ad sancta dei Evangelia,
praemissas libertates, franchesias, im-
munitates et declarationes omnes et
singulas . . . tonacitor custodire et
inviolabiter observare: et si, modo
debito requisiti, quilibet eorum dictum
sacramentum facere et praestare pub-
lice reousaront, impune non pareatur
cuilibet recusanti: et si, quod absit,
aliquis ex dictis officialibus predictis,
libertates privilegia, concessiones vel
declarationes in toto vel in parte
quomodolibet violaret out infringeret
quoquomodo, ubi convictus erit dictus
officialis de violatione predicta, teneatur
et debeat expensas factas per barones,
? ? banneretes, vavassores, nobiles, uni-
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle.
Sio inquam gracia requiritur ad usum,
et per consequens ad omne verum
dominium. "
? Id. id. , i. 6 (p. 46): "Sed loquendo
de habitudine que foret dominium, quia
non existit (licet deceptis appareat
ipsum esse), concedendum est simpli-
citer quod injustus non habet domi-
nium, licet habeat bona naturalia,
modo improprio, ut est dictum: et
patet conclusio de carencia dominii
? ? peccatoris. "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, ni. ]
59
THE AUTHORITY OF THE RULER.
him. 1 His meaning is perhaps best illustrated by his comment
on the saying of Christ: There is no man that has left house
or brothers, &c. , for my sake and for the gospel's 6ake, but
he shall receive a thousandfold now in this time, &c. This,
Wycliffe says, must be interpreted spiritually. 2
It is from this standpoint that we must understand Wycliffe's
treatment of the community of goods. His meaning is only
understood when we observe his mode of stating it. Every
man, he says, ought to be in grace, and if he is in grace, he
is lord of the world and all that it contains; therefore every
man ought to be lord of all (universitatis); but this would
be impossible with a multitude of men, unless they had all in
common, therefore all things ought to be common. 3 Christ,
in confirmation of this, rejected (individual) property,
and had all temporal things in common with his disciples;
and after his ascension, all things were common to his
disciples. *
That he does not mean by this that individual property
was to be rejected in the world as it actually is, is evident from
his account in another chapter of the origin of 'Dominium
Civile. ' In his judgment 'Dominium Civile' was instituted
1 Id. id. , i. 7 (p. 47): "Come,
qoenter ad dicta reetat ostendere quod
quilibet justus dominatur toti mundi
senaibili . . . nec turbetur justus quod
Don habet civile dominium in hiia bonis,
quia revero non proficeret sed noceret. "
* Id. id. , i. 7 (p. 51): "Nec dubium
quin i,ta sit conclusio veritatis, quod
omnia relinquens universitatom tern-
poralium, propter Christum in affec-
cione debita debite preponendum, habet
ex adieccione consequenti omnia ilia
melius quam esset possibilo habere ilia
amore prepoetero; unde Marc, x. 29,
? 0 ac testatur: 'Amen dico vobis,
nemo eat qui dimisit domum aut
fr&tres, ete. . . . qui non accipiet
csscies tantum nunc in tempore hoc
domos, ete. . . . (p. 52). Unde quod
1piritualiter debet textus Marci intelligi,
P*tet ex hoc quod nemo ambigit quin
non consequatur virum evangelicum
ex tali commutacione, sequendo Chris-
tum cencies tantum de fratibus, ete. "
1 Id. id. , i. 14 (p. 96): "Pro cuius
intellectu sunt tria dicenda per ordi-
nem: primo quod omnia bona Dei
debent esso communia. Probatur sic:
omnis homo debet esse in grat ia, et si
est in gracia est dominus mundi cum
suia contentis, ergo omnis homo debet
esse dominus universitatis: quod non
staret cum multituuine hominum, nisi
omnes illi deberent habere omnia in
communi; ergo omnia debent esse
communia. "
1 Id. id. , i. 14 (p. 96): "In eujus
confirmacionem Veritas cum suis dia-
cipulis aufugit propriotatom sod habuit
temporalia in communi (ut patet poa-
terius), et post ejus ascensionem erant
eius discipulis omnia communia, 'di-
vide bat ur enim singulis pro ut cui-
? ? cunque opus erat' (Acts v. 35). "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 60
[PART I.
FOURTEENTH CENTURY.
by man on account of sin 1; and a little later he says that,
assuming the fall of the human race, it was necessary to
establish human laws and ordinances, lest a man should take
of the goods of fortune whatever he might wish. 2
It is therefore, we think, clear that when Wycliffe says of
the man who is in mortal sin, or is not in " grace " or " charity,"
that he has not "dominium,'' he means that he has neither
political authority nor property in the full and proper spiritual
sense, but he does not mean that he cannot have these in the
ordinary or legal sense. Political authority and private pro-
perty are institutions which men have been compelled to
create by the fall, by the corruption and vice of human nature,
as it actually is. They are therefore to be regarded as con-
ditions of man's sinfulness.
It is interesting to observe that at first sight Wycliffe's
doctrine of " dominium," as belonging only to men in a state
of grace, seems closely parallel to the principles set out early
in the fourteenth century by two extreme papalists, Egidius
Colonna and James of Viterbo. Egidius maintained that no
one could hold political authority, or private property, who
was an infidel or outside of the communion of the Church.
James of Viterbo mitigated Egidius' political doctrine, but
held that no one could hold private property, "secundum ius
divinum," who was not subject to the Spiritual Power. '
The contention of Egidius was extreme and revolutionary in
character; it was intended to support the most extreme
doctrine of the supremacy of the Spiritual over the Temporal
Power, even in Temporal things; while the doctrine of
Wycliffe had no such revolutionary character.
It is evident that Wycliffe's treatment of "dominium"
is in principle closely related to that of Eichard Fitz Ealph,
the Archbishop of Armagh, in his treatise 'De Pauperie
1 Id. id. , i. 18 (p. 127): "Idoo satis precipue innitendi, necesse fuit leges
signanter dicitur quod dominium civile vel ordinaciones humanas statuere,
oocssiono peccati humanitua inetitu- ne quilibet lapsus do bonis fortunao
tum. " cape ret quantumcunque voluntas in-
1 Id. id. , i. 18 (p. 128): "Unde, debite inclinaret. "
supposito lapsu humani generis et >> Cf. vol. v. pp. 402-417.
ceoitate proclivi bonis sensibilibus
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap, m. ]
61
THE AUTHORITY OF THE RULER.
Salvatoris. ' This treatise was probably written between
1350 and 1356, and arose out of the woik of a commission
appointed by Pope Clement VI. to inquire into the disputes
as to the nature of the poverty of our Lord. 1 The Archbishop,
finding the discussion protracted and inconclusive, prepared
a treatise on the whole subject, which includes a detailed
discussion of the meaning of " dominium. " He lays down the
general principle that no one can be said to have "istud
dominium" unless he is purged from sin and has received
grace 1; but this does not mean that the sinner has lost his
natural" titulus " to the use of things 3; and in later passages
Eichard says that the right to the use of things needed to be
safeguarded by "positive " law, and defines the "dominium
positivum" as the right of a man to possess and to use rationally
those things which are subjected to him by "positive" law. *
This seems to be substantially the same position as that of
Wycliffe. It appears to us that their conceptions of "domi-
nium" added little or nothing to the mediaoval theory of
political authority and of private property, that is that neither
of these belonged to the state of innocence, but that they were
the results of the fall, and remedies for it.
1 Cf. Wycliffe: 'De Dominio
Divino. ' Ed. R. L. Poole. Preface, p.
xxxv.
* Richard of Armagh: 'De Pau-
peris Salvatoris,' ii. 8 (p. 348). (Ed.
R. L. Poole, as above. ) "Unde nullus
de stirpe ipeius primi parentis geminalis
fUius, donee a peccato mundetur et
gratiam gratificantom reciperet, istud
dominium potest reeipere seu habere. "
* Id. id. , ii. 21 (p. 363): "Venim est
tamen quod, perdito isto origiuali
dominio per peccatum. . . . Nihilo-
minus tamen material is causa dominii
ipeius remanet in peccante, quoniam
quantumcunque homo delinqust sempor
in ymagine pertransit (intelligo, crea-
toris): ymago vero cum indigencia
corporali (ut su peri us est cxpressum)
est causa quasi materialis istius origi-
nalis dominii: et ob hoc quidam
titulus naturalis licet deformis ad ueum
rerum remanet in peccante, quamvis
dominium per amissionem sui formalis
principii amittatur. "
4 Id. id. , ii. 25 (p. 369): "Cnde
primogenitus Adam, Cayu ex hao
cupiditate invidia stimulatus justum
Abel fratrem suum ocoidit: propter
quem et alios similes tunc futures lex
posit iva necessaria extitit. . . . Ut alii
viam vite sequentes bonis propter eos
creatis liberius uti possent. " Id. id. ,
iv. 3 (p. 440): "Johannes: Jam poto
ut ilia michi dominia positive quo in
primi libri principio nominasti in genere
michi describas. Ricardus: Omnium
dominorum adventiciorum goncrulis
descripcio patet esse rationalis creature
mortalis jus sive radicalis auctoritas
acquisita civiliter possidendi res illi lege
possitiva subjects* et eis plene utendi,
? ? conformiter racioni. "
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 62
[PABT 1.
FOURTEENTH CENTURY.
We have felt ourselves compelled to give a considerable
space to the discussion of Wycliffe's political conceptions,
because there has been much controversy about his real
meaning.
As we have just said, it seems to us that his conception of
"dominium" had little real significance, at least in political
theory, and there is nothing new in his conception of the source
of political authority. He evidently accepted the normal
principle of the Middle Ages, that political authority was
derived ultimately from God, but immediately from the
community. When, however, we turn to his conception of the
nature of this authority we find that Wycliffe reasserted that
conception of the duty of absolute obedience to the prince,
and of the wickedness of resistance, which, as we have often
pointed out, was dogmatically stated by Gregory the Great,
but had practically disappeared in the Middle Ages, being
asserted only by a few writers like Gregory of Catino in the
eleventh century. 1 Wycliffe in the ' De Officio Eegis ' states
this dogmatically and without qualification. 2 He held, no
doubt, that the prince ought to obey the law, but, like many
of the Civilians, when they interpreted the "Digna Vox " of
'Cod. ' i. 14, 4, he thought that the obedience of the prince
should be voluntary and was not compulsory.
We shall have much to say in later chapters of this volume
about the development of the conception of the "Divine
Eight"; in the meantime it is obviously important to observe it
in Wycliffe.
It is evident that the writers with whom we have dealt in
this chapter approach the question of the nature of the
authority of the ruler or prince from different points of view,
and that they differ to a considerable extent in their judgment
upon particular questions. If, however, we omit Wycliffe,
whose work indeed cannot well be brought into line with that
of the others, they seem clearly to agree with each other, and
>> Of. vol. i. p. 192; vol. iii. part i. ? Cf. pp. 53-56.
chap. 4.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? chap. ni.
J
63
THE AUTHORITY OF THE RULER.
with the normal character of mediaeval political thought, in
holding that the authority of the prince was derived from the
community, that it was limited by the law, and that, in the last
resort, the community could resume the authority which it
had given, and. depose the prince who was incompetent or who
wilfully ajid persistently disregarded the law.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 64
CHAPTER IV.
THE NATURE OF THE AUTHORITY OF THE RULER:
CONSTITUTIONAL PRACTICE.
We must turn to the question of the actual nature of the
constitutional practice of Western Europe in the fourteenth
century, and we shall do well to begin by reminding ourselves
of the great importance of the feudal background of the
development of the political constitutions in Western Europe,
and especially of the great importance of the principle that
the authority of the feudal lord was not only limited by law,
but that, in cases of dispute between lord and vassal, the
declaration of the law belonged not to the lord but to the
oourt of the vassals. 1
We may take one or two important examples of the con-
tinuance of this principle in the history of France in the
fourteenth century. The first is the case of Count Eobert of
Flanders in the year 1315. Proceedings were taken against
him before the king's court in Paris, "afforce " by the great
nobles and bishops, and the judgment is represented as being
that of the peers, "et de la cour garnie. " 2 The other is
the case of the Duke of Brittany in 1378. Proceedings were
taken before the king and his " Parlement " in Paris, to which
the peers of France were summoned, and as it is said, the
peers protested that the judgment belonged not to the king
but to themselves. 3
We shall, however, recognise more fully the importance
of the limitations of the prince's authority by the law, when
1 Cf. vol. iii. part i. chap. iv. iii. , No. 491 (pp. 98-102).
>> ' Kocuoil des Anoiennes Lois,' vol. * Id. , vol. v. p. 493.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. IV. ] THE RULER: CONSTITUTIONAL PRACTICE.
65
we consider the frequent references to the principle that no
proceedings can be taken against the person or property of
the subject except by process of law. There is a significant
statement of this in France in an ordinance of Louis X. of
the year 1315. The king's "Baillis," "Prevoz," and other
"Justiciers" are forbidden to seize or imprison any person
or his goods until he has been condemned, and if he demands
"droit" he is to receive this by the men of the " Chastellenie"
in which he lives, according to the usages and customs of the
country. 1 There is an example of this same principle in the
"contirmatio privilegiorum " of Dauphins' issued by Charles V.
in 1367; no "inquisitio " is to be made against any of the
inhabitants of Dauphine except in the case of notorious and
grave crimes, unless there is a legal accuser, but even
these grave crimes must be understood and declared in
accordance with the laws. 2
We find the same principle continually maintained by the
CorteB, and recognised by the king in Castile. In the Cortes
of Valladolid of 1325 the Cortes demanded that no "carta
blanca" should be issued, and the king replied that he
would not issue them, but adds that, if it should be
necessary to do so, in order to seize some evildoers, the
persons thus seized shall not be killed or injured, nor shall
their property be taken until they have been heard and judged
according to "fuero" and law. 3 In the Cortes of Valladolid
1 Id. , vol. iii. 484, 2 (p. 68): legitimus accusator vel denuntiator;
"Nous voullons et octroions que noz et eo oasu reddi debeant articuli in-
bailliz, prevoz, et autres justiciers, de quisitionis predicto accusato, antequam
leur volonte? , no de leur office, ne puis- respondere quomodolibot compellatur;
sent aucun approchier, sans aucun fait, except is tamen gravioribus crinunibus,
de tenir, ne emprisonner, ne faire in quibus possit quandocunque, contra
execution en ses biens, dovant que il quemcunque inquiri ex officio curiae
soit condampnez, mes que se i l requiert Delphinalis; quae quidem, graviora,
droit, que tantost lui soit faiz, par les voluit ipse Dominus Delphinus, in-
hommes de la Chastellenie, oii il serai t telligi secundum leges et etiam de-
couchant et levant, selon les us et clarari. "
coustumes du pays. " * 'Cortes of Castile and Leon,' i.
* Id. , vol. v. 411, 16 (p. 287): 45, 3: "Pero ssi per auentura acaes-
"Quod nulla inquisitio contra ipsos ciere que non pueda escusar de dar
(ubditos Delphinatus aut aliarum ter- carta o aluala para prender algun
rarum suarum, fieri debeat, neque fiat malffochor o malffechores, que aquel
in non notoriis crinunibus, nisi ap parest o aquellos quae ffueren presos per
VOL. VI. E
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 66
[FABT I.
FOURTEENTH CENTURY.
of 1351 the Cortes demanded that no man should be killed
or taken prisoner without an inquiry, according to "fuero"
and law; and the king, Pedro I. , assented and promised to
instruct his officers that they were not to kill or injure anyone
without "razon" and law. 1 This promise was emphatically
renewed by Henry II. at the Cortes of Toro in 1371. The
"merynos majores" and others are not to kill or imprison
except by the judgment of the alcaldes, as was ordered by
King Alfonso in the Cortes of Madrid,2 and in another clause
a similar provision was demanded by the Cortes and granted
by the king, with regard to a man's property. 3 A similar
condition was imposed by the Cortes of Madrid in 1391 upon
the Eegency appointed for the minority of Henry HI. *
It is hardly necessary to argue that the same principle was
continually maintained in England. Bishop Stubbs has dealt
with the matter carefully in his Constitutional History of
England, and we only cite one or two of the passages in the
Eolls of Parliament to which he refers, in order to illustrate
the mode in which the subject was treated. 5
tal carta o por tal almila, que non esta ordenado por el Rey Don Alfonso
nuestro Padre, en las Cortes que fizo
en Madrit. "
* Id. , ii. 14, 26: "Alo que nos ped-
ieron por merced que non mandassemos
prender nin matar nin lisiar nin des-
pechar nin tomar a ninguno, ninguna
cosa delo suyo, sin ser ante llamados
e oydos e vencidos por fuero e por
derecho, por querella nin por querellas
que nos fuessen dadas segunt que esto
estaua ordenado por el re Don Alfonso
nuestro Padre, que Dios perdona, en
las cortes que fizo en Valladolid despues
que fue de hedat. "
A esto respondemos que es grande
nuestro servicio et que nos plazo.
4 Id. , ii. 39, 9: "Otrossy non daran
cartas para matar nin lisiar nin des-
terrar a ningund ome, mas que sea
judgado por sus alcalles. "
? 'Rolls of Parliament,' ii. 228,
239, 270, 280; Statutes, i. 382. Stubbs,
'Constitutional History of England,'
ed. 1877. vol. ii. p. 607.
muertos nin lisiardos nin
despechados, nin tomado ninguna
cosa del suyo, fasta que sean ante
oydos e librados por ffuero e por
derecho. "
'Id. , ii. 1, 21: "Nin maten, nin
manden prender los omes non a viendo
y pesquissa que sea ffocha con fuero e
con derecho contra ellos, o querella,
o accusacion cierta por que deuan ser
presos. " (Tho king replies): "Tengo
por bien e mando al os mis adelantados
e merynps, e alcalles e alos otros
omciales que non prenden nin lisien,
nin tormenten, nin maten a ninguno
ssin razon e ssin derecho. "
* Id. , ii. 13, 19: "Otrosi quelos mery-
nos mayores et los merynos que por
si posieren en el caso dicho es de ssuso
que non maten, nin ssuelten, nin
prendan los omes nin los cohechen nin
los manden prendar nin tomar nin
? ? coherchan, sinon por juizio delos
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? CHAP. IV. ] THE RULER: CONSTITUTIONAL PRACTICE. 67
The truth is that there was nothing new in this. We have
pointed out in previous volumes thatfthe principle that the
authority of the king was limited by the law with respect to
the property and person of his subjects was part of the normal
conception of the Middle Ages,1 and the constitutional prac-
tice of the fourteenth century corresponds with this. That
does not, of course, mean that the legal principles were not
frequently violated by the rulers; on the contrary, it was
often their violation or neglect which was the occasion of
their affirmation.
The question of the limitation of the royal authority with
regard to private property leads us to another and equally
important aspect of the constitutional practice of the four-
teenth century, and that is to the question of taxation. This
Bubject is, however, so closely related to the development of
representative institutions that we have thought it better to
postpone our discussion of it to a later chapter (VI. ), where
we deal with it in detail. Here we need only say that it
seems to us clear that the limitation of the authority of the
king with regard to taxation was an essential part of the
constitutional tradition and practice both of France and of
Castile in the fourteenth century.
We find some examples of the continuance of what we
have called the contractual conception of the relation
of the ruler and his subjects in the fourteenth century.
We have dealt with this in earlier volumes, and have
pointed out that this was really implied in the whole feudal
atructure of society. 2 The first of these is to be found
in the detailed statement of the conditions under which the
inhabitants of Dauphine? were to accept the Dauphin on his
accession. Charles V. of France in 1367 issued a charter
confirming the privileges and liberties of the people of
Dauphine^ in terms which are significant and important.
When the new Dauphin or his successor comes to assume
the rule of Dauphine? , before he can compel any individual or
'Cf. especially vol. iii. part i. ? Cf. vol. iii. part i. chaps. 2 and 4;
chap. 4; vol. v. part i. ohap. 7. part ii. chap. 6.
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 68
[PABT I.
FOURTEENTH CENTURY.
"communitas " to do him homage or "recognition " he must
swear that he will maintain inviolably all the franchises,
liberties, and privileges which are mentioned in this docu-
ment. The barons, nobles, and " communitates " of Dauphine?
are not bound to obey either him or any of his officials
until he has taken the oath in a public form and manner. 1
As though this were not sufficiently drastic, the next clause
adds that all the "baillis," the judges, the procurators and
"castellani" of Dauphine? must in like manner swear that
they will maintain and observe all these liberties, &c, and
if any of them refuse to do this no man need obey them.
If any of them should violate these oaths, he is to be punished
as a perjurer, and in addition must repay any expenses which
the nobles, or communities, or individual persons have incurred
in the measures they have taken against him. 2
1 Recueil, vol. v. , No. 411, 52
(p. 291): "Quandocunque . . . novus
Delphinus vel successor ejus, veniet
ad successionem vel regimen Delphin-
atus, antequam ad homagia seu re-
cognitions feudorum recipienda seu
recipiendas quovismodo procedat, et
antequam aliter compellere possit ali-
quem singularem personam vel Uni-
vorsitatem ad praestandum et facien-
dum sibi homagia, fidelitates seu re-
cognitiones, jurare debet primitus.
. . . Servare, custodire, et attendere
inviolabiliter praemiasas omnes et
singulas declarationes, franchesias,
libertates, ac gratias et privilegia
supra scripta, in omnibus et singulis
clausulis et capitalis eorundem: et si
ita esset, quod in principio regiminis,
ut predicitur . . . praedictum sacra-
mentum facere recusaret, eo casu,
barones, nobiles et universitates qui-
cunque Dclphinatus et cujuslibet ejus
partis, et aliarum terrarum suarum,
eidem novo Domino successori vel
officialibus suis, obedire minime
teneantur, impune, donoo predictum
sacramentum praestiterit et focerit
publico et per publicum instrumentum. "
? Id. id. id. , 53 (p. 291): "Con-
cessit, decrevit, et declaravit supra
dictus dominus Delphinus, quod omnes
et singuli ballivi, judices, procuratoros
et castellani Dclphinatus . . . tene-
antur et debeant, ac efficaciter sint
astricti jurare ad sancta dei Evangelia,
praemissas libertates, franchesias, im-
munitates et declarationes omnes et
singulas . . . tonacitor custodire et
inviolabiter observare: et si, modo
debito requisiti, quilibet eorum dictum
sacramentum facere et praestare pub-
lice reousaront, impune non pareatur
cuilibet recusanti: et si, quod absit,
aliquis ex dictis officialibus predictis,
libertates privilegia, concessiones vel
declarationes in toto vel in parte
quomodolibet violaret out infringeret
quoquomodo, ubi convictus erit dictus
officialis de violatione predicta, teneatur
et debeat expensas factas per barones,
? ? banneretes, vavassores, nobiles, uni-
Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle.
