There is indeed nothing
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
Thomas Carlyle
, Q.
3, p.
100.
? Id. , Q. 3 (p. 142): "Ne vero
pecuniae in alium usum extorque-
antur, iurat Imperator, so nulla, nisi
conventus publici authoritate voctigalia
impositurum, tributave indicturum.
Idem reges Poloniae, Hungariae,
Daniae, Angliae consimiliter, ex lege
Eduardi primi. Francorum reges
olim in trium Ordinum conventu vecti-
galia imperabant. Unde onim est lex
Philippi Valesii, ne collectae indicantur,
nisi summa necessitate urgente, deque
Trium Ordinum consensu. "
3 Mariana, ' De Rege,' I. 3 (p. 36).
4 Cf. p. 376-77.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 495
king who becomes a tyrant, for it has retained in its own
hands an authority greater than that which it has delegated. 1
Mariana recognised indeed that there were some learned
men who denied this, and maintained that the king was
greater than the whole body of the citizens. He answered
that this was true only in nations where there was no public
assembly, where the people or the chief men never met to
deliberate on the affairs of the commonwealth, where men
were compelled to obey, whether the rule of the king was just
or unjust. He adds contemptuously that this was surely an
excessive authority, and very near a tyranny, and as Aristotle
had said might be found among barbarous peoples. We are,
however, he says, not concerned with barbarians but with
that form of government which exists among ourselves (in
Spain), and with the best and most wholesome form of
government. 2
? Id. id. , I. 8 (p. 70): "In aliis
provinoiis ubi minor populi auctoritas
est, Regiun maior: an idem iudicium
sit, et an rebus communibus id ex-
podiat considerandum est. Plerique
omnes Regem rectorem reipublicae
et caput esse concedunt, rebus gerendis
supremam et maximum auctoritatem
habere, sive bellum hostilibus indican-
dam sit, sive iura subditis in pace
danda. Neque dubitant maiorem
utu'us quam singulorum tum civium
tum populorum imperandi potestatem
esse.
Idem tamen, si respublica universa,
aut qui oius partes gerunt, sive primarii
ex omnibus ordinibus delecti, in unum
locum sententiamque conveniant, ne-
gant pari iubendi auctoritate Regem
fore. Quod experimonto comprobatur
in Hispania, vectigalia itnperare Regem
non posse populo dissentiente. Utetur
quidem ille arte, praemia civibus
ostentabit, nonnunquam torrores, per.
trahendis caeteris in suam sententiam:
solicitabit verbis, spe, promiasis (quod
an recto flat non disputamus); sed si
restiterint tamen, eorum potius iudioio
quam Regis voluntati stabitur. Idem
de legum sanctione iudicium esto, quae,
auctore Augustino, d. quarta, c. in
istis (Gratian, Decretum, D. 4, 3), tunc
instituuntur cum promulgantur, firm,
antur, cum moribus utentium appro-
bantur. . . .
Praeterea Regem pravis moribus
rempublicam vexantem, atque in aper-
tam tyrannidem degenerantem com-
primere eadem respublica qui posset,
principatu et vita, si opus sit, spoliaro,
nisi maiore potestato penes se retenta,
cum Regi suas partes delegavit. "
? Id. id. , I. 8 (p. 71): "Video
tamen non deesse viros eruditionis
opinione prostantes, qui secus statuant.
Regem non singulis modo civibus, sod
etiam universis maiorem esse. . . .
(p. 72) Est autem perspicuum, id
institutum in quibusdam gontibus
vigere, ubi nullus est publicus con von tus,
numquam populus aut procsres do
republica deliberaturi conveniunt: ob-
? ? temperandi tantum nocessitas urget,
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? 496
THE LATER SIXTEENTH CENTURY. [PABT IV.
Mariana's conception is clear, but it is further developed in
a very important passage dealing directly with the Cortes.
In order to restrain the king within due bounds, our ancestors,
he says, had provided that nothing of greater importance
should be done without the will of the chief men and the
people, and to this end it was the custom to call to the
assembly of the kingdom men chosen from all the orders
(Estates), the Bishops, the u Proceres " and the Procurators of
the cities. This still continued in Aragon and other provinces
of Spain, but in Castile (in nostra gente) it had for some time
come about that the "Proceres " and the Bishops had been
excluded from the assembly, and he suggests that this had
been done in order that public affairs should be controlled by
the capricious will of the king and the desires of a few. The
people complained that the Procurators of the cities who
alone continued to attend were frequently corrupted by bribes
and promises, especially as they were appointed by lot and
not by deliberate choice. 1
These observations of Mariana on the composition of the
Cortes of Castile are very important and interesting, and in
the remainder of the chapter he develops his view of the
importance of the aristocratic element in the Spanish consti-
Neo mirum cum robore corporis sine
consilio, sine prudentia ad servitutem
nati suntquidam: Principum imperium,
quamvis graue, volentes nolentes ferunt.
Nos hoc loco non de barbaris, sed de
principatu qui in nostra gente viget
et vigere aequum est, deque optima ct
saluberrima imperandi forma die.
putamus. "
1 Id. id. , I. 8 (p. 75): "Hoo maiores
nostri, providentes viri prudentes
periculum, ut Reges continerent intra
modestiae et mediocritatis fines, ne se
nimia potestate efferent, unde publica
pernicies existeret, multa sapionter
sanxerunt atque praoclare. In his
quam prudenter, quod nihil maioris
rei sine voluntate procerum et populi
sanctum esse voluerunt; eoque con-
silio, delectos ex omnibus ordinibus ad
conventus regni, Pontifices tota ditione,
proceres, et procuratores civitatum
euocare moris erat. Quod hoc tempore
in Aragonia aliisque prouinciis re ten tum,
vellem nostri Principes reponerent.
Our enim maiori ex parte antiquatum
in nostra gente est, exclusis proceribus
et Episcopis, nisi ut sublato communi
consensu, quo salus publica oontinetur,
Regis ad arbitrium, et ad pancorum
libidinem res publicae et privatae ver-
tantur. Homines priuatos, quales
procuratores urbium sunt, qui soti
hao tempestate supersunt, donis speque
corrumpere conqueritur populus passim:
praesertim non iudicio delectos, sed
sortis temeritate designatos, quae nova
corruptela est, argumentum roipublicae
perturbatao, quod prudontiores dolent,
mutire nemo audet. "
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 497
tution. We are, however, not writing a history of constitu-
tions, and cannot therefore deal with this question as it
deserves.
We turn to Hooker, and it is highly important to observe
how emphatically so careful and restrained a political thinker
sets out the importance of the authority of the community as
represented in Parliament. In the first book of the 'Ecclesi-
astical Polity ' he was dealing with the general principles of
law, and the source of the positive law in the authority of the
community; he was not concerned, except incidentally, with
the question of the representation of the community. Such
reference, however, as he made, was clear and unequivocal.
"Laws," he says, "they are not therefore which public
approbation hath not made so. But approbation not only
they give who personally declare their assent by voice, sign,
or act, but also when others do it in their names by right
originally at least derived from them. As in parliaments,
councils, and the like assemblies, although we be not person-
ally ourselves present, notwithstanding our assent is by
reason of others, agents there in our behalf. " 1 It is Parlia-
ment which expresses that public approbation without which
there is no law.
It is, however, in the eighth book that Hooker's treatment
of representative authority is fully developed. He does this
in his careful discussion of the relation of the ecclesiastical
authority to that of the State, and it is in this connection that
he sets out with great precision his conception of the nature
of Parliament, and of its relation to the king and the whole
community. "The Parliament of England, together with
the convocation annexed thereunto, is that whereupon the
very essence of all government within this realm doth depend;
it is even the body of the whole realm; it consisteth of the
king and of all that within the land are subject unto him;
for they are all there present, either in person or by such as
they voluntarily have derived their very personal right
'Hooker, ' Ecclesiastical Polity,' I. 10, 8.
VOL. VI. 2 I
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? 498
[PABT IV.
THE LATER SIXTEENTH CENTURY.
unto. "1 Such is Hooker's conception of the nature of
Parliament, and lest there should be any confusion as to the
source of its authority, he adds at the end of this section:
"Which laws being made amongst us, are not by any of us
to be so taken or interpreted as if they did receive their force
from power which the prince doth communicate unto the
Parliament, or to any other court under him, but from power
which the whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived unto him
that ruleth over them, so far forth as hath been already
declared. " 1
The authority of the laws is derived, not from the king,
but from the whole community, as indeed is the authority of
the king himself, as we have seen in an earlier chapter. 3
The authority of the king in regard to the making of laws
had been described a little earlier in the same section as
mainly negative. "The supremacy of power which our kings
have in the case of making laws, it resteth principally in the
strength of a negative voice; which not to give them, were
to deny them that without which they were but kings by
mere title, and not in exercise of dominion. " 1
It is clear that Hooker, like St Germans and Sir Thomas
Smith, had no doubt that in England the supreme power,
that is the legislative, resided not in the king alone, or in
any smaller body of persons, but in that assembly which
contained all, and represented all the community, the king, the
peers, and the whole body of the people.
Finally, we turn once again to Althusius, who is specially
important to us as expressing the continuity of that repre-
sentative theory in Germany which we have seen in Leopold
of Babenberg and in Nicolas of Cusa. 3
Althusius describes the nature and functions of the councils
of the commonwealth, no doubt primarily with the constitu-
tional system of the German Empire in his mind, but also
as the embodiment of a general principle of political society.
1 Id. id. , VIII. 6, 11. >> Cf. pp. 39 and 215.
? Cf. p. 370.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 499
They are composed of the " members " of the political society,
and consider and determine upon all the difficult and weighty
matters which concern the whole "imperium," such as the
fundamental laws, the " iura Maiestatis," the taxes, and other
matters which require the deliberation and consent of the
whole "polity. " All the "members" have the right of
deliberation, but the decision is made by the votes of the
majority. 1
This is clear and important, but of equal importance is
Althusius' statement of the principles (rationes) on which
this representative system rests. First, that which concerns all
should be done by all; second, it is better that these matters
should be considered by many, for many know more and are
less easily mistaken than a few; third, there are some affairs
which cannot be dealt with except by the people in such
councils; fourth, those who have great power are restrained
and corrected by the fear of such councils, in which the
demands of all are freely heard. Finally, it is in this manner
that the liberty of the people is preserved, and the public
officers are compelled to give account of their administration,
and to acknowledge that the people or universal society, by
which they have been created, is their lord. 2
1 Althusius, 'Politica,' XVII. 56:
"Concilia ilia occumenica generalia
regni, seu corporis consociati, sunt
membrorum illius convocatorum con-
ventus, in quo de Republica eiusque
utilitate et commodis . . . deliboratur,
et consilorum communicatione pro salute
communi aliquid concluditur et decer-
nitur.
In bis itaque conciliis et comitiis
generaliter totius consociationis uni-
versalis, regni seu Reipublicae negotia
illius ardua, difficilia et gravia tractan-
tur, examinantur et concluduntur, uti
sunt negotia et causae totum Imperium
politiamve, vel membra illius concer-
nentee, de legibus fundamontalibue
politiae, de iuribus Maiestatis, de con-
tributionibuset collectis indicandis . . .
et de aliis, quae communem delibera-
tionem et consensum totius politiae
postulant.
57. Concilia igitur et comitia haes,
politiae vel regni sunt epitome, ad
quam omnia publica regni negotia
referuntur, et a membris regni discussa
et examinata deciduntur.
58. Ius deliberandi, consultandi, et
examinandi singula, regni et Rei-
publicae membra habent. Ius deci-
dendi vero est penes sufiragia et sen-
tentias plurimorum mombrorum. "
Cf. id. id. , XVII. <<, 44.
* Id. id. , XVn. 60: "Rationo*
horum Comitiorum sunt. Primo,
quod omnes tangit, ab omnibus peragi
aequum est. . . . Deinde, melius
causa a pluribus examinari . . . cum
plures plura sciunt, et minus fall'
possunt. Tertio, quia quaedam sunt
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? 500
[PABT IV.
THE LATER SIXTEENTH CENTURY.
These are drastic and emphatic statements of the principle
that the supreme authority in a political society is not only
derived from, but remains with the whole community or people,
and the assembly which represents it.
There is indeed nothing
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
The reference to the representative assembly as protecting
the liberty of the people is interesting, and he returns to this
in a later chapter. It is, he says, a part of liberty that those
at whose risk, and by whose blood and treasure, things are
done, should administer them by their own counsel and
authority. 2
It is also clear that in the judgment of Althusius these
representative councils of the community were to be found
in all the countries of Central and Western Europe, not only
in the Empire but in France, in England (he refers to Sir
Thomas Smith), in the Netherlands, Poland, Castile, Aragon,
Portugal, Denmark, Norway, Sweden, and Scotland; 3 and
it should be observed that he describes the constitutions of
the various territories in the German Empire as having the
same character. *
Althusius was indeed no enemy of monarchy, but he main-
tained, in direct opposition no doubt especially to Bodin,
negotia, quae non possunt nisi a
populo in talibus comitiia tractari.
Quarto, qui sunt in magna potent ia,
horum comitiorum metu, in quo libere
omnium postulate audiuntur, in officio
contineri et corrigi possunt. Denique
hoc modo libertas quaedam populo
superest, at que administratores publici,
rationes suae admimstrationis reddere,
et populum, seu universal em consocia-
tionem, dominum suum, a quo sunt
constituti agnoscere coguntur. "
1 Cf. pp. 360, 378.
? Id. id. , XXXIH. 30: "Deinde
liber tat is pars est, quorum periculo,
facultatibus, auxilio, bonis atque san-
guine res geritur, ilia eorum quoque con-
silio et auctoritate administrator. . . .
Unde libertatis imago in boo comitiorum
habendorum iure retinetur, et poten-
tiorum, adulatorum, iniustorum et
avarorum conatibus remedium pon-
itur. "
1 Id. id. , XXXIH.
* Id. id. , VIII.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 501
that in a good polity the various elements must be combined;
the democratic in the assemblies of the people, the aristocratic
in the senate and councillors, the monarchical in the executive
action of the supreme magistrate, the king. 1 Or, as he put
it in another place, every form of commonwealth was " tem-
pered " and mixed, and he refused to recognise that there could
be any simple and unmixed form of political association,
the infirmity of human nature would prevent its continuance,
nor could it be adjusted to a good and social life. 2
We think that it is clear that in theory as well as in fact
the political representation of the community was important
in the sixteenth as well as in the fourteenth and fifteenth cen-
turies, and it is obvious that it was thought of as existing in
almost all European countries, and not only in Spain or England
or the Empire.
>> Id. id. , XXVII. 44: "Unde in
bona politia temperamentum quoddam
conspicitur. Nam in populi comitiis,
Democratiae imago apparet; in senatu
et consiliariis Aristocratiae, in execu-
tione eummi Magistratus, Regiae potes-
tatis et Monarchiae species. "
>> Id. id. , XXXIX. 18: "Quod cum
ita sit reote dicimus tempera tam et
mixtam esse quamvis Reipublicae
speciem, uti hominis complexio ex
quatuor quos dixi humoribus esse
temperata. . . .
Id. id. , XXXIX. 23: "Constat
enim ex praecedentibus et tota doc-
trina politica, me nullam speciem
Magistratus ab ilia mixtione immunem
statuere.
Simplioem et purum statum in
politica hac consociatione non agnosco,
neque ob naturao humanae imbecillita-
tem esse potest diuturnum, aut bonum,
et sociali vitae accomodatum. "
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? PART V.
CONCLUSION.
We have endeavoured, in the six volumes of this History, to
give some account of the most important elements in the
development of the political principles of Western Europe
during sixteen centuries, a large and, as some may think, an
over-ambitious enterprise. We can only say that we found
ourselves compelled to make the attempt. When we began
this work some forty years ago our intention was much more
restricted; we proposed little more than a careful study of
the political theory of the thirteenth century, and we there-
fore began with a detailed consideration of the political theory
of St Thomas Aquinas. 1 We soon, however, found that in
order to understand the real significance of that great political
thinker, we were compelled to go back to the Eoman Jurists
of the "Corpus Juris Civilis," to the New Testament, the
Christian Fathers, and the literature of the earlier Middle
Ages, and even to make some study of the post-Aristotelian
political theory. Some friendly critics observed, naturally
enough, that the treatises of an eclectic literary man like
Cicero, and a somewhat rhetorical literary philosopher like
Seneca, were inadequate representatives of this, and we were,
and are, very conscious of this. We can only hope that some
scholar more competent than ourselves will some time take
in hand the task of reconstructing from the fragments of the
1 Cf. "The Political Theory of St in the 'Scottish Review,' January
Thomas Aquinas," by R. W. Carlyle, 1896.
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? 504
[PAST V.
CONCLUSION.
post-Aristotelian philosophers an adequate and critical account
of their political theory. We are still convinced that, while
the debt which we owe to the great political thinkers like
Plato and Aristotle is immeasurable, it is also true that it
was during the centuries between Alexander the Great and
the Christian era that some of the most distinctive and im-
portant principles of the mediaeval and modern world took
shape. It was during this period that the Hellenistic world
learned to conceive of mankind as being homogeneous and
rational, or, to put it into the terms of Cicero and other
Eo man writers, all men are alike, for they are rational and
capable of virtue. And it was during the same period that
the older conception of the solidarity of the group began to
be transformed by the recognition of the inalienable liberty
of the human spirit.
We are also very conscious of the fact that, in the attempt
to deal with the vast and complex political literature of six-
teen centuries, we have had to treat of many matters for the
study of which we had little technical qualification. And
especially is this true of the political jurisprudence of the
Eoman and Canonical and Feudal lawyers, and we recognise
with gratitude the forbearance and friendly treatment of our
work by the Jurists. We cannot indeed regret that we ven-
tured to do this, for we feel that without this it is really
impossible to deal adequately with the political ideas of a
period like the mediaeval, which was dominated by the con-
ception of the supremacy of law.
We have at last completed the task which we had set
before ourselves, and must now again make the attempt to
set out what seem to us the most important elements in the
political ideas and theories of the Middle Ages; but now, with
special reference to this volume, we must consider how far
during the centuries from the fourteenth to the sixteenth ?
the principles of the political civilisation of the thirteenth
century were modified, and how far these were continuous. 1
1 An attempt to sum up the principal century will be found in Part III. of
elements in the political theory of the Volume V.
Middle Ages to the end of the thirteenth
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? PABT V. ]
505
CONCLUSION.
The formal aspect of Mediaeval Political Theory is to be found X
in that conception which is implied in the post-Aristotelian
philosophy, in the Christian Fathers, and in the Digest and
Institutes of Justinian, that the political and social order of
society is conventional rather than natural, and represents the
consequences of the fall of man from his primitive innocence.
It is true that St Thomas Aquinas, under the influence of the
Aristotelian "Politics," endeavoured to correct this, but it
is also true that the post-Aristotelian tradition was too
firmly rooted to be shaken even by St Thomas' great authority,
and that the contrast between the conventional and natural
conditions continued to furnish the formal terms of political
thought to the end of the sixteenth century. We can see
this in so great a political thinker as Hooker, though he was
evidently a disciple of St Thomas Aquinas. Indeed, we can
recognise the continuance of this tradition in Locke in the
seventeenth century and in the earlier essays of Eousseau in
the eighteenth. It was not till Eousseau in his later work,
and especially in the ' Contrat Social,' restated the Aristotelian
conception that man is only man in the coercive society of
the State, and urged that apart from this he would be nothing
but a "stupid and limited animal," that the Aristotelian
principle once again became the foundation of all rational
political thinking. 1
This formal mediaeval conception then is interesting, but it
is doubtful how far it had any great importance. It is very \
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice. St Augustine, in the ' De Civitate Dei,' handed down
to the Middle Ages, not only Cicero's definition of the nature
of the commonwealth, but also his emphatic assertion that
where there is no justice there is no commonwealth. 2 Here x
indeed we are dealing not with a conception which was peculiar
to the post-Aristotelian philosophers, but rather with one
which they carried on from Aristotle and Plato; but it is not
1 Cf. Rousseau,' Conlrat Social,' I, 8.
>> Cf. vol. i. pp. 4-6.
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? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
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? Id. , Q. 3 (p. 142): "Ne vero
pecuniae in alium usum extorque-
antur, iurat Imperator, so nulla, nisi
conventus publici authoritate voctigalia
impositurum, tributave indicturum.
Idem reges Poloniae, Hungariae,
Daniae, Angliae consimiliter, ex lege
Eduardi primi. Francorum reges
olim in trium Ordinum conventu vecti-
galia imperabant. Unde onim est lex
Philippi Valesii, ne collectae indicantur,
nisi summa necessitate urgente, deque
Trium Ordinum consensu. "
3 Mariana, ' De Rege,' I. 3 (p. 36).
4 Cf. p. 376-77.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 495
king who becomes a tyrant, for it has retained in its own
hands an authority greater than that which it has delegated. 1
Mariana recognised indeed that there were some learned
men who denied this, and maintained that the king was
greater than the whole body of the citizens. He answered
that this was true only in nations where there was no public
assembly, where the people or the chief men never met to
deliberate on the affairs of the commonwealth, where men
were compelled to obey, whether the rule of the king was just
or unjust. He adds contemptuously that this was surely an
excessive authority, and very near a tyranny, and as Aristotle
had said might be found among barbarous peoples. We are,
however, he says, not concerned with barbarians but with
that form of government which exists among ourselves (in
Spain), and with the best and most wholesome form of
government. 2
? Id. id. , I. 8 (p. 70): "In aliis
provinoiis ubi minor populi auctoritas
est, Regiun maior: an idem iudicium
sit, et an rebus communibus id ex-
podiat considerandum est. Plerique
omnes Regem rectorem reipublicae
et caput esse concedunt, rebus gerendis
supremam et maximum auctoritatem
habere, sive bellum hostilibus indican-
dam sit, sive iura subditis in pace
danda. Neque dubitant maiorem
utu'us quam singulorum tum civium
tum populorum imperandi potestatem
esse.
Idem tamen, si respublica universa,
aut qui oius partes gerunt, sive primarii
ex omnibus ordinibus delecti, in unum
locum sententiamque conveniant, ne-
gant pari iubendi auctoritate Regem
fore. Quod experimonto comprobatur
in Hispania, vectigalia itnperare Regem
non posse populo dissentiente. Utetur
quidem ille arte, praemia civibus
ostentabit, nonnunquam torrores, per.
trahendis caeteris in suam sententiam:
solicitabit verbis, spe, promiasis (quod
an recto flat non disputamus); sed si
restiterint tamen, eorum potius iudioio
quam Regis voluntati stabitur. Idem
de legum sanctione iudicium esto, quae,
auctore Augustino, d. quarta, c. in
istis (Gratian, Decretum, D. 4, 3), tunc
instituuntur cum promulgantur, firm,
antur, cum moribus utentium appro-
bantur. . . .
Praeterea Regem pravis moribus
rempublicam vexantem, atque in aper-
tam tyrannidem degenerantem com-
primere eadem respublica qui posset,
principatu et vita, si opus sit, spoliaro,
nisi maiore potestato penes se retenta,
cum Regi suas partes delegavit. "
? Id. id. , I. 8 (p. 71): "Video
tamen non deesse viros eruditionis
opinione prostantes, qui secus statuant.
Regem non singulis modo civibus, sod
etiam universis maiorem esse. . . .
(p. 72) Est autem perspicuum, id
institutum in quibusdam gontibus
vigere, ubi nullus est publicus con von tus,
numquam populus aut procsres do
republica deliberaturi conveniunt: ob-
? ? temperandi tantum nocessitas urget,
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? 496
THE LATER SIXTEENTH CENTURY. [PABT IV.
Mariana's conception is clear, but it is further developed in
a very important passage dealing directly with the Cortes.
In order to restrain the king within due bounds, our ancestors,
he says, had provided that nothing of greater importance
should be done without the will of the chief men and the
people, and to this end it was the custom to call to the
assembly of the kingdom men chosen from all the orders
(Estates), the Bishops, the u Proceres " and the Procurators of
the cities. This still continued in Aragon and other provinces
of Spain, but in Castile (in nostra gente) it had for some time
come about that the "Proceres " and the Bishops had been
excluded from the assembly, and he suggests that this had
been done in order that public affairs should be controlled by
the capricious will of the king and the desires of a few. The
people complained that the Procurators of the cities who
alone continued to attend were frequently corrupted by bribes
and promises, especially as they were appointed by lot and
not by deliberate choice. 1
These observations of Mariana on the composition of the
Cortes of Castile are very important and interesting, and in
the remainder of the chapter he develops his view of the
importance of the aristocratic element in the Spanish consti-
Neo mirum cum robore corporis sine
consilio, sine prudentia ad servitutem
nati suntquidam: Principum imperium,
quamvis graue, volentes nolentes ferunt.
Nos hoc loco non de barbaris, sed de
principatu qui in nostra gente viget
et vigere aequum est, deque optima ct
saluberrima imperandi forma die.
putamus. "
1 Id. id. , I. 8 (p. 75): "Hoo maiores
nostri, providentes viri prudentes
periculum, ut Reges continerent intra
modestiae et mediocritatis fines, ne se
nimia potestate efferent, unde publica
pernicies existeret, multa sapionter
sanxerunt atque praoclare. In his
quam prudenter, quod nihil maioris
rei sine voluntate procerum et populi
sanctum esse voluerunt; eoque con-
silio, delectos ex omnibus ordinibus ad
conventus regni, Pontifices tota ditione,
proceres, et procuratores civitatum
euocare moris erat. Quod hoc tempore
in Aragonia aliisque prouinciis re ten tum,
vellem nostri Principes reponerent.
Our enim maiori ex parte antiquatum
in nostra gente est, exclusis proceribus
et Episcopis, nisi ut sublato communi
consensu, quo salus publica oontinetur,
Regis ad arbitrium, et ad pancorum
libidinem res publicae et privatae ver-
tantur. Homines priuatos, quales
procuratores urbium sunt, qui soti
hao tempestate supersunt, donis speque
corrumpere conqueritur populus passim:
praesertim non iudicio delectos, sed
sortis temeritate designatos, quae nova
corruptela est, argumentum roipublicae
perturbatao, quod prudontiores dolent,
mutire nemo audet. "
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 497
tution. We are, however, not writing a history of constitu-
tions, and cannot therefore deal with this question as it
deserves.
We turn to Hooker, and it is highly important to observe
how emphatically so careful and restrained a political thinker
sets out the importance of the authority of the community as
represented in Parliament. In the first book of the 'Ecclesi-
astical Polity ' he was dealing with the general principles of
law, and the source of the positive law in the authority of the
community; he was not concerned, except incidentally, with
the question of the representation of the community. Such
reference, however, as he made, was clear and unequivocal.
"Laws," he says, "they are not therefore which public
approbation hath not made so. But approbation not only
they give who personally declare their assent by voice, sign,
or act, but also when others do it in their names by right
originally at least derived from them. As in parliaments,
councils, and the like assemblies, although we be not person-
ally ourselves present, notwithstanding our assent is by
reason of others, agents there in our behalf. " 1 It is Parlia-
ment which expresses that public approbation without which
there is no law.
It is, however, in the eighth book that Hooker's treatment
of representative authority is fully developed. He does this
in his careful discussion of the relation of the ecclesiastical
authority to that of the State, and it is in this connection that
he sets out with great precision his conception of the nature
of Parliament, and of its relation to the king and the whole
community. "The Parliament of England, together with
the convocation annexed thereunto, is that whereupon the
very essence of all government within this realm doth depend;
it is even the body of the whole realm; it consisteth of the
king and of all that within the land are subject unto him;
for they are all there present, either in person or by such as
they voluntarily have derived their very personal right
'Hooker, ' Ecclesiastical Polity,' I. 10, 8.
VOL. VI. 2 I
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? 498
[PABT IV.
THE LATER SIXTEENTH CENTURY.
unto. "1 Such is Hooker's conception of the nature of
Parliament, and lest there should be any confusion as to the
source of its authority, he adds at the end of this section:
"Which laws being made amongst us, are not by any of us
to be so taken or interpreted as if they did receive their force
from power which the prince doth communicate unto the
Parliament, or to any other court under him, but from power
which the whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived unto him
that ruleth over them, so far forth as hath been already
declared. " 1
The authority of the laws is derived, not from the king,
but from the whole community, as indeed is the authority of
the king himself, as we have seen in an earlier chapter. 3
The authority of the king in regard to the making of laws
had been described a little earlier in the same section as
mainly negative. "The supremacy of power which our kings
have in the case of making laws, it resteth principally in the
strength of a negative voice; which not to give them, were
to deny them that without which they were but kings by
mere title, and not in exercise of dominion. " 1
It is clear that Hooker, like St Germans and Sir Thomas
Smith, had no doubt that in England the supreme power,
that is the legislative, resided not in the king alone, or in
any smaller body of persons, but in that assembly which
contained all, and represented all the community, the king, the
peers, and the whole body of the people.
Finally, we turn once again to Althusius, who is specially
important to us as expressing the continuity of that repre-
sentative theory in Germany which we have seen in Leopold
of Babenberg and in Nicolas of Cusa. 3
Althusius describes the nature and functions of the councils
of the commonwealth, no doubt primarily with the constitu-
tional system of the German Empire in his mind, but also
as the embodiment of a general principle of political society.
1 Id. id. , VIII. 6, 11. >> Cf. pp. 39 and 215.
? Cf. p. 370.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 499
They are composed of the " members " of the political society,
and consider and determine upon all the difficult and weighty
matters which concern the whole "imperium," such as the
fundamental laws, the " iura Maiestatis," the taxes, and other
matters which require the deliberation and consent of the
whole "polity. " All the "members" have the right of
deliberation, but the decision is made by the votes of the
majority. 1
This is clear and important, but of equal importance is
Althusius' statement of the principles (rationes) on which
this representative system rests. First, that which concerns all
should be done by all; second, it is better that these matters
should be considered by many, for many know more and are
less easily mistaken than a few; third, there are some affairs
which cannot be dealt with except by the people in such
councils; fourth, those who have great power are restrained
and corrected by the fear of such councils, in which the
demands of all are freely heard. Finally, it is in this manner
that the liberty of the people is preserved, and the public
officers are compelled to give account of their administration,
and to acknowledge that the people or universal society, by
which they have been created, is their lord. 2
1 Althusius, 'Politica,' XVII. 56:
"Concilia ilia occumenica generalia
regni, seu corporis consociati, sunt
membrorum illius convocatorum con-
ventus, in quo de Republica eiusque
utilitate et commodis . . . deliboratur,
et consilorum communicatione pro salute
communi aliquid concluditur et decer-
nitur.
In bis itaque conciliis et comitiis
generaliter totius consociationis uni-
versalis, regni seu Reipublicae negotia
illius ardua, difficilia et gravia tractan-
tur, examinantur et concluduntur, uti
sunt negotia et causae totum Imperium
politiamve, vel membra illius concer-
nentee, de legibus fundamontalibue
politiae, de iuribus Maiestatis, de con-
tributionibuset collectis indicandis . . .
et de aliis, quae communem delibera-
tionem et consensum totius politiae
postulant.
57. Concilia igitur et comitia haes,
politiae vel regni sunt epitome, ad
quam omnia publica regni negotia
referuntur, et a membris regni discussa
et examinata deciduntur.
58. Ius deliberandi, consultandi, et
examinandi singula, regni et Rei-
publicae membra habent. Ius deci-
dendi vero est penes sufiragia et sen-
tentias plurimorum mombrorum. "
Cf. id. id. , XVII. <<, 44.
* Id. id. , XVn. 60: "Rationo*
horum Comitiorum sunt. Primo,
quod omnes tangit, ab omnibus peragi
aequum est. . . . Deinde, melius
causa a pluribus examinari . . . cum
plures plura sciunt, et minus fall'
possunt. Tertio, quia quaedam sunt
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? 500
[PABT IV.
THE LATER SIXTEENTH CENTURY.
These are drastic and emphatic statements of the principle
that the supreme authority in a political society is not only
derived from, but remains with the whole community or people,
and the assembly which represents it.
There is indeed nothing
here to surprise us, for, as we have already seen, the supreme
authority or "Maiestas" always remains and must remain,
in the judgment of Althusius, with the whole community; 1
but it makes it plain that in his mind this was no merely
abstract judgment, but that this supreme authority had a
concrete embodiment in the representative assembly.
The reference to the representative assembly as protecting
the liberty of the people is interesting, and he returns to this
in a later chapter. It is, he says, a part of liberty that those
at whose risk, and by whose blood and treasure, things are
done, should administer them by their own counsel and
authority. 2
It is also clear that in the judgment of Althusius these
representative councils of the community were to be found
in all the countries of Central and Western Europe, not only
in the Empire but in France, in England (he refers to Sir
Thomas Smith), in the Netherlands, Poland, Castile, Aragon,
Portugal, Denmark, Norway, Sweden, and Scotland; 3 and
it should be observed that he describes the constitutions of
the various territories in the German Empire as having the
same character. *
Althusius was indeed no enemy of monarchy, but he main-
tained, in direct opposition no doubt especially to Bodin,
negotia, quae non possunt nisi a
populo in talibus comitiia tractari.
Quarto, qui sunt in magna potent ia,
horum comitiorum metu, in quo libere
omnium postulate audiuntur, in officio
contineri et corrigi possunt. Denique
hoc modo libertas quaedam populo
superest, at que administratores publici,
rationes suae admimstrationis reddere,
et populum, seu universal em consocia-
tionem, dominum suum, a quo sunt
constituti agnoscere coguntur. "
1 Cf. pp. 360, 378.
? Id. id. , XXXIH. 30: "Deinde
liber tat is pars est, quorum periculo,
facultatibus, auxilio, bonis atque san-
guine res geritur, ilia eorum quoque con-
silio et auctoritate administrator. . . .
Unde libertatis imago in boo comitiorum
habendorum iure retinetur, et poten-
tiorum, adulatorum, iniustorum et
avarorum conatibus remedium pon-
itur. "
1 Id. id. , XXXIH.
* Id. id. , VIII.
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? CHAP V. ] THEORY OF REPRESENTATIVE INSTITUTIONS. 501
that in a good polity the various elements must be combined;
the democratic in the assemblies of the people, the aristocratic
in the senate and councillors, the monarchical in the executive
action of the supreme magistrate, the king. 1 Or, as he put
it in another place, every form of commonwealth was " tem-
pered " and mixed, and he refused to recognise that there could
be any simple and unmixed form of political association,
the infirmity of human nature would prevent its continuance,
nor could it be adjusted to a good and social life. 2
We think that it is clear that in theory as well as in fact
the political representation of the community was important
in the sixteenth as well as in the fourteenth and fifteenth cen-
turies, and it is obvious that it was thought of as existing in
almost all European countries, and not only in Spain or England
or the Empire.
>> Id. id. , XXVII. 44: "Unde in
bona politia temperamentum quoddam
conspicitur. Nam in populi comitiis,
Democratiae imago apparet; in senatu
et consiliariis Aristocratiae, in execu-
tione eummi Magistratus, Regiae potes-
tatis et Monarchiae species. "
>> Id. id. , XXXIX. 18: "Quod cum
ita sit reote dicimus tempera tam et
mixtam esse quamvis Reipublicae
speciem, uti hominis complexio ex
quatuor quos dixi humoribus esse
temperata. . . .
Id. id. , XXXIX. 23: "Constat
enim ex praecedentibus et tota doc-
trina politica, me nullam speciem
Magistratus ab ilia mixtione immunem
statuere.
Simplioem et purum statum in
politica hac consociatione non agnosco,
neque ob naturao humanae imbecillita-
tem esse potest diuturnum, aut bonum,
et sociali vitae accomodatum. "
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? PART V.
CONCLUSION.
We have endeavoured, in the six volumes of this History, to
give some account of the most important elements in the
development of the political principles of Western Europe
during sixteen centuries, a large and, as some may think, an
over-ambitious enterprise. We can only say that we found
ourselves compelled to make the attempt. When we began
this work some forty years ago our intention was much more
restricted; we proposed little more than a careful study of
the political theory of the thirteenth century, and we there-
fore began with a detailed consideration of the political theory
of St Thomas Aquinas. 1 We soon, however, found that in
order to understand the real significance of that great political
thinker, we were compelled to go back to the Eoman Jurists
of the "Corpus Juris Civilis," to the New Testament, the
Christian Fathers, and the literature of the earlier Middle
Ages, and even to make some study of the post-Aristotelian
political theory. Some friendly critics observed, naturally
enough, that the treatises of an eclectic literary man like
Cicero, and a somewhat rhetorical literary philosopher like
Seneca, were inadequate representatives of this, and we were,
and are, very conscious of this. We can only hope that some
scholar more competent than ourselves will some time take
in hand the task of reconstructing from the fragments of the
1 Cf. "The Political Theory of St in the 'Scottish Review,' January
Thomas Aquinas," by R. W. Carlyle, 1896.
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? 504
[PAST V.
CONCLUSION.
post-Aristotelian philosophers an adequate and critical account
of their political theory. We are still convinced that, while
the debt which we owe to the great political thinkers like
Plato and Aristotle is immeasurable, it is also true that it
was during the centuries between Alexander the Great and
the Christian era that some of the most distinctive and im-
portant principles of the mediaeval and modern world took
shape. It was during this period that the Hellenistic world
learned to conceive of mankind as being homogeneous and
rational, or, to put it into the terms of Cicero and other
Eo man writers, all men are alike, for they are rational and
capable of virtue. And it was during the same period that
the older conception of the solidarity of the group began to
be transformed by the recognition of the inalienable liberty
of the human spirit.
We are also very conscious of the fact that, in the attempt
to deal with the vast and complex political literature of six-
teen centuries, we have had to treat of many matters for the
study of which we had little technical qualification. And
especially is this true of the political jurisprudence of the
Eoman and Canonical and Feudal lawyers, and we recognise
with gratitude the forbearance and friendly treatment of our
work by the Jurists. We cannot indeed regret that we ven-
tured to do this, for we feel that without this it is really
impossible to deal adequately with the political ideas of a
period like the mediaeval, which was dominated by the con-
ception of the supremacy of law.
We have at last completed the task which we had set
before ourselves, and must now again make the attempt to
set out what seem to us the most important elements in the
political ideas and theories of the Middle Ages; but now, with
special reference to this volume, we must consider how far
during the centuries from the fourteenth to the sixteenth ?
the principles of the political civilisation of the thirteenth
century were modified, and how far these were continuous. 1
1 An attempt to sum up the principal century will be found in Part III. of
elements in the political theory of the Volume V.
Middle Ages to the end of the thirteenth
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? PABT V. ]
505
CONCLUSION.
The formal aspect of Mediaeval Political Theory is to be found X
in that conception which is implied in the post-Aristotelian
philosophy, in the Christian Fathers, and in the Digest and
Institutes of Justinian, that the political and social order of
society is conventional rather than natural, and represents the
consequences of the fall of man from his primitive innocence.
It is true that St Thomas Aquinas, under the influence of the
Aristotelian "Politics," endeavoured to correct this, but it
is also true that the post-Aristotelian tradition was too
firmly rooted to be shaken even by St Thomas' great authority,
and that the contrast between the conventional and natural
conditions continued to furnish the formal terms of political
thought to the end of the sixteenth century. We can see
this in so great a political thinker as Hooker, though he was
evidently a disciple of St Thomas Aquinas. Indeed, we can
recognise the continuance of this tradition in Locke in the
seventeenth century and in the earlier essays of Eousseau in
the eighteenth. It was not till Eousseau in his later work,
and especially in the ' Contrat Social,' restated the Aristotelian
conception that man is only man in the coercive society of
the State, and urged that apart from this he would be nothing
but a "stupid and limited animal," that the Aristotelian
principle once again became the foundation of all rational
political thinking. 1
This formal mediaeval conception then is interesting, but it
is doubtful how far it had any great importance. It is very \
different with that great principle which dominated the political
thought of the Middle Ages, that the first and most funda-
mental quality of political society was the maintenance of
justice. St Augustine, in the ' De Civitate Dei,' handed down
to the Middle Ages, not only Cicero's definition of the nature
of the commonwealth, but also his emphatic assertion that
where there is no justice there is no commonwealth. 2 Here x
indeed we are dealing not with a conception which was peculiar
to the post-Aristotelian philosophers, but rather with one
which they carried on from Aristotle and Plato; but it is not
1 Cf. Rousseau,' Conlrat Social,' I, 8.
>> Cf. vol. i. pp. 4-6.
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? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
? ? Generated for (University of Chicago) on 2014-12-19 10:35 GMT / http://hdl. handle. net/2027/mdp.
