1
Marsiliua of Padua, no doubt, expresses this principle in sharper
and more precise terms than we generally find in northern
writers, as was indeed natural in one who was thinking
primarily in the terms of the Italian City Eepublics, but
his principles were not substantially different from theirs.
Marsiliua of Padua, no doubt, expresses this principle in sharper
and more precise terms than we generally find in northern
writers, as was indeed natural in one who was thinking
primarily in the terms of the Italian City Eepublics, but
his principles were not substantially different from theirs.
Thomas Carlyle
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? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
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? PART V. ]
507
CONCLUSION.
qu'il n'est mie seignor de faire tort," 1 or when John of
Salisbury said that the difference between the king and the
tyrant was, that the king obeys the law while the tyrant
flouts it,2 or when Bracton in memorable words lays down
the principle that, while the king is under no man, he is
under god and the law, and that there is no king when mere
. will rules and not the law. 3 Nicolas of Cusa in the fifteenth
century reinforced this judgment with the authority of
Aristotle, whom he cites as saying that when the laws are
not supreme there is no polity. * This is what was meant
when so wise and prudent a political thinker as St Thomas
Aquinas did not hesitate to say that, while sedition is a
mortal sin, revolt against a tyrant is not to be called sedition;
for his rule is not just. 5 We think that we are justified in
maintaining that the first principle of mediaeval political
society was the supremacy, not of the prince but of the law,
for the law was the embodiment of justice.
5o ^
If, however, we are to understand the mediaeval political
principles, we must now consider the nature of law, not merely
in its relation to justice, but also with regard to its source.
To the people of the Middle Ages the positive law was x
primarily and fundamentally the custom of the community--
that is, the expression of the habit of life of the community; it
was not properly something deliberately or consciously made.
The earlier mediaeval codes, as everyone knows, are not acts
of legislation, but records of custom, revised, no doubt, and
modified from time to time by the ruler and his wise men,
but not, properly speaking, made by them. The feudal laws
in the same way were records of custom. The picturesque
account of the origin of the laws of the kingdom of Jerusalem,
given by Jean d'Ibelin and Philip of Novara,4 is no doubt
literally unhistorical, but it represents admirably the mediaeval
temper. Bracton asserts that English law was custom;
and while he seems to think that other countries used written
1 Cf. vol. Hi. pp. 32, 33. * Of. vol. vi. p. 136.
>> Cf. vol. iii. pp. 137, 138. 1 Cf. vol. v. p. 92.
>> Cf. vol. iii. pp. 38, 67. ? Cf. vol. iii. pp. 43, 44.
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? 508
[PAHT V.
CONCLUSION.
laws, his great contemporary, Beaumanoir, asserts in equally-
broad terms that " all pleas are determined by custom," and
that the King of France is bound to maintain them. 1
When, therefore, we find that the first systematic Canonist,
Gratian, begins his 'Decretum' with the great generalisation
that mankind is governed by two great systems of law, Natural
Law and Custom, and in another place sets out the principle
that, even when the law is made by some person or persons, it
must be confirmed by the custom of those who live under it,a
we recognise that he is not expressing a merely individual
opinion, but is putting into formal phrases the general judg-
^ ment of the Middle Ages. Law was not to them primarily
the expression of the will of the ruler, but of the habit of
life of the community. It is important to observe that even
in the sixteenth century an English Jurist like St Germans
looks upon custom as the normal source of English law, and
that Statutes of Parliament are only added when the customs
y were hot sufficient. 3 The truth is that to think of the medieval
king as making laws by his own personal authority is an
absurdity.
/ It is, however, true that at least from the ninth century we
can see that the conception of definite and deliberate legislation
begins to appear, and, while there was little development of
this in the tenth and eleventh centuries, we can trace its
gradual progress, and can see that while the conception of
law as custom continued to be of great importance, the con-
tption of law as being the expression of the rational and
II moraKwill of the supreme power in the community became
N more and more important. We say the rational and moral
will, for there is no trace of any conception that the merely
arbitrary or capricious will had any real place in law. This is
the real meaning of the principle that the supreme authority
in the community is always limited by the Divine and Natural
laws.
^ Law came, that is, to be thought of as the expression of
1 Cf. vol. iii. p. 42.
2 Cf. vol. ii. pp. 98 and 155.
? Cf. vol. vi. pp. 234-38.
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? PABT V. ]
509
CONCLUSION.
the will of the legislator. Who, then, was the legislator ? **
The answer is that it was the whole community, and this"
was the necessary consequence of the fact that law was
custom before it was command. From the ninth century at
least there can be no doubt about the normal conception of
the Middle Ages. There are some words of Hincmar of Eheims,
the most important ecclesiastical statesman of the ninth
century, which express this very clearly. Kings, he says,
have laws by which they must rule; they have the capitu-
laries of their ancestors, which were promulgated with the
consent of their faithful men; and this corresponds with the
normal forms of legislation as we find them in the Carolingian
Capitularies. 1
This is again the conception of the source of law as we
find it in the twelfth and thirteenth centuries. Glanvill says
that those are properly laws which are made by the king
with the consent of the chief men (proceres). The Norman
"Summa de Legibus " says that laws are made by the prince
and maintained by the people. Bracton lays it down that
that has the force of law which has been determined by the
counsel and consent of the great men, the approval of the
whole commonwealth and the authority of the king; and
again, when the laws have been approved by the custom
of those concerned and by the oath of the king they cannot
be changed or annulled without the common consent of all
those by whose counsel and consent they had been pro-
mulgated. 2 The meaning of this is illustrated by the formulas
of legislation as we find them in the Empire, in France, in
Castile, and in England in the thirteenth century. 3
In this volume we have seen that these conceptions con-
tinued to be normally accepted in the fourteenth, fifteenth,
and sixteenth centuries. Law was still primarily custom,>>/
but when it was made it was thought of as deriving its authority
from the community. This is continually illustrated in the
proceedings of the Cortes of Castile, and is expressed in theory,
not only by an English Jurist like Fortescue, but by one of
1 Cf. vol. i. pp. 233-39. * Cf. vol. v. pp. 51-63.
>> Cf. vol. iii. pp. 46-48, and p. 69.
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? 510
[PABT V.
CONCLUSION.
the greatest thinkers of the fifteenth century, Nicolas of Cusa.
He thinks that the wiser men should be elected to prepare
the laws, but their wisdom gives them no authority to impose
these by coercion on other men; this coercive power can only
be given by the agreement and consent of the community.
1
Marsiliua of Padua, no doubt, expresses this principle in sharper
and more precise terms than we generally find in northern
writers, as was indeed natural in one who was thinking
primarily in the terms of the Italian City Eepublics, but
his principles were not substantially different from theirs.
It would be difficult to find a better expression of the general
principles of these centuries than in the words of Sir Thomas
Smith, a man of great public experience and a minister of the
Crown under Elizabeth: "When one person beareth the rule,
they defines that to be the estate of a king, who by succession
or election commeth with the good will of the people to the
government, and doth administer the common wealth by the
lawes of the same, and by equitie. . . . A tyrant they name
him who by force commeth to the monarchy against the will
of the people, breaketh lawes already made at his pleasure,
maketh others without the advice and consent of the
people. " 2
It is no doubt true that in the later part of the sixteenth
century these principles were often discussed in controversial
terms by men like George Buchanan in Scotland and the
writers of the Huguenot pamphlets, but in Hooker and
Althusius and Mariana we find the same confidence and
clearness expressed in large and profound terms. Hooker
makes the same distinction as Nicolas of Cusa between the
wise men who should " devise " laws and the authority of the
community which alone can give them their "constraining
force "; and of England he says, "Which laws, being made
amongst us, are not by any of us so taken or interpreted, as
if they did receive their force from the 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 Eealm, being naturally possessed with, hath by
1 Cf. vol. vi. p. 170. >> Of. vol. vi. pp. 326-27.
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? PAHT V. ]
511
CONCLUSION.
free and deliberate assent derived unto him that ruleth over
them, so far forth as hath been declared. " 1
There is really no doubt that the normal political judgment, *
whether practical or theoretical, of the Middle Ages and
down to the end of the sixteenth century, was that the Positive \
Law was the expression of the will or consent of the whole
community, including the king, and that the conception of'
writers like Bodin and Barclay that the king was the legis-
lator, represented an intrusive and alien principle. Indeed it |
should be carefully observed that Bodin and Barclay them-
selves recognised, and quite frankly, that while they thought
that the King of France possessed an absolute power in legis-
lation, it was difficult to find any other country of Central
and Western Europe of which this could be said. 2
We have so far dealt with the source of Law, but in order 1
to appreciate correctly the meaning of the mediaeval con-
ception of the supremacy of Law,'we must take account of ?
the normal principle of the Middle Ages, that the Law was
supreme over every member of the community, including/
the king.
We have dealt with this in relation to Feudalism in the
third volume of this work, and in more general terms in the
fifth volume. 3 Professor Ganshof of Ghent has indeed brought
forward strong reasons to show that the prefeudal king was, at
least in civil matters, subject to the judgment of the court,
like other men ; * and this confirms our judgment that we
are dealing with a general principle of mediaeval civilisation.
That this continued to be the normal political judgment
of Central and Western Europe from the beginning of the
fourteenth century till the end of the sixteenth is clear.
We must not recapitulate what we have said in this volume,
but we may draw attention to some of the clearest examples
of this.
1 Cf. vol. vi. p. 355-57. sue la Compe^tence des Coura Feodales
1 Cf. vol. vi. pp. 425-26, pp. 449-50. en France" (in 'Melanges d'hiatoire
* Cf. vol. iii. part i. chap. 4; part ii. offerts a Henri Pirenne '). Cf. vol. v.
ohap. 5; vol. v. part i. chap. 7. p. 111.
4 Professor F. L. Ganshof, "Note
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? 512
[PABT V.
CONCLUSION.
Nothing perhaps is more significant than the continual
and emphatic protests o| the Cortes of Castile and Leon
against the attempts of the kings to override the laws by the
issue of special briefs containing "non-obstante" clauses, or
referring to their " certain knowledge or absolute authority ";
nothing could be more significant except the answers of the
Kings Juan I. and Juan II. , and the replies made by Queen
Juana with regard to "Pragmatics " issued without the con-
sent of Cortes, and by the Emperor Charles V. , about " cartas
de suspencion de pleytos. " 1
Perhaps, however, even more significant of the principle of
these centuries is the treatment of the relation of the King
of France to the law and the Courts of Law by De Seyssel
in the ' Grant Monarchie de France. ' De Seyssel had been for
many years in the service of the French Crown, and it is
therefore the more noteworthy that he should have looked
upon it as the best of all monarchies because it was neither
completely absolute nor too much restrained: it was restrained
by the Law and the " Parlemens. " We have pointed out that
Machiavelli in his 'Discourses ' on Livy expressed the same
judgment. 2 And most remarkable is it that Bud6, who set
out the doctrine of the absolute monarchy in France in the
most extravagant terms, should have at the same time felt
compelled to draw attention to the fact that the French
Kings submitted to the judgment of the Parliament of Paris ; 3
and that Bodni should have contended that the judges should
be permanent and irremovable, except by process of law,
because the kingdom should be governed by laws and not
by the mere will of the prince. *
The principle of the Middle Ages is indeed admirably
summed up by Hooker, after citing the words of Bracton,
"Eex non debet esse sub homine, sed sub Deo et lege. " "' I
cannot choose but commend highly their wisdom by whom
the foundations of this commonwealth have been laid;
wherein, though no manner person or cause be un-subject
1 Cf. vol. vi. pp. 4, 133-36, 232, >> Cf. vol. vi. p. 296.
233. 4 Cf. vol. vi. pp. 381-83.
1 Cf. vol. vi. part iii. ohap. 1.
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? PABT V. ]
513
CONCLUSION.
to the king's power, yet so is the power of the king over all
and in all limited, that unto all its proceedings the law itself
is a rule. The axioms of our royal government are these:
Lex facit Eegem. ' The king's grant of any favour made
contrary to the law is void, ' Eex nihil potest, nisi quod jure
potest' " (' Eccl. Pol. ' Vni. 2, 13). 6
It is time, however, that we should consider the political
significance of the revived study of the Eoman Law in the
Middle Ages. We are not indeed dealing with the general
influence of this on mediaeval civilisation; we are concerned
with it only so far as it affected its political conceptions and
principles. We have endeavoured in the second and fifth I
volumes of this work to set out some of the more important
conceptions of the nature and source of Law as we find them
in the great Bologna Civilians of the twelfth and thirteenth
centuries, and we think that it is important to notice that
these great Jurists were as clear and emphatic as the feudal
lawyers and the political theorists in asserting that positive
law was the formal expression of justice. Justice is the will
to establish Aequitas, and laws flow from justice as a stream
from its source. 1 They did not conceive of it as arbitrary,
or as expressing the capricious will of the lawgiver. In this'
respect the Civilians represented the normal conception of
the Middle Ages.
It is also most important to observe that the Civilians,
following the tradition of the Jurists of the Digest, looked
upon the community or people as the sole ultimate source of
the positive law of the State. The people might grant this
authority to the prince, might constitute him as legislator,
but it was only in virtue of their grant that this or any other
authority belonged to him. It is sometimes forgotten that
when Ulpian said, " Quod principi placuit, legis habet vigorem,"
he added, "ut pote cum lege regia, quae de imperio eius lata
est, populus ei et in eum omne suum imperium et potestatem
conferat. " 2 That which has pleased the prince has the
force of law, but only because the people have given him
1 Cf. vol. ii. part i. chaps, t and 2. >> 'Digest,41. 4, 1.
VOL. VI. 2 K
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? 514
[PABT V.
CONCLUSION.
this authority. What, if any, importance this principle may
have had in the ancient empire, we are not competent to
discuss, but it must be remembered that this is the only
theory of the immediate source of the authority of the emperor
which is known to the lawyers of the Digest, and it was
recognised in the Code, not only by Theodosius and Valen-
tinian, but also by Justinian himself. 1
The Civilians down to the end of the sixteenth century not
only recognised this, but, as we have seen, in a treatise ascribed
by Professor Fitting to Irnerius, in one of the Glosses ascribed
by Professor Besta to Irnerius, and in Bulgarus' Commentary
on the Digest, it is drawn out into the general principle that
it is the " Universitas " or " Populus," or the magistrate " qui
obtinet vicem universitatis," which is the source of all
>/ law. 2 It seems to us important that this recognition by the
ICivilians, that all political authority was derived from the
community, coincided with the normal judgment of the Middle
Ages and confirmed it.
I It is, however, very different when we consider some other
important elements in the tradition of the Eoman Law as
interpreted by the mediaeval Civilians. The Eoman Law, as
1 they knew it, was the law of the Empire, not of the Eepublic,
and while the jurisprudence of the "Corpus Juris Civilis"
represented in fact a long development of juridical experience
r*and of legal wisdom, in principle the emperor was the legis-
lator. (We confess that we should have been glad to find
some detailed historical criticism of the rescript of Theodosius
and Valentinian (' Cod. ' 1. 14, 8) which deals with the process
of legislation; but it is also clear that Justinian looked upon
the emperor as the sole legislator and the sole final interpreter
of the laws (' Cod. ' 1. 14,12). )
The Eoman emperor was then to the Bologna Civilians
normally the legislator. We have indeed pointed out that
there was a real and profound divergence among the Civilians
of the twelfth and thirteenth centuries on the question whether
! the Eoman people had transferred their authority to the
>> 'Code," I. 14, 4; I. 17, 1, 7. (Cf. * Of. vol. ii. p. 57.
vol. i. p. 69. )
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? PABT V. ]
515
CONCLUSION.
emperor in such a sense that they retained nothing and could
reclaim nothing. This seems to have been the judgment of
some of the best-known Civilians of the twelfth and thirteenth
centuries, of Irnerius, Placentinus, and Eoger; but, on the
other hand, Azo, Hugolinus, and Odofridus maintained that
the Eoman people had indeed given their authority to the
emperor, but they could reclaim it. Hugolinus indeed describes
the emperor as a "procurator at hoc," and they and John
Bassianus were agreed that the custom of the Eoman people
still retained its legislative authority. 1 In the fourteenth
century the Civilians were aware of the controversy, and
inclined to the view that the custom of the Eoman people
still retained its authority; this seems doubtful in the
fifteenth century, but one Civilian, Christophorus Porcius,
stoutly maintained an opinion similar to that of Azo and
Hugolinus. 2
This is indeed interesting and important, but at the same
time, even to those Civilians who thought that the custom
of the Eoman people retained its authority in making and
unmaking law, and that it might reclaim its general legislative
authority, the emperor was normally the legislator.
This conception was wholly alien to the principles of the
Middle Ages, from Hincmar of Eheims in the ninth century
to Hooker in the sixteenth.
More important still was the question of the subordination
of the prince to the Law. What the real doctrine of tho Eoman
Jurists had been we do not pretend to determine, but Ulpian
had in one place said that the prince was "legibus solutus"
(' Dig. ' I. 3, 31), while Bracton said that the king was under
God and the Law. 3 The mediaeval Civilians were, it seems to
us, often gravely perplexed as to the real meaning of Ulpian's
words, for it was difficult to reconcile these with the words of
Theodosius and Valentinian, "Digna vox, &c. ," and they
were apparently contradicted by the rescripts of the same
1 Cf. vol. ii.
? 506
[PABT V.
CONCLUSION.
the less important to make clear to ourselves that this was the
normal principle of the Middle Ages.
It was set out by the Eoman Jurists of the Digest and
Institutes,1 by the Christian Fathers,2 in the political treatises
of the ninth century,3 by the political theorists of the Middle
Ages,4 and by the mediaeval Civilians and Canonists. 5 It is
true that in one place St Augustine had suggested that the
conception of justice might be omitted from the definition
of the commonwealth,8 but it is clear that this exercised no
influence in the Middle Ages.
This conception of justice as the rationale of political
society may indeed seem to some persons, not well acquainted
with political problems, as too obvious to require statement;
or, on the other hand, it may appear to some, and especially
to those who are unfamiliar with history, as too indefinite
to be of much profit. It must indeed be admitted that there
never has been, perhaps there cannot be, any adequate
definition of justice, but to those who are better acquainted
with the history of political civilisation it will be clear that
it is exactly the pursuit of justice which distinguishes a rational
and moral society from a stupid anarchy.
*. It would in any case be a very great mistake if we were
not to recognise that the conception of justice found in the
Middle Ages a great and effective form in the law, and its
authority in the commonwealth. The numerous political
treatises of the ninth century are largely composed of ex-
. < hortations to the king to maintain justice, and, if we ask
, what they meant by justice, it is clear that they meant
J primarily the law--the law as distinguished from the merely
arbitrary and capricious will of the ruler. 7 It is this which
was meant when the " Assizes of the Court of Burgesses," in
the kingdom of Jerusalem, declared that "La Dame ne le
Sire n'en est seignor se non dou dreit . . . mais bien sachies
1 Cf. vol. i. p. 56 ft.
2 Cf. vol. i. p. 161 ft.
>> Cf. vol. i. p. 220 ft.
* Cf. vol. iii. part i. chap. 2; part
ii. chaps. 3 and 5; vol. v. part i. chaps.
2 and 7.
'Cf. vol. ii. part i. chape. 1 and 2;
part ii. chap. 7.
? Cf. vol. i. pp. 165 168.
'Of. vol. i. chaps. 18, 19.
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? PART V. ]
507
CONCLUSION.
qu'il n'est mie seignor de faire tort," 1 or when John of
Salisbury said that the difference between the king and the
tyrant was, that the king obeys the law while the tyrant
flouts it,2 or when Bracton in memorable words lays down
the principle that, while the king is under no man, he is
under god and the law, and that there is no king when mere
. will rules and not the law. 3 Nicolas of Cusa in the fifteenth
century reinforced this judgment with the authority of
Aristotle, whom he cites as saying that when the laws are
not supreme there is no polity. * This is what was meant
when so wise and prudent a political thinker as St Thomas
Aquinas did not hesitate to say that, while sedition is a
mortal sin, revolt against a tyrant is not to be called sedition;
for his rule is not just. 5 We think that we are justified in
maintaining that the first principle of mediaeval political
society was the supremacy, not of the prince but of the law,
for the law was the embodiment of justice.
5o ^
If, however, we are to understand the mediaeval political
principles, we must now consider the nature of law, not merely
in its relation to justice, but also with regard to its source.
To the people of the Middle Ages the positive law was x
primarily and fundamentally the custom of the community--
that is, the expression of the habit of life of the community; it
was not properly something deliberately or consciously made.
The earlier mediaeval codes, as everyone knows, are not acts
of legislation, but records of custom, revised, no doubt, and
modified from time to time by the ruler and his wise men,
but not, properly speaking, made by them. The feudal laws
in the same way were records of custom. The picturesque
account of the origin of the laws of the kingdom of Jerusalem,
given by Jean d'Ibelin and Philip of Novara,4 is no doubt
literally unhistorical, but it represents admirably the mediaeval
temper. Bracton asserts that English law was custom;
and while he seems to think that other countries used written
1 Cf. vol. Hi. pp. 32, 33. * Of. vol. vi. p. 136.
>> Cf. vol. iii. pp. 137, 138. 1 Cf. vol. v. p. 92.
>> Cf. vol. iii. pp. 38, 67. ? Cf. vol. iii. pp. 43, 44.
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? 508
[PAHT V.
CONCLUSION.
laws, his great contemporary, Beaumanoir, asserts in equally-
broad terms that " all pleas are determined by custom," and
that the King of France is bound to maintain them. 1
When, therefore, we find that the first systematic Canonist,
Gratian, begins his 'Decretum' with the great generalisation
that mankind is governed by two great systems of law, Natural
Law and Custom, and in another place sets out the principle
that, even when the law is made by some person or persons, it
must be confirmed by the custom of those who live under it,a
we recognise that he is not expressing a merely individual
opinion, but is putting into formal phrases the general judg-
^ ment of the Middle Ages. Law was not to them primarily
the expression of the will of the ruler, but of the habit of
life of the community. It is important to observe that even
in the sixteenth century an English Jurist like St Germans
looks upon custom as the normal source of English law, and
that Statutes of Parliament are only added when the customs
y were hot sufficient. 3 The truth is that to think of the medieval
king as making laws by his own personal authority is an
absurdity.
/ It is, however, true that at least from the ninth century we
can see that the conception of definite and deliberate legislation
begins to appear, and, while there was little development of
this in the tenth and eleventh centuries, we can trace its
gradual progress, and can see that while the conception of
law as custom continued to be of great importance, the con-
tption of law as being the expression of the rational and
II moraKwill of the supreme power in the community became
N more and more important. We say the rational and moral
will, for there is no trace of any conception that the merely
arbitrary or capricious will had any real place in law. This is
the real meaning of the principle that the supreme authority
in the community is always limited by the Divine and Natural
laws.
^ Law came, that is, to be thought of as the expression of
1 Cf. vol. iii. p. 42.
2 Cf. vol. ii. pp. 98 and 155.
? Cf. vol. vi. pp. 234-38.
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? PABT V. ]
509
CONCLUSION.
the will of the legislator. Who, then, was the legislator ? **
The answer is that it was the whole community, and this"
was the necessary consequence of the fact that law was
custom before it was command. From the ninth century at
least there can be no doubt about the normal conception of
the Middle Ages. There are some words of Hincmar of Eheims,
the most important ecclesiastical statesman of the ninth
century, which express this very clearly. Kings, he says,
have laws by which they must rule; they have the capitu-
laries of their ancestors, which were promulgated with the
consent of their faithful men; and this corresponds with the
normal forms of legislation as we find them in the Carolingian
Capitularies. 1
This is again the conception of the source of law as we
find it in the twelfth and thirteenth centuries. Glanvill says
that those are properly laws which are made by the king
with the consent of the chief men (proceres). The Norman
"Summa de Legibus " says that laws are made by the prince
and maintained by the people. Bracton lays it down that
that has the force of law which has been determined by the
counsel and consent of the great men, the approval of the
whole commonwealth and the authority of the king; and
again, when the laws have been approved by the custom
of those concerned and by the oath of the king they cannot
be changed or annulled without the common consent of all
those by whose counsel and consent they had been pro-
mulgated. 2 The meaning of this is illustrated by the formulas
of legislation as we find them in the Empire, in France, in
Castile, and in England in the thirteenth century. 3
In this volume we have seen that these conceptions con-
tinued to be normally accepted in the fourteenth, fifteenth,
and sixteenth centuries. Law was still primarily custom,>>/
but when it was made it was thought of as deriving its authority
from the community. This is continually illustrated in the
proceedings of the Cortes of Castile, and is expressed in theory,
not only by an English Jurist like Fortescue, but by one of
1 Cf. vol. i. pp. 233-39. * Cf. vol. v. pp. 51-63.
>> Cf. vol. iii. pp. 46-48, and p. 69.
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? 510
[PABT V.
CONCLUSION.
the greatest thinkers of the fifteenth century, Nicolas of Cusa.
He thinks that the wiser men should be elected to prepare
the laws, but their wisdom gives them no authority to impose
these by coercion on other men; this coercive power can only
be given by the agreement and consent of the community.
1
Marsiliua of Padua, no doubt, expresses this principle in sharper
and more precise terms than we generally find in northern
writers, as was indeed natural in one who was thinking
primarily in the terms of the Italian City Eepublics, but
his principles were not substantially different from theirs.
It would be difficult to find a better expression of the general
principles of these centuries than in the words of Sir Thomas
Smith, a man of great public experience and a minister of the
Crown under Elizabeth: "When one person beareth the rule,
they defines that to be the estate of a king, who by succession
or election commeth with the good will of the people to the
government, and doth administer the common wealth by the
lawes of the same, and by equitie. . . . A tyrant they name
him who by force commeth to the monarchy against the will
of the people, breaketh lawes already made at his pleasure,
maketh others without the advice and consent of the
people. " 2
It is no doubt true that in the later part of the sixteenth
century these principles were often discussed in controversial
terms by men like George Buchanan in Scotland and the
writers of the Huguenot pamphlets, but in Hooker and
Althusius and Mariana we find the same confidence and
clearness expressed in large and profound terms. Hooker
makes the same distinction as Nicolas of Cusa between the
wise men who should " devise " laws and the authority of the
community which alone can give them their "constraining
force "; and of England he says, "Which laws, being made
amongst us, are not by any of us so taken or interpreted, as
if they did receive their force from the 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 Eealm, being naturally possessed with, hath by
1 Cf. vol. vi. p. 170. >> Of. vol. vi. pp. 326-27.
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? PAHT V. ]
511
CONCLUSION.
free and deliberate assent derived unto him that ruleth over
them, so far forth as hath been declared. " 1
There is really no doubt that the normal political judgment, *
whether practical or theoretical, of the Middle Ages and
down to the end of the sixteenth century, was that the Positive \
Law was the expression of the will or consent of the whole
community, including the king, and that the conception of'
writers like Bodin and Barclay that the king was the legis-
lator, represented an intrusive and alien principle. Indeed it |
should be carefully observed that Bodin and Barclay them-
selves recognised, and quite frankly, that while they thought
that the King of France possessed an absolute power in legis-
lation, it was difficult to find any other country of Central
and Western Europe of which this could be said. 2
We have so far dealt with the source of Law, but in order 1
to appreciate correctly the meaning of the mediaeval con-
ception of the supremacy of Law,'we must take account of ?
the normal principle of the Middle Ages, that the Law was
supreme over every member of the community, including/
the king.
We have dealt with this in relation to Feudalism in the
third volume of this work, and in more general terms in the
fifth volume. 3 Professor Ganshof of Ghent has indeed brought
forward strong reasons to show that the prefeudal king was, at
least in civil matters, subject to the judgment of the court,
like other men ; * and this confirms our judgment that we
are dealing with a general principle of mediaeval civilisation.
That this continued to be the normal political judgment
of Central and Western Europe from the beginning of the
fourteenth century till the end of the sixteenth is clear.
We must not recapitulate what we have said in this volume,
but we may draw attention to some of the clearest examples
of this.
1 Cf. vol. vi. p. 355-57. sue la Compe^tence des Coura Feodales
1 Cf. vol. vi. pp. 425-26, pp. 449-50. en France" (in 'Melanges d'hiatoire
* Cf. vol. iii. part i. chap. 4; part ii. offerts a Henri Pirenne '). Cf. vol. v.
ohap. 5; vol. v. part i. chap. 7. p. 111.
4 Professor F. L. Ganshof, "Note
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? 512
[PABT V.
CONCLUSION.
Nothing perhaps is more significant than the continual
and emphatic protests o| the Cortes of Castile and Leon
against the attempts of the kings to override the laws by the
issue of special briefs containing "non-obstante" clauses, or
referring to their " certain knowledge or absolute authority ";
nothing could be more significant except the answers of the
Kings Juan I. and Juan II. , and the replies made by Queen
Juana with regard to "Pragmatics " issued without the con-
sent of Cortes, and by the Emperor Charles V. , about " cartas
de suspencion de pleytos. " 1
Perhaps, however, even more significant of the principle of
these centuries is the treatment of the relation of the King
of France to the law and the Courts of Law by De Seyssel
in the ' Grant Monarchie de France. ' De Seyssel had been for
many years in the service of the French Crown, and it is
therefore the more noteworthy that he should have looked
upon it as the best of all monarchies because it was neither
completely absolute nor too much restrained: it was restrained
by the Law and the " Parlemens. " We have pointed out that
Machiavelli in his 'Discourses ' on Livy expressed the same
judgment. 2 And most remarkable is it that Bud6, who set
out the doctrine of the absolute monarchy in France in the
most extravagant terms, should have at the same time felt
compelled to draw attention to the fact that the French
Kings submitted to the judgment of the Parliament of Paris ; 3
and that Bodni should have contended that the judges should
be permanent and irremovable, except by process of law,
because the kingdom should be governed by laws and not
by the mere will of the prince. *
The principle of the Middle Ages is indeed admirably
summed up by Hooker, after citing the words of Bracton,
"Eex non debet esse sub homine, sed sub Deo et lege. " "' I
cannot choose but commend highly their wisdom by whom
the foundations of this commonwealth have been laid;
wherein, though no manner person or cause be un-subject
1 Cf. vol. vi. pp. 4, 133-36, 232, >> Cf. vol. vi. p. 296.
233. 4 Cf. vol. vi. pp. 381-83.
1 Cf. vol. vi. part iii. ohap. 1.
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? PABT V. ]
513
CONCLUSION.
to the king's power, yet so is the power of the king over all
and in all limited, that unto all its proceedings the law itself
is a rule. The axioms of our royal government are these:
Lex facit Eegem. ' The king's grant of any favour made
contrary to the law is void, ' Eex nihil potest, nisi quod jure
potest' " (' Eccl. Pol. ' Vni. 2, 13). 6
It is time, however, that we should consider the political
significance of the revived study of the Eoman Law in the
Middle Ages. We are not indeed dealing with the general
influence of this on mediaeval civilisation; we are concerned
with it only so far as it affected its political conceptions and
principles. We have endeavoured in the second and fifth I
volumes of this work to set out some of the more important
conceptions of the nature and source of Law as we find them
in the great Bologna Civilians of the twelfth and thirteenth
centuries, and we think that it is important to notice that
these great Jurists were as clear and emphatic as the feudal
lawyers and the political theorists in asserting that positive
law was the formal expression of justice. Justice is the will
to establish Aequitas, and laws flow from justice as a stream
from its source. 1 They did not conceive of it as arbitrary,
or as expressing the capricious will of the lawgiver. In this'
respect the Civilians represented the normal conception of
the Middle Ages.
It is also most important to observe that the Civilians,
following the tradition of the Jurists of the Digest, looked
upon the community or people as the sole ultimate source of
the positive law of the State. The people might grant this
authority to the prince, might constitute him as legislator,
but it was only in virtue of their grant that this or any other
authority belonged to him. It is sometimes forgotten that
when Ulpian said, " Quod principi placuit, legis habet vigorem,"
he added, "ut pote cum lege regia, quae de imperio eius lata
est, populus ei et in eum omne suum imperium et potestatem
conferat. " 2 That which has pleased the prince has the
force of law, but only because the people have given him
1 Cf. vol. ii. part i. chaps, t and 2. >> 'Digest,41. 4, 1.
VOL. VI. 2 K
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? 514
[PABT V.
CONCLUSION.
this authority. What, if any, importance this principle may
have had in the ancient empire, we are not competent to
discuss, but it must be remembered that this is the only
theory of the immediate source of the authority of the emperor
which is known to the lawyers of the Digest, and it was
recognised in the Code, not only by Theodosius and Valen-
tinian, but also by Justinian himself. 1
The Civilians down to the end of the sixteenth century not
only recognised this, but, as we have seen, in a treatise ascribed
by Professor Fitting to Irnerius, in one of the Glosses ascribed
by Professor Besta to Irnerius, and in Bulgarus' Commentary
on the Digest, it is drawn out into the general principle that
it is the " Universitas " or " Populus," or the magistrate " qui
obtinet vicem universitatis," which is the source of all
>/ law. 2 It seems to us important that this recognition by the
ICivilians, that all political authority was derived from the
community, coincided with the normal judgment of the Middle
Ages and confirmed it.
I It is, however, very different when we consider some other
important elements in the tradition of the Eoman Law as
interpreted by the mediaeval Civilians. The Eoman Law, as
1 they knew it, was the law of the Empire, not of the Eepublic,
and while the jurisprudence of the "Corpus Juris Civilis"
represented in fact a long development of juridical experience
r*and of legal wisdom, in principle the emperor was the legis-
lator. (We confess that we should have been glad to find
some detailed historical criticism of the rescript of Theodosius
and Valentinian (' Cod. ' 1. 14, 8) which deals with the process
of legislation; but it is also clear that Justinian looked upon
the emperor as the sole legislator and the sole final interpreter
of the laws (' Cod. ' 1. 14,12). )
The Eoman emperor was then to the Bologna Civilians
normally the legislator. We have indeed pointed out that
there was a real and profound divergence among the Civilians
of the twelfth and thirteenth centuries on the question whether
! the Eoman people had transferred their authority to the
>> 'Code," I. 14, 4; I. 17, 1, 7. (Cf. * Of. vol. ii. p. 57.
vol. i. p. 69. )
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? PABT V. ]
515
CONCLUSION.
emperor in such a sense that they retained nothing and could
reclaim nothing. This seems to have been the judgment of
some of the best-known Civilians of the twelfth and thirteenth
centuries, of Irnerius, Placentinus, and Eoger; but, on the
other hand, Azo, Hugolinus, and Odofridus maintained that
the Eoman people had indeed given their authority to the
emperor, but they could reclaim it. Hugolinus indeed describes
the emperor as a "procurator at hoc," and they and John
Bassianus were agreed that the custom of the Eoman people
still retained its legislative authority. 1 In the fourteenth
century the Civilians were aware of the controversy, and
inclined to the view that the custom of the Eoman people
still retained its authority; this seems doubtful in the
fifteenth century, but one Civilian, Christophorus Porcius,
stoutly maintained an opinion similar to that of Azo and
Hugolinus. 2
This is indeed interesting and important, but at the same
time, even to those Civilians who thought that the custom
of the Eoman people retained its authority in making and
unmaking law, and that it might reclaim its general legislative
authority, the emperor was normally the legislator.
This conception was wholly alien to the principles of the
Middle Ages, from Hincmar of Eheims in the ninth century
to Hooker in the sixteenth.
More important still was the question of the subordination
of the prince to the Law. What the real doctrine of tho Eoman
Jurists had been we do not pretend to determine, but Ulpian
had in one place said that the prince was "legibus solutus"
(' Dig. ' I. 3, 31), while Bracton said that the king was under
God and the Law. 3 The mediaeval Civilians were, it seems to
us, often gravely perplexed as to the real meaning of Ulpian's
words, for it was difficult to reconcile these with the words of
Theodosius and Valentinian, "Digna vox, &c. ," and they
were apparently contradicted by the rescripts of the same
1 Cf. vol. ii.
