Plutarchus
tamen, alibi in
eodem tractatu ita inquit.
eodem tractatu ita inquit.
Thomas Carlyle
For the husband sweareth
to his wife, yet though he forswear
himself, she hath no power to compel
him. Also though a maister keep not
covenant with his servaunt, or one
neighbour with another: yet hath
neither servaunt nor neighbour (though
he be under none obedience) power to
avenge: but the vengeance pertayneth
ever to an higher office, to whom thou
must com piny ne.
Yea, but you will say, it is not
like. For the whole body of the subjects
choose the Ruler. Now, 'Cujus est
ligare, ejus est solvere,' ergo, if he rule
amiss they may put him down
agayne. . . . God (and not the
common people) chuseth the Prince,
though he chuse by them. For,
Deut. zvi. , God commandeth to chuse
and set up officers, and therefore is
God the chief chuser and setter-up of
them, as so must he be the chief putter
down of them agayne, so that without
his special Commandment they may
not be put down agayne. Now hath
God geven no Commandment to
put them down agayne, but con-
trariwise, when we have anoynted a
kyng at his Commandment, he sayth:
touch not mine anointed. And what
jeopardy it is to rise agaynst thy
Prince that is anointed over thee,
how evill soever he be, see in tho story
of King David, and throughout all
tho Bookes of the Rings. The authority
of the King is the authority of God;
and all the subjects compared to the
King are but subjects still (though the
King be never so evil). . . . And unto
your argument, 'Cujus est ligare ejus
est solvere,'1 answere: he that bindeth
? ? wyth absolute power, and without
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? CHAP. IV. ] THE THEORY OF THE DIVINE RIGHT.
291
It would be difficult to find any stronger declaration of
the conception that the king holds by Divine Eight an absolute
and unqualified authority, that he is above law and not under
it, that all appeal to constitutional tradition is empty and
void, that all resistance to his authority, however reasonable
the cause for this might be, is an offence against God, and the
authority which he has given to the king.
It is obvious, of course, that this is a restatement of the
conceptions of St Gregory the Great, but we are strongly
inclined to think that it is from Luther's earlier statements
that Tyndale's opinions are derived, and especially from the
"Ermahnung zum Frieden" of 1525, and possibly from the
tract 'Ob Kriegsleute auch im seligen Stande sein konnen ' of
1526. He does not, indeed, refer to them explicitly, but
a comparison of Tyndale's arguments with those con-
tained in Luther's tracts seems to us to make this highly
probable.
There is not much to be said about E. Barnes, another of
the English Eeformers, who seems to us clearly to be on this
subject a disciple of Tyndale. In the tract entitled ' A suppli-
cation to Henry VIII. ' he is evidently concerned to show
that, while the Eeformers taught men that God commanded
obedience to princes, it was the Pope who taught men to
revolt. In another tract he sets out, in terms as strong as
those of Tyndale, the duty of absolute submission to the king,
however unjust and contrary to the law his action might be. 1
their right kyng, whom God had an-
ointed over them. King Riohard II.
Their people, townes and villages are
miniahed by the thirde parte. "
Cf. Tyndale's 'Answer to More,'
Book iv. chap, xiii. , where he speaks
of Henry V. as holding the kingdom
against all right.
1 R. Barnes' Works. Edition,
London, 1573 (with Tyndale and Frith,
paged with Frith's Works), p. 292:
"In this article we must note that
there be two manner of ministers or
Powers: one is a temporal power,
the other is called a spiritual power:
the Temporal Power is oommitted of
God to Kings, Dukes . . . Mayors,
Sherriffs, and all other ministers under
them. . . . In thys power is the
Kynge chief and full Ruler; all others
bo ministers and servaunts, as Paul
doth declare, saying: 'Let every soul
bo subject unto the Higher Power,' &c.
Also St Peter: 'Be subject unto the
Kynge as unto the chief head . . . '
unto this power must we be obedient
in all thynges that pertain to the
ministration of the present life, and
of the Commonwealth. . . . So that,
if this power commande anything of
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? 292
[PABT III.
THE EARLIER SIXTEENTH CENTURY.
The only thing that he will allow is, that the oppressed man
may fly (he is evidently thinking primarily of a man persecuted
for his religion).
We have thus endeavoured to set out the first development
in Germany and in England in the sixteenth century of the
theory of the absolute Divine Eight of the monarch, and of
the principle of non-resistance, but we shall return to this in
another chapter, with regard to its development in the later
part of the century.
tyranny against the Right and Law
(always provided that it repugn not
against the Gospell nor destroye our
Faythe) our charitie must needs suffer
it, for, as Paule sayth Charitie suffereth
all Thyng. "
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? 293
CHAPTER V.
THE POLITICAL, THEORY OF THE CIVILIANS IN
THE SIXTEENTH CENTURY.
We have dealt with the conception of the source and nature
of the authority of Law, as illustrated in the writers on
Political Theory in the earlier part of the sixteenth century.
In previous volumes and in the earlier parts of this volume
we have found it necessary to distinguish sharply between the
character of political theories in general and the conceptions
of the Civilians, and it is necessary to continue this distinction,
for, as we have said, the political conceptions which these
jurists derived from their study of the Eoman Law differed
in many and important respects from the traditional con-
ceptions and practice of mediaeval Europe.
We cannot, indeed, pretend that we have been able to
examine the political theory of the sixteenth century Civilians
in as much detail as we have done those of the earlier periods:
wo have no longer the invaluable guidance of Savigny's great
work, which terminates at the end of the fifteenth century.
We begin with the famous French humanist and jurist,
Guillaume Bude? , whose work belongs to the earliest part of
the sixteenth century. It is, indeed, not very easy to bring
Bude? 's conceptions into complete harmony with each other;
when dealing with general principles, he seems to assert the
absolute power of monarchy, and especially in France; while
in other places he attributes to the "Parlement" of Paris
a very large authority, even in relation to the king.
The first position is developed by him in his discussion of
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? 294
[PABT m.
THE EARLIER SIXTEENTH CENTURY.
the meaning of the phrase, "Princeps legibus solutus "; the
second, in a passage in which he compares the Eoman Senate
with "Curia nostra suprema" (meaning clearly, the "Parle-
ment" of Paris).
He begins the treatment of the meaning of "legibus
solutus " by appealing to a famous passage of the 'Polities,'
in which Aristotle speaks of the natural monarchy of a man
who is incomparably superior to all other men in the
state. Such a man, Bude* maintains, cannot be treated as
the equal of others, but must rather be regarded as a
god among men; it would be absurd to impose law upon
such a man, as he is a law to himself. 1 He goes on to
assert that the Eoman Emperors, at least at the time of
Ulpian, and the Kings of France, had a pre-eminence of this
kind; the Emperor ordered all things according to his will,
and the Kings of France have all things in their power. They
are like the Jove of Homer, and all things tremble at their
nod: they are human Joves, but that, like other men, they
die. 2
1 Budaeus, 'Annotationes in Pan-
dectas ' (Dig. i. 3, 31), p. 67: "Princeps
legibus solutus est. Aristoteles, Lib.
Tertio, Politic. Hujus dicti rationem
memorabilem afferro mini videtur. . . .
Is igitur in eo libro in banc propemodum
fctententiam inquit, si tamen recte
vertimus; in republica autem optima
constitute is demum iuris esse dici
debet, qui et re gore et regi, et voluntate
et aptitudine ad vitam paratus est
secundum virtutem agendum. Agedum
sit aliquis unus, aut uno etiam plures
(pauciores tamen quam ut civitatis
numerum implore possint), tanto ceteris
virtutis exuperantia praestantes, si
plures sint, aut praestans si unus sit,
reliquorum ut universorum virtus cum
illius aut illorum non sit comparabilia;
dico, inquit, hujusmodi viros non
jam civitatis partem existimandos esse,
quippe injuriam illis haud dubie factum
iri credendum est, si aequas ferre
partes digni ipsi videbuntur, tanto
ceteris inaequales virtute civilique
facultate. Hujusmodi enim quasi
Deum quondam censeri inter homines
par est. Proinde legum quoque
lationem inter aequales necease est
esse et genore et facultate civili. In
illos autem hujuscemodi nulla est
prorsus legislatio, quippe qui ipsis
lex sunt, quia enim ridiculum fore
putemus eum qui legem de huiusmodi
ferre aggrediatur. "
* Id. id. , p. 68: "Age oum quinque
sunt genera regni, quint um genius
est quod naurlac, iA ta dicituT, quasi
dicas regnum numeris omnibus domina-
tionis absolutum: cujusmodi erant
Reges, Principes Romani, Ulpiani
tempore, nihil jam priscae civilitatia
retinentes, omnia arbitrio suo
statuentes: ut nunc Reges nostri sunt,
qui omnia in potostato habent, quique
(ut Homericus ille Jupiter) quoquo
sese vertorint, omnia circumagunt,
? ? nutu etiam solo omnia quatientes:
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? CHAP. V. ] CIVILIANS IN THE SIXTEENTH CENTUKY. 295
Bude? is, indeed, not satisfied that the words "legibus
solutus" are adequate to express the relation of the prince
to the Law; he prefers the phrase "Principem . . . etiam
legibus non teneri. " Laws, he says, are made for men who
are equal in every political "facultas," but they cannot
constrain those who are greatly superior; kings have no
equals in the antiquity and dignity of their birth, in excellence
of soul and body, and in the majesty of their bearing; they
are, or should be held to be, equal to the heroes; and laws
which are made for the people cannot control such sacrosanct
beings. 1
He suggests that there is no more reason why the laws
should stand between the prince and the people than between
a father and his children. 2 He carries, however, his conception
of the supreme place of the prince still further. The prince
is the minister of God for the welfare of men, and it is for him
to distribute the good things which are given by God to the
human race; and he cites a saying that justice is the end of
the law, and this is the function of the prince, for the prince
is the image of God, who orders all things aright. This, Bud6
says, agrees with the words of the apostle, "Let every soul
be subject to the Higher Powers. " Plutarch had, indeed, said
donique humani Jovee, ut inquit
Plautus in Casina, sed qui tamen
hominum more emoriantur. Hoc
autem regni genus est, inquit Aristoteles,
cum unus omnium potestatem habot,
tum communium tum publicarum
reram, non aliter at quo civitas una,
aut populus unus habent. "
1 Id. id. , p. 68: "Ex supradictis
igitur demonstrari potest ut arbitror,
Principem non modo legibus esse
solutum, id quod Ulpianus dixit, sed
etiam legibus non tenori. Jam primum
cum leges ferri debeant in homines,
genere facultateque omni politica
equales, nec legibus teneantur qui
multo ceteros rebus his praestare
videntur; reges autem generositate,
id est opulentia, antiquitate, et
claritate natalium nemo omnium
aequare possit aut contendat, virtute
pono et animi et corporis, omniquo
morum majestate humanum captum
modumque excedere, heroasque aequare
aut debeant, aut credantur. Manifes-
tum est legibus in cives, id est tn
populum latis, sacrosanctos homines
non teneri, augusta ilia designationo
oximioe. "
>> Id. id. id. : "Ad haec cum
nullum jus civile inter patrem et
liberos et inter dominum et familiam
intercedat, ut Aristotoles docet Lib. v.
Ethicorum, ot nos alibi diximus, sit
autem eadem ratio inter Principem et
populum; satis ut arbitror effectus est,
quod efficere meditabamur, . . . et Prin-
cipem non modo legibus solutum esse,
sed etiam non teneri. "
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? 296
[PABT III.
THE EARLIER SIXTEENTH CENTURY.
that the Law is the prince of princes, but he explained what
he meant by the Law when he said that it is not that law
which is written in books or on tables, but that living " reason"
which is within the prince. 1
It is obvious that Bude? was anxious, at least as a general
principle, to maintain the view that the king stood outside of,
and above, the legal order of society.
It is, however, also clear that in another place Bude? repre-
sents the actual constitutional practice of France in very
different terms. In discussing the position of the Senate in
Eome he compares it with "curia nostra suprema," and
maintains that this Court had all the powers which had been
in the Senate. The "Maiestas" and powers of the Roman
people had been transferred to the prince by the "Lex
Eegia," while the Senatorial Power had been granted to the
Curia--i. e. , the " Parlement. " It was this "Parlement" which
declared the princes' " acta," " rata irritave," by it he willed
that his Constitutions should be promulgated; and it was
to the judgment of this Court alone that the princes, though
"legibus soluti," submitted themselves ("a qua sibi jus dici,
principes leges soluti civili animo ferant "). 2
1 Id. id. id. : '' Verius autem quis
dixerit magistratus summos et prin-
cipes Dei ministros esse in procurations
bominum et salute, ut quae bona
goneri humano divinitus donantur, es
ipsi partim distribuant inter nominee,
partim asservent . . . tantorum porro
bonorum divinorum taliumque nullus
esset hominibus fructus ususque com-
modus et rectus, sine lege, sine justitia.
Bine principe. . . . Deinde haec sub-
dit; Justitia igitur finis est legis, lex
autem omcium est principis. At
princeps ipse imago est Dei, qui omnia
recte ordineque constituit. Convenit
hoc cum precepto apoitoli 'Ad
Romanos' Decimo Tortio (Rom. xiii.
1).
Plutarchus tamen, alibi in
eodem tractatu ita inquit. . . . Quis
igitur principi princeps erit 1 Nempe
lex quae omnium regina est mortalium
atque immortalium, ut inquit Pindarus.
Quae verba esse consentanea cum
lege, 'Digna Vox' (Cod. i. 14, 4).
Sed quam legem Plutarchus principi
imperitantem dixerit, ex iis quae
sequuntur intelligemus. . . . Lex
inquit principi imperatrix erit: non
ilia quidem aut in libris extrinsecus
scripta, aut in tabulis, sed animata
intus in ipso ratio, semper cum eo
conversans, ejusdemque observatrix,
quaequo eius animam nunquam sinit
tutela sui esse vacuam. "
? Id. id. , Dig. i. 9, 12 (p. 96): "In
ea igitur curia in qua summa juris-
dictionis Gallicae atque etiam juridic-
tialis imperii sita est, omnia inesse
mihi videutur, quae et in senatu, et in
centumviratu, et . in aroopago erant,
dumtaxat quod ad jurisdic-tionem
imperiumque jurisdictiale attinet. . . .
Majestas vero populi apud Romanos
? ? dicebatur, et auotorit&a Senatus.
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? CHAP, V. ] CIVILIANS IN THE SIXTEENTH CENTURY.
297
This is, indeed, a very different conception of the relation
of the prince to the Law from that expressed in the passages
already cited; it is possible that Bud6 looked upon this
relation of king and Parlement as arising from and depend-
ing npon the king's will and pleasure, but the discrepancy
remains, and we shall find something very like it in Bodin.
We may put beside the opinions of Bud6 some statements
of Jean Ferrault, in a work on the laws and privileges of the
kingdom of France, published in 1515. He contends that the
Kings of France have the same power of legislation as the
Eoman Emperor, and he seems, curiously enough, to hold
that the Salic Law was strictly analogous to the Lex Eegia
of Eome, and that by it all power had been transferred to the
King of France, who possessed all the rights of the Emperor. 1
And, in another place, as we understand him, he seems to
assert that the King of France can impose " novum vectigal,"
while other kings and lords can only exact the Eegalia. 2
Populus sciscere solebat et jubere,
Senatus censere et auctor esse. Ilia
1gitur popularia ad principem lege
regia delate sunt, haeo sanatoria ad
curiam translate esse creduntur. . . .
In hujus acta referri diplomata regiaque
boneficia solent, ut perpetua esse
possint, ac nunquam antiquabilia.
Hujus autoritate rata irritave principum
acta, ne ipsis quidem recusantibus,
fiont. Una haec curia est, a qua sibi
jus dici, principes legibus soluti civili
animo ferant: quam auctorem fieri
sacrandis promulgandisque eanctioni-
bus suis velint: cujus consilii cen-
surae, constitutionee suay eximi; edict-
aque sua nolint, imo cujus decretis
bujusmodi sua acta conservari eternitati
velint. "
1 Jesn Ferrault, 'Tractatus de
Juribus et Privilogiis Regni Francorum,'
zxxv. : "Duodecim lilium jus ali-
qualiter respiciens est quod Rex
iste solus facit constitutionee seu leges
in Regno Franciae. . . . Est enim
jure certissimum, quod populus regitur
solo rege, ille solus potest statuere,
condere et instituere. Constitutio vel
edictum est, quod tantum rex vel
imperator constituit, II. Dist. o.
Constitutio. Nam salutem reipublicao
tueri nulli magis credidit, divus
Augusti (nus) convenire, nec aliquem
sufficere ei rei . . . quia autiqua lege
regia quae salica nuncupatur omne jus
omnisque potestas in regiam translate
est: et sicuti imperatori soli hoc
conveneret in subditis . . . ita regi;
cum rex Franciae omnia jura impera-
toris babeat, quia (ut dictum est)
non recognoscit in temporalibus
superiorem. "
>> Id. id. , 41: "Decimum septimum
jus regium est, quod ipse solus et
nullus alius potest imponere novum
vectigal . . . alii autem reges, et
domini temporales possunt oxigere; in
Tit. quae sunt regalia X Coll. Sed
nec imponere nec quocunque colore
aliam exactionem facere etiam pro
? ? utilitate patriae. " (We confoss that wo
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? 208
fPABT m.
THE EARLIER SIXTEENTH CENTURY.
We may also put beside Ferrault the opinions of Charles
de Grassaille, in a work published in 1538. 1
When, however, we turn to other and more important
Civilians of the sixteenth century, we find judgments of a
very different kind. We begin with Alciatus of Milan and
Bourges, whose earlier years were spent in Milan, but who
later migrated to France and taught in the Law School of
Bourges in the earlier part of the century.
AlciatuB, as was natural, held that the authority of the
Emperor was derived from the Eoman people, but he de-
veloped this into the doctrine that all political authority
was and could only be derived from the people. The "Jus
imperii Koinani " belonged to the people until they transferred
it by law to Augustus. God gave men lordship over all
animals, but not over other men; kings were created, not by
the Divine command, but by the consent of the people.
Charles the Great was elected by the Eoman people, and this
authority is now exercised by the seven German Electors.
Thus, also in France, Chilperic was deposed and Pipin elected
king, and so with Hugh Capet; and thus also, in lesser
kingdoms. Alciatus concludes that " he is a just prince who
reigns with the consent of the people, and he is a tyrant who
reigns over unwilling subjects. " St Augustine rightly described
kingdoms created by violence, without the consent of the
subjects, as "magna latrocinia. " 2
1 Cf. J. W. Allen, 'A History of
Political Thought in the sixteenth
century,' p. 284.
* Alciatus, Opera, vol. ii. col. 1047,
'Comm. on Digest,' L. 16, I5:
"Jus Imperii Romani ad populum
pertinebat, donee per legem Rhemniam
populus in August um Caesarem
jus omne transtulit. . . . Nam
cum hominem creavit Deus, illi
in cetera quidem animantia jus et
dominium concessit, hominem autem
ut alteri alter serviret non indixit.
Undo prinoipio rerum non divina
ju&siono, sed ex populi consensu reges
assumpti sunt; quod et, post Romani
imperii occasum, servatum fuit, cum
Carolus Magnus a populo Romano
Augustus electus est, et a pontifice
Leone sacro oleo iniunctus; quod jus
populi hodie Gregoriana lege in septem
Germaniae principes translatum est.
Sio et Franci, Chilperico ejecto qui
regno idoneus non esset, Pipinum
varitcATiir^i consilio substituerunt. Et
cum Pipini proles a majoribus degener-
asset, rursus Odonem, mox eius {rat rem
Robertum et deinde Robert! nepotom
Hugonem ad summum fastigium
evexerunt. . . . Et quod de maxim is
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? CHAP, V. ] CIVILIANS IN THE SIXTEENTH CENTURY. 299
This is an interesting expansion of the tradition of the
Eoman Law, that all authority in Eome was derived from
the people, for Alciatus enlarges this into the general principle,
that without the consent of the community there is no legiti-
mate authority.
He is almost equally definite in his repudiation of the
conception that the authority which the people had granted
to the prince was absolutely unlimited. He refers contemptu-
ously in one place to the " hallucinations " of the theologians
and the " adulation" of the jurists who maintained that the
power of the prince was supreme and free, and that he could
do whatever he pleased. This, he says, is certainly not true
in Italy; it is absurd to say that bishops, dukes, or marquises
have an authority over Italians which the Emperor himself
does not possess. 1
In another work he insists again upon the limited nature
of the authority of princes. He has, he says, dealt at some
length with this, in order that princes, whether they had
reached the highest rank (he means the Empire) or are kings,
dukes, or counts, might learn that they had not so great an
authority as their flatterers tell them; and also in order that
the doctrine of Martin (i. e. , that there was nothing that the
Emperor could not do) should once again be refuted. 2
hisce regibus, nimirum Romano et
Franco, dictum est, idem in inferioribus
observatum fuisse, qui historicos legerit,
deprebendet; utmeritocenseamDivina
lege eum justum principem esse, qui
ex populi consensu regnet, quod et
Aristot. tradit; qui vero invitis
dominetur, eum tyrannum esse, etiamsi
Caesar sit, a Septemviris electus, vel
quaqua alia ratione civili jure potentiam
suam tueatur. Unde cum magna
regna non ex subditorum consensu,
sed per violentiam primo constitute
sunt, merito Augustinus libro de
Civitate Dei IIII. magna latrocinia
esse dicit. "
1 Id. id. , vol. ii. col. 1162, 'Comm. on
Digest,' L. 16, 111: "Hallucinantibus
theologis, adulantibus jurisconsultis,
persuadentibusque omnia principi licere,
summamque et liberam esse potestatom.
Quod certe in Italia verum non est . . .
ut ridiculum sit affirmare pontificibus,
due i bus, ot quos Qermanica voce march -
iones vocant, absolutam in subditis
potestatem competere, quae nec ipsi
Imperatori in Italos competit. "
* Id. , 'De Formula Romani Im-
perii ' (ed. Basle 1554) p. 43: "Et haec
a nobis diffusius dicta sunt, tum ut inde
admonerentur principes, sive ipsi ad
summum imperii gradum pervenerint,
sive ab imperatoribus, reges, duces,
comites appellati sint: non tantum
illis in populos licero quantum adula.
tores eorum auribus melle diluto
veneno infundunt; tum etiam ut
Martini, qui Bononiae jus civile pro-
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? 300
THE EARLIER SIXTEENTH CENTURY. [part III.
Alciatus did not, we think, doubt that the prince had the
legislative power, which he had received from the people,
but in one passage he indicates that he was of opinion that
the prince should not make laws without the advice of the
"Periti," the men of experience. It appears very possible that
this is a reminiscence of the provisions of' Code,' i. 14,8, though
he is not here commenting on that passage. 1 He is also clear
that the prince is bound by his contracts, that he has no
power to revoke or annul them. We have already observed
the importance of this conception in the Civilians of the
fourteenth and fifteenth centuries; indeed, he refers directly
to some of them, and he also refers to the important parallel
principle of the Feudal Law, that the lord could not deprive
the vassal of his fief without just cause. 2
He also discusses the question whether the prince can insert,
in his briefs, clauses which derogate from the law; he says in
one place that no one can do this except the prince, and such
persons as have received authority from him. 3 That is, he
would seem to maintain the dispensing power of the prince. It
should, however, be observed that in another place Alciatus
allows this only under important reservations. The prince,
he says, has power to remit all punishments for offences
against himself, but he cannot deal in this way with "our"
rights anymore than the peopledid who gave him this authority;
fitebatur, nihil non Imperatori run-
cedentis, sententiam confutaretur. "
For the story about Martin, cf.
Savigny, 'Geschichte des Romischen
Rechts,' vol. iv. p. 180.
1 Id. , Opera, vol. iii. col. 26,' Comm.
on Cod. ,' i. , 2, 5: "Rationabilis Consilii.
Non enim debent principes ex se ipsis,
leges promulgate, sed adhibito peri-
torum consilio. "
* Id. id. , vol. iv. ,eol. 816, "Traotatus
de Praesumptionibus,' 'Regula Tertia
Praescriptionum ': "Et probatur ista
opinio, quao videtur communior . . .
ubi non presumitur causa in principe
volente rescindere proprium con-
tract um: imo iatud non potest etiam
de plenitudine potestatis, secundum
Paulus de Castro in L. Digna Vox
C. De Legibus. (Cod. i. xiv. 4. )
Et Baldus in Cap.
to his wife, yet though he forswear
himself, she hath no power to compel
him. Also though a maister keep not
covenant with his servaunt, or one
neighbour with another: yet hath
neither servaunt nor neighbour (though
he be under none obedience) power to
avenge: but the vengeance pertayneth
ever to an higher office, to whom thou
must com piny ne.
Yea, but you will say, it is not
like. For the whole body of the subjects
choose the Ruler. Now, 'Cujus est
ligare, ejus est solvere,' ergo, if he rule
amiss they may put him down
agayne. . . . God (and not the
common people) chuseth the Prince,
though he chuse by them. For,
Deut. zvi. , God commandeth to chuse
and set up officers, and therefore is
God the chief chuser and setter-up of
them, as so must he be the chief putter
down of them agayne, so that without
his special Commandment they may
not be put down agayne. Now hath
God geven no Commandment to
put them down agayne, but con-
trariwise, when we have anoynted a
kyng at his Commandment, he sayth:
touch not mine anointed. And what
jeopardy it is to rise agaynst thy
Prince that is anointed over thee,
how evill soever he be, see in tho story
of King David, and throughout all
tho Bookes of the Rings. The authority
of the King is the authority of God;
and all the subjects compared to the
King are but subjects still (though the
King be never so evil). . . . And unto
your argument, 'Cujus est ligare ejus
est solvere,'1 answere: he that bindeth
? ? wyth absolute power, and without
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? CHAP. IV. ] THE THEORY OF THE DIVINE RIGHT.
291
It would be difficult to find any stronger declaration of
the conception that the king holds by Divine Eight an absolute
and unqualified authority, that he is above law and not under
it, that all appeal to constitutional tradition is empty and
void, that all resistance to his authority, however reasonable
the cause for this might be, is an offence against God, and the
authority which he has given to the king.
It is obvious, of course, that this is a restatement of the
conceptions of St Gregory the Great, but we are strongly
inclined to think that it is from Luther's earlier statements
that Tyndale's opinions are derived, and especially from the
"Ermahnung zum Frieden" of 1525, and possibly from the
tract 'Ob Kriegsleute auch im seligen Stande sein konnen ' of
1526. He does not, indeed, refer to them explicitly, but
a comparison of Tyndale's arguments with those con-
tained in Luther's tracts seems to us to make this highly
probable.
There is not much to be said about E. Barnes, another of
the English Eeformers, who seems to us clearly to be on this
subject a disciple of Tyndale. In the tract entitled ' A suppli-
cation to Henry VIII. ' he is evidently concerned to show
that, while the Eeformers taught men that God commanded
obedience to princes, it was the Pope who taught men to
revolt. In another tract he sets out, in terms as strong as
those of Tyndale, the duty of absolute submission to the king,
however unjust and contrary to the law his action might be. 1
their right kyng, whom God had an-
ointed over them. King Riohard II.
Their people, townes and villages are
miniahed by the thirde parte. "
Cf. Tyndale's 'Answer to More,'
Book iv. chap, xiii. , where he speaks
of Henry V. as holding the kingdom
against all right.
1 R. Barnes' Works. Edition,
London, 1573 (with Tyndale and Frith,
paged with Frith's Works), p. 292:
"In this article we must note that
there be two manner of ministers or
Powers: one is a temporal power,
the other is called a spiritual power:
the Temporal Power is oommitted of
God to Kings, Dukes . . . Mayors,
Sherriffs, and all other ministers under
them. . . . In thys power is the
Kynge chief and full Ruler; all others
bo ministers and servaunts, as Paul
doth declare, saying: 'Let every soul
bo subject unto the Higher Power,' &c.
Also St Peter: 'Be subject unto the
Kynge as unto the chief head . . . '
unto this power must we be obedient
in all thynges that pertain to the
ministration of the present life, and
of the Commonwealth. . . . So that,
if this power commande anything of
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? 292
[PABT III.
THE EARLIER SIXTEENTH CENTURY.
The only thing that he will allow is, that the oppressed man
may fly (he is evidently thinking primarily of a man persecuted
for his religion).
We have thus endeavoured to set out the first development
in Germany and in England in the sixteenth century of the
theory of the absolute Divine Eight of the monarch, and of
the principle of non-resistance, but we shall return to this in
another chapter, with regard to its development in the later
part of the century.
tyranny against the Right and Law
(always provided that it repugn not
against the Gospell nor destroye our
Faythe) our charitie must needs suffer
it, for, as Paule sayth Charitie suffereth
all Thyng. "
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? 293
CHAPTER V.
THE POLITICAL, THEORY OF THE CIVILIANS IN
THE SIXTEENTH CENTURY.
We have dealt with the conception of the source and nature
of the authority of Law, as illustrated in the writers on
Political Theory in the earlier part of the sixteenth century.
In previous volumes and in the earlier parts of this volume
we have found it necessary to distinguish sharply between the
character of political theories in general and the conceptions
of the Civilians, and it is necessary to continue this distinction,
for, as we have said, the political conceptions which these
jurists derived from their study of the Eoman Law differed
in many and important respects from the traditional con-
ceptions and practice of mediaeval Europe.
We cannot, indeed, pretend that we have been able to
examine the political theory of the sixteenth century Civilians
in as much detail as we have done those of the earlier periods:
wo have no longer the invaluable guidance of Savigny's great
work, which terminates at the end of the fifteenth century.
We begin with the famous French humanist and jurist,
Guillaume Bude? , whose work belongs to the earliest part of
the sixteenth century. It is, indeed, not very easy to bring
Bude? 's conceptions into complete harmony with each other;
when dealing with general principles, he seems to assert the
absolute power of monarchy, and especially in France; while
in other places he attributes to the "Parlement" of Paris
a very large authority, even in relation to the king.
The first position is developed by him in his discussion of
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? 294
[PABT m.
THE EARLIER SIXTEENTH CENTURY.
the meaning of the phrase, "Princeps legibus solutus "; the
second, in a passage in which he compares the Eoman Senate
with "Curia nostra suprema" (meaning clearly, the "Parle-
ment" of Paris).
He begins the treatment of the meaning of "legibus
solutus " by appealing to a famous passage of the 'Polities,'
in which Aristotle speaks of the natural monarchy of a man
who is incomparably superior to all other men in the
state. Such a man, Bude* maintains, cannot be treated as
the equal of others, but must rather be regarded as a
god among men; it would be absurd to impose law upon
such a man, as he is a law to himself. 1 He goes on to
assert that the Eoman Emperors, at least at the time of
Ulpian, and the Kings of France, had a pre-eminence of this
kind; the Emperor ordered all things according to his will,
and the Kings of France have all things in their power. They
are like the Jove of Homer, and all things tremble at their
nod: they are human Joves, but that, like other men, they
die. 2
1 Budaeus, 'Annotationes in Pan-
dectas ' (Dig. i. 3, 31), p. 67: "Princeps
legibus solutus est. Aristoteles, Lib.
Tertio, Politic. Hujus dicti rationem
memorabilem afferro mini videtur. . . .
Is igitur in eo libro in banc propemodum
fctententiam inquit, si tamen recte
vertimus; in republica autem optima
constitute is demum iuris esse dici
debet, qui et re gore et regi, et voluntate
et aptitudine ad vitam paratus est
secundum virtutem agendum. Agedum
sit aliquis unus, aut uno etiam plures
(pauciores tamen quam ut civitatis
numerum implore possint), tanto ceteris
virtutis exuperantia praestantes, si
plures sint, aut praestans si unus sit,
reliquorum ut universorum virtus cum
illius aut illorum non sit comparabilia;
dico, inquit, hujusmodi viros non
jam civitatis partem existimandos esse,
quippe injuriam illis haud dubie factum
iri credendum est, si aequas ferre
partes digni ipsi videbuntur, tanto
ceteris inaequales virtute civilique
facultate. Hujusmodi enim quasi
Deum quondam censeri inter homines
par est. Proinde legum quoque
lationem inter aequales necease est
esse et genore et facultate civili. In
illos autem hujuscemodi nulla est
prorsus legislatio, quippe qui ipsis
lex sunt, quia enim ridiculum fore
putemus eum qui legem de huiusmodi
ferre aggrediatur. "
* Id. id. , p. 68: "Age oum quinque
sunt genera regni, quint um genius
est quod naurlac, iA ta dicituT, quasi
dicas regnum numeris omnibus domina-
tionis absolutum: cujusmodi erant
Reges, Principes Romani, Ulpiani
tempore, nihil jam priscae civilitatia
retinentes, omnia arbitrio suo
statuentes: ut nunc Reges nostri sunt,
qui omnia in potostato habent, quique
(ut Homericus ille Jupiter) quoquo
sese vertorint, omnia circumagunt,
? ? nutu etiam solo omnia quatientes:
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? CHAP. V. ] CIVILIANS IN THE SIXTEENTH CENTUKY. 295
Bude? is, indeed, not satisfied that the words "legibus
solutus" are adequate to express the relation of the prince
to the Law; he prefers the phrase "Principem . . . etiam
legibus non teneri. " Laws, he says, are made for men who
are equal in every political "facultas," but they cannot
constrain those who are greatly superior; kings have no
equals in the antiquity and dignity of their birth, in excellence
of soul and body, and in the majesty of their bearing; they
are, or should be held to be, equal to the heroes; and laws
which are made for the people cannot control such sacrosanct
beings. 1
He suggests that there is no more reason why the laws
should stand between the prince and the people than between
a father and his children. 2 He carries, however, his conception
of the supreme place of the prince still further. The prince
is the minister of God for the welfare of men, and it is for him
to distribute the good things which are given by God to the
human race; and he cites a saying that justice is the end of
the law, and this is the function of the prince, for the prince
is the image of God, who orders all things aright. This, Bud6
says, agrees with the words of the apostle, "Let every soul
be subject to the Higher Powers. " Plutarch had, indeed, said
donique humani Jovee, ut inquit
Plautus in Casina, sed qui tamen
hominum more emoriantur. Hoc
autem regni genus est, inquit Aristoteles,
cum unus omnium potestatem habot,
tum communium tum publicarum
reram, non aliter at quo civitas una,
aut populus unus habent. "
1 Id. id. , p. 68: "Ex supradictis
igitur demonstrari potest ut arbitror,
Principem non modo legibus esse
solutum, id quod Ulpianus dixit, sed
etiam legibus non tenori. Jam primum
cum leges ferri debeant in homines,
genere facultateque omni politica
equales, nec legibus teneantur qui
multo ceteros rebus his praestare
videntur; reges autem generositate,
id est opulentia, antiquitate, et
claritate natalium nemo omnium
aequare possit aut contendat, virtute
pono et animi et corporis, omniquo
morum majestate humanum captum
modumque excedere, heroasque aequare
aut debeant, aut credantur. Manifes-
tum est legibus in cives, id est tn
populum latis, sacrosanctos homines
non teneri, augusta ilia designationo
oximioe. "
>> Id. id. id. : "Ad haec cum
nullum jus civile inter patrem et
liberos et inter dominum et familiam
intercedat, ut Aristotoles docet Lib. v.
Ethicorum, ot nos alibi diximus, sit
autem eadem ratio inter Principem et
populum; satis ut arbitror effectus est,
quod efficere meditabamur, . . . et Prin-
cipem non modo legibus solutum esse,
sed etiam non teneri. "
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? 296
[PABT III.
THE EARLIER SIXTEENTH CENTURY.
that the Law is the prince of princes, but he explained what
he meant by the Law when he said that it is not that law
which is written in books or on tables, but that living " reason"
which is within the prince. 1
It is obvious that Bude? was anxious, at least as a general
principle, to maintain the view that the king stood outside of,
and above, the legal order of society.
It is, however, also clear that in another place Bude? repre-
sents the actual constitutional practice of France in very
different terms. In discussing the position of the Senate in
Eome he compares it with "curia nostra suprema," and
maintains that this Court had all the powers which had been
in the Senate. The "Maiestas" and powers of the Roman
people had been transferred to the prince by the "Lex
Eegia," while the Senatorial Power had been granted to the
Curia--i. e. , the " Parlement. " It was this "Parlement" which
declared the princes' " acta," " rata irritave," by it he willed
that his Constitutions should be promulgated; and it was
to the judgment of this Court alone that the princes, though
"legibus soluti," submitted themselves ("a qua sibi jus dici,
principes leges soluti civili animo ferant "). 2
1 Id. id. id. : '' Verius autem quis
dixerit magistratus summos et prin-
cipes Dei ministros esse in procurations
bominum et salute, ut quae bona
goneri humano divinitus donantur, es
ipsi partim distribuant inter nominee,
partim asservent . . . tantorum porro
bonorum divinorum taliumque nullus
esset hominibus fructus ususque com-
modus et rectus, sine lege, sine justitia.
Bine principe. . . . Deinde haec sub-
dit; Justitia igitur finis est legis, lex
autem omcium est principis. At
princeps ipse imago est Dei, qui omnia
recte ordineque constituit. Convenit
hoc cum precepto apoitoli 'Ad
Romanos' Decimo Tortio (Rom. xiii.
1).
Plutarchus tamen, alibi in
eodem tractatu ita inquit. . . . Quis
igitur principi princeps erit 1 Nempe
lex quae omnium regina est mortalium
atque immortalium, ut inquit Pindarus.
Quae verba esse consentanea cum
lege, 'Digna Vox' (Cod. i. 14, 4).
Sed quam legem Plutarchus principi
imperitantem dixerit, ex iis quae
sequuntur intelligemus. . . . Lex
inquit principi imperatrix erit: non
ilia quidem aut in libris extrinsecus
scripta, aut in tabulis, sed animata
intus in ipso ratio, semper cum eo
conversans, ejusdemque observatrix,
quaequo eius animam nunquam sinit
tutela sui esse vacuam. "
? Id. id. , Dig. i. 9, 12 (p. 96): "In
ea igitur curia in qua summa juris-
dictionis Gallicae atque etiam juridic-
tialis imperii sita est, omnia inesse
mihi videutur, quae et in senatu, et in
centumviratu, et . in aroopago erant,
dumtaxat quod ad jurisdic-tionem
imperiumque jurisdictiale attinet. . . .
Majestas vero populi apud Romanos
? ? dicebatur, et auotorit&a Senatus.
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? CHAP, V. ] CIVILIANS IN THE SIXTEENTH CENTURY.
297
This is, indeed, a very different conception of the relation
of the prince to the Law from that expressed in the passages
already cited; it is possible that Bud6 looked upon this
relation of king and Parlement as arising from and depend-
ing npon the king's will and pleasure, but the discrepancy
remains, and we shall find something very like it in Bodin.
We may put beside the opinions of Bud6 some statements
of Jean Ferrault, in a work on the laws and privileges of the
kingdom of France, published in 1515. He contends that the
Kings of France have the same power of legislation as the
Eoman Emperor, and he seems, curiously enough, to hold
that the Salic Law was strictly analogous to the Lex Eegia
of Eome, and that by it all power had been transferred to the
King of France, who possessed all the rights of the Emperor. 1
And, in another place, as we understand him, he seems to
assert that the King of France can impose " novum vectigal,"
while other kings and lords can only exact the Eegalia. 2
Populus sciscere solebat et jubere,
Senatus censere et auctor esse. Ilia
1gitur popularia ad principem lege
regia delate sunt, haeo sanatoria ad
curiam translate esse creduntur. . . .
In hujus acta referri diplomata regiaque
boneficia solent, ut perpetua esse
possint, ac nunquam antiquabilia.
Hujus autoritate rata irritave principum
acta, ne ipsis quidem recusantibus,
fiont. Una haec curia est, a qua sibi
jus dici, principes legibus soluti civili
animo ferant: quam auctorem fieri
sacrandis promulgandisque eanctioni-
bus suis velint: cujus consilii cen-
surae, constitutionee suay eximi; edict-
aque sua nolint, imo cujus decretis
bujusmodi sua acta conservari eternitati
velint. "
1 Jesn Ferrault, 'Tractatus de
Juribus et Privilogiis Regni Francorum,'
zxxv. : "Duodecim lilium jus ali-
qualiter respiciens est quod Rex
iste solus facit constitutionee seu leges
in Regno Franciae. . . . Est enim
jure certissimum, quod populus regitur
solo rege, ille solus potest statuere,
condere et instituere. Constitutio vel
edictum est, quod tantum rex vel
imperator constituit, II. Dist. o.
Constitutio. Nam salutem reipublicao
tueri nulli magis credidit, divus
Augusti (nus) convenire, nec aliquem
sufficere ei rei . . . quia autiqua lege
regia quae salica nuncupatur omne jus
omnisque potestas in regiam translate
est: et sicuti imperatori soli hoc
conveneret in subditis . . . ita regi;
cum rex Franciae omnia jura impera-
toris babeat, quia (ut dictum est)
non recognoscit in temporalibus
superiorem. "
>> Id. id. , 41: "Decimum septimum
jus regium est, quod ipse solus et
nullus alius potest imponere novum
vectigal . . . alii autem reges, et
domini temporales possunt oxigere; in
Tit. quae sunt regalia X Coll. Sed
nec imponere nec quocunque colore
aliam exactionem facere etiam pro
? ? utilitate patriae. " (We confoss that wo
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? 208
fPABT m.
THE EARLIER SIXTEENTH CENTURY.
We may also put beside Ferrault the opinions of Charles
de Grassaille, in a work published in 1538. 1
When, however, we turn to other and more important
Civilians of the sixteenth century, we find judgments of a
very different kind. We begin with Alciatus of Milan and
Bourges, whose earlier years were spent in Milan, but who
later migrated to France and taught in the Law School of
Bourges in the earlier part of the century.
AlciatuB, as was natural, held that the authority of the
Emperor was derived from the Eoman people, but he de-
veloped this into the doctrine that all political authority
was and could only be derived from the people. The "Jus
imperii Koinani " belonged to the people until they transferred
it by law to Augustus. God gave men lordship over all
animals, but not over other men; kings were created, not by
the Divine command, but by the consent of the people.
Charles the Great was elected by the Eoman people, and this
authority is now exercised by the seven German Electors.
Thus, also in France, Chilperic was deposed and Pipin elected
king, and so with Hugh Capet; and thus also, in lesser
kingdoms. Alciatus concludes that " he is a just prince who
reigns with the consent of the people, and he is a tyrant who
reigns over unwilling subjects. " St Augustine rightly described
kingdoms created by violence, without the consent of the
subjects, as "magna latrocinia. " 2
1 Cf. J. W. Allen, 'A History of
Political Thought in the sixteenth
century,' p. 284.
* Alciatus, Opera, vol. ii. col. 1047,
'Comm. on Digest,' L. 16, I5:
"Jus Imperii Romani ad populum
pertinebat, donee per legem Rhemniam
populus in August um Caesarem
jus omne transtulit. . . . Nam
cum hominem creavit Deus, illi
in cetera quidem animantia jus et
dominium concessit, hominem autem
ut alteri alter serviret non indixit.
Undo prinoipio rerum non divina
ju&siono, sed ex populi consensu reges
assumpti sunt; quod et, post Romani
imperii occasum, servatum fuit, cum
Carolus Magnus a populo Romano
Augustus electus est, et a pontifice
Leone sacro oleo iniunctus; quod jus
populi hodie Gregoriana lege in septem
Germaniae principes translatum est.
Sio et Franci, Chilperico ejecto qui
regno idoneus non esset, Pipinum
varitcATiir^i consilio substituerunt. Et
cum Pipini proles a majoribus degener-
asset, rursus Odonem, mox eius {rat rem
Robertum et deinde Robert! nepotom
Hugonem ad summum fastigium
evexerunt. . . . Et quod de maxim is
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? CHAP, V. ] CIVILIANS IN THE SIXTEENTH CENTURY. 299
This is an interesting expansion of the tradition of the
Eoman Law, that all authority in Eome was derived from
the people, for Alciatus enlarges this into the general principle,
that without the consent of the community there is no legiti-
mate authority.
He is almost equally definite in his repudiation of the
conception that the authority which the people had granted
to the prince was absolutely unlimited. He refers contemptu-
ously in one place to the " hallucinations " of the theologians
and the " adulation" of the jurists who maintained that the
power of the prince was supreme and free, and that he could
do whatever he pleased. This, he says, is certainly not true
in Italy; it is absurd to say that bishops, dukes, or marquises
have an authority over Italians which the Emperor himself
does not possess. 1
In another work he insists again upon the limited nature
of the authority of princes. He has, he says, dealt at some
length with this, in order that princes, whether they had
reached the highest rank (he means the Empire) or are kings,
dukes, or counts, might learn that they had not so great an
authority as their flatterers tell them; and also in order that
the doctrine of Martin (i. e. , that there was nothing that the
Emperor could not do) should once again be refuted. 2
hisce regibus, nimirum Romano et
Franco, dictum est, idem in inferioribus
observatum fuisse, qui historicos legerit,
deprebendet; utmeritocenseamDivina
lege eum justum principem esse, qui
ex populi consensu regnet, quod et
Aristot. tradit; qui vero invitis
dominetur, eum tyrannum esse, etiamsi
Caesar sit, a Septemviris electus, vel
quaqua alia ratione civili jure potentiam
suam tueatur. Unde cum magna
regna non ex subditorum consensu,
sed per violentiam primo constitute
sunt, merito Augustinus libro de
Civitate Dei IIII. magna latrocinia
esse dicit. "
1 Id. id. , vol. ii. col. 1162, 'Comm. on
Digest,' L. 16, 111: "Hallucinantibus
theologis, adulantibus jurisconsultis,
persuadentibusque omnia principi licere,
summamque et liberam esse potestatom.
Quod certe in Italia verum non est . . .
ut ridiculum sit affirmare pontificibus,
due i bus, ot quos Qermanica voce march -
iones vocant, absolutam in subditis
potestatem competere, quae nec ipsi
Imperatori in Italos competit. "
* Id. , 'De Formula Romani Im-
perii ' (ed. Basle 1554) p. 43: "Et haec
a nobis diffusius dicta sunt, tum ut inde
admonerentur principes, sive ipsi ad
summum imperii gradum pervenerint,
sive ab imperatoribus, reges, duces,
comites appellati sint: non tantum
illis in populos licero quantum adula.
tores eorum auribus melle diluto
veneno infundunt; tum etiam ut
Martini, qui Bononiae jus civile pro-
? ? Generated for (University of Chicago) on 2014-12-19 10:34 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 300
THE EARLIER SIXTEENTH CENTURY. [part III.
Alciatus did not, we think, doubt that the prince had the
legislative power, which he had received from the people,
but in one passage he indicates that he was of opinion that
the prince should not make laws without the advice of the
"Periti," the men of experience. It appears very possible that
this is a reminiscence of the provisions of' Code,' i. 14,8, though
he is not here commenting on that passage. 1 He is also clear
that the prince is bound by his contracts, that he has no
power to revoke or annul them. We have already observed
the importance of this conception in the Civilians of the
fourteenth and fifteenth centuries; indeed, he refers directly
to some of them, and he also refers to the important parallel
principle of the Feudal Law, that the lord could not deprive
the vassal of his fief without just cause. 2
He also discusses the question whether the prince can insert,
in his briefs, clauses which derogate from the law; he says in
one place that no one can do this except the prince, and such
persons as have received authority from him. 3 That is, he
would seem to maintain the dispensing power of the prince. It
should, however, be observed that in another place Alciatus
allows this only under important reservations. The prince,
he says, has power to remit all punishments for offences
against himself, but he cannot deal in this way with "our"
rights anymore than the peopledid who gave him this authority;
fitebatur, nihil non Imperatori run-
cedentis, sententiam confutaretur. "
For the story about Martin, cf.
Savigny, 'Geschichte des Romischen
Rechts,' vol. iv. p. 180.
1 Id. , Opera, vol. iii. col. 26,' Comm.
on Cod. ,' i. , 2, 5: "Rationabilis Consilii.
Non enim debent principes ex se ipsis,
leges promulgate, sed adhibito peri-
torum consilio. "
* Id. id. , vol. iv. ,eol. 816, "Traotatus
de Praesumptionibus,' 'Regula Tertia
Praescriptionum ': "Et probatur ista
opinio, quao videtur communior . . .
ubi non presumitur causa in principe
volente rescindere proprium con-
tract um: imo iatud non potest etiam
de plenitudine potestatis, secundum
Paulus de Castro in L. Digna Vox
C. De Legibus. (Cod. i. xiv. 4. )
Et Baldus in Cap.
