* It is clear
that both these works assume in principle that there
is a legal process by which the king can be deposed.
that both these works assume in principle that there
is a legal process by which the king can be deposed.
Thomas Carlyle
Ganshof*s contention is one of
great interest and importance, and
we venture to hope that he will
continue his most valuable study of
the question.
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? 112
CHAPTER VIII.
METHODS AND EXPERIMENTS IN THE CONTROL
OF THE RULER.
We have endeavoured in the previous chapters to make it
clear not only that the authority of the ruler, in mediseval
theory was a strictly limited authority, but that there was an
appropriate legal machinery to enforce these limitations.
We must, however, in order to appreciate the significance
of these principles, go somewhat further, and observe that
not only the theorists but the Jurists recognised the pro-
priety of what to the modem mind might seem extra-con-
stitutional methods, by which in the last resort the ruler,
if he were to refuse to submit to legal authority, might pro-
perly be coerced and even deposed. We must bear in mind
that many actions which to us may seem extra-constitutional,
would have been considered in the Middle Ages proper and
legitimate methods, which were well within the principles
of the political order.
We must consider, first, the meaning of the principle that
in certain circumstances the subject had the right to renounce
his allegiance and even to resist the prince by force. We
must be careful lest we should misunderstand this, and look
at it from the standpoint of modern conditions and ideas ;
to us, no doubt, the refusal to obey the authority of the State
appears as, normally, little better than anarchism ; to the
mediseval mind it had not necessarily any such character.
The refusal to obey, the withdrawal of allegiance, might
be to them nothing more than the legal maintenance of a
legal right against an arbitrary and illegal action or demand.
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? CHAP. VIII. ]
113
THE CONTEOL OF THE RULEE.
The prince, no doubt, had his legal rights, but so also had the
subjects; to them the prince was not normally a sovereign
power behind and beyond the law, for he could only act
within the law.
This is the meaning of what might at first sight seem the
extravagant and eccentric constitutional methods which are
set out in the ' Assizes of Jerusalem,' both by Jean d'Ibelin
and Philip of Novara. They both maintain that, if the king
were to refuse to allow any one of his vassals to bring a claim
against him in the feudal Court, or were to refuse to carry
out the decision of the Court, or if he were to seize and im-
prison his vassal without the judgment of the Court, then
the vassals were to declare to the lord that they were bound
by their obligations to each other and by their duty to main-
tain the honour of the Court, and that therefore they would
renounce all service to him until he had submitted the matter
in dispute to the judgment of the Court, and had carried out
its decisions. 1
This is the constitutional meaning of the agreement which
Matthew Paris represents the English barons as making at
St Edmund's in 1214. The barons had received from Arch-
bishop Stephen Langton a charter of Henry I. , and they
agreed that if King John refused to grant them the laws
and liberties contained in this charter, they would withdraw
their allegiance, and would make war upon him until he
should confirm, by a charter under his own seal, what they
demanded. 2 The barons were acting within the general
principles of the feudal law in threatening to withdraw their
allegiance, but it may be doubted whether they were not
going beyond, at least, the letter of it, in threatening to
1 Philip of Novara, 61, 62 ; Jean
d'Ibelin, 201, 244. Cf. vol. iii. pp.
56-69.
* Matthew Paris, ' Chonica Majora,'
vol. ii. p. 683 : " Nam cum diu simul
et seoretius tractare coepissent, pro-
ducts est in medium carta qusedam
regis Henrici primi, quam idem
barones a Stephano Cantuarensi Archie-
piscopo, ut predictum est, in urbe
VOL. V.
Londoniarum acceperant. . . . Itaque
convenerunt ad ecclesiam Sancte Ead-
mundi, et incipientibus majoribus
juraverunt super majus altare, quod
si rex leges et libertates jam diotas
concedero diffugeret, ipsi ei werram
tam diu moverent et ab ejus fidelitate
se subtraherent, donee eis per cartam
sigillo suo munitam confirmaret omnia
quse petebant. "
H
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? 114
[PABT I.
POLITICAL, PRINCIPLES.
make war upon the king. Jean d'Ibelin, in the ' Assizes of
Jerusalem,' while, as we have said, clearly maintaining that,
if the king would not accept the decision of the Court, the
vassals were to withdraw their allegiance, is also clear in
saying that they could not bear arms or use force against
him personally. 1 The right of a vassal, to whom the king
refuses to do justice in the Court, to make war upon the
king, and to require his own vassals to follow him, was,
however, recognised by that compilation of the later part
of the thirteenth century which we know as the ' Etab-
lissements de St Louis. ' 2
We may compare the somewhat intricate provisions of the
' Siete Partidas. ' If the king refuses any of his " Eicos
Hombres " the judgment of the Court, he must give him
thirty days within which he may leave the kingdom accom-
panied by his sub-vassals, and he can then make war upon
the king until he has succeeded in getting possession of the
equivalent of that which the king took from him. 3
In other Spanish documents of the thirteenth century we
find the admission or assertion of a more general right of
resistance to any attempt to violate the "fueros" and usages.
In a privilege granted in 1282 by Sancho, who was in revolt
against his father, Alfonso, to the "Concejo de Briones," we
find him approving resistance not only to the king, but to
himself, and all others who should refuse to respect the
" fueros " and customs. *
There is, however, a greater constitutional significance in
the formation and purpose of the " hermandades " or leagues
1 Jean d'Ibelin, 201 : " Sire, voz
estes notre seignor, ne contre vostre
core noz ne portercmes armee, ni ne
ferions chose a force. Et puisque voz
noz defendes a force a delivrer nostra
per qui est pris e emprisonnes sans
esgart ne sans conoisance de court,
noz voz gajons toz ensemble et chacun
par sei dou servise que noz voz
devons tant que voz aies nostra per
tel delivrer ou fait delivrer, ou dite
reison por quei voz ne le doves
faire, e tel que court l'esgarde ou
conoise. "
Cf. vol. iii. p. 58.
* Cf. vol. iii. p. 63.
5 ' Siete Partidas,' iv. 25, 10-13.
* ' Documentos de la Epoca de Don
Alfonso e el Sabio' (in ' Memorial
historico Espanol,' Royal Academy of
History of Madrid, vol. n. 199) :
" Mandovos que vos emparedes 6 vos
defendades tambien del Rey oomo
de mi. "
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? CHAP, m] THE CONTROL OF THE RULER.
115
between various cities and others. We have an excellent
illustration of the nature and purpose of these leagues in the
documents concerning the formation in 1282 of a "her-
mandad " between the towns of Cordova, Jahen, Baeza,
Ubeda, Andujar, Arjona, and Sant Esteban, together with
Gonzalo Iban? ez, Sancho Sanchez, and Sancho Perez. They
unite and form a " hermandad " among themselves to pro-
tect their " fueros " privileges and franchises, and they agree
that if any lord either in the present or the future should
attack them, they were bound to come to each other's
assistance. 1
We have said enough, we think, to make it clear that the
feudal law of the Middle Ages not only recognised that the
ruler or prince was subject to the law, and that there was a
proper Court to decide what was law, and to judge in cases
of dispute between the prince and his vassals, but also that
it recognised clearly that there was a legal method of enforcing
the authority and judgment of the Court--that is, by the
withdrawal of allegiance, and also that, at least in some cases,
direct resistance to the arbitrary and illegal action of the
ruler was itself legal.
1 Id. , vol. ii. 205: " Sepan quantos
esta carta vieren, como nos los con-
cejos de Cordova, de Jahen, de Bseza
da Ubeda, de Andujar, de Arjona, e?
de Sant Esteban, e? yo Gonzalo Iban? ez
de Anguilar, e? yo Sancho Sanchez fijo
de D. Sancho Martinez de Iodar, e?
yo Sancho Perez de Iodar, todos a ser-
vicio de Dios, e? del muy noble Sen? or
Infante D. Sancho, fijo majo heredero
del mui noble e? alto rey D. Alfonso,
otorgamos nos por vassallos del Infante
D. Sancho, et metemos nos so su
sen? ori? o con las villas e? con los castiellos
e? con quanto que avemos e? avremos ;
e? a pro, e? a honra de nos, todos face-
mos tal pleito a tal postura que
seamos unos, e? facemos hermandad
entre nos que guardemos nuestros
fueros e? nuestros privilegios, e nuestras
franquezas, e? todas las libertades e? los
buenos usos, e? las buenas costumbres
que aviemos en el tiempo del re D.
Fernando, que nos el dio, ques en
Paradia0 ; e? que nos dio e? nos otorgo
el re Don Alfonso, e? nos otorgo nuestro
Sen? or el Infante Don Sancho; e? si
alguno sen? or de los que son, o? de tos
que seran, o? otros qualesquier vinieren
contra esto por menguer o? quebrantar
nuostros fueros, e? nuestros privilegios,
e? nuestras franquesas, e? nuestras liver-
tades, e? los buenos usos, e? las buenas
costumbres en todos o? en ellos que
nos paremos todos amanparallo, e? a?
defendello, e? con qualquier de nos que
desto falleciessen faciendolo saver los
unos a las otros, que los que lo sufieren
e? non quisieren venir aiudallos a
aquellos, e? que ficieren el tuerto des tas
cosas sobredichas que sean traidores
como quien mata sen? o/, o? traie castiello ;
e? que sera? mostrado cada an? o en la
? ? junta. '*
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? 116
[PART 1.
POLITICAL PRINCIPLES.
The refusal of obedience was then the first aspect of what
we may call the legitimate method of enforcing the limita-
tion of the authority of the ruler. It is necessary to distinguish
this, from the principle that in the last resort the prince
who refused to obey the law might be deposed. To the
modern mind the renunciation of obedience or the with-
drawal of allegiance may seem indistinguishable from de-
position, but it was not so in the Middle Ages.
Having then observed this, we must turn to the question
of the deposition of the ruler. We are not here concerned
with the mere fact of deposition, or with the justice or ex-
pediency of particular cases of deposition, but with the question
how far this was thought of as being in principle legal and
constitutional. We must begin by dismissing from our minds
such a conception as that of the modern constitutional doctrine
of England, that the king can do no wrong. Those who
have any acquaintance with the English history do not need
to be reminded that this doctrine, which might seem to re-
present a theory of absolutism, actually represents the method
by which the arbitrary power of the monarch has been
destroyed. In the Middle Ages this doctrine, however, had
no place ; the king, like any other person in the community,
was responsible for his own actions.
We have in a previous volume dealt with the deposition
of the Emperor Henry IV. and the theory of that deposition
as expressed by various persons, and especially by Manegold
of Lautenbach ; we have also discussed the theory of John of
Salisbury that the unjust and tyrannical ruler has lost all
right to authority, and may properly be attacked and even
slain. 1 We are now concerned with the question how far
this principle continued to be held in the thirteenth century.
We may begin by observing some words of a writer who
held what we have seen to be an unusual and even abnormal
view of the nature of the regal authority--that is, Egidius
Colonna. As we have seen, he maintained that the best form
of political authority was that of a monarchy which was
itself the source of law, and was above law. 2 It was the same
1 Cf. vol. iii. part ii. chaps. 5 and 6. s Cf. p. 74.
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? CHAP, vm. ] THE CONTROL OF THE RULER. 117
Egidius Colonna, however, who, as we have seen, in his tract
on the resignation of the Papal throne by Celestine V. , main-
tained that as the authority of the ruler must be established
by the consent of men, so also by the same consent he might
resign or even be deposed. 1 With this we should compare
the very careful discussion by St Thomas Aquinas of the
circumstances under which and the methods by which the
tyrannical ruler should be deposed, with which we have
already dealt. 2
We may now turn to the legal works and the records of
constitutional proceedings, and we may begin by observing
some words of the ' Sachsenspiegel. ' No man may
proceed against the king's life until he has been by proper
sentence deprived of his kingdom. 3 This is repeated in
the compilation which we know as the ' Schwabenspiegel,'
but it adds that no one can declare judgment on the
king's life or honour, except the princes.
* It is clear
that both these works assume in principle that there
is a legal process by which the king can be deposed. At
first sight we might very well suppose that these were little
more than the phrases of a theoretical system of law, but
it is noticeable that even the great Frederick II. used, if only
incidentally and under circumstances which might well make
such a statement diplomatically convenient, words which
have the same implication. In the Encyclical letter which
he addressed to St Louis of France and to the " Magnates
Anglian," as well as to the princes of the empire, he protested
1 Egidius Colonna, ' De Renuntia-
tione Papse,' xvi. 1 : " Sed quamvis
sic requirit natura negotii, quod scientes
melius pericula prsevidere, aliis prscfi-
ciantur, ut sub eorum gubernacula
multitudo servetur, oportet tamen
quod hoo compleatur per consonsum
hominum. Et siout per assensum
hominum perficitur et completur, ut
quia aliis prseficiatur, sie per consensum
hominum contrario modo factum fieri
potest, quod prsefectus cedat, vel quod
etiam deponatur. "
2 Cf. p. 96
3 * Sachsenspiegel,' iii. 54, 4 : M Also
ne mach deme Konige neman an sin
lif spreken, ime ne si dat rike vore
mit ordelen verdelt. "
' 'Schwabenspiegel,' 104: "Den Ku-
nige mac nieman an den lip ges-
prechen, im werde daz riche e verteilet
mit der Fiirsten urteile. Uber des
Kunigee lip und iiber sin ere mac
nieman urteil sprechen wan die Fiir-
sten. "
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? 118
[PART I.
POLITICAL PRINCIPLES.
against his deposition by Pope Innocent IV. as being the
action of a " judex incompetens," and urged that the sentence
and the whole proceedings were null and void, for none of
the princes of Germany " a quibus assumptio status et de-
pressio nostra dependit," had confirmed them by their presence
and counsel. 1
In the proceedings related to the deposition of Adolf of
Germany in 1298, we find that the princes concerned assumed
that they were acting by due process of law, and it is worth
while to observe the procedure in a little detail. The Arch-
bishop of Maintz called a Council to consider the troubled
condition of Germany, and to this he summoned both the
princes who had the right of election, and Adolf himself.
The important princes present were the Archbishop himself,
who was said to be acting also for the King of Bohemia;
the Duke of Saxony, holding also the proxy of the Count
Palatine; and the Margrave of Brandenburg. They enum-
erated various charges against him, the violation of Churches
and ecclesiastics, the toleration of violence against women,
the interference with ecclesiastical liberties, especially by
demanding gifts before he would grant the " Eegalia " to
the bishops, and various acts of aggression upon the rights of
the German princes, counts, barons, &c. They found Adolf
guilty of these crimes, and declared that he had proved him-
self to be incompetent and useless for so great an authority,
and therefore, after careful deliberation and by the common
council and will of all the electoral princes, the bishops, dukes,
counts, barons, and wise men present, the electoral princes
declared Adolf deposed, and also absolved all men from
their oath of allegiance to him. 2
1 M. G. H. , ' Const,' vol. ii. 262, 9:
" Advertat igittir prudentia tua, si
predicta sententia nulla ipso jure,
nullus ipso jure processus, . . . debeat
observari, quam nulli nostrorum Ger-
manise principum a quibus assumptio
status et depressio nostra dependet,
presentia vel consilio firmaverunt. "
* M. G. H. , ' Constitutiones,' vol. iii.
589, 7 : " Igitur super premissis cum
principibus electoribus episcopis, pre-
latis, ducibus, comitibus, baronibus et
sapientibus, omnibus ibidem presen-
tibus, deliberatione prehabita diligenti,
de communi consilio et voluntate
omnium de consensu unanimo illorum,
quorum in te re rat, prediotum domimim
Adolphum qui se regno reddidit tam
indignum, quique propter suas iniqui-
tates et causas prescriptas a Deo ne
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? CHAP. Tin. ] THE CONTROL OF THE RULER. 119
In the promulgation of the deposition of Adolf, and the
election of Albert Duke of Austria, issued by the Duke of
Saxony, stress is especially laid upon the responsibility of
the electoral princes for the peace and wellbeing of the
empire, and upon the incompetence of Adolf. And the
Duke of Saxony proclaims that they had therefore, after
careful deliberation, and following the due process of law,
deprived him of the kingdom. 1
We are not here concerned to discuss the real political
causes of this action, or the question how far the action of
the princes was reasonable and in the circumstances justifiable ;
we are concerned only with the fact that they represent
themselves as exercising their constitutional power in accor-
dance with constitutional law. We would suggest that this
affords an illustration of the suggestion of St Thomas Aquinas,
that there should be some method and form of public action
by which the prince who proved incompetent or tyrannical
should be deposed. 2
It is in truth clear that the authority of the mediseval
prince was not only limited by the law, but that some at least
of the political systems of the Middle Ages provided a con-
stitutional form by which this limitation might be enforced
even by deposition. The right of withdrawal of allegiance
rcgnet amplius est eiectus, privatum
regno, cui hactenus profuit, a domino
OKtendimus, denunciamus privatum, ot
nihilominus ooncordi sententia pre-
dictorum principum electorum dic-
tante, sentenciando privamus; omnes
qui ei juramento fidelitatis tenentur
astricti, a juramento hujusmodi per-
petuo absolventes, firmiter inhibendo
ne quisquam de cetero sibi tanquam
regi pareat vel intendat. "
1 Id. id. , vol. iii. 690 : " Unde cum
in hiis quse ad conservacionem sanctse-
pacis et honorabilem sacri statum
Imperii expedire videntur, nos una
cum ceteris principibus electoribus
esse deceat circumspectos, considerato
et cognito, quod regnante predicto
domino Adolfo quies tempo mm per-
turbata non possit aliquatenus refor-
mari, sed mala multiplicarentur in
terris, intollerabilibus et dampnosis
hujusmodi compulsi defectibus, ad
quorum emendationem predictum regem
competentem non vidimus, animadver-
tendum juste duximus in eundem,
deliberacione matura et diligenti sollici-
tudine perhabita, juris etiam ordine
ut decuit observato, regno Romano,
cui minus utiliter prefuit cuiusque per
demerita reddidit se indignum, pri-
v an tee ipsum et privatum denun-
ciantos dictante sententia concordi
prcdiotorum principum electorum. "
? Cf. p. 96.
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? 120 POLITICAL PRINCIPLES. [PABT I.
and the right of deposition were, however, cumbrous and
inconvenient methods for the restraint of the prince.
We must therefore now consider very briefly the signi-
ficance of some very important thirteenth-century experiments
in the establishment of easier and more effective methods
of control. We do not pretend here to discuss the history
of these experiments in detail; that has already been done
for England with characteristic restraint and caution in the
great work of Bishop Stubbs, and recently there has appeared
an admirably detailed study of some aspects of these ex-
periments. 1 We are concerned with the political ideas which
lay behind these experiments ; for they were important not
only in themselves but for that which they anticipated.
It is in England that we find the most important examples
of these experiments, but there are also some important
parallels in Spain.
This is the larger historical significance of the sixty-first
clause of Magna Carta, the clause in which the king sanctioned
the appointment by the barons of a Committee from their
number, which was to have authority not only to demand
of the king and the justiciary the execution of the provisions
of the charter, but to compel this with the assistance of the
whole community (communa totius terra), if necessary by
force. 2 No doubt the situation was exceptional, the good
1 Cf. Stubb's ' Const. Hist. ,' chap.
14, and Mr Jacob in ' Oxford Studies
in Social and Legal History,' ed.
Vinogradoff.
2 Magna Carta, 61 : " Cum autem
pro Deo et ad emendacionem regni
nostri, et ad melius sopiendam dis-
cordiam inter nos et barones nostras
ortam, hjeo omnia prsedicta oonoes-
serimus, volentes ea integra et firms
<<tabilitate in perpetuum gaudere, faci-
mus et concedimus eis securitatem
subscriptam ; videlicet, quod barones
eligant viginti quinque barones de
regno quos voluerint, qui debeant pro
to tia viribus suis observare, tenere et
facere observari, pacem et libertates
quas eis concessimus, et hoc presenti
carta nostra confirmavimus, ita scilicet
quod si nos, vel justitiarius nouter,
vel ballivi nostri, vel aliquis de ministris
nostris, in aliquo erga aliquem deli-
querimus, vel aliquem articularum
pacis aut securitatis transgressi fueri-
mus, et delictum ostensum fuerit
quatuor baronibus de predictis viginti
quinque baronibus, illi quatuor barones
accedant ad nos vel ad justieiarium
nostrum, si fuerimus extra regnum,
preponentes nobis excessum: potent
ut excessum ilium sine dilacione facia-
mus emendari. Et si nos excessum
non emendaverimus, vel si fuerimus
extra regnum, justiciarius nortec non
emendaverit infra tempus quadraginta
dierum computandum a tempore quo
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? CHAP. VIII. ]
121
THE CONTROL OF THE RULER.
faith of John was more than doubtful, and it would be un-
reasonable to suppose that the barons thought that they
were creating a permanent constitutional system. And yet
it is in these provisions that we have the germ of the public
control of what we should in modern times call the administra-
tive action of the Crown.
If this arrangement stood alone, it would no doubt have
little significance, but when we observe that the methods
which were here proposed were carried much further in the
demands of the barons of 1244 and 1258, this clause of
Magna Carta receives a new importance.
We only know the demands of the barons in 1244 through
Matthew Paris, and we must therefore treat the subject with
caution, but it would appear from his narrative that the
barons complained that the provisions of the great Charter
were not being carried out, and they therefore demanded
the appointment of a justiciar and chancellor. 1 Matthew
Paris also gives an account of a scheme of reform which
seems to belong to the same time under which a new charter
was to be drawn up, and its execution entrusted to four
counsellors chosen by the common consent. 2
monstratum fuerit nobis Vel justiciario
nostro si, extra regnum fuerimus, pre-
dict! quatuor barones referant causam
illam ad residues de illis viginti quinque
baronibus, et illi viginti quinque
barones cum communa totius terra
distringent et gravabunt nos modis
omnibus quibus poterunt, scilicet per
captionem castrorum, terrarum, pos-
sessionum, et aliis modis quibus poto-
runt, donee fuerit emendatum secun-
dum arbitrium eorum, salva persona
nostra et reguue nostrse et liberorum
nostrorum; et cum fuerit emendatum
intendent nobis sicut prius fecerunt. "
1 Matthew Paris, ' Chronica Majora,'
vol. iv. p. 362 : " Et quia carta liber -
tatum quas dominus rex olim conces-
serat et pro cujus observatione archie-
piscopus Cantuarensis /Edrmmdus jura-
verat, fide jusserat, et certissime pro
rege promiserat, nondum exstitit obser-
vata, et auxilia quse to ties conceesa
fuerant domino regi ad nullum pro-
fectum regis vel regni devenerant; et
per defectum cancellarii b re via contra
justitiam pluries fuerant concessa, peti-
tum fuit ut secundum quod elegerant,
justitiarius et cancellarius fierent, per
quos status regni solidaretur, ut sole-
bat. "
* Id. id. , p. 366 : " De oommuni
assensu quatuor eligantur potentes et
nobiles de discretion bus totius regni,
qui sint do consilio domini regis, et
iurati quod negotia domini regis et
regni fideliter tractabunt, et sine
acceptione personarum omnibus iusti-
tiam exhibebunt- Hi sequentur domi-
rum re gem, et si non omnes, semper
duo eorum ad minus prasentes sint,
ut andiant querimonias singulorum,
et patientibus iniuriam celeriter possint
? ? subvenire. . . . Et erunt libertatum
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? 122
[PABT I.
POLITICAL PRINCIPLES.
It is in the Provisions of Oxford of 1258 that we find these
tentative schemes assuming a definite and precise form.
Much in the details of these are difficult to make out, and we
should refer to Bishop Stubbs for a complete account,1 but
the general principles are clear.
A council of twenty-four was to be appointed, half by
the king, half by the barons ; the king's representatives
were to select two of the barons' representatives, and the
barons' representatives two of the king's, and these four
were to elect fifteen who were to be confirmed by the whole
twenty-four, and to form the perpetual council of the king.
They were to have authority to advise the king on all matters
concerning the government of the kingdom, and to amend
and put in order all things which required this ; and they
were to have authority over the " haute justice " (the Justiciar)
and over all other people. 2 It was also of great significance
that the justiciar, the treasurer, and the chancellor were to
be appointed only for a year at a time, and were to give
account at the end of the year 3 ; and that the justiciar was
to swear that he would act according to the provisions to be
made by the twenty-four and the council of the king, and
conservatores. Et sicut de omnium
nssensu eliguntur, sic sine communi
assensu non potent aliquis eorum
ameveri. "
We owe both these references to
Stubb's ' Const. Hist. ,' chap. 14.
1 Stubb's ' Const. Hist. ,' chap. 14.
* Provisions of Oxford, ' Annales de
Burton ' (Rolls Series), p. 462 : " Dos
Parle? menz quanz serrunt tenus per an
et coment.
Quinze serrunt nomez par ces
quatre, ceo est a saver per le Cunt
le Marechale, le Cunt de Warewik,
Hugo le Bigot, et John Mansel, ki
sunt esluz par les 24, pur nomer les
devent dit quinze, les queus serunt
de conseil le rei. E serrunt cunfermez
par les avant dit 24 ou par la greinore
partie de els. E averunt poor del rei
conseiler en bone fei del governement
del reaume, et de totes choses ke al
rei u al reaume pertenent. E pur
amender et adrescer totes les choses
ke il verrunt ke facent a adrescer e
amender. E sur le haute justice, et
sur totes autres genz. E se il ne
poent tuz estre, ceo ke la greinure
partie fera serra ferm et estable. "
* Id. , p. 450, ' De la haute justice ' :
" Derichef ke justice seit mis un u deus,
e quel poer il avera, e ke il ne seit fors
un an. Issi ke al chef del an respoine
devant le rei e sun cunseil de sun tens
e devant lui ko serra apres lui. "
" Del tresorer e de le escheker.
Autel, del tresorer. Mes ke il rende
aounte al chef del an. "
" Del chanceler. Autel, del chance-
ler. Issi ke al chef del an respoine de
sun tens. E ke il ne ensele hors de
curs par la suie volunte del rei ; mes
le face par le cunseil ke serra entur
? ? le rei. "
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? CHAP. VIII. ]
123
THE CONTROL OF THE RULER.
that the chancellor was to swear that he would seal no writ
except writs of course (brefs de curs) without the com-
mandment of the king and his council who were to be present,1
or, as it is put in the passage cited before, he was to seal
nothing outside of the ordinary course (hors de curs) by the
sole will of the king, but only by the authority of the council,
who were to be with the king.
It is no doubt true that St Louis in 1264 annulled the
Provisions of Oxford, when they were submitted to his
arbitration by the king and the barons, but his award was
not accepted, and after the defeat of Henry LTI. at Lewes,
the system of the Provisions was re-established in the Parlia-
ment of 1264, with some modifications. Three electors were
to be chosen, and the king was to give them authority, in
his place, to appoint a council of nine members of whom
three at least were to be in rotation at the Court. By their
counsel the king was to administer the affairs of the kingdom,
and to appoint the justiciar, the chancellor, the treasurer,
and the other officials both small and great. 2
We have an excellent commentary upon the principles
which lay behind these proposals in the contemporary ' Song
of Lewes. ' This was no doubt written by a partisan of the
barons, but it is not the less significant as illustrating the
1 Id. , p. 411 : " Ceo jura le haute jus-
tice de Engleterre. Il jure que ben e
loaument a sun poer fra ceo ke apent
a la justicerie de dreituro tenir, a tute
gonz al prou le rei e del resume, solum
la purveaunce fete et a fere par les
vint et quatre, et par le cunseil le
rey e les hauz humes de la tere, ki
li jurrunt en costes choses a aider e
a maintenir.
Ceo jura le chanceler de Engleterre.
Ke il ne euselera nul bref fors bref
de curs sanz le commandement le rei,
o de sun cunseil ke sera present: ne
enselera dun de grant garde, ne de
grant . . . no de eschaetes, sanz le
assentement del grant cunseil u de
la greinure partie. Ne ke il ne enselera
ren ke seit encontre le ordincment ke
e fet e serra a fere par les vint e quatre,
u par la greinure partie. "
>> Rymer, ' Feeders,' vol. i. p. 443
(ed. 1816): " Ad reformationem regni
Anglise eligantur et nommentur tres
discreti et fideles de regno, qui habeant
auotoritatem et potestatem a domino
rege eligendi seu nominandi, vice
domini regis, consiliarios novem ; tres
ad minus alternatim sen vicissim sem-
per sint in curia presentes. Et dominus
rex per concilium eorundem novem,
ordinet et disponat de custodia cas-
trorum et omnibus aliis regni negotiis.
Prseficiat etiam dominus rex per con-
silium predictorum novem, justitiarium
cancellarium, thesaurarium, et alios
officiales majores et minores in hiis quse
spectant ad regimen ourise et regni. "
? ?
great interest and importance, and
we venture to hope that he will
continue his most valuable study of
the question.
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? 112
CHAPTER VIII.
METHODS AND EXPERIMENTS IN THE CONTROL
OF THE RULER.
We have endeavoured in the previous chapters to make it
clear not only that the authority of the ruler, in mediseval
theory was a strictly limited authority, but that there was an
appropriate legal machinery to enforce these limitations.
We must, however, in order to appreciate the significance
of these principles, go somewhat further, and observe that
not only the theorists but the Jurists recognised the pro-
priety of what to the modem mind might seem extra-con-
stitutional methods, by which in the last resort the ruler,
if he were to refuse to submit to legal authority, might pro-
perly be coerced and even deposed. We must bear in mind
that many actions which to us may seem extra-constitutional,
would have been considered in the Middle Ages proper and
legitimate methods, which were well within the principles
of the political order.
We must consider, first, the meaning of the principle that
in certain circumstances the subject had the right to renounce
his allegiance and even to resist the prince by force. We
must be careful lest we should misunderstand this, and look
at it from the standpoint of modern conditions and ideas ;
to us, no doubt, the refusal to obey the authority of the State
appears as, normally, little better than anarchism ; to the
mediseval mind it had not necessarily any such character.
The refusal to obey, the withdrawal of allegiance, might
be to them nothing more than the legal maintenance of a
legal right against an arbitrary and illegal action or demand.
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? CHAP. VIII. ]
113
THE CONTEOL OF THE RULEE.
The prince, no doubt, had his legal rights, but so also had the
subjects; to them the prince was not normally a sovereign
power behind and beyond the law, for he could only act
within the law.
This is the meaning of what might at first sight seem the
extravagant and eccentric constitutional methods which are
set out in the ' Assizes of Jerusalem,' both by Jean d'Ibelin
and Philip of Novara. They both maintain that, if the king
were to refuse to allow any one of his vassals to bring a claim
against him in the feudal Court, or were to refuse to carry
out the decision of the Court, or if he were to seize and im-
prison his vassal without the judgment of the Court, then
the vassals were to declare to the lord that they were bound
by their obligations to each other and by their duty to main-
tain the honour of the Court, and that therefore they would
renounce all service to him until he had submitted the matter
in dispute to the judgment of the Court, and had carried out
its decisions. 1
This is the constitutional meaning of the agreement which
Matthew Paris represents the English barons as making at
St Edmund's in 1214. The barons had received from Arch-
bishop Stephen Langton a charter of Henry I. , and they
agreed that if King John refused to grant them the laws
and liberties contained in this charter, they would withdraw
their allegiance, and would make war upon him until he
should confirm, by a charter under his own seal, what they
demanded. 2 The barons were acting within the general
principles of the feudal law in threatening to withdraw their
allegiance, but it may be doubted whether they were not
going beyond, at least, the letter of it, in threatening to
1 Philip of Novara, 61, 62 ; Jean
d'Ibelin, 201, 244. Cf. vol. iii. pp.
56-69.
* Matthew Paris, ' Chonica Majora,'
vol. ii. p. 683 : " Nam cum diu simul
et seoretius tractare coepissent, pro-
ducts est in medium carta qusedam
regis Henrici primi, quam idem
barones a Stephano Cantuarensi Archie-
piscopo, ut predictum est, in urbe
VOL. V.
Londoniarum acceperant. . . . Itaque
convenerunt ad ecclesiam Sancte Ead-
mundi, et incipientibus majoribus
juraverunt super majus altare, quod
si rex leges et libertates jam diotas
concedero diffugeret, ipsi ei werram
tam diu moverent et ab ejus fidelitate
se subtraherent, donee eis per cartam
sigillo suo munitam confirmaret omnia
quse petebant. "
H
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? 114
[PABT I.
POLITICAL, PRINCIPLES.
make war upon the king. Jean d'Ibelin, in the ' Assizes of
Jerusalem,' while, as we have said, clearly maintaining that,
if the king would not accept the decision of the Court, the
vassals were to withdraw their allegiance, is also clear in
saying that they could not bear arms or use force against
him personally. 1 The right of a vassal, to whom the king
refuses to do justice in the Court, to make war upon the
king, and to require his own vassals to follow him, was,
however, recognised by that compilation of the later part
of the thirteenth century which we know as the ' Etab-
lissements de St Louis. ' 2
We may compare the somewhat intricate provisions of the
' Siete Partidas. ' If the king refuses any of his " Eicos
Hombres " the judgment of the Court, he must give him
thirty days within which he may leave the kingdom accom-
panied by his sub-vassals, and he can then make war upon
the king until he has succeeded in getting possession of the
equivalent of that which the king took from him. 3
In other Spanish documents of the thirteenth century we
find the admission or assertion of a more general right of
resistance to any attempt to violate the "fueros" and usages.
In a privilege granted in 1282 by Sancho, who was in revolt
against his father, Alfonso, to the "Concejo de Briones," we
find him approving resistance not only to the king, but to
himself, and all others who should refuse to respect the
" fueros " and customs. *
There is, however, a greater constitutional significance in
the formation and purpose of the " hermandades " or leagues
1 Jean d'Ibelin, 201 : " Sire, voz
estes notre seignor, ne contre vostre
core noz ne portercmes armee, ni ne
ferions chose a force. Et puisque voz
noz defendes a force a delivrer nostra
per qui est pris e emprisonnes sans
esgart ne sans conoisance de court,
noz voz gajons toz ensemble et chacun
par sei dou servise que noz voz
devons tant que voz aies nostra per
tel delivrer ou fait delivrer, ou dite
reison por quei voz ne le doves
faire, e tel que court l'esgarde ou
conoise. "
Cf. vol. iii. p. 58.
* Cf. vol. iii. p. 63.
5 ' Siete Partidas,' iv. 25, 10-13.
* ' Documentos de la Epoca de Don
Alfonso e el Sabio' (in ' Memorial
historico Espanol,' Royal Academy of
History of Madrid, vol. n. 199) :
" Mandovos que vos emparedes 6 vos
defendades tambien del Rey oomo
de mi. "
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? CHAP, m] THE CONTROL OF THE RULER.
115
between various cities and others. We have an excellent
illustration of the nature and purpose of these leagues in the
documents concerning the formation in 1282 of a "her-
mandad " between the towns of Cordova, Jahen, Baeza,
Ubeda, Andujar, Arjona, and Sant Esteban, together with
Gonzalo Iban? ez, Sancho Sanchez, and Sancho Perez. They
unite and form a " hermandad " among themselves to pro-
tect their " fueros " privileges and franchises, and they agree
that if any lord either in the present or the future should
attack them, they were bound to come to each other's
assistance. 1
We have said enough, we think, to make it clear that the
feudal law of the Middle Ages not only recognised that the
ruler or prince was subject to the law, and that there was a
proper Court to decide what was law, and to judge in cases
of dispute between the prince and his vassals, but also that
it recognised clearly that there was a legal method of enforcing
the authority and judgment of the Court--that is, by the
withdrawal of allegiance, and also that, at least in some cases,
direct resistance to the arbitrary and illegal action of the
ruler was itself legal.
1 Id. , vol. ii. 205: " Sepan quantos
esta carta vieren, como nos los con-
cejos de Cordova, de Jahen, de Bseza
da Ubeda, de Andujar, de Arjona, e?
de Sant Esteban, e? yo Gonzalo Iban? ez
de Anguilar, e? yo Sancho Sanchez fijo
de D. Sancho Martinez de Iodar, e?
yo Sancho Perez de Iodar, todos a ser-
vicio de Dios, e? del muy noble Sen? or
Infante D. Sancho, fijo majo heredero
del mui noble e? alto rey D. Alfonso,
otorgamos nos por vassallos del Infante
D. Sancho, et metemos nos so su
sen? ori? o con las villas e? con los castiellos
e? con quanto que avemos e? avremos ;
e? a pro, e? a honra de nos, todos face-
mos tal pleito a tal postura que
seamos unos, e? facemos hermandad
entre nos que guardemos nuestros
fueros e? nuestros privilegios, e nuestras
franquezas, e? todas las libertades e? los
buenos usos, e? las buenas costumbres
que aviemos en el tiempo del re D.
Fernando, que nos el dio, ques en
Paradia0 ; e? que nos dio e? nos otorgo
el re Don Alfonso, e? nos otorgo nuestro
Sen? or el Infante Don Sancho; e? si
alguno sen? or de los que son, o? de tos
que seran, o? otros qualesquier vinieren
contra esto por menguer o? quebrantar
nuostros fueros, e? nuestros privilegios,
e? nuestras franquesas, e? nuestras liver-
tades, e? los buenos usos, e? las buenas
costumbres en todos o? en ellos que
nos paremos todos amanparallo, e? a?
defendello, e? con qualquier de nos que
desto falleciessen faciendolo saver los
unos a las otros, que los que lo sufieren
e? non quisieren venir aiudallos a
aquellos, e? que ficieren el tuerto des tas
cosas sobredichas que sean traidores
como quien mata sen? o/, o? traie castiello ;
e? que sera? mostrado cada an? o en la
? ? junta. '*
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? 116
[PART 1.
POLITICAL PRINCIPLES.
The refusal of obedience was then the first aspect of what
we may call the legitimate method of enforcing the limita-
tion of the authority of the ruler. It is necessary to distinguish
this, from the principle that in the last resort the prince
who refused to obey the law might be deposed. To the
modern mind the renunciation of obedience or the with-
drawal of allegiance may seem indistinguishable from de-
position, but it was not so in the Middle Ages.
Having then observed this, we must turn to the question
of the deposition of the ruler. We are not here concerned
with the mere fact of deposition, or with the justice or ex-
pediency of particular cases of deposition, but with the question
how far this was thought of as being in principle legal and
constitutional. We must begin by dismissing from our minds
such a conception as that of the modern constitutional doctrine
of England, that the king can do no wrong. Those who
have any acquaintance with the English history do not need
to be reminded that this doctrine, which might seem to re-
present a theory of absolutism, actually represents the method
by which the arbitrary power of the monarch has been
destroyed. In the Middle Ages this doctrine, however, had
no place ; the king, like any other person in the community,
was responsible for his own actions.
We have in a previous volume dealt with the deposition
of the Emperor Henry IV. and the theory of that deposition
as expressed by various persons, and especially by Manegold
of Lautenbach ; we have also discussed the theory of John of
Salisbury that the unjust and tyrannical ruler has lost all
right to authority, and may properly be attacked and even
slain. 1 We are now concerned with the question how far
this principle continued to be held in the thirteenth century.
We may begin by observing some words of a writer who
held what we have seen to be an unusual and even abnormal
view of the nature of the regal authority--that is, Egidius
Colonna. As we have seen, he maintained that the best form
of political authority was that of a monarchy which was
itself the source of law, and was above law. 2 It was the same
1 Cf. vol. iii. part ii. chaps. 5 and 6. s Cf. p. 74.
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? CHAP, vm. ] THE CONTROL OF THE RULER. 117
Egidius Colonna, however, who, as we have seen, in his tract
on the resignation of the Papal throne by Celestine V. , main-
tained that as the authority of the ruler must be established
by the consent of men, so also by the same consent he might
resign or even be deposed. 1 With this we should compare
the very careful discussion by St Thomas Aquinas of the
circumstances under which and the methods by which the
tyrannical ruler should be deposed, with which we have
already dealt. 2
We may now turn to the legal works and the records of
constitutional proceedings, and we may begin by observing
some words of the ' Sachsenspiegel. ' No man may
proceed against the king's life until he has been by proper
sentence deprived of his kingdom. 3 This is repeated in
the compilation which we know as the ' Schwabenspiegel,'
but it adds that no one can declare judgment on the
king's life or honour, except the princes.
* It is clear
that both these works assume in principle that there
is a legal process by which the king can be deposed. At
first sight we might very well suppose that these were little
more than the phrases of a theoretical system of law, but
it is noticeable that even the great Frederick II. used, if only
incidentally and under circumstances which might well make
such a statement diplomatically convenient, words which
have the same implication. In the Encyclical letter which
he addressed to St Louis of France and to the " Magnates
Anglian," as well as to the princes of the empire, he protested
1 Egidius Colonna, ' De Renuntia-
tione Papse,' xvi. 1 : " Sed quamvis
sic requirit natura negotii, quod scientes
melius pericula prsevidere, aliis prscfi-
ciantur, ut sub eorum gubernacula
multitudo servetur, oportet tamen
quod hoo compleatur per consonsum
hominum. Et siout per assensum
hominum perficitur et completur, ut
quia aliis prseficiatur, sie per consensum
hominum contrario modo factum fieri
potest, quod prsefectus cedat, vel quod
etiam deponatur. "
2 Cf. p. 96
3 * Sachsenspiegel,' iii. 54, 4 : M Also
ne mach deme Konige neman an sin
lif spreken, ime ne si dat rike vore
mit ordelen verdelt. "
' 'Schwabenspiegel,' 104: "Den Ku-
nige mac nieman an den lip ges-
prechen, im werde daz riche e verteilet
mit der Fiirsten urteile. Uber des
Kunigee lip und iiber sin ere mac
nieman urteil sprechen wan die Fiir-
sten. "
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? 118
[PART I.
POLITICAL PRINCIPLES.
against his deposition by Pope Innocent IV. as being the
action of a " judex incompetens," and urged that the sentence
and the whole proceedings were null and void, for none of
the princes of Germany " a quibus assumptio status et de-
pressio nostra dependit," had confirmed them by their presence
and counsel. 1
In the proceedings related to the deposition of Adolf of
Germany in 1298, we find that the princes concerned assumed
that they were acting by due process of law, and it is worth
while to observe the procedure in a little detail. The Arch-
bishop of Maintz called a Council to consider the troubled
condition of Germany, and to this he summoned both the
princes who had the right of election, and Adolf himself.
The important princes present were the Archbishop himself,
who was said to be acting also for the King of Bohemia;
the Duke of Saxony, holding also the proxy of the Count
Palatine; and the Margrave of Brandenburg. They enum-
erated various charges against him, the violation of Churches
and ecclesiastics, the toleration of violence against women,
the interference with ecclesiastical liberties, especially by
demanding gifts before he would grant the " Eegalia " to
the bishops, and various acts of aggression upon the rights of
the German princes, counts, barons, &c. They found Adolf
guilty of these crimes, and declared that he had proved him-
self to be incompetent and useless for so great an authority,
and therefore, after careful deliberation and by the common
council and will of all the electoral princes, the bishops, dukes,
counts, barons, and wise men present, the electoral princes
declared Adolf deposed, and also absolved all men from
their oath of allegiance to him. 2
1 M. G. H. , ' Const,' vol. ii. 262, 9:
" Advertat igittir prudentia tua, si
predicta sententia nulla ipso jure,
nullus ipso jure processus, . . . debeat
observari, quam nulli nostrorum Ger-
manise principum a quibus assumptio
status et depressio nostra dependet,
presentia vel consilio firmaverunt. "
* M. G. H. , ' Constitutiones,' vol. iii.
589, 7 : " Igitur super premissis cum
principibus electoribus episcopis, pre-
latis, ducibus, comitibus, baronibus et
sapientibus, omnibus ibidem presen-
tibus, deliberatione prehabita diligenti,
de communi consilio et voluntate
omnium de consensu unanimo illorum,
quorum in te re rat, prediotum domimim
Adolphum qui se regno reddidit tam
indignum, quique propter suas iniqui-
tates et causas prescriptas a Deo ne
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? CHAP. Tin. ] THE CONTROL OF THE RULER. 119
In the promulgation of the deposition of Adolf, and the
election of Albert Duke of Austria, issued by the Duke of
Saxony, stress is especially laid upon the responsibility of
the electoral princes for the peace and wellbeing of the
empire, and upon the incompetence of Adolf. And the
Duke of Saxony proclaims that they had therefore, after
careful deliberation, and following the due process of law,
deprived him of the kingdom. 1
We are not here concerned to discuss the real political
causes of this action, or the question how far the action of
the princes was reasonable and in the circumstances justifiable ;
we are concerned only with the fact that they represent
themselves as exercising their constitutional power in accor-
dance with constitutional law. We would suggest that this
affords an illustration of the suggestion of St Thomas Aquinas,
that there should be some method and form of public action
by which the prince who proved incompetent or tyrannical
should be deposed. 2
It is in truth clear that the authority of the mediseval
prince was not only limited by the law, but that some at least
of the political systems of the Middle Ages provided a con-
stitutional form by which this limitation might be enforced
even by deposition. The right of withdrawal of allegiance
rcgnet amplius est eiectus, privatum
regno, cui hactenus profuit, a domino
OKtendimus, denunciamus privatum, ot
nihilominus ooncordi sententia pre-
dictorum principum electorum dic-
tante, sentenciando privamus; omnes
qui ei juramento fidelitatis tenentur
astricti, a juramento hujusmodi per-
petuo absolventes, firmiter inhibendo
ne quisquam de cetero sibi tanquam
regi pareat vel intendat. "
1 Id. id. , vol. iii. 690 : " Unde cum
in hiis quse ad conservacionem sanctse-
pacis et honorabilem sacri statum
Imperii expedire videntur, nos una
cum ceteris principibus electoribus
esse deceat circumspectos, considerato
et cognito, quod regnante predicto
domino Adolfo quies tempo mm per-
turbata non possit aliquatenus refor-
mari, sed mala multiplicarentur in
terris, intollerabilibus et dampnosis
hujusmodi compulsi defectibus, ad
quorum emendationem predictum regem
competentem non vidimus, animadver-
tendum juste duximus in eundem,
deliberacione matura et diligenti sollici-
tudine perhabita, juris etiam ordine
ut decuit observato, regno Romano,
cui minus utiliter prefuit cuiusque per
demerita reddidit se indignum, pri-
v an tee ipsum et privatum denun-
ciantos dictante sententia concordi
prcdiotorum principum electorum. "
? Cf. p. 96.
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? 120 POLITICAL PRINCIPLES. [PABT I.
and the right of deposition were, however, cumbrous and
inconvenient methods for the restraint of the prince.
We must therefore now consider very briefly the signi-
ficance of some very important thirteenth-century experiments
in the establishment of easier and more effective methods
of control. We do not pretend here to discuss the history
of these experiments in detail; that has already been done
for England with characteristic restraint and caution in the
great work of Bishop Stubbs, and recently there has appeared
an admirably detailed study of some aspects of these ex-
periments. 1 We are concerned with the political ideas which
lay behind these experiments ; for they were important not
only in themselves but for that which they anticipated.
It is in England that we find the most important examples
of these experiments, but there are also some important
parallels in Spain.
This is the larger historical significance of the sixty-first
clause of Magna Carta, the clause in which the king sanctioned
the appointment by the barons of a Committee from their
number, which was to have authority not only to demand
of the king and the justiciary the execution of the provisions
of the charter, but to compel this with the assistance of the
whole community (communa totius terra), if necessary by
force. 2 No doubt the situation was exceptional, the good
1 Cf. Stubb's ' Const. Hist. ,' chap.
14, and Mr Jacob in ' Oxford Studies
in Social and Legal History,' ed.
Vinogradoff.
2 Magna Carta, 61 : " Cum autem
pro Deo et ad emendacionem regni
nostri, et ad melius sopiendam dis-
cordiam inter nos et barones nostras
ortam, hjeo omnia prsedicta oonoes-
serimus, volentes ea integra et firms
<<tabilitate in perpetuum gaudere, faci-
mus et concedimus eis securitatem
subscriptam ; videlicet, quod barones
eligant viginti quinque barones de
regno quos voluerint, qui debeant pro
to tia viribus suis observare, tenere et
facere observari, pacem et libertates
quas eis concessimus, et hoc presenti
carta nostra confirmavimus, ita scilicet
quod si nos, vel justitiarius nouter,
vel ballivi nostri, vel aliquis de ministris
nostris, in aliquo erga aliquem deli-
querimus, vel aliquem articularum
pacis aut securitatis transgressi fueri-
mus, et delictum ostensum fuerit
quatuor baronibus de predictis viginti
quinque baronibus, illi quatuor barones
accedant ad nos vel ad justieiarium
nostrum, si fuerimus extra regnum,
preponentes nobis excessum: potent
ut excessum ilium sine dilacione facia-
mus emendari. Et si nos excessum
non emendaverimus, vel si fuerimus
extra regnum, justiciarius nortec non
emendaverit infra tempus quadraginta
dierum computandum a tempore quo
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? CHAP. VIII. ]
121
THE CONTROL OF THE RULER.
faith of John was more than doubtful, and it would be un-
reasonable to suppose that the barons thought that they
were creating a permanent constitutional system. And yet
it is in these provisions that we have the germ of the public
control of what we should in modern times call the administra-
tive action of the Crown.
If this arrangement stood alone, it would no doubt have
little significance, but when we observe that the methods
which were here proposed were carried much further in the
demands of the barons of 1244 and 1258, this clause of
Magna Carta receives a new importance.
We only know the demands of the barons in 1244 through
Matthew Paris, and we must therefore treat the subject with
caution, but it would appear from his narrative that the
barons complained that the provisions of the great Charter
were not being carried out, and they therefore demanded
the appointment of a justiciar and chancellor. 1 Matthew
Paris also gives an account of a scheme of reform which
seems to belong to the same time under which a new charter
was to be drawn up, and its execution entrusted to four
counsellors chosen by the common consent. 2
monstratum fuerit nobis Vel justiciario
nostro si, extra regnum fuerimus, pre-
dict! quatuor barones referant causam
illam ad residues de illis viginti quinque
baronibus, et illi viginti quinque
barones cum communa totius terra
distringent et gravabunt nos modis
omnibus quibus poterunt, scilicet per
captionem castrorum, terrarum, pos-
sessionum, et aliis modis quibus poto-
runt, donee fuerit emendatum secun-
dum arbitrium eorum, salva persona
nostra et reguue nostrse et liberorum
nostrorum; et cum fuerit emendatum
intendent nobis sicut prius fecerunt. "
1 Matthew Paris, ' Chronica Majora,'
vol. iv. p. 362 : " Et quia carta liber -
tatum quas dominus rex olim conces-
serat et pro cujus observatione archie-
piscopus Cantuarensis /Edrmmdus jura-
verat, fide jusserat, et certissime pro
rege promiserat, nondum exstitit obser-
vata, et auxilia quse to ties conceesa
fuerant domino regi ad nullum pro-
fectum regis vel regni devenerant; et
per defectum cancellarii b re via contra
justitiam pluries fuerant concessa, peti-
tum fuit ut secundum quod elegerant,
justitiarius et cancellarius fierent, per
quos status regni solidaretur, ut sole-
bat. "
* Id. id. , p. 366 : " De oommuni
assensu quatuor eligantur potentes et
nobiles de discretion bus totius regni,
qui sint do consilio domini regis, et
iurati quod negotia domini regis et
regni fideliter tractabunt, et sine
acceptione personarum omnibus iusti-
tiam exhibebunt- Hi sequentur domi-
rum re gem, et si non omnes, semper
duo eorum ad minus prasentes sint,
ut andiant querimonias singulorum,
et patientibus iniuriam celeriter possint
? ? subvenire. . . . Et erunt libertatum
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? 122
[PABT I.
POLITICAL PRINCIPLES.
It is in the Provisions of Oxford of 1258 that we find these
tentative schemes assuming a definite and precise form.
Much in the details of these are difficult to make out, and we
should refer to Bishop Stubbs for a complete account,1 but
the general principles are clear.
A council of twenty-four was to be appointed, half by
the king, half by the barons ; the king's representatives
were to select two of the barons' representatives, and the
barons' representatives two of the king's, and these four
were to elect fifteen who were to be confirmed by the whole
twenty-four, and to form the perpetual council of the king.
They were to have authority to advise the king on all matters
concerning the government of the kingdom, and to amend
and put in order all things which required this ; and they
were to have authority over the " haute justice " (the Justiciar)
and over all other people. 2 It was also of great significance
that the justiciar, the treasurer, and the chancellor were to
be appointed only for a year at a time, and were to give
account at the end of the year 3 ; and that the justiciar was
to swear that he would act according to the provisions to be
made by the twenty-four and the council of the king, and
conservatores. Et sicut de omnium
nssensu eliguntur, sic sine communi
assensu non potent aliquis eorum
ameveri. "
We owe both these references to
Stubb's ' Const. Hist. ,' chap. 14.
1 Stubb's ' Const. Hist. ,' chap. 14.
* Provisions of Oxford, ' Annales de
Burton ' (Rolls Series), p. 462 : " Dos
Parle? menz quanz serrunt tenus per an
et coment.
Quinze serrunt nomez par ces
quatre, ceo est a saver per le Cunt
le Marechale, le Cunt de Warewik,
Hugo le Bigot, et John Mansel, ki
sunt esluz par les 24, pur nomer les
devent dit quinze, les queus serunt
de conseil le rei. E serrunt cunfermez
par les avant dit 24 ou par la greinore
partie de els. E averunt poor del rei
conseiler en bone fei del governement
del reaume, et de totes choses ke al
rei u al reaume pertenent. E pur
amender et adrescer totes les choses
ke il verrunt ke facent a adrescer e
amender. E sur le haute justice, et
sur totes autres genz. E se il ne
poent tuz estre, ceo ke la greinure
partie fera serra ferm et estable. "
* Id. , p. 450, ' De la haute justice ' :
" Derichef ke justice seit mis un u deus,
e quel poer il avera, e ke il ne seit fors
un an. Issi ke al chef del an respoine
devant le rei e sun cunseil de sun tens
e devant lui ko serra apres lui. "
" Del tresorer e de le escheker.
Autel, del tresorer. Mes ke il rende
aounte al chef del an. "
" Del chanceler. Autel, del chance-
ler. Issi ke al chef del an respoine de
sun tens. E ke il ne ensele hors de
curs par la suie volunte del rei ; mes
le face par le cunseil ke serra entur
? ? le rei. "
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? CHAP. VIII. ]
123
THE CONTROL OF THE RULER.
that the chancellor was to swear that he would seal no writ
except writs of course (brefs de curs) without the com-
mandment of the king and his council who were to be present,1
or, as it is put in the passage cited before, he was to seal
nothing outside of the ordinary course (hors de curs) by the
sole will of the king, but only by the authority of the council,
who were to be with the king.
It is no doubt true that St Louis in 1264 annulled the
Provisions of Oxford, when they were submitted to his
arbitration by the king and the barons, but his award was
not accepted, and after the defeat of Henry LTI. at Lewes,
the system of the Provisions was re-established in the Parlia-
ment of 1264, with some modifications. Three electors were
to be chosen, and the king was to give them authority, in
his place, to appoint a council of nine members of whom
three at least were to be in rotation at the Court. By their
counsel the king was to administer the affairs of the kingdom,
and to appoint the justiciar, the chancellor, the treasurer,
and the other officials both small and great. 2
We have an excellent commentary upon the principles
which lay behind these proposals in the contemporary ' Song
of Lewes. ' This was no doubt written by a partisan of the
barons, but it is not the less significant as illustrating the
1 Id. , p. 411 : " Ceo jura le haute jus-
tice de Engleterre. Il jure que ben e
loaument a sun poer fra ceo ke apent
a la justicerie de dreituro tenir, a tute
gonz al prou le rei e del resume, solum
la purveaunce fete et a fere par les
vint et quatre, et par le cunseil le
rey e les hauz humes de la tere, ki
li jurrunt en costes choses a aider e
a maintenir.
Ceo jura le chanceler de Engleterre.
Ke il ne euselera nul bref fors bref
de curs sanz le commandement le rei,
o de sun cunseil ke sera present: ne
enselera dun de grant garde, ne de
grant . . . no de eschaetes, sanz le
assentement del grant cunseil u de
la greinure partie. Ne ke il ne enselera
ren ke seit encontre le ordincment ke
e fet e serra a fere par les vint e quatre,
u par la greinure partie. "
>> Rymer, ' Feeders,' vol. i. p. 443
(ed. 1816): " Ad reformationem regni
Anglise eligantur et nommentur tres
discreti et fideles de regno, qui habeant
auotoritatem et potestatem a domino
rege eligendi seu nominandi, vice
domini regis, consiliarios novem ; tres
ad minus alternatim sen vicissim sem-
per sint in curia presentes. Et dominus
rex per concilium eorundem novem,
ordinet et disponat de custodia cas-
trorum et omnibus aliis regni negotiis.
Prseficiat etiam dominus rex per con-
silium predictorum novem, justitiarium
cancellarium, thesaurarium, et alios
officiales majores et minores in hiis quse
spectant ad regimen ourise et regni. "
? ?
