Here then we have a
revolutionary
conception intruded into
the system of mediaeval life and thought.
the system of mediaeval life and thought.
Thomas Carlyle
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? 124: FOURTEENTH CENTURY. [PABT I.
Dante was not then alone in the fourteenth century in the
conception of some system of authority and order which,
should give peace to the world, and it is this which gives
some real interest to the work of Pierre Dubois'' De Eecupera-
tione Terrae Sanctae. ' There is indeed in this much which
is fantastic and much which merely expresses the national
ambition of some Frenchmen; but at the same time there is
not a little which is significant. 1
Dubois had not indeed anything of the imaginative magni-
ficence of the great poet: he was a man of pedestrian and
even in some respects of confused mind, but, in some ways
at least, his conceptions were perhaps nearer to the actual
conditions of the time than those of Dante.
The nominal subject of the work is the recovery of the
Holy Land from the infidel; but this is only a starting-point
for the expression of the urgent need of peace among the
Christian people, who were obedient to Eome. 2 Obedient,
that is, in spiritual things, not in temporal, for, as in the
, controversial pamphlets of the conflict between Boniface VIII.
and Philip the Fair, he denounces the attempt of Eome to
assert a temporal authority over the French kingdom. 3
We shall return presently to the question of the creation of
a universal authority which should maintain peace among
Christian people. In the meantime we must observe what
Dubois says about the causes of the divisions and conflicts
in Europe. The prelates of the Church and the Pope himself
were, in Dubois' opinion, among the principal causes of these;
and it is to the Pope that Dubois specially addresses himself.
He begs him to consider how many and how great have been
the wars in which he has been involved for the defence of the
patrimony of St Peter. 4 He therefore suggests that the
Pope should divest himself of the charge of his temporal
dominions, and, while retaining the right to the revenues
derived from them, should hand them over to some king
1 For a careful discussion of the date Schdnen und Bonifaz VIII. '
and authorship of this work, we * P. Dubois' 'De Recuperations
should refer to the edition by C. V. Terrae Sanctae,' 3.
Langlois, and to R. Scholz, 'Die ? Id. id. , iii.
Publizistik zur Zeit Philipps des 4 Id. id. , 33.
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? CHAP, vn. ]
125
POLITICAL UNITY IN EUROPE.
or prince to be held in a perpetual " amphiteosis. " If he would
do this he would not be the cause of war and of men's deaths,
but would be able to give himself to prayer and contempla-
tion and the care of spiritual things. 1 He proposes that the
bishops and abbots should do the same, that they should
resign their feudal domains and receive in their place a fixed
revenue. 2
This may seem very extravagant, but it should be remem-
bered that a proposal of much the same kind had been made
by Puschal II. , in his negotiations about the Investiture
question with the Emperor Henry V. in 1111, with regard
to the feudal domain of the bishops; and it is clear that
while the proposal was then repudiated by the bishops, there
had been devoted churchmen like Gerhoh of Eeichersberg who
felt that there was much to commend such proposals. 3
No doubt when Dubois speaks of the Pope surrendering his
temporal dominions to some king, he was really thinking
of the King of France, as indeed he makes plain in a later
chapter. * It would seem that there is some evidence that
such a proposal had actually been made by Philip III. to
Pope Gregory X. in 1273,6 and such a proposal is intelligible
in view of the Angevin occupation of the Sicilian kingdoms,
which were fiefs of the papacy.
We return to Dubois' proposals for the creation of some
syatem for the establishment and maintenance of peace among
the Catholic peoples of Europe. In order to do this he pro-
poses that a Council should be called together, and that the
1 Id. id. , 40: "Que reformatio
? tatua propter has fines taliter devotis-
"me postuletur, videlicet quod sum-
mus pontifex, qui circa maximam
1piritualium curam plurimum est
honeratus et occupatus, ita quod
s'ne spiritualium prejudicio regimini
suoruro temporalium sufBcienter vacare
&on posse creditur, inspectis que super
fractious, proventibus et exitibus,
"Dpensis deduotis, et honeribus solitis,
id ipsum pervenire sibiquo remanere
coiisueverunt, alicui magno regi seu
pnocipi, vel aliquibus, tradantur in
perpetuam ampbitoosin. "
* Id. id. , 45 and 50.
* Cf. vol. iv. part iv. chap. 3.
4 Id. id. , Ill: "Verisimile plurimum
est, quod dominus papa, guerris sedat is
secundum modos prescriptos, et regimine
suorum temperalium, possessione et
districtione, pro certa annua pensione
perpetua domino regi Franciae com-
missis, per fratres suos et filios, prout
expedire viderit, gubernandis potent? "
1 Cf. Note by M. Langlois on p. 48
of his edition.
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? 126
[PABT I.
FOURTEENTH CENTURY.
king should invite the Pope to secure an agreement among
the princes and prelates for the establishment of a Court
to which the complaints of those who said that they had been
injured might be referred. The Council should appoint a
body of wise and competent men, who should in their turn
appoint three clerical and three lay judges to inquire into
and deal with these complaints. If either party were not
satisfied with their decision the judges should transmit the
case and their judgment to the supreme Pontiff, to be amended
or confirmed by him. 1 Dubois also proposes that obedience
to these judgments should be enforced by coercive measures,
to be applied if necessary by the other states. 2
These are far-reaching proposals, but they are not unin-
telligible under the conditions of those times. The conception
of a General Council, which should represent all Christendom
for spiritual purposes, was familiar to the Middle Ages, and
was about to receive a great development in the fourteenth
century; and it is therefore inteUigible that men might
conceive of such a Council as a body which could also be used
for the settlement of political disputes. It is also true that
both Innocent III. and Boniface VIII. had actually inter-
vened in the disputes between England and France. But
1 Id. id. , 3: "Convocato concilio,
propter ordinem salutis Torre Sanctae,
summa regalia experiencia petere
poterit per dominum papam, principes
et prelatos concordari et statui tauter
quod quibuscunque dicentibus se passoa
iniurias seundum leges et consuetudines
regnorum et regionum, per iudices in eis
statutos, et ubi statuti non sunt, in-
frnseripto modo statuendos, fiat cele-
rius quam solitum eat iusticiae com-
plementum. Nullus catholicus currat
ad arms, nullus sanguinem baptiza-
torum eflundat. "
Id. id. , 12: "Responded potest quod
concilium statuat arbitros religiosos ad
alios eligendos viros prudentes et
expertes ac fidoles, qui jurati tree
judices prelatos et tree alios pro
utraquo parte, locupletes, et tales
quod sit verisimile ipsos non posse
oorrumpi amore, odio, timore, conou-
piscentia, vel alias; qui convenientes in
loco ad hoc aptiore, iurati striotissime,
datis antequam conveniant articulos
petitionum et defonsorum singulorum,
summarie et de pleno, rejeotis primo
supernuis et ineptis, testes et instru-
ment a recipiant, diligentissime exami
nent. . . . Si altera pars de ipsorum
sentenoia non est contenta ipsi iudices
pro omni lite processus cum sentencins
mittunt ad apostolicam sedem, per
summum pontificem, pro tempore
oxistentem, emendandas et mutandas,
prout et si iustum fuerit; vel si non,
salubriter ad perpetuam rei memoriam
conlirmandas et in cronicis sancte
Romane ecclosie inregistrandas. "
? Id. id. , 4, 5.
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? CHAP. VII. ]
127
POLITICAL UNITY IN EUROPE.
certainly both Philip Augustus and Philip the Fair had very
emphatically and successfully refused to allow any such
official action on the part of the Pope; and it is certainly
remarkable that Dubois, who had, as we have seen, repudiated
very emphatically the real or supposed claim of Boniface VIII.
to temporal superiority, should have been prepared to recog-
nise the Papal See as the final arbitrator in international
political disputes. 1
It is difficult to judge what importance exactly we can
attach to this work, but it seems reasonable to us that when
we put it beside that of Dante and of Bartolus and of
Engelbert of Admont, it receives a new significance. It seems
clear to us that the general trend of mediaeval society was
towards the disintegration of political unity in the West
and the development of the independent political societies of
modern Europe; but the conception of a larger political
unity was not wholly lost, and we in the modern world are
only taking up again the necessary task of civilisation.
>> Cf. vol. v. pp. 165-171; p. 387.
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? 128
CHAPTER VIII.
SUMMARY OF THE POLITICAL THEORY OF THE
FOURTEENTH CENTURY.
We have endeavoured to set out the political principles of
Western Europe in the fourteenth century as expressed by
the writers whom we may call political thinkers or theorists,
as implied or expressed in constitutional documents and
practice, and as set out by the Civilians. It is, we think,
clear that the conceptions of the political thinkers were,
speaking broadly, closely related to constitutional practice,
while those of the Civilians were not, and that thus the latter
had little influence on the development of political conceptions
in the fourteenth century in Northern and Western Europe.
There was indeed no difference between the theorists and
the Civilians on the question of the source of political authority;
they were all agreed that political authority was derived from
the community, from God indeed ultimately, but from God
through the community. There is no trace in the Civilians,
any more than in the other political writers, with the excep-
tion of Wycliffe, of that fantastic orientalism of Gregory the
Great, which had practically died out in the Middle Ages, but
was revived in the sixteenth and seventeenth centuries, the
theory of what is traditionally called the Divine Eight of Elings.
The community, the universitas, the populus was the im-
mediate source of all political authority.
There were, however, also profound differences between
the Civilians and the political theorists and constitutional
practice of Western Europe.
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? chap, vni. ]
129
SUMMARY.
We have pointed out in previous volumes that, as it seems
to us, the fundamental political conception of the Middle
Ages was that of the supremacy of law, and that law was
primarily the custom which expressed the habit of life of the
community--habit and custom rather than deliberate will.
This conception continues to have an important place in the
fourteenth century. When, however, as perhaps in the ninth
century, and certainly in the thirteenth, the rapid develop-
ment of mediaeval civilisation made something like direct
legislation sometimes necessary, this was conceived of as
expressing the consent and will of the whole community.
This is the principle which was normally expressed in the
fourteenth century in the constitutional methods of Western
Europe and in the political theory.
It is here that we find the first important divergence
between the Civilians and the normal mediaeval conceptions and
practice. The Civilians of the fourteenth century, as we have
said, always and frankly recognised that the original lawgiver
was the community, and that, whatever was the authority of
the prince, it was from the community that he derived it, but
they also, and naturally, for they were interpreting the
"Corpus Juris Civilis," conceive of the community as having
transferred its authority to the prince. To them therefore
the prince had become the legislator, the source of law;
and it is impossible to overrate the importance of the appear-
ance of this conception, not indeed in relation to the four-
teenth century, but to later periods.
We must not, however, imagine that the Civilians were
thoroughgoing in their affirmation of this. As we have
pointed out at length in earlier volumes, while some of the
Civilians of the twelfth and thirteenth centuries held that
the Eoman people had transferred their authority to the
emperor so completely that even their custom had ceased to
have any legislative authority, others maintained that this
was not so; the people had indeed given their authority to
the prince, but they could resume it, and their custom still
made and abrogated law. 1
1 Cf. vol. ii. part i. chap. 7; vol. v. part i. chap. 6, pp. 664-667.
VOL. VI. I
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? 130
[PABT I.
FOURTEENTH CENTURY.
In the fourteenth century, as far as we can judge, the
most important Civilians, while refusing to allow that the
people possessed the formal legislative authority, seem to
allow that their custom still made and unmade law. 1
The second divergence is equally, perhaps even more,
important. The prince, no doubt, in the political constitution
and theory of the Middle Ages, was the head of the com-
munity, and had his share, a very important one, in making
the law; but his authority was a limited one. He was limited
by the law, by the custom and habit of life of the community;
the property and persons of the members of the community
were not subject to his arbitrary authority, but were protected
by the law. This principle evidently was generally main-
tained in the fourteenth century.
To the Civilians the prince was normally the source of the
law, and, no doubt, mainly because he was the source of the
law, he was thought of as being above it. They were indeed
perplexed by an apparent inconsistency in the texts of the
Eoman law books. In some of these the prince was described
as "legibus solutus. " (We do not, of course, here or elsewhere,
pretend to interpret the original meaning of these words. ) In
other places, and especially in the famous words of 'Cod. i. ,
14, 4,' the prince appears as saying that it was seemly that
he should acknowledge that he was bound by the law: "Digna
vox maiestate regnantis legibus alligatum se principem
profiteri. " (Again we are not interpreting the original meaning. )
The Civilians were indeed perplexed, but, on the whole, they
tended in the fourteenth century to the judgment, that while
the prince was not formally bound by the law, he should
habitually respect it. It is in this connection that the
distinction, perhaps incidental rather than deliberate, made
by Baldus between the ordinary and the absolute power of
the prince is significant.
Here then we have a revolutionary conception intruded into
the system of mediaeval life and thought. It must, however, be
observed that we find in the Civilians of the fourteenth century
two principles which in a considerable measure modified
1 Cf. pp. 16. 19.
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? CHAP. VHI. ]
131
SUMMARY.
their tendency to think of the prince as possessing an authority
unlimited by law. In the first place, they recognised that the
prince might enter into contractual relations with his subjects,
and that such contracts were binding upon him. As Baldus
says, God had subjected the law to the prince but not contracts;
by these he was bound. It appears to us from the context
of many of these statements that their primary reference was
to treaties which various emperors had made with cities
in Italy, but the principle is stated in general terms, and
sometimes is related to the contractual system of feudal law.
The Civilians were also clear that the extra-legal powers of the
prince do not entitle him to deal at his pleasure with private
property; he cannot do this "de iure," whatever he might
do '' de facto. "
There is, however, another aspect of the political theory
of the fourteenth century where we find, rather unexpectedly,
that some of the Civilians were in agreement with the theorists.
This is the principle that in the last resort it was lawful for
the community to resist and even to depose the unjust and
tyrannical prince. This was affirmed by Marsilius of Padua,
by William of Occam, by the author of the' Somnium Viridarii,'
and is cited as the opinion of great jurists by Leopold of
Babenberg; and the century ended with the deposition of
Eichard II. There was indeed nothing new in this; as we
hope we have made clear in former volumes, it was the normal
principle of the Middle Ages that resistance to unlawful
authority, and even the deposition of tyrannical princes, was
legitimate. 1 It is, however, interesting to observe that some
at least of the Civilians, notably Bartolus, Joannes Faber and
Jacobus Butrigarius, seem clearly to maintain that in the
last resort subjects might lawfully resist and even depose
an unjust and tyrannical ruler.
We have dealt at some length with the political opinions
of the Civilians, for we are in this volume concerned
with the question how far we can trace in these centuries
1 Cf. vol. v. part ii chaps. 7, 8,
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? 132
[fast I.
FOURTEENTH CENTURY.
the beginnings of that conception of the absolute authority
of the prince which is characteristic of the seventeenth
century. It is, however, evident that there is very little
trace of this in the fourteenth century outside of the
Civilians, and there is very little to indicate that these
exercised any great practical influence on the political theory
and institutions of the time outside of Italy. 1
It seems to us that in the fourteenth century political
theory continued to be very much the same as that of the
thirteenth, while the constitutional forms and methods
represented the more or less normal development of those
which the political genius of the Middle Ages had slowly
created.
1 We wish, however, to draw the
attention of students of Polities to the
very interesting and important studies
by Professor F. Ercole, primarily on
Bartolus, but also on the relations be-
tween the political theories of Italian
and French Civilians with regard to
the French King as possessing in his
own country all the powers of the
Emperor. These studies, originally
published in various Reviews in 1915
and 1917, are now republished, along
with others, in the volume entitled
'Da Bartolo all' Althusio. '
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? PART II.
FIFTEENTH CENTURY. ?
CHAPTEE I.
THE SOURCE AND AUTHORITY OF LAW. CONSTI-
TUTIONAL PRACTICE AND THEORY.
We again begin with the consideration of this subject, for it
seems to us clear that in the fourteenth century as in the
Middle Ages the principle that the authority of law was
derived from the community, and that the law was supreme,
not only over subjects but over rulers, was still the foundation
of all the normal political thought of Western Europe. We
have now to enquire how far this principle continued to
prevail in the fifteenth century.
It appears to us that some of the best illustrations of the
constitutional conceptions of the fifteenth century are to be
found in the proceedings of the Cortes of Castile and Leon.
Juan n. had, apparently, at the Cortes of Palencia in 1431,
repudiated the constitutional provisions of the Cortes of
Bribiesca (1387), by which laws were not to be annulled except
by ordinances made in Cortes, and royal Briefs contrary to the
laws were to be disregarded. 1 At Valladolid, however, in
1 Cortes Hi. 9, 19, p. Ill (Palencia, derogo, e especialmente las leyes que
1431): "Non embargantes quales dizen quelas cartas dadas contra ley
quier leyes fueres et derechee ordina- o fueno o derecho deuen ser obedescidas
mientos e constituciones . . . ca en e non oonplidas, aunque contengan
qoanto desto atanna yo lo abrogo e quales quier clausulas derogatorias, e
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? 134
[PART II.
FIFTEENTH CENTURY.
1440, the Cortes asked the King to give orders that any Briefs
issued in his name, which were contrary to the laws, should be
disregarded, and the King assented. 1 A more detailed state-
ment of this constitutional principle was made at Valladolid
in 1442. The Cortes complained that the King (Juan II. )
was permitting Briefs to be issued which contained "non
obstante " clauses, and in which he appeared as issuing com-
mands "of his certain knowledge and absolute royal power,"
and they request that such extravagant phrases should not
appear in the royal Briefs, and that if they did so appear, the
Briefs should be held as null and void, and that the secretary
who inserted them should be deprived of his office. The
King replied that the law made at Bribiesca should be
observed, and that it was his will to command that in all cases
between " partes e privadas personas " justice should be done
according to law, notwithstanding any Briefs which con-
tained abrogations or dispensations, general or particular,
professing that they were issued "proprio motu," and with
certain knowledge, and by the King's absolute power; and
he ordered that none of his secretaries were to issue Briefs
containing such extravagant phrases, on pain of losing their
offices, and that if they did so, such Briefs should have no
force. 2
quelas leyes e fueros e derechos e
ordinamientos non pueden ser rreno-
cados saluo por Cortes.
Cf. p. 5.
'Cortes iii. 15, 14 (Valladolid, 1440):
"Fazemos avuestra muy alta sennoria
. . . dos peticiones . . . la secunda,
que mande que en caso que sean dadas
cartas o sobre cartas de vuestra alteza
0 &e den de aqui adelante motu proprio
o a inetancia de otras personas quales
quier en rreuocamiento o en quebranta-
miento delas cosas sobre dichas por
vuestra sennoria rreepondidas, o en
algunt amenguamiento delas por pri-
mera e segunda o tercera jusion o mas,
o con quales quier clausulas doroga-
torias que enellas se contengan, que
sesn obedeecidas e non complidas sin
pena alguna delos quelas non cunplieren,
e los que por vertud dellas fueron
enplazados non sean tenudos de seguir
los emplazamientos, e que por olio non
inourran en pena alguna. . . . Aesto
vos rrespondo . . . en caso que Bean
dadas mis cartas e sobre cartas . . . en
rreuocamiento o en quebramiento delas
cosas suso dichas por mi rrespondidas,
o en algunt amenguamiento dellas per
primera e segunda e tercera jusion e mas
con quales quier claunsulas derogato-
rias que en ella se contengan, que sean
obedescidas o non complidas sin pena
alguna delos quelas non conplieren. "
>> Cortes iii. 16, 11 (Valladolid, 1442):
"Otrosy muy eccellente rrey e sen nor
por quanto enlas cartas que emanan de
vuestra alteza se ponen muchas ex-
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? CHAP. I. ] THE LAW: PRACTICE AND THEORY. 135
The same principle was affirmed in the Cortes at Valladolid
in 14511; and soon after the accession of Henry IV. we find
the Cortes at Cordova in 1455 requesting that nothing should
be done contrary to the laws and ordinances of the former
kings, unless these had been revoked by the Cortes on the
supplication of the representatives of the Kingdom. 2
It is clear that the Cortes of Castile and Leon in the fifteenth
orbitancias do derecho, enlas quales so
dize, non obstantes leyes e ordinamien-
tos e otros derechos, que so cunpla o faga
lo quo vuestra eennoria manda, e quelo
manda do cierta sciencia e sabiduria e
poderio rroal absoluto, e que rrevoca e
cassa e annulla las dichas leyes que
contra aquello f azen o f azer pueden, por
lo qual non aprouechan a vuestra
mercet fazer leyes nin ordenanancas
pues esta enpoderio del que ordena las
dichas cartas rrouocar a quellas. Por
ende muy virtuoso rrey o sennor, sup-
plicamoe avuestra sennoria que le plega
quel as tales exorbitancias non se
pongan enlas dichas cartas, e qual quier
secretario o escrivano do camara quelas
pusiore. por ese mesmo fecho sea falso
e prinado del dicho officio, e quelas tales
cartas non sean conplidas e sean nin-
gunas e de ningunt valor.
A esto voe rrespondo que mi mercet
e voluntad es de mandar e mando que
so guarde enesta parte la ley de Briui-
esca fee ha por el Rey Don Juan mi
avuelo . . . que fabla en esta rrazon,
en qual quier eosa que sea o tanga entre
partes e priuadas porsonas, non em-
barganto que sobre olio se di segunda
jusion nin otras quales quier cartas, e
sobre cartas con quales quier ponas e
clausulas derogatorias e otras firmezas
e abrogaciones et derogaciones o dis-
pensaciones generales o especiales, e
aunque que so digan procoder de mi
proprio motu e cierta sciencia e poderio
rreal absoluto, por que syn embargo de
todo ello ; tod a via es mi merc? et e volun-
tad quela justicia fioresca, e sea guar-
dado enteramente su derecho acada uno
e non rrosciba agraio nin porjuyzio
alguno en su justicia, para lo qual
mando e ordeno que ningund mi
eegretorio o escriuano de camara non
sea osado de poner enlas tales nin seme-
j antes cartas exorbitancias nin clausulas
derogatorias, nin abrogaciones nin doro-
gationes de leyes nin f ueros nin derechos
nin ordinamientos nin desta mi ley nin
dela dicha ley de Briuiesca, nin pongan
enellas que proceden nin las yo do do mi
proprio motu, nin de mi cierta ciencia
nin de mi podere rreal absoluto . . . e
el escrivano que firmare o librare contra
esto qual quier carta o aluala o preuil-
legio que cayga enla pena dela dicha ley
de Briuiesca, que manda que pierda el
oficio e quela tale carta o alcuala o pre-
uillegio en quanto ala tal exorbitacion
o abrogacion o derogacion o otra qual
quier cosa que contenga por donde
? ? se quite el derecho e justicia dela parte,
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? 136
[pabt n.
FIFTEENTH CENTURY.
century maintained as strictly as those of the fourteenth,
that the law was not the expression of the mere will of the
King, but that, while it was the King's law, it required also the
authority of the great men and of the representatives of the
cities. The proper form of legislation is well illustrated in the
first clause of the proceedings of the Cortes at Madrid in 1435.
They refer to the laws and ordinances made by the King at
Zamora, with the advice and consent of the great men of the
Council, and of the procurators of the cities and villas of his
kingdom. 1 We shall return to the nature and authority of the
Cortes in a later chapter, but we think we have said enough
to make clear the constitutional conception of the source and
authority of law in Castile and Leon in the fifteenth century.
When we turn to the German Empire it is hardly necessary
to say anything about the constitutional principles of legis-
lation. We have, however, a very interesting and important
general treatment of the source and nature of the authority
of law by Cardinal Nicolas of Cusa, one of the most important
thinkers of the fifteenth century.
In the Preface to the third Book of his treatise, 'De Con-
cordantia Catholica,' he says that legislation belongs properly
to those who are bound by the law, or to the greater part of
them; for that which concerns all should be approved by all,
and a man cannot excuse his disobedience to the law when he
himself has made it. How much better it is that the Common-
wealth should be ruled by laws than even by the best man
or King; as Aristotle had said, when the laws are not supreme
there is no "Politia. " The Prince must therefore rule
according to the laws, and is supreme only with respect to
1 Id. , iii. 12, 1 (Madrid, 1435):
"Muy alto sennor, bien sabe vuestra
alteza como en las leyes e ordinamientos
que vuestra sennoria fizo en la cibdad
de Camora . . . con acuerdo e consejo
delos grandes e muy honorrados sen-
noros del vuestro muy alto consejo, e
con los procuradores delas cibdades e
villas de vuestroe rregnos que se actios -
cieren enel dicho ayuntamiento, vuestra
merced fizo e orden6 ciertas leyes e
ordenancas para bien e pro comun e
buen rregimiento e gouernaoion dela
vuestra justioia e dela rrepublica delos
vuestros rregnos e sennorias. "
Ci. Id. , iii. 14, 1.
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? CHAP. I. ]
137
THE LAW: PRACTICE AND THEORY.
those matters which are not clearly defined by the laws. Any
form of government, therefore, is just and "temperatus"
whether Monarchical or Aristocratic, or controlled by all the
citizens, if it is directed to the common good, and is in accord-
ance with the will of the subjects; but it is " intemperatus"
when it is directed to the good of the ruler, and is contrary to
the will of the subjects. 1
In another place Nicolas says that it is the general opinion
of all experienced men that the power of making the laws of
the Roman people could be taken away from the Emperor, as
it was from the Eoman people that he received this power.
And, in yet another place, while he admits that the King has
the right to interpret and to dispense with the law in doubtful
cases, for the public good and to secure justice, he insists that
this does not mean that he can annul the law without that
1 Nicolas of Cusa: 'De Concor-
dantia Catholioa,' III. , Preface (p. 354):
"Legis autem latio, per eos omnes
qui per eam stringi debent, aut majorem
partem, aliorum electione fieri debet;
quoniam ad commune oonferre debet.
Et quod omnee tangit, ab omnibus
approbari debet: et communis de-
finitio, ex omnium consensu, aut
majoris partis, solum elicitur. Nec pot-
est excusatio de obedientia legum sibi
tunc locum vendicare, quando quisque
sibi ipsi legem condidit: non est enim
bona dispositio, bene loges poni, non
obedire autem, ut dicit Aristoteles,
quarto Politicorum, Cap. 7. Est
itaque etiam eorum interpretari, quor-
um condere. His enim legibus regnum
gubernare nccesse est; amare enim et
obedire omnibus insunt. Quare etiam
melius pro republica extitit, legibus
quam optimo viri regi, ut ex intentione
tertio Politicae, 9 Cap. , hoo Aristo-
teles perquirens concludit, ac I. Rhe-
torice Cap. 1. Ubi enim non prin-
cipantur leges ibi non est politia, ut
quarto Politicae 4 Cap. Statui autem
oportet leges cum gravitate magna, ac
digeetae multmn per prudentiam, longa
experientia suffultam, ut, secundo
Politicae 2 Cap. dicitur. Oportet doin-
ceps principantes esse pro legum
observatione, quos primo secundum
ipsas leges dominare oportet. . . . Et
quanquam secundum leges princeps
dominare debeat; tamen quia de his
est dominus de qui bus secundum leges
nihit dicitur certitudinaliter, ut tertio
Politicae Cap. 6. , ideo oportet eum esse
prudentem, ut tertio Politicae Cap.
secundo, et quinto Ethicorum tractatu
de justitia, ut epikeizare recte valeat
per directionom legis ubi deficit propter
particulare. Et tunc ipse omnis prin-
cipatus, sive Monarchicus per unum,
sive Aristocraticus plurium sapientum,
sive Politicus omnium civium simul, et
cujuslibet secundum suum gradum,
quando secundum voluntatem sub-
jectorum existit, ad communem tendens
utilitatem, temperatus et just us dicitur,
? ? ut haec per Aristotelem tertio et
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? 124: FOURTEENTH CENTURY. [PABT I.
Dante was not then alone in the fourteenth century in the
conception of some system of authority and order which,
should give peace to the world, and it is this which gives
some real interest to the work of Pierre Dubois'' De Eecupera-
tione Terrae Sanctae. ' There is indeed in this much which
is fantastic and much which merely expresses the national
ambition of some Frenchmen; but at the same time there is
not a little which is significant. 1
Dubois had not indeed anything of the imaginative magni-
ficence of the great poet: he was a man of pedestrian and
even in some respects of confused mind, but, in some ways
at least, his conceptions were perhaps nearer to the actual
conditions of the time than those of Dante.
The nominal subject of the work is the recovery of the
Holy Land from the infidel; but this is only a starting-point
for the expression of the urgent need of peace among the
Christian people, who were obedient to Eome. 2 Obedient,
that is, in spiritual things, not in temporal, for, as in the
, controversial pamphlets of the conflict between Boniface VIII.
and Philip the Fair, he denounces the attempt of Eome to
assert a temporal authority over the French kingdom. 3
We shall return presently to the question of the creation of
a universal authority which should maintain peace among
Christian people. In the meantime we must observe what
Dubois says about the causes of the divisions and conflicts
in Europe. The prelates of the Church and the Pope himself
were, in Dubois' opinion, among the principal causes of these;
and it is to the Pope that Dubois specially addresses himself.
He begs him to consider how many and how great have been
the wars in which he has been involved for the defence of the
patrimony of St Peter. 4 He therefore suggests that the
Pope should divest himself of the charge of his temporal
dominions, and, while retaining the right to the revenues
derived from them, should hand them over to some king
1 For a careful discussion of the date Schdnen und Bonifaz VIII. '
and authorship of this work, we * P. Dubois' 'De Recuperations
should refer to the edition by C. V. Terrae Sanctae,' 3.
Langlois, and to R. Scholz, 'Die ? Id. id. , iii.
Publizistik zur Zeit Philipps des 4 Id. id. , 33.
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? CHAP, vn. ]
125
POLITICAL UNITY IN EUROPE.
or prince to be held in a perpetual " amphiteosis. " If he would
do this he would not be the cause of war and of men's deaths,
but would be able to give himself to prayer and contempla-
tion and the care of spiritual things. 1 He proposes that the
bishops and abbots should do the same, that they should
resign their feudal domains and receive in their place a fixed
revenue. 2
This may seem very extravagant, but it should be remem-
bered that a proposal of much the same kind had been made
by Puschal II. , in his negotiations about the Investiture
question with the Emperor Henry V. in 1111, with regard
to the feudal domain of the bishops; and it is clear that
while the proposal was then repudiated by the bishops, there
had been devoted churchmen like Gerhoh of Eeichersberg who
felt that there was much to commend such proposals. 3
No doubt when Dubois speaks of the Pope surrendering his
temporal dominions to some king, he was really thinking
of the King of France, as indeed he makes plain in a later
chapter. * It would seem that there is some evidence that
such a proposal had actually been made by Philip III. to
Pope Gregory X. in 1273,6 and such a proposal is intelligible
in view of the Angevin occupation of the Sicilian kingdoms,
which were fiefs of the papacy.
We return to Dubois' proposals for the creation of some
syatem for the establishment and maintenance of peace among
the Catholic peoples of Europe. In order to do this he pro-
poses that a Council should be called together, and that the
1 Id. id. , 40: "Que reformatio
? tatua propter has fines taliter devotis-
"me postuletur, videlicet quod sum-
mus pontifex, qui circa maximam
1piritualium curam plurimum est
honeratus et occupatus, ita quod
s'ne spiritualium prejudicio regimini
suoruro temporalium sufBcienter vacare
&on posse creditur, inspectis que super
fractious, proventibus et exitibus,
"Dpensis deduotis, et honeribus solitis,
id ipsum pervenire sibiquo remanere
coiisueverunt, alicui magno regi seu
pnocipi, vel aliquibus, tradantur in
perpetuam ampbitoosin. "
* Id. id. , 45 and 50.
* Cf. vol. iv. part iv. chap. 3.
4 Id. id. , Ill: "Verisimile plurimum
est, quod dominus papa, guerris sedat is
secundum modos prescriptos, et regimine
suorum temperalium, possessione et
districtione, pro certa annua pensione
perpetua domino regi Franciae com-
missis, per fratres suos et filios, prout
expedire viderit, gubernandis potent? "
1 Cf. Note by M. Langlois on p. 48
of his edition.
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? 126
[PABT I.
FOURTEENTH CENTURY.
king should invite the Pope to secure an agreement among
the princes and prelates for the establishment of a Court
to which the complaints of those who said that they had been
injured might be referred. The Council should appoint a
body of wise and competent men, who should in their turn
appoint three clerical and three lay judges to inquire into
and deal with these complaints. If either party were not
satisfied with their decision the judges should transmit the
case and their judgment to the supreme Pontiff, to be amended
or confirmed by him. 1 Dubois also proposes that obedience
to these judgments should be enforced by coercive measures,
to be applied if necessary by the other states. 2
These are far-reaching proposals, but they are not unin-
telligible under the conditions of those times. The conception
of a General Council, which should represent all Christendom
for spiritual purposes, was familiar to the Middle Ages, and
was about to receive a great development in the fourteenth
century; and it is therefore inteUigible that men might
conceive of such a Council as a body which could also be used
for the settlement of political disputes. It is also true that
both Innocent III. and Boniface VIII. had actually inter-
vened in the disputes between England and France. But
1 Id. id. , 3: "Convocato concilio,
propter ordinem salutis Torre Sanctae,
summa regalia experiencia petere
poterit per dominum papam, principes
et prelatos concordari et statui tauter
quod quibuscunque dicentibus se passoa
iniurias seundum leges et consuetudines
regnorum et regionum, per iudices in eis
statutos, et ubi statuti non sunt, in-
frnseripto modo statuendos, fiat cele-
rius quam solitum eat iusticiae com-
plementum. Nullus catholicus currat
ad arms, nullus sanguinem baptiza-
torum eflundat. "
Id. id. , 12: "Responded potest quod
concilium statuat arbitros religiosos ad
alios eligendos viros prudentes et
expertes ac fidoles, qui jurati tree
judices prelatos et tree alios pro
utraquo parte, locupletes, et tales
quod sit verisimile ipsos non posse
oorrumpi amore, odio, timore, conou-
piscentia, vel alias; qui convenientes in
loco ad hoc aptiore, iurati striotissime,
datis antequam conveniant articulos
petitionum et defonsorum singulorum,
summarie et de pleno, rejeotis primo
supernuis et ineptis, testes et instru-
ment a recipiant, diligentissime exami
nent. . . . Si altera pars de ipsorum
sentenoia non est contenta ipsi iudices
pro omni lite processus cum sentencins
mittunt ad apostolicam sedem, per
summum pontificem, pro tempore
oxistentem, emendandas et mutandas,
prout et si iustum fuerit; vel si non,
salubriter ad perpetuam rei memoriam
conlirmandas et in cronicis sancte
Romane ecclosie inregistrandas. "
? Id. id. , 4, 5.
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? CHAP. VII. ]
127
POLITICAL UNITY IN EUROPE.
certainly both Philip Augustus and Philip the Fair had very
emphatically and successfully refused to allow any such
official action on the part of the Pope; and it is certainly
remarkable that Dubois, who had, as we have seen, repudiated
very emphatically the real or supposed claim of Boniface VIII.
to temporal superiority, should have been prepared to recog-
nise the Papal See as the final arbitrator in international
political disputes. 1
It is difficult to judge what importance exactly we can
attach to this work, but it seems reasonable to us that when
we put it beside that of Dante and of Bartolus and of
Engelbert of Admont, it receives a new significance. It seems
clear to us that the general trend of mediaeval society was
towards the disintegration of political unity in the West
and the development of the independent political societies of
modern Europe; but the conception of a larger political
unity was not wholly lost, and we in the modern world are
only taking up again the necessary task of civilisation.
>> Cf. vol. v. pp. 165-171; p. 387.
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? 128
CHAPTER VIII.
SUMMARY OF THE POLITICAL THEORY OF THE
FOURTEENTH CENTURY.
We have endeavoured to set out the political principles of
Western Europe in the fourteenth century as expressed by
the writers whom we may call political thinkers or theorists,
as implied or expressed in constitutional documents and
practice, and as set out by the Civilians. It is, we think,
clear that the conceptions of the political thinkers were,
speaking broadly, closely related to constitutional practice,
while those of the Civilians were not, and that thus the latter
had little influence on the development of political conceptions
in the fourteenth century in Northern and Western Europe.
There was indeed no difference between the theorists and
the Civilians on the question of the source of political authority;
they were all agreed that political authority was derived from
the community, from God indeed ultimately, but from God
through the community. There is no trace in the Civilians,
any more than in the other political writers, with the excep-
tion of Wycliffe, of that fantastic orientalism of Gregory the
Great, which had practically died out in the Middle Ages, but
was revived in the sixteenth and seventeenth centuries, the
theory of what is traditionally called the Divine Eight of Elings.
The community, the universitas, the populus was the im-
mediate source of all political authority.
There were, however, also profound differences between
the Civilians and the political theorists and constitutional
practice of Western Europe.
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? chap, vni. ]
129
SUMMARY.
We have pointed out in previous volumes that, as it seems
to us, the fundamental political conception of the Middle
Ages was that of the supremacy of law, and that law was
primarily the custom which expressed the habit of life of the
community--habit and custom rather than deliberate will.
This conception continues to have an important place in the
fourteenth century. When, however, as perhaps in the ninth
century, and certainly in the thirteenth, the rapid develop-
ment of mediaeval civilisation made something like direct
legislation sometimes necessary, this was conceived of as
expressing the consent and will of the whole community.
This is the principle which was normally expressed in the
fourteenth century in the constitutional methods of Western
Europe and in the political theory.
It is here that we find the first important divergence
between the Civilians and the normal mediaeval conceptions and
practice. The Civilians of the fourteenth century, as we have
said, always and frankly recognised that the original lawgiver
was the community, and that, whatever was the authority of
the prince, it was from the community that he derived it, but
they also, and naturally, for they were interpreting the
"Corpus Juris Civilis," conceive of the community as having
transferred its authority to the prince. To them therefore
the prince had become the legislator, the source of law;
and it is impossible to overrate the importance of the appear-
ance of this conception, not indeed in relation to the four-
teenth century, but to later periods.
We must not, however, imagine that the Civilians were
thoroughgoing in their affirmation of this. As we have
pointed out at length in earlier volumes, while some of the
Civilians of the twelfth and thirteenth centuries held that
the Eoman people had transferred their authority to the
emperor so completely that even their custom had ceased to
have any legislative authority, others maintained that this
was not so; the people had indeed given their authority to
the prince, but they could resume it, and their custom still
made and abrogated law. 1
1 Cf. vol. ii. part i. chap. 7; vol. v. part i. chap. 6, pp. 664-667.
VOL. VI. I
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? 130
[PABT I.
FOURTEENTH CENTURY.
In the fourteenth century, as far as we can judge, the
most important Civilians, while refusing to allow that the
people possessed the formal legislative authority, seem to
allow that their custom still made and unmade law. 1
The second divergence is equally, perhaps even more,
important. The prince, no doubt, in the political constitution
and theory of the Middle Ages, was the head of the com-
munity, and had his share, a very important one, in making
the law; but his authority was a limited one. He was limited
by the law, by the custom and habit of life of the community;
the property and persons of the members of the community
were not subject to his arbitrary authority, but were protected
by the law. This principle evidently was generally main-
tained in the fourteenth century.
To the Civilians the prince was normally the source of the
law, and, no doubt, mainly because he was the source of the
law, he was thought of as being above it. They were indeed
perplexed by an apparent inconsistency in the texts of the
Eoman law books. In some of these the prince was described
as "legibus solutus. " (We do not, of course, here or elsewhere,
pretend to interpret the original meaning of these words. ) In
other places, and especially in the famous words of 'Cod. i. ,
14, 4,' the prince appears as saying that it was seemly that
he should acknowledge that he was bound by the law: "Digna
vox maiestate regnantis legibus alligatum se principem
profiteri. " (Again we are not interpreting the original meaning. )
The Civilians were indeed perplexed, but, on the whole, they
tended in the fourteenth century to the judgment, that while
the prince was not formally bound by the law, he should
habitually respect it. It is in this connection that the
distinction, perhaps incidental rather than deliberate, made
by Baldus between the ordinary and the absolute power of
the prince is significant.
Here then we have a revolutionary conception intruded into
the system of mediaeval life and thought. It must, however, be
observed that we find in the Civilians of the fourteenth century
two principles which in a considerable measure modified
1 Cf. pp. 16. 19.
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? CHAP. VHI. ]
131
SUMMARY.
their tendency to think of the prince as possessing an authority
unlimited by law. In the first place, they recognised that the
prince might enter into contractual relations with his subjects,
and that such contracts were binding upon him. As Baldus
says, God had subjected the law to the prince but not contracts;
by these he was bound. It appears to us from the context
of many of these statements that their primary reference was
to treaties which various emperors had made with cities
in Italy, but the principle is stated in general terms, and
sometimes is related to the contractual system of feudal law.
The Civilians were also clear that the extra-legal powers of the
prince do not entitle him to deal at his pleasure with private
property; he cannot do this "de iure," whatever he might
do '' de facto. "
There is, however, another aspect of the political theory
of the fourteenth century where we find, rather unexpectedly,
that some of the Civilians were in agreement with the theorists.
This is the principle that in the last resort it was lawful for
the community to resist and even to depose the unjust and
tyrannical prince. This was affirmed by Marsilius of Padua,
by William of Occam, by the author of the' Somnium Viridarii,'
and is cited as the opinion of great jurists by Leopold of
Babenberg; and the century ended with the deposition of
Eichard II. There was indeed nothing new in this; as we
hope we have made clear in former volumes, it was the normal
principle of the Middle Ages that resistance to unlawful
authority, and even the deposition of tyrannical princes, was
legitimate. 1 It is, however, interesting to observe that some
at least of the Civilians, notably Bartolus, Joannes Faber and
Jacobus Butrigarius, seem clearly to maintain that in the
last resort subjects might lawfully resist and even depose
an unjust and tyrannical ruler.
We have dealt at some length with the political opinions
of the Civilians, for we are in this volume concerned
with the question how far we can trace in these centuries
1 Cf. vol. v. part ii chaps. 7, 8,
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? 132
[fast I.
FOURTEENTH CENTURY.
the beginnings of that conception of the absolute authority
of the prince which is characteristic of the seventeenth
century. It is, however, evident that there is very little
trace of this in the fourteenth century outside of the
Civilians, and there is very little to indicate that these
exercised any great practical influence on the political theory
and institutions of the time outside of Italy. 1
It seems to us that in the fourteenth century political
theory continued to be very much the same as that of the
thirteenth, while the constitutional forms and methods
represented the more or less normal development of those
which the political genius of the Middle Ages had slowly
created.
1 We wish, however, to draw the
attention of students of Polities to the
very interesting and important studies
by Professor F. Ercole, primarily on
Bartolus, but also on the relations be-
tween the political theories of Italian
and French Civilians with regard to
the French King as possessing in his
own country all the powers of the
Emperor. These studies, originally
published in various Reviews in 1915
and 1917, are now republished, along
with others, in the volume entitled
'Da Bartolo all' Althusio. '
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? PART II.
FIFTEENTH CENTURY. ?
CHAPTEE I.
THE SOURCE AND AUTHORITY OF LAW. CONSTI-
TUTIONAL PRACTICE AND THEORY.
We again begin with the consideration of this subject, for it
seems to us clear that in the fourteenth century as in the
Middle Ages the principle that the authority of law was
derived from the community, and that the law was supreme,
not only over subjects but over rulers, was still the foundation
of all the normal political thought of Western Europe. We
have now to enquire how far this principle continued to
prevail in the fifteenth century.
It appears to us that some of the best illustrations of the
constitutional conceptions of the fifteenth century are to be
found in the proceedings of the Cortes of Castile and Leon.
Juan n. had, apparently, at the Cortes of Palencia in 1431,
repudiated the constitutional provisions of the Cortes of
Bribiesca (1387), by which laws were not to be annulled except
by ordinances made in Cortes, and royal Briefs contrary to the
laws were to be disregarded. 1 At Valladolid, however, in
1 Cortes Hi. 9, 19, p. Ill (Palencia, derogo, e especialmente las leyes que
1431): "Non embargantes quales dizen quelas cartas dadas contra ley
quier leyes fueres et derechee ordina- o fueno o derecho deuen ser obedescidas
mientos e constituciones . . . ca en e non oonplidas, aunque contengan
qoanto desto atanna yo lo abrogo e quales quier clausulas derogatorias, e
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? 134
[PART II.
FIFTEENTH CENTURY.
1440, the Cortes asked the King to give orders that any Briefs
issued in his name, which were contrary to the laws, should be
disregarded, and the King assented. 1 A more detailed state-
ment of this constitutional principle was made at Valladolid
in 1442. The Cortes complained that the King (Juan II. )
was permitting Briefs to be issued which contained "non
obstante " clauses, and in which he appeared as issuing com-
mands "of his certain knowledge and absolute royal power,"
and they request that such extravagant phrases should not
appear in the royal Briefs, and that if they did so appear, the
Briefs should be held as null and void, and that the secretary
who inserted them should be deprived of his office. The
King replied that the law made at Bribiesca should be
observed, and that it was his will to command that in all cases
between " partes e privadas personas " justice should be done
according to law, notwithstanding any Briefs which con-
tained abrogations or dispensations, general or particular,
professing that they were issued "proprio motu," and with
certain knowledge, and by the King's absolute power; and
he ordered that none of his secretaries were to issue Briefs
containing such extravagant phrases, on pain of losing their
offices, and that if they did so, such Briefs should have no
force. 2
quelas leyes e fueros e derechos e
ordinamientos non pueden ser rreno-
cados saluo por Cortes.
Cf. p. 5.
'Cortes iii. 15, 14 (Valladolid, 1440):
"Fazemos avuestra muy alta sennoria
. . . dos peticiones . . . la secunda,
que mande que en caso que sean dadas
cartas o sobre cartas de vuestra alteza
0 &e den de aqui adelante motu proprio
o a inetancia de otras personas quales
quier en rreuocamiento o en quebranta-
miento delas cosas sobre dichas por
vuestra sennoria rreepondidas, o en
algunt amenguamiento delas por pri-
mera e segunda o tercera jusion o mas,
o con quales quier clausulas doroga-
torias que enellas se contengan, que
sesn obedeecidas e non complidas sin
pena alguna delos quelas non cunplieren,
e los que por vertud dellas fueron
enplazados non sean tenudos de seguir
los emplazamientos, e que por olio non
inourran en pena alguna. . . . Aesto
vos rrespondo . . . en caso que Bean
dadas mis cartas e sobre cartas . . . en
rreuocamiento o en quebramiento delas
cosas suso dichas por mi rrespondidas,
o en algunt amenguamiento dellas per
primera e segunda e tercera jusion e mas
con quales quier claunsulas derogato-
rias que en ella se contengan, que sean
obedescidas o non complidas sin pena
alguna delos quelas non conplieren. "
>> Cortes iii. 16, 11 (Valladolid, 1442):
"Otrosy muy eccellente rrey e sen nor
por quanto enlas cartas que emanan de
vuestra alteza se ponen muchas ex-
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? CHAP. I. ] THE LAW: PRACTICE AND THEORY. 135
The same principle was affirmed in the Cortes at Valladolid
in 14511; and soon after the accession of Henry IV. we find
the Cortes at Cordova in 1455 requesting that nothing should
be done contrary to the laws and ordinances of the former
kings, unless these had been revoked by the Cortes on the
supplication of the representatives of the Kingdom. 2
It is clear that the Cortes of Castile and Leon in the fifteenth
orbitancias do derecho, enlas quales so
dize, non obstantes leyes e ordinamien-
tos e otros derechos, que so cunpla o faga
lo quo vuestra eennoria manda, e quelo
manda do cierta sciencia e sabiduria e
poderio rroal absoluto, e que rrevoca e
cassa e annulla las dichas leyes que
contra aquello f azen o f azer pueden, por
lo qual non aprouechan a vuestra
mercet fazer leyes nin ordenanancas
pues esta enpoderio del que ordena las
dichas cartas rrouocar a quellas. Por
ende muy virtuoso rrey o sennor, sup-
plicamoe avuestra sennoria que le plega
quel as tales exorbitancias non se
pongan enlas dichas cartas, e qual quier
secretario o escrivano do camara quelas
pusiore. por ese mesmo fecho sea falso
e prinado del dicho officio, e quelas tales
cartas non sean conplidas e sean nin-
gunas e de ningunt valor.
A esto voe rrespondo que mi mercet
e voluntad es de mandar e mando que
so guarde enesta parte la ley de Briui-
esca fee ha por el Rey Don Juan mi
avuelo . . . que fabla en esta rrazon,
en qual quier eosa que sea o tanga entre
partes e priuadas porsonas, non em-
barganto que sobre olio se di segunda
jusion nin otras quales quier cartas, e
sobre cartas con quales quier ponas e
clausulas derogatorias e otras firmezas
e abrogaciones et derogaciones o dis-
pensaciones generales o especiales, e
aunque que so digan procoder de mi
proprio motu e cierta sciencia e poderio
rreal absoluto, por que syn embargo de
todo ello ; tod a via es mi merc? et e volun-
tad quela justicia fioresca, e sea guar-
dado enteramente su derecho acada uno
e non rrosciba agraio nin porjuyzio
alguno en su justicia, para lo qual
mando e ordeno que ningund mi
eegretorio o escriuano de camara non
sea osado de poner enlas tales nin seme-
j antes cartas exorbitancias nin clausulas
derogatorias, nin abrogaciones nin doro-
gationes de leyes nin f ueros nin derechos
nin ordinamientos nin desta mi ley nin
dela dicha ley de Briuiesca, nin pongan
enellas que proceden nin las yo do do mi
proprio motu, nin de mi cierta ciencia
nin de mi podere rreal absoluto . . . e
el escrivano que firmare o librare contra
esto qual quier carta o aluala o preuil-
legio que cayga enla pena dela dicha ley
de Briuiesca, que manda que pierda el
oficio e quela tale carta o alcuala o pre-
uillegio en quanto ala tal exorbitacion
o abrogacion o derogacion o otra qual
quier cosa que contenga por donde
? ? se quite el derecho e justicia dela parte,
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? 136
[pabt n.
FIFTEENTH CENTURY.
century maintained as strictly as those of the fourteenth,
that the law was not the expression of the mere will of the
King, but that, while it was the King's law, it required also the
authority of the great men and of the representatives of the
cities. The proper form of legislation is well illustrated in the
first clause of the proceedings of the Cortes at Madrid in 1435.
They refer to the laws and ordinances made by the King at
Zamora, with the advice and consent of the great men of the
Council, and of the procurators of the cities and villas of his
kingdom. 1 We shall return to the nature and authority of the
Cortes in a later chapter, but we think we have said enough
to make clear the constitutional conception of the source and
authority of law in Castile and Leon in the fifteenth century.
When we turn to the German Empire it is hardly necessary
to say anything about the constitutional principles of legis-
lation. We have, however, a very interesting and important
general treatment of the source and nature of the authority
of law by Cardinal Nicolas of Cusa, one of the most important
thinkers of the fifteenth century.
In the Preface to the third Book of his treatise, 'De Con-
cordantia Catholica,' he says that legislation belongs properly
to those who are bound by the law, or to the greater part of
them; for that which concerns all should be approved by all,
and a man cannot excuse his disobedience to the law when he
himself has made it. How much better it is that the Common-
wealth should be ruled by laws than even by the best man
or King; as Aristotle had said, when the laws are not supreme
there is no "Politia. " The Prince must therefore rule
according to the laws, and is supreme only with respect to
1 Id. , iii. 12, 1 (Madrid, 1435):
"Muy alto sennor, bien sabe vuestra
alteza como en las leyes e ordinamientos
que vuestra sennoria fizo en la cibdad
de Camora . . . con acuerdo e consejo
delos grandes e muy honorrados sen-
noros del vuestro muy alto consejo, e
con los procuradores delas cibdades e
villas de vuestroe rregnos que se actios -
cieren enel dicho ayuntamiento, vuestra
merced fizo e orden6 ciertas leyes e
ordenancas para bien e pro comun e
buen rregimiento e gouernaoion dela
vuestra justioia e dela rrepublica delos
vuestros rregnos e sennorias. "
Ci. Id. , iii. 14, 1.
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? CHAP. I. ]
137
THE LAW: PRACTICE AND THEORY.
those matters which are not clearly defined by the laws. Any
form of government, therefore, is just and "temperatus"
whether Monarchical or Aristocratic, or controlled by all the
citizens, if it is directed to the common good, and is in accord-
ance with the will of the subjects; but it is " intemperatus"
when it is directed to the good of the ruler, and is contrary to
the will of the subjects. 1
In another place Nicolas says that it is the general opinion
of all experienced men that the power of making the laws of
the Roman people could be taken away from the Emperor, as
it was from the Eoman people that he received this power.
And, in yet another place, while he admits that the King has
the right to interpret and to dispense with the law in doubtful
cases, for the public good and to secure justice, he insists that
this does not mean that he can annul the law without that
1 Nicolas of Cusa: 'De Concor-
dantia Catholioa,' III. , Preface (p. 354):
"Legis autem latio, per eos omnes
qui per eam stringi debent, aut majorem
partem, aliorum electione fieri debet;
quoniam ad commune oonferre debet.
Et quod omnee tangit, ab omnibus
approbari debet: et communis de-
finitio, ex omnium consensu, aut
majoris partis, solum elicitur. Nec pot-
est excusatio de obedientia legum sibi
tunc locum vendicare, quando quisque
sibi ipsi legem condidit: non est enim
bona dispositio, bene loges poni, non
obedire autem, ut dicit Aristoteles,
quarto Politicorum, Cap. 7. Est
itaque etiam eorum interpretari, quor-
um condere. His enim legibus regnum
gubernare nccesse est; amare enim et
obedire omnibus insunt. Quare etiam
melius pro republica extitit, legibus
quam optimo viri regi, ut ex intentione
tertio Politicae, 9 Cap. , hoo Aristo-
teles perquirens concludit, ac I. Rhe-
torice Cap. 1. Ubi enim non prin-
cipantur leges ibi non est politia, ut
quarto Politicae 4 Cap. Statui autem
oportet leges cum gravitate magna, ac
digeetae multmn per prudentiam, longa
experientia suffultam, ut, secundo
Politicae 2 Cap. dicitur. Oportet doin-
ceps principantes esse pro legum
observatione, quos primo secundum
ipsas leges dominare oportet. . . . Et
quanquam secundum leges princeps
dominare debeat; tamen quia de his
est dominus de qui bus secundum leges
nihit dicitur certitudinaliter, ut tertio
Politicae Cap. 6. , ideo oportet eum esse
prudentem, ut tertio Politicae Cap.
secundo, et quinto Ethicorum tractatu
de justitia, ut epikeizare recte valeat
per directionom legis ubi deficit propter
particulare. Et tunc ipse omnis prin-
cipatus, sive Monarchicus per unum,
sive Aristocraticus plurium sapientum,
sive Politicus omnium civium simul, et
cujuslibet secundum suum gradum,
quando secundum voluntatem sub-
jectorum existit, ad communem tendens
utilitatem, temperatus et just us dicitur,
? ? ut haec per Aristotelem tertio et
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