No More Learning

84): "Nam si
re rum nostrarum annales evolvamus,
summam juris ac legum potestatem
penes reges fuisse reperiemus. "
? Id. id. , IX. (p. 96): "Nusquam
enim gentium hoc fraenum regibus
inijectum inveneris, ut multitudinis
imperio submiserint fasces, et legem
acceperint supremae ditionia atque
potestatis suae moderatricem. Prin-
ceps enim animata lex est in terris,
cujus potestas atque jurisdictio non alia
lege quam ipsius voluntate in angus-
tum cogi potest. "
? Id. id. , Xm. (p. 119): "At
quid absurdius dici potest, quam juris
dicendi regem, legum ferendarum
? ? auctorem esse populum. "
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? CHAP. III. ] THEORY OF THE ABSOLUTE MONARCHY. 437
Blackwood's statements are curiously inconsistent with the
political conceptions of De Seyssel. His notion of an abso-
lutely unrestrained monarchy goes indeed much further than
even Bodin; for in another place he maintains dogmatically
that not only the persons but the property of all the people
are in the power of the king. It is only the use of this which
belongs to private persons. 1
It is no wonder that Blackwood, in another place, should
seem to be indignant that Aristotle should have described
the Persians and other Asiatic monarchies as being really
barbarous. 2
The treatise of Blackwood is somewhat crude, and shows
little acquaintance with contemporary conditions and theories,
but it may be one source of the opinions of a work which was
important by reason of its authorship, that is, 'The True
Law of Free Monarchies,' written by James VI. of Scotland
and published first in 1598 before he became King of England,
and republished in London in 1603. 3
In this work James unites the secular theory of the absolute
king and the theological theory of his absolute authority as
being by divine right. He opens the work with a general
statement of the proper functions of a monarchy. The office
of a king is to maintain justice and judgment, to establish
good laws for the people, and to procure peace for them.
In his coronation oath he swears, first, to maintain the religion
"presently professed " in the country; secondly, to maintain
all the good laws made by his predecessors; and thirdly, to
maintain the whole country and every estate therein in all
their ancient privileges and liberties. *
This has a very constitutional sound, and seems to restrain
the authority of the king. James was describing, so far, the
1 Id. id. , VI. (p. 68): "Neque
enim ita rerum ignarus es, ut noscias
non modo pcrsonas omnium regibus
obnoxias ac veluti mancipio nexuque
teneri, verum etiam res omnes popu-
larium, ut quo fort tmas ita re gum ease
proprias, ut usu dnmtaxat, ac fruotu,
singulorum esse videntur. "
> Id. id. , VI. (p. 68).
* Our citations are from the edition
of 1603.
4 James I. , 'The True Law of Free
Monarchies,' B. 3.
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? 438
[PABT IV.
THE LATER SIXTEENTH CENTCRY.
office or duty of the king, but when he turns to the duty of
the subjects we find quite another mode of thought. He
cites the speech of Samuel (1 Sam. viii. ) on the nature of
kingship, and explains what this implied. "First, he (Samuel)
declares unto them, what points of justice and equitde their
king will break in his behaviour unto them. And next, he
putteth them out of hope that wearie as they will, they shall
not have leave to shake off that yoke, which God, through
their importunities, hath laid upon them. "1
Again, James cites the example of David's conduct to
Saul, as Gregory the Great had done, and concludes: "Shortly,
then, to take up in two or three sentences, grounded upon all
these arguments out of the lawe of God, the dutie and allea-
geance of the people to their lawfull king, that obedience, I
say, ought to be to him, as to God's lieutenant in earth, obey-
ing his commands in all things, except directly against God,
as the commands of God's minister, acknowledging him a
Judge, set by God over them, having power to judge them,
but to be judged onely by God, whom to onely he must give
count of his judgement . . . following and obeying his lawful
commands, eschewing and flying his furie in his unlawfull,
without resistance, but by sobs and teares, to God. " 2
This is indeed the theory of the divine right of the king
and of passive obedience in a most extreme form. James
does not cite directly any authority for this doctrine except
the Scriptures, but we may conjecture that he derived it
from writers like Tyndale.
He goes on to show that this absolute power of the king
was also founded upon the "Fundamental and Civile Lawe,
especially of this country. " He admits that in the first ages
it may be true that various commonwealths chose a ruler
for themselves, but this, he says, has nothing to do with
Scotland, for Scotland was conquered by King Fergus, who
came from Ireland, and he and his successors imposed their
laws upon the country, "and, so it follows, of necessity, that
the kings were the Authors and Makers of the lawes, and
not the lawes of the kings. " He does not ignore the existence
>> Id. id. , B. 1 Id. id. , C.
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? CHAP, ni. ] THEORY OF THE ABSOLUTE MONARCHY. 439
of the Parliament, but in it " the lawes are but craved by his
subjects and onely made by him at their rogation and with
their advice. For albeit the king make daily statutes and
ordinances, mjoyning such paines thereto, as he thinks meet,
without any advice of Parliament or Estates, yet it lyes in
the power of no Parliament to make any kinde of lawes or
statute, without his sceptre be put to it, for giving it the
force of a Law. "1
So much for Scotland, but James also maintains that " the
same ground of the king's right over all the lande, and subjects
thereof, remaineth alike in all other free monarchies, as well
as in this "; and, with special reference to England, he con-
tends that William the Conqueror made himself King of
England by force, and made his own laws. 1
The king then is the source of all law, and he is over all
law; he is "maister over every person that inhabiteth the
same, having power over the life and death of every one of
them. For although a just prince will not take the life of
any one of his subjects without a cleare law: yet the same
lawes, whereby he taketh this, are made by himself, or his pre-
decessors. And so the power flowes alwayes from himselfe. " 2
The king should, indeed, govern according to his law, "For
albeit it be true that I have at length prooved, that the king
is above law, as both the author and giver of strength thereto;
yet a good king will not onely delight to rule his subjectes by
the law, but even will conforme himself, in his own actions
thereunto, always keeping that ground, that the health of
the commonwealth be his chiefe law. " 2
The king may mitigate or suspend a general law, but "a
good king although he be above the Law, will subject and
frame his actions thereto, for example's sake to his subjectes,"
but he does this "of his own free will, but not as subject
thereto. " 3
Having thus set out his conception of the absolute authority
of the king as founded upon divine law, and the principle
that the king is the source of law and above law, he con-
siders some arguments against this. James had evidently
>> Id. id. , C. ? Id. id. , D. I. ? Id. id. , D. 2.
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? 440
[PART IV.
THE LATER SIXTEENTH CENTURY.
heard of the theory of a contract between king and people,
and he is at pains to show that this conception had no value,
"For, say they, there is a mutuall paction, and contract
bound up, and sworne betwixt the king and the people,
whereupon it followeth, that if the one part of the Contract
or the Indent bee broken upon the king's side, the people
are no longer bound to keep their part of it, but are thereby
freed of their oath. For (say they) a contract betwixt two
parties of all lawe frees the one partie if the other breake
unto him.
As to this contract alledged, made at the coronation of
a King, although I deny any such contract to be made then,
especially containing such a clause irritant, as they alledge:
yet I confesse that a King at his coronation, or at the entry
to his kingdome, willingly promiseth to his people, to discharge
honourably and truly the office given him by God over them.
But presuming that thereafter he breake his promise unto
them, never so inexcusable, the question is, who should be
judge of this breake, giving unto them this contract were made
to them never so sicker, according to their alleageance. " 1
We return to France and may observe the contentions of
Pierre de Belloy in a short treatise entitled 'Apologie Catho-
lique,' published in 1585 and directed against the Catholic
League and its refusal to admit that Henry of Navarre could
be recognised as the legitimate heir to the French crown. He
admitted that there were laws of the emperor (i. e. , of the
Eoman law) which declared a heretic to be incapable of
inheritance, but these, he maintained, applied only to private
persons and not to kingdoms or empires, for these could not
be taken from their true lords for heresy or for any other
cause, for they are held immediately from God Himself, and
not from men; subjects are bound to obey and serve their
princes, and cannot question their justice. 2
1 Id. id. , II. main de ceux qui en sont les vrais
* Pierre de Belloy,' Apologie Catho- Seigneurs, soit pour heresie, ou autre
lique,' ed. 1585 (fol. 30): "Or, autre raison quelconque, pource qu'ils sont
chose est des Empires et Royaumes, tenus immediatement de la main do
qui no peuvent estre, arracher de la Dieu Eternel, nou des hommes. . . . De
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 441
And again, the people have no right to control the actions
of the king, but may only lift their eyes to heaven and
remember that it is by the divine will that the sceptre has
passed into the hands of him who bears the crown, whether
he is good or bad. This is specially the case where the king
comes to the throne, as in France, by legitimate succession,
and where, by the law of the monarchy, the people have not
only placed all their power in the hands of the king, but have
tied themselves to the succession of the Blood Eoyal. 1
A more important work, which also sets out the theory of
the absolute monarchy, was published in 1596; this was the
'De Eepublica ' of Peter Gregory of Toulouse.
He cites the Aristotelian classification of the three good
forms of government--good because they are directed to the
wellbeing of the whole community. 2 He refuses to admit
that there are strictly any mixed governments: the supreme
power must lie either with the king, or the "Optimates," or
the people. 3 He indeed admits the three forms, but pays
no further attention to the aristocracy and the popular
government, and assumes that the people had transferred all
their authority to the prince. *
It is, however, with the nature of the French monarchy
that he is really concerned. The king holds supreme authority,
he does indeed protect the people from oppression by the
nobles, he admits plebeians to the magistracy and the public
sorte que les sujets n'ont que voir sur
les Rois, et ne sont nez que pour les
obeir et servir, quels que leurs Princes
soient, sans s'informer plus avaut de la
justice d'iceux. "
1 Id. id. (fol. 31): "D dy dono que
ce n'est pas au pouple de controoler,
qu'avec humilite, et obeyssance, les
actions et qualite? s de son Roi, mais il
doit seulement lever les yeux au ciel,
et considerer en soy-mesme que par la
volonte? Divino le sceptre est tombe? e? s
main et pouvoir de celuy qui porte
la Couronne, soit-il bon ou mauvais;
singulierement quand il y est appelle?
par legitime succession telle qu'est on
nostre France, en laquelle par Loy
Monarchique le peuple n'a pas seule-
ment remise toute sa puissance en la
main et pouvoir du Roy, ains qui
plus est, s'est lie? les mains et n'y peut
pourveoir tant que restera quoique
masse de sang royal, selon la Loy du
Royaume, par laquelle le Roi ne meurt
jamais, pour qu'incontinent le mort
saisit le vif plus proche masle du
defunct par agnation. "
! Peter Gregory of Toulouse, 'De
Republica,' I. 19; V. 1, 2.
>> Id. id. , V. 1-3.
? Id. id. , in. 4, 6.
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? 442 THE LATER SIXTEENTH CENTURY. [PABT IV.
offices, he governs the country through various councils or
courts, he gives the cities municipal laws and officers; but
all this is under the royal authority and can be changed by
him at his discretion. All, however, is to be done justly and
for the welfare of the people, or the monarchy would degenerate
into tyranny. 1
He maintains indeed that the famous passage in 1 Samuel
viii. describes the abuse of the royal authority, not its legiti-
mate use, unless indeed such actions should be required for
the public good2; but the absolute power of the prince has
been given him by God, he is God's vicar, and we must
recognise in him the majesty and image of god. 3
Gregory repudiated emphatically the opinion, which he
attributes to Aristotle, that the man who rules over an un-
willing people is a tyrant, for, as he maintains, if this were
true, there neither has been, nor could be, a State which
deserves the name of a monarchy; for a State which depends
upon the will of the people cannot be called a monarchy, but
a democracy; the supreme power in such a State resides in
the people and not in the prince. The king who violates the
1 Id. id. , V. 18: "In Galliae Monar-
chia Status nunc talis est qui omnes
rerum publicarum salubres leges con-
tineat. Nam penes unum regem
omnium rerum summa, verum non ut
tyrannus moderatur rempublicam aut
regnum, sed habet concilia virorum
electorum, et ita optimatum habet
diversos senatus, qui quotidiana negotia
justitiaeque merita, populo distri-
buant, citra appellationem nomine
tamen principis, suo tamen privilegio
et sibi conoessa potestate.
Habet et
democraticas bonas illas leges prin-
ceps in regno, ut libertas populi
conservetur, a nullo optimatum op-
primetur, legibus regatur diligenter,
ad aoquum et bonum redactis: non
excludit princeps plebeios a mngis-
tratibus, ab administratione reipub-
licae, sed eos idoneos admit tit; con-
cedit civitatibus suis decuriones, con-
fules, legesque municipales; quao
omnia habent rerum publicarum mix-
tionem; at sub monarchia tamen, quia
in potestate principis est, seu regis,
haec omnia mutare, si sibi videatur.
Attamen presumitur, non nisi juste,
et ad salutem populi et ejus utilitatem,
mutare aut tollore; alioquin et ipsins
monarchia degeneraret in tyrannidem. "
Cf. id. id. , IX. 12.
>> Id. id. , IX. 1, 5, and 8; in.
2, 10.
? Id. id. , VI. 2, 9: "Neque in
principibus tam inspicere vol con-
siderare debemus quid ipsi per se et
tanquam homines sunt, sed quantum
ill is concessum et permissum a Deo sit.
Neque in principibus tam personam
singularem reveremur, quantum majes-
tatem Dei et imaginem potestatemque
consideremus et reveremus ex parte
illius cujus delegati sunt, et vicarias
in terra partes gerunt. "
? ? Cf. id. id. , m. 1, 10: "Postquam
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY.
443
laws of nature and the laws of God is indeed a tyrant, but
not the king who disregards the "political" and civil laws. 1
He develops the last principle in the next part of his treatise,
and while he admits that the prince must obey the supreme
law of God and of nature, he maintains that he is not bound
by his own laws or those of his predecessors, except for some
fundamental laws, such as that of the hereditary succession,
which the king cannot violate. 2 The prince has power to
make, to interpret, and to abrogate all general laws, and the
right to issue " privilegia," and thus to "derogate " from the
law; he even has the right to use a "non-obstante" clause
in such "privilegia. " 3
On the other hand, like Bodin and many of the Civilians,
he admits that if the law of the prince had passed into a
contract, he could not annul it, for the obligation of a contract
belongs to the natural law, to which, as a political and rational
being, the prince is subject. As in the Civilians, this conception
is brought into relation with the feudal law. 4
It is also true that Gregory urges upon the prince that it
is well to take counsel; and he gives a short account of the
Councils in Greece and in the Carolingian times, and he
finds the traces of these in the meetings of the three Estates,
which are called together by the king that he may learn from
eniin commissa est potestas a Deo
principi in subditis absoluta. "
Id. id. , XXVI. 7, 8: "Omnia
juri&dictio in statu monarchic! e,
gladioquo potestas, a solo Deo, ut
princeps ejus vicario monarcha pendet. "
1 Id. id. , VI. 18, 15: "Tamen
admonendi sum us, non bene mea
scntentia Aristotelem et eius asseclas
sensisse omnes qui invito populo
pracsunt, esse tyrannes reprobos: nam
si hoc verum esset, nullum esset, aut
f uissot regnum quod monarchiae nomen
habuerit: quod enim pendet ex
arbitrio populi, illud non regnum aut
monarchia, sed democratia dici debet,
in qua suprema potestas non penes
principem sit, sed penos populum;
neque negandum quidem, leges naturae
et divinas non servantem et contra
oas a gen tem, tyrannum facto esse:
at non ita, si contra leges politicas
agat et civiles. "
1 Id. id. , VH. 5, 8, 17, 20.
>> Id. id. , IX. 39.
? Id. id. , VII. 20, 26: "Quando
etiam lex et const it ut i o principis transit
in contractum revocare non potest in
praeiudicium eorum quibus ius in
eadem quaesitum est. . . . 26. Quia
obligatio est de iure naturalis, cui
etiam princeps subicitur . . . et licet
princeps sit solutus legibus, non tamen
dictamine rationis naturalis et lege
naturae, quia et princeps est animal
politicum et rationis particeps. . . . 36.
Contractus servari debent proculdubio
inter vasallos et principes. "
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? 444 THE LATER SIXTEENTH CENTURY. [PABT IV.
them the grievances of the people, and sometimes that he
might inform them of the necessity of going to war, or of other
public affairs, for which the assistance of the subjects was
required. He mentions three causes for which especially
they might be called: first, the appointment of a regent, in
the case of a minority, or when the king was insane, or a
prisoner, and he mentions as examples the captivity of King
John, the insanity of Charles VI. , and the minority of
Charles VIII. Second, to deal with conspiracies, the reform
of the Commonwealth, or the oppression of the people by
the nobles. Third, when it was necessary to impose new
"tributes " and aids upon the people, to lay before them the
urgent affairs of the kingdom and the king, which justly
required the help of the subjects. 1
Gregory was, however, careful to add that the people must
not imagine that this was done by the kings because the King
of France was dependent on these assemblies, for he could
impose and exact taxes without their consent. It must be
understood that the King of France was not dependent on
the assemblies, as in Poland and elsewhere, but the assemblies
were dependent upon the king, who summoned them at his
pleasure, for the kingdom was an hereditary monarchy,
otherwise the kingdom would not be a monarchy but a
democracy. 2
Finally, he also discusses the question of the deposition
of the prince. He admits that the depositions of the Emperor
Henry IV. by Pope Gregory VII. , and of Frederick II. by
Innocent IV. , were justifiable; and that even the deposition
of the Emperor Wenceslas by the electors may have been
lawful, as the empire was elective; but he denies that
hereditary monarchs could be deposed. 3 The monarch is
dependent on God only; it is to God only that he will give
account for the souls of his subjects. All his jurisdiction and
'Id. id. , XXIV. 1-3, 4 and 5.
>> Id. id. , XXIV. 53: "Quae
proferuntur a rege non ut ideo populus
arbitretur ex eius nutu monarchiam
regiamque poteetatem pendere. Nam
et sine consensu populi potest iure suo
prinoops tribute imponere et exigere:
sed ut paterne subditos moneat, causam
? ecessariam esse ex qua coguntur
propter utilitatem public&m, ab illis
subsidia petere. "
* Id. id. , XXVI. 4, 11.
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? CHAP. III. ] THEORY OF THE ABSOLUTE MONARCHY.
445
the power of the sword in the monarchy is from God only;
Ms subjects have no authority to deal with him judicially. 1
In an earlier passage he had indeed asserted that while the
authority of the prince was absolute, his function was to
maintain justice and to be the defender and father of his
subjects, and that, if he did not fulfil the function, he was
a tyrant2; but a little further on he condemns in the strongest
language those who dared to conspire against an unjust
prince. 3
The most important defender in this period, after Bodin,
of the absolute authority of the king was William Barclay,
a Scotsman indeed by birth and early education at Aberdeen
University, but he studied law at Bourges and became a
Professor of Civil Law, first at Pont-a-Mousson and later at
Angers. 4 His most important work, 'De Eegno et Eegali
Potestate,' was published in 1600, and while it is in large
measure a reply to George Buchanan, it surveys the whole
question of the source and nature of the royal authority.
If we make the attempt to set out Barclay's opinions in
some reasoned order, we may begin by observing that he dis-
cusses the conception set out by Buchanan (and Hooker, as we
may remember) that man had first created kings to remedy the
disorders incident to life without a controlling authority, and
then made laws for the purpose of restraining the arbitrary
actions of the king. 5 He maintains that laws are made not
to bind the king, but to take the place of his personal authority
when he was absent. 8 He thinks indeed that princes should
1 Id. id. , XXVI. 5, 24: "Honarcha iniustitiam principia, manus audaces,
solum a Deo pendit, et illi soli ipse pro temerarias inferant, et factionos archi-
animabus subditorum redditurus est tectentur, aut coniurationes hac occas-
sione vel alia ctian graviori in legitimum
Id. id. , XXVI. 7, 9: "Omnia iuris- suum principem moliantur: nam
dictio in statu monarchiae, gladiique hoc detester, abominer, et maiestatis
potestas a solo Deo, et princeps eius poena atrociore dignum existimo. "
vicario monarcha pendet: ideo subditi * Cf. Allen, 'Political Thought in
qui carent potestate, iuridice in the Sixteenth Century,' p. 386 fl.
cum animadvertero non possunt. " (Cf. D. N. B. )
? Id. id. , IX. 12. >> J. Barolay, ' De Regno,' I. (p. 24).
? Id. id. , X. 2, 8: "Non dice- ? Id. id. , II. (p. 83).
porro bene age re subditos, qui ob
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? 446 THE LATER SIXTEENTH CENTURY. [PART IV.
take advice, and speaks of the evil effects of neglecting this,1
but he is also clear that, finally, it is the king who decides
what is to be law. 2 He repudiates indignantly Buchanan's
assertion that the Scottish constitution required that laws
should be made with the consent of the " Proceres " and the
approval of the people,3 and asserts dogmatically that, both
in Scotland and in France, the king made laws without the
consent of such a body as the "Senate. " 4 This is important,
but more important is his emphatic statement that no one
is a king who is bound by the laws. 5
Barclay's main principles will become clearer if we examine
his conception of the source and character of the royal
authority.
He maintains that the royal authority is Divine. He is
careful indeed to explain that this does not necessarily mean
that the man whom God destined for the government was
king before the consent of the people was given. Saul, he
says, was chosen by God, but was made king "populi suf-
fragio," and it was the same with David. 8 What Barclay
means is that when the king has been, by the Divine per-
mission, lawfully constituted by men, God gives him an
authority which is superior to that of the whole people, for,
when it is said that God has established the king, it is
meant that God has confirmed his authority in such a sense
that it cannot be violated or controlled by the people. 7
This, he maintains, is true also of the king who succeeds
by hereditary right, unless the lawful heir is by nature in-
capable, or there is some grave doubt about the right order
? Id. id. , I. (p. 41).
? Id. id. , I. (pp. 44-47).
>> Id. id. , I. (p. 43).
4 Id. id. , II. (p.