No More Learning

16: "Sed et tertium esse dici possit, verum etiam et regale
dominium, non minus his dignitate et dominium nominari mereatur, cum nec
laude, quod politicum et regale nomi- ipsi subditi, sine regia auctoritate leges
natur. . . . In regno namque Angliae condere valeant. "
regee sine trium statuum regni illius * Id. ,' De Laudibus Legum Angliae,'
consensu leges non condunt, nec sub- zviii.
imponunt subditis suis. . . . * Id. , ' Governance of England,' iii.
Numquid tunc hoc dominium polit icum, Cf. p. 175.
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? FIFTEENTH CENTURY.
[PABT II.
twelfth and thirteenth centuries we have traced in the last
volume, and whose continued importance in the fourteenth
century we have illustrated in the first part of this volume,
continued to be a normal part of the political civilisation of
Western Europe in the fifteenth century. As we have often
said, we are not writing a constitutional history of Europe, and
we are only concerned with the representative system as illus-
trating the conception that political authority was understood
to be the authority of the community, primarily indeed
through the law which was the expression and the form of
its life, but secondarily and in these later centuries especially,
as embodied in the Assemblies, Estates, or Parliaments which
were accepted as representing the whole community.
We have examined the political and legal literature of the
fifteenth century, and we have compared it with the constitu-
tional practice especially of Spain and France, and we think
that it is clear that there is little trace of the development of
any political conceptions which were different from those of
the fourteenth century, or of the Middle Ages. It seems to
us evident that the political thought of the time was still
dominated by the conception of the supremacy of law and
custom, that is, if we use the rather unhappy terms of some
moderns, it was not the Prince, but the Law, which was con-
ceived of as sovereign.
The Prince was indeed thought of as august, and was treated
with profound deference and respect, but he was not absolute,
and his authority was derived from the community. His
authority was limited and even terminable if he violated the
laws and liberties of the community.
It is true that when we turn from the general political
literature to the Civilians we find that they generally repre-
sented another mode of thought, and we have come across
a few statements of the theory of "Divine Eight," in the
fourteenth and fifteenth centuries, but there is very little
evidence that these absolutist theories had any appreciable
influence on the general character of the political ideas of the
fifteenth century.
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? PART III.
THE EARLIER SIXTEENTH CENTURY.
CHAPTEE I.
THE THEORY OF A LIMITED MONARCHY.
We have so far considered the character of the political
theory of the fourteenth and fifteenth centuries, and its
relation to the actual constitutional conditions of some of
the greater European countries. We have now to examine
the question how far, and in what respects, we can trace
the appearance and development of any new and important
political conceptions in the sixteenth century. We have
to consider how far the great political and religious movements
of the century, or that great but indefinable movement
which we call the Eenaissance, may have brought with them
new conceptions of the nature and principles of political
society and authority. If, however, we are to approach the
subject seriously, we must begin by putting aside all pre-
conceptions and must not allow our judgment to be swayed
by any traditional notions, or assume that those great move-
ments were or were not important in the development of
political ideas or principles.
We have a work of the early years of the sixteenth century
which is of the highest importance both as representing
the experience of the past and as anticipating future develop-
ments. This is the work entitled 'La Grant Monarchic de
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? 220
THE EARLIER SIXTEENTH CENTURY. [PABT in.
France,' which was written in the first quarter of the century
by Claude de Seyssel, the Archbishop of Turin, who, though
a noble of Savoy, had been for many years, from 1497 to
1517, in the service of the French Crown, under Louis XII.
It is the work, therefore, of a man who had a large practical
political experience, and though it may be described as a work
of political theory, it is rather of the nature of the recorded
observations of a practical statesman on what he had seen.
This is indeed a remarkable work, both for its shrewd and
penetrating observation of the actual character of the political
system, and for the sharp contrast it presents to the work
of another important French writer, of the latter part of the
century, that is the 'De la Eepublique' of Jean Bodin, first
published in 1576. We shall have much to say about this
in a later chapter, but we may at once contrast Bodin's
dogmatic and abstract conception of the nature of the political
authority, which he calls "Majestas," which we should call
Sovereignty, with the cautious and tentative conception of
de Seyssel, that in the actual fact of human experience,
political authority is conditioned and limited by forces, some-
times intangible, but none the less real.
At the outset of the work de Seyssel says that the French
monarchy was the best of all monarchies, because it was
neither completely absolute, nor too much restrained; it -was
regulated and restrained by good laws, ordinances, and cus-
toms which were so firmly established that they could scarcely
be broken. The absolute power of the kings of France was
regulated by three restraints (freins), Eeligion, Justice, and
what de Seyssel calls "la police. " 1 In a later passage he
says that it is by these "freins" that the absolute power of
the monarch, which is called tyrannical when it is exercised
1 De Seyssel, 'Grant Monarchic de adnichiler, iacoit que, en quelque
France,' i. 8: "Et neantmoings temps et en quelque endroiot, il y
demeure toujours la dignite? et authorite? adviegne quelque infraction et violence,
royale en son entier, non pas totale- Et pour parler desdicts freins par
ment absolue, ne aussy restraincte lesquels la puissance absolue des rois
par tropt: mais reglee et refrenee par de France est reglee, jen trouve trois
bonnes lois, ordonnances et coustumes, principaulx. Le premier est la religion,
lesquelles sont establies de telle sorte le second la justice, et le tiers, la police. "
que a peine se peuvent rompre et
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? CHAP. I. ] THE THEORY OF A IJMITED MONARCHY. 221
against reason, is reduced to "civilite? ," and if he sets aside
these limits, and follows his uncontrolled will, ho is held to be
an evil tyrant, cruel and intolerable, and earns the hatred
of God and of his subjects. 1
We must consider these "freins" a little more closely.
About Eeligion he does not say much which is of importance
for our present subject except that the people would hate the
king if he were notoriously irreligious, and would hardly obey
him. 2 Of the second, "la justice," he has much to say which
is of the greatest importance. This, he says, was more highly
developed in France than in any other part of the world,
under the form of the "Parlemens" which had been created
chiefly for the purpose of restraining the absolute power
which the king might desire to exercise. In respect of dis-
tributive justice the kings had always been subject to this,
so that in civil matters every man could obtain justice against
them, just as much as against other subjects, and the king's
letters and rescripts are subject to the judgment of the
"Parlemens. " In regard to criminal matters the kings'
"graces et remissions " are subject to such discussion in these
courts, that few would venture to do evil in hope of them. 3
1 Id. , ii. 6: "Et premie`rement
touchant les troys freins dont jay
parlee dessus par lesquels la puissance
absolue du prince et monarque, laquelle
est appelee tyrannique, quant l'on
en use contre raison, est refrenee ot
reduite a civilite? . . . . Et par lo
contraire, des qu'il se desnoyo desdits
troya limitee et veult user de volonte?
desordonnee, il est tenu et repute?
mauvais tyrant et cruel et intollerable,
dont il acquiert la hayne de Dieu et
de ses subjects. "
? Id. , i. 9.
>> Id. , i. 10: "Le second frein est
la justice, laquelle sans point de diffi-
culte? est plus autorisee en France quo
en nul autre part du monde que Ion
sache, mesmemeut a cause des parle-
mens qui ont este instituez princi-
pallemont pour ceste cause et a ceete
fin, de refrener la puissance absolue
dont vouldroyent user les rois. Et si
furent des le commencement establis
de si grans personages en tel nombre
et avec telle puissance et pouvoir que
les rois y ont, quant a la justice dis-
tributive, toujours este subjectz; telle-
ment que Ion a justice et raison a`
l'encontre deulx, aussi bien que a`
l'encontre des subjects es matieros
civiles. Et entre les parties privees
leur auctorite ne peut prejudicier au
droit daultruy. Ains sont leurs lettres
et rescriptes subjects au jugement
desdits parlemens en tel cas: non pas
touchant obreption et subreption soullo-
ment, comme ceulx des aultres pro-
vinces selon les lois Romaines, mais
touchant la civilite? et incivilite? . Et
quant aulx matieres criminelles leurs
graces et remissions y sont tellement
debattues et coulx qui les obtiegneut
? ? mis a telle discussion quo peu se
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? 222 THE EARLIER SIXTEENTH CENTURY. [PART in.
And then, lest it should be imagined that jndges are after
all under the king's control, he adds that their office was not
temporary but perpetual, and that the king could not remove
them "sinon par forfaiture," and that judgment upon
them belonged to the courts themselves. And thus, the
judges, knowing that they could not be removed, except
for a definite fault, can give themselves with more confidence
to the administration of justice, or are inexcusable if they
do not do so. 1 The significance of this will be obvious to all
who remember the importance of the principle of the medieval
constitutional system of the supremacy of the law and the
courts over the prince. 2
We must turn to de Seyssel's treatment of the third " frein"
upon the royal authority in France, that is, "la police. "
It is difficult to define in precise terms what he means by
this, but it would appear that he uses it to describe the system
and order of the State (probably as equivalent to " Politia ").
He describes, as belonging to it, first the laws and ordinances
which had been made by the kings themselves, and confirmed
from time to time, and which tend to the preservation of the
kingdom. These had been observed for so long a time that
the princes do not attempt to "derogate" from them; if
they did, they would not be obeyed. 3 He returns to the subject
trouvent de gens qui soubs esperance
ne confiance de cela, osent faire chose
mal faicte et sur tous cas exe? crable. "
1 Id. id. : "Et dautant est icelle
justice plus autorisee que les officiers
deputes pour la faire et administrer,
sont perpetuels, et nest en la puissance
des roys les deposer, sinon par
forfaiture, dont la cognoissance est
reservee quant aux suppos des cours
souveraines A icelles commis en premie`re
instance, et quant aulx autres infe? riours
par appel. Et si par volunte? desordonnee
aucun a estee quelque foys prive et
deboute sans garder le dit ordre,
ceulx qui en ont este cause, ou ont
prins et occupe leur lieu, en ont apres
rendu compte et reliqua. Dont il
advient que iceulx juges et officiers
sachant non pouvoir estre deposees
sils ne meffont, plus asseurement
saquittent a l'exercice de la justice:
ou sils ne le font sont inexcusables.
Et veritablement costuy frein et
rotonail et moult grant et louable en
France plus que en nul autro pays,
comme diet est. "
* Cf. esp. vol. iii. , part t. , chap. 4.
>> Id. , i. 6: "Le tiers frein est
celui de la police. C'est a` scavoir de
plusieurs ordonnances qui ont este
faictes par les rois mosmes, et apres
conformees et aprouvees do temps on
temps, lesquelles tendent a` la con-
servation du royaume en universel et
particulier. Et si ont este garde? es
pour tel et si long temps, que les
princes nentrepreignent point dy
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? CHAP. I. ] THE THEOBY OP A LIMITED MONARCHY.
223
in a later chapter, when he says that the king knows that
it is by means of the laws, ordinances, and laudable cus-
toms of France concerning the "police," that the kingdom
has come to its greatness, and the king must keep them
and cause them to be kept, to the utmost of his power,
remembering that he is bound to do so by the oath which he
swore at his coronation. If he were not to do so, he would
offend God and his own conscience, and would incur the
hatred and ill-will of his people. 1
This, however, is not all that do Seyssel treats of under
"la police. " There are, he says, three estates in the kingdom
besides that of the Church--the nobles, the middle classes
(le peuple gras), and the lower classes (le peuple menu), and
each of these has its own " preheminences " according to i$a
quality, and these must be carefully preserved. 2
In the second book of the treatise ho goes on to say
that the king should take counsel, and he describes the Great
Council, which he distinguishes from the ordinary Council.
The Great Council is composed of the good and notable men
deroguer: et quant Ie vouldroyent
faire Ion nobeist point a leur com-
mandement. Mesmement quant au
faict de leur domaine et patrimoine
royal qnil's ne peuvent aliener sans
necessite. "
1 Id. , ii. 17: "Quant au tiers
poinct de la police, portant que tout
ce que je diray, cy apres depend
dicele, nen diray sur ce propos aultre
chose que le roy et monarque cog-
e par le moien des lois
et louables coustumes de
>> concernant la police, le royaulme
est parvenu a` telle gloire, grandeur et
puissance que l'on voit; et se conserve
et entretient en paix prosperite? et
reputation; les doibt garder et faire
le plus qu'il peult, attendu
qu'il est astrainct par le
ent qu'il faict a` son couronnemont
de ce faire. Pourquoy faisant le
offense Dieu et blesse sa
et si acquiert la hayne et
mal vieillance de son peuple, et autre
ce, affoiblist la force et par consequence
diminue sa gloire et sa renommee. "
1 Id. , i. 13: "Il va outre a
ung aultre ordre et une aultre forme
de vivre en ce royaume tendant a`
cette mesme fin, que moult faict a`
louer et entretenir pour l'union et
accord de tous les Estats dicelluy.
Car ilz ont este si bien introduicts et
continuez que a grant peine peult
venir le royaulme en grande decadence
tant quils seront bien entretenus, pour
autant que ung chescun des dictes
Estats a ses droits et preheminences
selon sa qualite? , et a` peine peult l'ung
opprimer l'autre, ne tous trois ensemble
conspirer contre le chief et monarque.
Et en ces trois Estats ie ne comprends
point celui de l'Eglise dont je parlera
apre`s. Ains les prens ainsy que Ion
faict en aucuns aultres pays. C'est
a scavoir la noblesse, le peuple moyen
que Ion peult appeler le peuple gras,
? ? et le peuple menu. "
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? 224
THE EARUEB, SIXTEENTH CENTURY. [pabt m.
of the various estates, both secular aud ecclesiastical, the
Princes of the Blood, the Bishops, the chief officers, and,
if the business is important, the Presidents of the Sovereign
Courts (Parlemens), the principal counsellors of those courts,
and other wise and experienced persons. This is not a body
which should be called together frequently, but only when
there are some grave and important matters to consider,
such as the declaration of war, the making of laws and ordin-
ances for the whole kingdom, and other like matters. He
adds, a little grudgingly apparently, that it is sometimes
expedient to summon to the Council some small number of
men from the most important cities of the kingdom. 1
It will be observed that this can hardly be described as
the " States General," it is more of the nature of an Assembly
of Notables, and it is evident that de Seyssel had no great
interest in strictly representative institutions, but he is clear
that the king should be advised by a body of men who repre-
sented the political intelligence of the community.
We have said enough to indicate why it is that this treatise
is of great importance, for it expresses the judgment of an
experienced officer of the French Crown on the nature of what
we should call the constitutional system of France. It is
1 Id. ( ii.
5: "Tout ainsi je dis
que le roy doit les grans et commuus
affaires du royaume communiquer a`
ung grant conseil assemblee de bons et
notables personnages do divers estats
tant d'eglise que se? culiers, et tant de
robbe longue que de robbe courte.
C'est a savoir ceulx qui sont qualifies
a cause- de leur degre, estat, ou office,
comme sont en France les Princes du
sang, les evesquos, les chefs d'office, les
chambellans, les maitres des roquestes
et maitres d'hotel qui se trouvent en
Court. Et encore selon l'importance
des affaires y doibt Ion appeler des
presidens des courts souveraines et
principaux conseillers dicelles, des
prelatz absens, et autres notables
personnages que Ion sait ostre sages
et experimentes. Mais cela de con-
voquer tels personnages absens ne se
faict ne doibt faire guieres souvent
pour eviter confusion et despense.
Ains tant seulement quant il occourt
quelque chose qui nadvient pas souvent
et est de grande consequence a toute
le royaume, oomme d'entreprendre une
guerre et conqueste nouvelle. De
faire loix et ordonnances generallea
concernant la justice ou la police
universelle du royaume, et aultres cas
semblables, aux quels cas ii est quelque
toys expedient d'appeller quelque
petite nombre de gens des cites et villes
capitales du royaume. Et en ceci n'est
pas appelle conseil ordinaire. Ains
est une assemble? e casuelle. Laquelle
comme dicte est ne so doibt faire sinon
quant les cas le requierent. "
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? CHAP, t] THE THKOBT OF A LIMITED MONARCHY. 225
evident that its emphasis lies just on those principles of
political order which had been most characteristic of the
Middle Ages, that the king was controlled by the Law, and
that in all matters concerning the rights of his subjects he
could only act by process of law and in the courts. If de
Seyssel does not express the first principle in the precise terms
of Bracton or Fortescue, his meaning is clear, and the second
principle is stated by him in terms which are not far removed
from those of Magna Carta and the great Feudal Lawyers. It
is indeed the confidence with which he affirms the complete
independence of the courts from the authority of the king,
which is most remarkable.
It is interesting and important to observe that the most
famous political writer of the sixteenth century, that is,
Machiavelli, made some observations on the government
of France, which correspond in important points with the
opinion of de Seyssel. In one place in his Discourses
on Livy, he contends that when a people knows that the
prince will not on any account violate the law, they will live
secure and contented, and he gives as an example the kingdom
of France which lives in security because the kings were bound
by many laws which formed the security of all their people. 1
In another place he points out the good effects in France of
this; that kingdom lived more completely under law than
any other, for their laws were maintained by the Parlements,
and especially by that of Paris, which would deliver judgment
even against the king. 2
1 Macchiave'. li, 'Discorsi Super la
prima Decade di Tito Livio,' i. 16:
"E quando un principe faccia questo,
e ohe i l populo vegga che per accidente
neesuno ei non rompe tali leggi, comin-
cera in breve tempo a vivere siouro e
contento. In osempio ci e il Regno
di Francia, il quale non vive eicuro per
ait ro che per esserei quelli Re obligati
ad infinite leggi nelle quali si com-
pronde la sicurta di tutti i suoi populi. "
* Id. , iii. 1: "Haono ancora i regni
bisogno di rinnovarei e ridurre le
leggi di quelli verso il suo principle-.
E si vedi quanto buono effetto fa
quest* parte nel iegno di Francia, il
quale regno viva sotto le leggi e sotto
gli ordini piu ohe alcun altro regno.
Delle quali leggi e ordini ne eono
mantenitori i Parliaments e massime
quel di Parigi; le quali sono da lui
rinnovate qualunque volta, e fa una
esecuzione contra ad un principe di
quel regno, e che ei condanna il Ro
nelle sue sentenze. "
VOL. VI.
P
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? 226
THE EARLIER SIXTEENTH CENTURY. [PART III.
These conceptions of the nature of the French monarchy
may seem at first sight rather strange; they do not correspond
with the impressions of Sir John Fortescue, as we have seen,
but after all de Seyssel was in a better position to judge the
real nature of that government than an observer in England,
however intelligent he might be.
It is clear that in the judgment of de Seyssel the French
monarchy was a monarchy limited by law and custom. We
shall have to consider the development of the theory of an
unlimited monarchy, so far as it is to be found in the sixteenth
century, but it is clear that it was unknown to de Seyssel.
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? 227
CHAPTER II.
THE SOTJKCE AND AUTHORITY OF LAW.
We have, in the last chapter, drawn attention to the work
of de Seyssel, because it seems to us important as representing
the judgment of a man of affairs, an experienced official of
the French Crown, on the real nature of the government
of France. Our task is, however, to examine the political
theory which lay behind the actual institutions of European
society, and we must therefore turn to a more detailed exam-
ination of the various aspects of this.
We must begin with an examination of the theory of the
nature, the source, and the authority of law. As we have
often said, and we are convinced that it is a right judgment,
the supreme authority in the Mediaeval State was the Law,
not the prince, and as we have seen in the earlier parts of
this volume, this continued to be the normal judgment of
the fourteenth and fifteenth centuries; we must now con-
sider whether this continued in the sixteenth century, or
how far it gave place to that theory of the supremacy of
the monarch which became common in continental Europe
in the seventeenth and eighteenth centuries.
We have not found, in the literature of the earlier part of
the century, very much discussion of the nature of law in
general, but there is enough to indicate its general character,
and to illustrate the continuance of the tradition of St Thomas
Aquinas. We find examples of this in the work of an eminent
English Jurist, St Germans, writing about 1539, in that of
the Dominican Professor of Salamanca, Soto, who had been
the confessor of Charles V. and in that of Calvin.
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? 228
THE EARLIER SIXTEENTH CENTURY. [PART III.
f "8t Germans' work is in the form of a dialogue between a
I Doctor of Civil Law and a Student of English Law, and
he begins with a brief statement by the Doctor on the first
and general principles of all law. The Eternal Law, he says,
is nothing else but the supreme reason of the Divine Wisdom,
by which God wills that all things should be moved and
directed to their good and proper end.
God reveals the Eternal Law to the rational creature in
three ways: first, by the light of the natural understanding;
secondly, by Divine Eevelation; and thirdly, by the reason
in the prince or other ruler, who has power to impose law
upon his subjects. The " Lex_Naturae " is that which belongs
to the rational human being; the "Lex Divina" directs
men to eternaffelRrty; while the "Lex Eationis" directs
men to felicity in this life. The "Lex Humana," in order
to be just, requires two things in the legislator: "prudence,"
that he may direct the community in accordance with right
practical reason; and authority, for he must have authority
to make law. The Lex Humana will be called just, " ex fine,"
when it is directed to the common good, "ex authore" when
it does not go beyond the authority of him who made it,
"ex forma" when it imposes burdens on the subjects in due
proportion to the end of the common good, for if these
burdens are unequally imposed upon the multitude, the law,
even if it is directed to the common good, will not be binding
upon men's consciences. He adds finally, that, as Aristotle
had said, it is better that all men should be ruled by a
certain and positive law, than that the judgment should be
left to man's will. 1
1 Christopher St Germans, ' Dialogus
de Fundamento legum Angliae,' cap. i.
(folio ii. ): "Doctor. Lex eterna
nihil aliud est, quam ipsa summa
ratio gubernationis rerum in Deo,
sive ilia summa ratio Divinae Sapientiae,
qua vult Deus omnia a so condita
moveri et dirigi ad bonum et debitum
finem. "
Id. id. , fol. iii. : "Tribus igitur
mod is revelat Do us hano legem
eternam et not am facit eam creaturae
rationali. Primo modo, per lumen
naturalis intellectus; secundo per
revelationem divinam; tertio per
rationem in principe sive in alio
quocunque secundario gubornante, qui
ha bet potestatem legem imponere
subditis suis. "
Id. id. , cap. ii. (fol. iv. ): "Lex
vero naturae specialiter considerata
respicit solum ad creaturam rationalem
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? CHAP, n. ] THE SOURCE AND AUTHORITY OF LAW. ( 229
It is not necessary to illustrate at length the relation of th<
general theory of law in Sotg to that of St Thomas Aquinas
as it is obvious that in his treatise, 'De Justitia et Jure,' h(
was illustrating and expounding the principles of St Thomas;
as, however, the question of the continuity of these concep-
tions is highly important in the history of political theory, we
may take note of a few passages.
The Eternal Law of God is, he says, nothing else than the
eternal reason by which he governs. the whole world; and
the Eternal Law governs man by the Natural Law, which is
a participation of it. The Natural Law is written in man's
mind, without any process of argument; the Jus Gentium
is derived from it by a process of reasoning, but without any
assembly of men; while the Civil Law is derived from the judg-
ment of men assembled in Council, that is, from the Common-
wealth or from him who is its Vicar, and has its authority. 1
humanam ad imaginem Dei creatam,
quae a quibusdam etiam dicitur Jus
Gentium. "
Id. id. , fol. vi. : "Lex divina de
propinquo et de se ordinat ad felicitatem
eternam, lex rationis vero, ad felici-
tatem hujus vitae. "
Id. , chap. iv. fol. xi. : "Et ut
lex humana sit justa requiruntur in
legislators duo, scilicet prudentia et
auctoritas. Prudentia, ut secundum
reotam rationem practicam dictet
quid faciendum sit pro communitate . . .
Auctoritas, ut scilicet habeat auctori-
tatem legis condendae quia dicitur
lex a ligando. "
Id. id. , fol. xii. : "Dicitur enim
lex humana justa, ex fine, ex authore
et ex forma. Ex fine quando ordinatur
ad bonum commune. Ex authore
quando non excedit authoritatem
ferentis. Ex forma quando secundum
proportionem imponuntur subditis
onera in ordinem ad bonum commune:
et si onerainequaliter imponuntur multi-
tudini, licet ordinetur ad bonum com-
mune; in f oro conscientiae non ligat. "
Id. id. , fol. xii. : "Dicit itaque
philosophus in socundo Ethicorum;
quod melius est omnes ordinari lege
certa et positiva quam dimittere
juditium arbitrio, propter tria. "
1 Soto, ' De Justitia et Jure,' i. 3, 2:
"Fit ut lex etorna in Deo nihil aliud sit
quam sempiterna ratio suae sapientiae,
qua mundi universitatem regit. "
Id. id. , i. 4, 1: "Ad primum igitur
argumentum respondetur, quod etsi
eterna lege gubernemur id tamen fit
per naturalem, quae participatio illius
est. . . . Quin, vero . . . inde lex
naturalis in nobis, prae brutorum
instinctu, legis rationem habet, quod
ratione nos ipsi ducimur; ilia vero
per impetum forinsecus aguntur. "
Id. id. , i. 5, 3 (p. 40): "Itaque jus
naturale absque ulla ratiocinations
scriptum est in mentibus nostris:
jus autem gentium natural! ratiocina-
tione, absque hominum conventu et
longo consilio inde elicitur, jus autem
civile arbitratu hominum in unum
? ? coeuntium concilium constituitur. "
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? 230
[pakt nr.
THE EARLIER SIXTEENTH CENTURY.
The general correspondence of these principles of St Germans
and of Soto with these of St Thomas Aquinas is obvious. 1
The terms in which Calvin states his general conception
of law are not formally the same, but it appears to us that they
are not substantially very different. The Moral Law which
is the true and eternal rule of justice is binding upon men in
all places and times, who desire to order their lives by the
will of God. Subject to this, every nation is at liberty to
establish laws for itself, as it finds best; they may vary in
form, but they must have the same principle (ratio). 2 This,
he says, will be done if we will distinguish between law and
equity (aequitas) upon which law depends. Equity, because
it is natural, is the same among all men; constitutions (i. e. ,
positive laws), because they are determined at least in part
by particular circumstances, may well differ, so long as they
are directed to the same end, of equity. The Moral Law of
God is nothing else than the testimony of Natural Law, and
the whole principle of equity is contained in it. 3
ejusquo vicem gerentis, seu curam
habentis. . . . Lex est regula dirigens
in commune bonum: dirigere ant cm
in commune bonum proprium est
reipublicae, cujus ejusmodi bonum
proximua finis est; ergo penes ipsam
tantum, ac penes ilium qui ejus habet
curam, potestas est ferendarum
legum. . . . Subnectitur autem et
secunda ratio: lex enim vim habet
coercivam . . . vis autem haeo et
vigor in sola ropublica et principe
existit sicuti totius animalis virtus est
membra movere. "
1 Cf. vol. v. pp. 36-44.
? Calvin, 'Institutio,' iv.