] THE SOURCE AND
AUTHORITY
OF LAW.
Thomas Carlyle
org/access_use#pd-us-google
? CHAP. L] THE SOURCE AND AUTHORITY OF LAW. 327
tyrant. The king he describes as one who by inheritance
or by election has received the Crown with the consent
of the people, and who governs it by its laws, to the
benefit both of the country and of himself. The tyrant, on
the other hand, is one who rules without the consent of the
people, who makes and unmakes laws at his pleasure, without
the advice of the citizens, and who puts the advantage of
himself and his kindred before the common good. 1
He goes on to say that this " tyrannical power " was given,
as it was said, to the Eoman emperor by a decree of the
people, and some say that the same power belonged to the
King of France and some of the Italian princes, that they
possessed the power of making and unmaking laws, and of
imposing taxes without the consent of the people; he adds
that it was said that it was Louis XI. who first changed the
administration of the French kingdom into this absolute
and tyrannical power. There are, he says, some who main-
tain that this was not a form of tyranny but the proper form
of monarchy. Smith, however, regards such an unlimited
authority as one which might be valuable in time of war,
but is in time of peace dangerous to the people. 2
1 Id. id. , i. 7: "When one person
beareth the rule, they defme that to be
the estate of a king, who by succession
or election, commeth with the good
will of the people to the government,
and doth administer the common
wealth by the lawes of the same and
by equitie, and doth seeke the profit
of the people as much as his owne.
A tyrant they name him, who by
force commeth to the Monarchy against
the will of the people, breaketh lawes
alreadio made at his pleasure, maketh
other without the advise and consent
of the people, and regardeth not the
wealth of his communes but the ad-
vancement of him selfe, his faction, and
kindred. "
? Id. id. , i. 7: "The Emperors
claime this tyranicall power by pre-
tence of that Rogation or plebiscitum,
which Caius Caesar or Octavius ob-
tained, by which all the people of Rome
did conferro their power and authority
unto Caesar wholly . . . Some men
doe judge the samo of the Kinges of
Fraunce, and certaine Princes of Italie
and other places, because they make
and abrogate lawes and odicts, lay on
tributes and impositions of their own
will, or by the private counsell and
advise of their friends and favourites
only, without the consent of the
people.
The people I call that which the
word 'populus' doth signifie, the
whole bodie and the threo estates of
the commonwealth; and they blame
Lewes the XI. for hindering the
administration royalI of Fraunce, from
the lawfull and regulate raign to the
absolute and tyranicall power and
government. . . .
? ? I. 8: Others do call that kinde of
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? 328 THE LATER SIXTEENTH CENTURY. [PABT iv.
This is a very emphatic and important statement, that in
normal political society, and in its normal circumstances, it
is the Law and not the prince which is supreme. This is the
conception of Bracton and of Fortescue, and, as in Fortescue,
the statement receives a greater emphasis by the reference
to France, while Smith, like Fortescue, thinks of the French
conditions as being recent developments.
It is interesting to compare the conceptions of Sir Thomas
Smith with those expressed in the contemporary work of
Francis Victoria, who was a Dominican and Professor at
Salamanca. Victoria has a high conception of the nature
and place of the king and his legislative authority, but he
also sets out in very dogmatic terms his judgment that the
king is bound by the Law. Some, he says, contend that the
king is above the whole commonwealth, and that no one
can be bound except by a superior; but it is clear that the
king is bound. The laws of the king have the same authority
as those which are made by the whole commonwealth, but
laws made by the whole commonwealth are binding upon all
men. It is open to the king to make laws or not, but it is
not open to him to be bound or not. As in contracts, a man
may or may not enter into a contract, but when it is made
it binds him. 1
administration which the Greekes do
call TTuuiia ; ia t <cu , not tyranny, but
the absolute power of a king, which
they would pretend that everie king
hath, if he would use the same; the
other they call fiaatKtia i ouiktj, or
the royal power regulate by lawes.
Of this I will not dispute at this time.
But, as such absolute administration
in time of warre, when all is in armes,
and when lawes hold their poace
because they cannot be heard, is most
necessarie: so in time of peace, the
same is very daungerous, as well to
him that doth use it, and much more
to the people upon whom it is used:
whereof the cause is the frailtie of
man's nature, which (as Plato saith)
cannot abide or beare long that abso-
lute and uncontrouled authoritie, with-
out swelling into too much pride and
insolence. "
1 Franciscus Victoria, 'Relectiones
De Potestate Civili,' xxi. : "Queritur
tamen, an leges civiles obligant legis-
latorem, et maxime reges. Videtur
enim aliquibus quod non, cum eint
supra tot am rempublicam, et nullus
possit obligari nisi a superiore: sed
certius et probabilius est quod obli-
gentur.
Quod probatur primo: quia huius-
modi legislator facit injuriam reipub-
licae, et reliquis civibus, si, cum ipse
sit pars reipublicae, non habeat partem
oneris, juzta personam tamen suam
et qualitatem, et dignitatem. Sed
ista obligatio est indirecto, et ideo
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? CHAP. I. ] THE SOURCE AND AUTHORITY OF LAW. 329
The principles of government which are set out by Sir
Thomas Smith may be conveniently compared with those
which had been laid down a few years earlier, that is, in 1556,
by Bishop Ponet in his work entitled 'A Short Treatise of
Politike Power. ' Ponet certainly shows no signs of the influ-
ence of that theory of the Divine Eight of Kings with which
we have dealt in a previous chapter, but sets out with singular
clearness the same constitutional traditions as Sir Thomas
Smith. Like him, he repeats the Aristotelian description of
the three good governments--the Monarchy, Aristocracy, and
Democracy; but adds, "And where all together, that is,
a king, the nobilitie, and the Commons, a mixte state, which
men by long continuance have judged to be the best of all;
. . . but yet every kynde of these states tended to one ende,
that is, to the maintenance of justice, to the wealthe and
benefit of the hole multitude, and not of the superiour and
governours alone" (Ponet,'Short Treatise,'Part I. p. 7). Ponet,
however, also deals with the subject of the relation of political
authority to God, and in Part II. he asks the question whether
kings, princes, and other governors have an absolute power
and authority over their subjects. "Forasmuch as those
that be the rulers in the world, and wolde be taken for Goddes
(that is, the ministers and images of God here in earthe . . . )
clayme and exercise an absolute power . . . or prerogative
to doo what they lust, and none may gaynesaye them; to
dispense with the laws as pleaseth them, and freely and
without correction or offence doe contrary to the lawe of nature
and other Goddes lawes, and the positive lawes and customes
of their countreyes, or breake them: and use their subjectes
as men doe their beastes, and as lords doe their villanes and
bondemen, getting their goods from them by hooke and by
aliter probatur. Nam eandem vim populari regimine plebiscita obligant
babont latae leges a rege, ac si ferantur ipsum populum: ergo similiter leges
a tota republica, ut supra declaratum regiae obligant ipsum regem: et licet
est. sed leges latae a republica obli- sit voluntarium regi condere legem,
gant omnes, ergo otiam si ferantur a tamen non est in voluntate sua non
rege, obligant ipsum regem. Et con- obligari, aut obligari. Sicut in pactis.
firmatur, quia in aristocratico princi- Libere enim quisque paciscitur, pactis
patu, senatus-coneulta obligant ipsos tamen tenetur. "
senatores, authores illorum, et in
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? 330
[PABT IV.
THE LATER SIXTEENTH CENTURY.
crooke, with 'sic volo sic jubeo,' and spending it to the
destruction of their subjectes; the miserie of this tyme re-
quirith to examyne whether they doe it rightfully or wrong-
fully " (Id. id. , Part II. p. 17).
He answers the question first by pointing out that political
authority was ordained by God Himself, to the end that
justice should be maintained by men. "Before, ye have
heard how for a long tyme, that is until after the general
flood, there was no civille or politike power, and how it was
first ordayned by God Himself, and for what purpose He
ordayned it: that is (to comprehende all briefly) to mayntene
justice: for every one, doing his deutie to God, and one to
another, is but justice " (Id. id. , Part. II. p. 18).
It is, however, his constitutional principles which are
most fully and emphatically developed. He asks the question
again, whether kings and princes have an absolute authority
over their subjects, and answers confidently: "Ye have
heard also, how States, Bodies politike, and Commonwealths,
have authority to make lawes for the maintenance of the
Policie, so that they be not contrary to Goddes lawe, and the
lawes of Nature, which if ye note well the question before
propounded, whether kings and princes have an absolute
power, shall appear not doubtful, or if any wolde affirm it,
that he shall not be able to maintain it " (Id. id. , Part II. p. 18).
And this leads him to make the same distinction, with
which we are familiar in Fortescue, between those States
which are governed by laws made by the prince, and those
in which the community has retained the legislative power in
its own hands. There are two kinds of princes, "the one,
who alone maye make positive laws, because the whole State
and body of the country have geven and resigned to them
their authoritie so to do. Which nevertheless is rather to be
compted a Tiranne than a king. . . . And thother be suche
unto whom the people have not geven such an authority, but
keep it themselves; as we have before sayed concerning the
mixte State " (Id. id. , Part. II. p. 21).
Ponet recognised that the Eoman Empire had the first
character, but this Empire had long ceased to exist, and he
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? CHAP, l] the source and authority of law.
331
exclaims impatiently, " I beseech thee, what certayntie should
there be in anything, when all should depend on one's will and
affectione? " (Id. id. , Part II. p. 24).
He had already pointed out that it was just in order to
prevent the oppression of the members by the head, that the
various constitutional forms had been created in various states:
Ephors in Sparta, the Tribunes in Eome, the Council or Diet
in Germany; "in Fraunce and England, Parliamentes, wherein
there mette and assembled of all sortes of people, and nothing
could be done without the knowledge and consent of all"
(Id. id. , Part I. p. 10).
In a later section of the treatise Ponet considers the
question whether it is lawful to depose a wicked ruler and to
kill a tyrant, and his answer is very explicit. He cites the
deposition of Chilperic by the Pope, the depositions of
Edward II. and Eichard U. in England, and the recent
deposition of the King of Denmark, and he urges that "the
reasones, argumentes and lawe that serve for the deposing
and displacing of an evil governour, will doe as muche for
the proofo that it is lawful to kill a tiranne" (Id. id. , Part
VI. ).
With special reference to England, he says that it pertained
to the authority of the High Constable, " not only to summone
the king personally before the Parliament or other Courtes
of Judgment (to answer and receave according to justice),
but also on just occasion to commit him unto warde " (Id. id. ,
Part VI. ); and in more general terms, "Kings, princes and
governours have their authoritie of the people, as all lawes,
usages and policies declare and testifie . . . and, is any man
so unreasonable to denie that the hole maie do as much as
they have permitted one member to doo? or those that have
appointed an office upon trust, have not authoritie upon
juste occasion (as the abuse of it) to take awaie that they
gave! " (Id. id. , Part VI. ).
The only limitation he makes is that no private person
may kill the tyrant except by public authority, except in the
case that the public authority is utterly negligent; but the
prince, committing crimes against any of his people, such as
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? 332
[PABT IV.
THE LATER SIXTEENTH CENTURY.
murder, theft, rape, &c. , should be punished like any other
criminal (Id. id. id. ).
The theories of Ponet are, especially in this last part of
his treatise, developed in terms far removed from Sir Thomas
Smith's restrained and judicious manner, but the substance of
his constitutional position is the same, and serves to indicate
the importance in England of the political tradition of Bracton,
Fortescue, and St Germans; and even some of Ponet's
most drastic contentions were, after all, founded upon political
traditions which were not unimportant.
So far we have been dealing with writings which are not
related to the great political controversies of the latter part
of the century. We must now turn to the literature which
belongs to these. We turn to that great Humanist, George
Buchanan, who vindicated the deposition of Mary, Queen of
Scots. In his treatise, 'De Jure Eegni apud Scotos,' pub-
lished in 1578, he deals first with the origin and nature of
Law, for, as he evidently thought, until this had been made
clear it was not possible to discuss properly the place and
authority of the ruler.
The treatise is in the form of a dialogue between Buchanan
and a person he calls Maetellanus (presumably Maitland).
God, he says, is the author of human society, and He im-
planted in man the Law of Nature, of which the sum is that
man should love God and his neighbour as himself; it is
this Divine Law which is the source of human society. This
society must have an authority to maintain peace and harmony,
and this authority is that of the king. If the qualities re-
quired for a king were fully and properly developed in one
man, we should recognise him as king by Nature, not by
election, and give him an unrestrained power; even if these
qualities are not perfect, we shall still call the ruler king, but
we should give him as companion and restraint the Law.
"Metellanus " asks whether, then, Buchanan does not think
that the prince should have a complete authority, and Buch-
anan answers that he should by no means have this, for he
is not only a king but a man, and liable to err through ignorance
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? CHAP. I.
] THE SOURCE AND AUTHORITY OF LAW. 333
or sin, and therefore the wisest men have thought that the
law should be added, to enlighten his ignorance, and to bring
him back into the right way if he errs. 1
Buchanan expresses this again in more general terms, and
says that kings were created to maintain "aequitas," and
if they had done this they would have retained an authority
free and "legibus solutus "; but, as is natural in human
things, the authority which was intended for the public
good changed into a " proud lordship. " Laws therefore were
made by the people, and the kings were compelled to obey
the law which the people had created. They had found, by
much experience, that it was better to entrust their liberty
to the law than to the king. 2
The king is subject to the law, and Buchanan then dis-
cusses the question, who is the legislator? The people, he
says, who have conferred authority upon the prince should
have the power to impose a limit upon this authority. He
explains that he did not mean that this power should be
given to the whole mass of the people, but that, as "our"
1 Georgo Buchanan, 'De Jure Regni
apud Scotos. '
(p. 8): "B. Haec igitur (prudential,
si sirama et perfecta in quopiam
esset, tum natura, non suffragiis
regem esse diceremus; liboramque
re rum omnium potestatem ei tra-
ileremus: sin talem non reperiamus,
qui proximo ad ilism eccellentem
naturae praestantiam accesserit, simili-
tudinem quandam in eo veri regis
amplexi, etiam regem appellabimus
. . . Et quoniam advorsus animi affec-
tionos, quae possum et plerumque
solent avertere a vero, ne satis firmus
sit, timemus, legem ei, velut collegam,
aut potius moderatricem libidinum,
adjiciemus.
M. Non censes igitur re rum omnium
arbitrium penes regom osse debere!
B. Hinime. Nam eum, non solum
regem, sed etiam hominem esse memini,
multa per ignorant iam errantom, multa
sponte poccantem, multa prope invi-
tum; quippe animal ad omnem favoris
et odii auram facile mutabile. . . .
Quamobrem legem ei adjungendam
censuerunt homines prudentissimi, quae
vel ignoranti viam ostendat, vel aber-
rantem in viam reducat. Ex his
opinor, intelligis, ui iv Tuiry, quodnam
ego veri regis officium esse reor. "
* Id. id. (p. 8): "Ulud igitur, quod
initio diximus, tenere semper oportet,
reges primum tuendae aequitati fuisse
constitutos. Id illi si tenere potuissent,
imperium, quale acceperant, tenere
perpetuo potuissent, hoc est liberum
et legibus solutum. Sed (ut humana
sunt omnia) statu re rum in pejus pro-
labente, quod publicae utilitatis causa
fuerat constitutum imperium, in super-
bam dominationem vertit. . . . Leges
igitur, hae de causa, inventae sunt a
populis, regesque coacti, non sua in
judiciis Iicentia, sed, quod populus in
se dedisset, jure uti. Multis enim
edooti erant experimentis, melius libor-
? ? tatem legibus quam regibus credi. "
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? 334
[PABT IV.
THE LATER SIXTEENTH CENTURY.
custom is, men chosen from all the "orders" should enter
into counsel with the king, and only after this Trpo/3ov\ev/j. a
should the final judgment be given by the people. 1 Maitland
objected that the people were rash and inconstant, and
says that these advisers will be no better. Buchanan replies
that he thinks differently. For the many not only know more,
and are wiser than any one of them, but they are wiser and
know more than any single person, even if he excel every one
of them in prudence and intelligence; the multitude judges
all questions better than any one man. 2
Buchanan also maintains that the interpretation of the
Law must not be left to the judgment of the king. 3
We shall return to Buchanan later when we deal with the
whole question of the position of the king, but in the mean-
while it is clear where he stands with regard to the source
and the authority of the Law. He is, under his own terms,
setting out the normal medieval conceptions.
We must turn to the treatment of law in the great and
complex mass of. the political tracts of the period of the civil
wars in France. The immediate occasion of these civil wars
was, no doubt, the question of religion; but it is also evident
that the religious conflict was the occasion rather than the
cause of the development of a very emphatic constitutionalism.
? Id. id. (p. 13): "M. Quando
igitur re gem solvere legibus non licet,
quia tandem est legislator, quem ei
tanquam pedagogum dabimus? . . .
B. Neminem ergo ei dominum impono,
sed populo, qui ei imperium in se dedit,
licere volo, ut ejus imperii modum ei
prescribat: eoque jure, quod populus
in se dederit, ut rex utatur, postulo.
Nequo has leges per vim, ut tu inter-
pretaris imponi volo, sed communicato
cum rege consilio, communiter statuen-
dum arbitror, quod ad omnium salu-
tem communiter faciat. . . . Ego
nunquam existimavi universi populi
judicio, eam rem permitti deberi;
sed ut, prope ad consuetudinem nos-
tram, ex omnibus ordinibus selecti ad
regem in concilium coirent. Deinde,
ubi apud eos, wpo$oi':\tvfia factum osset,
id ad populi judicium deferetur. "
> Id. id. (p. 13): "B. At ego
longe aliud ac tu opinaris exspecto. . . .
Primum, non omnino verum est, quod
tu putas, nihil ad rem facere multi-
tudinis advocationem, quorum e
numero nemo fortassis erit excellenti
sapientia praeditus. Non enim solum
plus vident et sapiunt multi, quam
unus quilibet eorum soorsum, sed etiam
quam unus, qui quemvis eorum ingenio
et prudentia praecedat. Nam multi-
tudo fere melius quam singuli de rebus
omnibus judicat. "
>> Id. id. , p. 121.
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? CHAP. I. ] THE SOURCE AND AUTHORITY OF LAW. 335
It was between the years 1573 and 1579 that there appeared
several tracts or pamphlets, the ' Eemonstrance aux Seigneurs
Gentilshommes et autres,' the 'Droit des Magistrats,' the
'Franco Gallia,' the ' Archon et Politie ' (or ' la Politique '), and
the ' Vindiciae contra tyrannos,' and others which are related
to each other in subject-matter and in principles. The general
principle, which they seek to assert, is well expressed in the
'Eemonstrance. ' This work is addressed, primarily, to the
nobles and gentlemen of the Eeformed Eeligion in France,
but also to all those Frenchmen who sought the preservation
of the kingdom, and it begins with the declaration that the
name of Frenchman (Francs) was a proper description of
men who desired to maintain an honourable liberty under the
authority of their kings. 1
It goes on a little later to denounce the flatterers and
parasites who tell the king that if he were under the rule and
order of the Law he would be nothing but a ' valet" of the
people, and to lament the fact that the Courts of Parlement,
which were formerly over the kings and resisted their absolute
power, were now basely servile to the commands of those
from whom they expected rewards. 2 The statement that
the king was under and not over the Law, and that the
Parliament was the organ of the supremacy of the Law, may
seem somewhat extreme, but it should be remembered that
it is practically what had been said in the early years of
the sixteenth century by de Seyssel in the ' La Grant Monarchie
de France. ' 3
The same principle is restated in the 'Droit des Magis-
trats. ' It is the part of a detestable flatterer, and not of
* "Remonstrance aux Seigneurs,
gentils hommee, et autres, faisans pro-
fession de la Religion reformee en
France, et tous autres bons Francais
deeirant la conservation de ce royaume. "
(In 'Memoires de l'estat de France,'
Ed. 1576, vol. iii. p. 64. )
* Id. id. (p. 73): "Voyons nostre
roi, environne de tels flattoroaus et
parasites, qui pour lui gratifier, osent
dire, que de reduire les Roys a la roigle
et ordre prescrit par les loix c'est autant
que les faire valets du peuple. . . .
(p. 74): Les cours de parlement qui
anciennement estoyent pardessus les
Rois, et s'opposoient avec grande
integrite? a leur puissanoes absolues,
aujourd'hui se laschent servilement aux
commandements de tous ceux dont ils
esperent prouflt. "
? Cf. pp. 219 225.
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? 336
THE LATER SIXTEENTH CENTURY. [PART IV.
a loyal subject, to tell the prince that sovereigns are not
bound by the Laws. On the contrary, they are bound
to govern by them, for they have sworn to maintain and
to protect them. 1 In a later passage of the same work we
find a good illustration of the circumstances under which
the Huguenots thus appealed to the supremacy of the
Law. The author admits that subjects have not the right
to force their lord to change the order of the State in matters
of religion, but must submit to persecution, if the laws com-
mand it, for their religion. It is, however, wholly different
if by public edicts, lawfully issued and confirmed by public
authority, they have been permitted to exercise their religion.
In that case the prince is bound to obey them, or by the
same authority to revoke them. Otherwise he is exercising
a manifest tyranny, and it is lawful, under proper conditions,
to resist. 2
The same conceptions are restated and further developed in
the treatise called 'La Politique, Dialogue de l'authorite? des
Princes, et de la liberte? des peuples,' generally cited as 'Archon
et Politie. ' Tyranny, Politie says, in an hereditary kingdom,
is when a legitimate prince is not content with what he has
1 "Du Droit des Magistrats" (in
'Me? moires de l'estat de France,' Ed.
1576), vol. ii. p. 750: "Car, pour
certain, c'est une parole tres fausse,
et non poinet d'un loyal sujet a` son
Prince, mais d'un de? testable flatteur,
de dire que les souverains ne sont
astraints a` nulles loix. Car, au con-
traire, il n'y en a pas une, par laquelle
il ne doyve et soit tenu de regler
son gouvernement, puis qu'il a jure?
d'estre le mainteneur et protecteur de
toutes. "
1 Id. id. (p. 788): "En tel cas, donc-
ques, assavoir, si on veut forcer les
consciences d'idolatrer, que ferons les
sujets? Certainement, de vouloir
contraindre leurs seigneur a` changer
l'estat publio il n'y auroit ordre: et
pourtant il faut que tous endurent
patiemment la persecution, ce neant-
moins servans a` Dieu, ou bien qu'ils
se retirent d'ailleurs.
Mais, les Edits, estans legitimement
dresses et emologuez par authorite?
publique, par lesquels sera permis
d'exercer la vraye Religion: je dis
que le prince est d'autant plus tonu
de les observer, que nuls autre, que
l'estat de la Religion est de plus grande
consequence que nul autre: ou bien
par mosme ordre, et telle connaissance
de cause qu'il appartient, les revoquer.
Sinon, je dis, qu'il use de manifeste
tyrannie, a` laquelle il est permis de
s'opposer, avec les distinctions ci-
dessus mentionnees; voire par raison
d'autant meilleure, que nos ames et
nos consciences nous doyvent estre
plus cheres que tous les biens de ce
monde. "
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? CHAP. I. ] THE SOURCE AND AUTHORITY OP LAW.
337
lawfully acquired, but violates the ancient laws and customs
of his country. 1
Archon protests that this is to put the king under the
law, but there is a sentence in the Pandects which says that
he is not under the law, though " par honnestete? " he should
carry it out. For it is he who makes the law, and he does
not submit to it except so far as he pleases, otherwise his
power is not sovereign but bridled and restrained. 2
To this contention Politie replies by considering the real
source of laws. He cites the definitions of law by Papinian,
Demosthenes, and Chrysippus (' Dig. ,' i. 3. 1, and 2), and
the opinion of Cicero that the deliberation and consent of the
commonwealth are implied in the laws, and that the prince
must therefore be subject to them. 3
When Archon contends that the Civil Law is composed of
the ordinances of princes, and that in all its parts it is subject
to their power, Politie replies that in general terms the Law
includes all ordinances which are just; these have been
formed by the people in their customs. If they are not suit-
able, the prince can adjust them to the needs of particular
times and persons, but must not usurp the power to do this
without the consent of those who are most concerned* Archon
objects that this is very far indeed from the opinion of many
kings, who consider that their subjects, their lives, and
property are completely under their power. Politie agrees
that they are under their jurisdiction, but only by process of
1 "Archon et Politie," in (' Me-
moiros do l'etat do Franco,' Ed. 1576),
vol. iii. p. 102: "Politie. Mais celle
(tyrannie) qui survient en una royaume
qui est tenu pour hereditaire, est,
quand un prince, le? gitimement pour-
venu, no se contente pas de ce qu'il
trouve de droit equitable luy estre
acquis, ains pour dominer plus seig-
neurialement viole les anciennes loix
et ooutumes do ses pays. "
? Id. id. (p. 110): "Archon. Tout
cocy tend a mettre le Roi sous la
loi, touteffois il y a un axiomo aux
Paudoctes, qui dit qu'il n'est sous la
VOL. VI.
loi, combien que par honneetete? , il
s'y doit ranger. Par ainsi, puis que
e'est lui qui la donne, il ne s'y subniet
pas s'il ne luy plait; ou autrement
on ne doit pas nommer sa puissance,
souveraine, mais bridee et restrainte.
? CHAP. L] THE SOURCE AND AUTHORITY OF LAW. 327
tyrant. The king he describes as one who by inheritance
or by election has received the Crown with the consent
of the people, and who governs it by its laws, to the
benefit both of the country and of himself. The tyrant, on
the other hand, is one who rules without the consent of the
people, who makes and unmakes laws at his pleasure, without
the advice of the citizens, and who puts the advantage of
himself and his kindred before the common good. 1
He goes on to say that this " tyrannical power " was given,
as it was said, to the Eoman emperor by a decree of the
people, and some say that the same power belonged to the
King of France and some of the Italian princes, that they
possessed the power of making and unmaking laws, and of
imposing taxes without the consent of the people; he adds
that it was said that it was Louis XI. who first changed the
administration of the French kingdom into this absolute
and tyrannical power. There are, he says, some who main-
tain that this was not a form of tyranny but the proper form
of monarchy. Smith, however, regards such an unlimited
authority as one which might be valuable in time of war,
but is in time of peace dangerous to the people. 2
1 Id. id. , i. 7: "When one person
beareth the rule, they defme that to be
the estate of a king, who by succession
or election, commeth with the good
will of the people to the government,
and doth administer the common
wealth by the lawes of the same and
by equitie, and doth seeke the profit
of the people as much as his owne.
A tyrant they name him, who by
force commeth to the Monarchy against
the will of the people, breaketh lawes
alreadio made at his pleasure, maketh
other without the advise and consent
of the people, and regardeth not the
wealth of his communes but the ad-
vancement of him selfe, his faction, and
kindred. "
? Id. id. , i. 7: "The Emperors
claime this tyranicall power by pre-
tence of that Rogation or plebiscitum,
which Caius Caesar or Octavius ob-
tained, by which all the people of Rome
did conferro their power and authority
unto Caesar wholly . . . Some men
doe judge the samo of the Kinges of
Fraunce, and certaine Princes of Italie
and other places, because they make
and abrogate lawes and odicts, lay on
tributes and impositions of their own
will, or by the private counsell and
advise of their friends and favourites
only, without the consent of the
people.
The people I call that which the
word 'populus' doth signifie, the
whole bodie and the threo estates of
the commonwealth; and they blame
Lewes the XI. for hindering the
administration royalI of Fraunce, from
the lawfull and regulate raign to the
absolute and tyranicall power and
government. . . .
? ? I. 8: Others do call that kinde of
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? 328 THE LATER SIXTEENTH CENTURY. [PABT iv.
This is a very emphatic and important statement, that in
normal political society, and in its normal circumstances, it
is the Law and not the prince which is supreme. This is the
conception of Bracton and of Fortescue, and, as in Fortescue,
the statement receives a greater emphasis by the reference
to France, while Smith, like Fortescue, thinks of the French
conditions as being recent developments.
It is interesting to compare the conceptions of Sir Thomas
Smith with those expressed in the contemporary work of
Francis Victoria, who was a Dominican and Professor at
Salamanca. Victoria has a high conception of the nature
and place of the king and his legislative authority, but he
also sets out in very dogmatic terms his judgment that the
king is bound by the Law. Some, he says, contend that the
king is above the whole commonwealth, and that no one
can be bound except by a superior; but it is clear that the
king is bound. The laws of the king have the same authority
as those which are made by the whole commonwealth, but
laws made by the whole commonwealth are binding upon all
men. It is open to the king to make laws or not, but it is
not open to him to be bound or not. As in contracts, a man
may or may not enter into a contract, but when it is made
it binds him. 1
administration which the Greekes do
call TTuuiia ; ia t <cu , not tyranny, but
the absolute power of a king, which
they would pretend that everie king
hath, if he would use the same; the
other they call fiaatKtia i ouiktj, or
the royal power regulate by lawes.
Of this I will not dispute at this time.
But, as such absolute administration
in time of warre, when all is in armes,
and when lawes hold their poace
because they cannot be heard, is most
necessarie: so in time of peace, the
same is very daungerous, as well to
him that doth use it, and much more
to the people upon whom it is used:
whereof the cause is the frailtie of
man's nature, which (as Plato saith)
cannot abide or beare long that abso-
lute and uncontrouled authoritie, with-
out swelling into too much pride and
insolence. "
1 Franciscus Victoria, 'Relectiones
De Potestate Civili,' xxi. : "Queritur
tamen, an leges civiles obligant legis-
latorem, et maxime reges. Videtur
enim aliquibus quod non, cum eint
supra tot am rempublicam, et nullus
possit obligari nisi a superiore: sed
certius et probabilius est quod obli-
gentur.
Quod probatur primo: quia huius-
modi legislator facit injuriam reipub-
licae, et reliquis civibus, si, cum ipse
sit pars reipublicae, non habeat partem
oneris, juzta personam tamen suam
et qualitatem, et dignitatem. Sed
ista obligatio est indirecto, et ideo
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? CHAP. I. ] THE SOURCE AND AUTHORITY OF LAW. 329
The principles of government which are set out by Sir
Thomas Smith may be conveniently compared with those
which had been laid down a few years earlier, that is, in 1556,
by Bishop Ponet in his work entitled 'A Short Treatise of
Politike Power. ' Ponet certainly shows no signs of the influ-
ence of that theory of the Divine Eight of Kings with which
we have dealt in a previous chapter, but sets out with singular
clearness the same constitutional traditions as Sir Thomas
Smith. Like him, he repeats the Aristotelian description of
the three good governments--the Monarchy, Aristocracy, and
Democracy; but adds, "And where all together, that is,
a king, the nobilitie, and the Commons, a mixte state, which
men by long continuance have judged to be the best of all;
. . . but yet every kynde of these states tended to one ende,
that is, to the maintenance of justice, to the wealthe and
benefit of the hole multitude, and not of the superiour and
governours alone" (Ponet,'Short Treatise,'Part I. p. 7). Ponet,
however, also deals with the subject of the relation of political
authority to God, and in Part II. he asks the question whether
kings, princes, and other governors have an absolute power
and authority over their subjects. "Forasmuch as those
that be the rulers in the world, and wolde be taken for Goddes
(that is, the ministers and images of God here in earthe . . . )
clayme and exercise an absolute power . . . or prerogative
to doo what they lust, and none may gaynesaye them; to
dispense with the laws as pleaseth them, and freely and
without correction or offence doe contrary to the lawe of nature
and other Goddes lawes, and the positive lawes and customes
of their countreyes, or breake them: and use their subjectes
as men doe their beastes, and as lords doe their villanes and
bondemen, getting their goods from them by hooke and by
aliter probatur. Nam eandem vim populari regimine plebiscita obligant
babont latae leges a rege, ac si ferantur ipsum populum: ergo similiter leges
a tota republica, ut supra declaratum regiae obligant ipsum regem: et licet
est. sed leges latae a republica obli- sit voluntarium regi condere legem,
gant omnes, ergo otiam si ferantur a tamen non est in voluntate sua non
rege, obligant ipsum regem. Et con- obligari, aut obligari. Sicut in pactis.
firmatur, quia in aristocratico princi- Libere enim quisque paciscitur, pactis
patu, senatus-coneulta obligant ipsos tamen tenetur. "
senatores, authores illorum, et in
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? 330
[PABT IV.
THE LATER SIXTEENTH CENTURY.
crooke, with 'sic volo sic jubeo,' and spending it to the
destruction of their subjectes; the miserie of this tyme re-
quirith to examyne whether they doe it rightfully or wrong-
fully " (Id. id. , Part II. p. 17).
He answers the question first by pointing out that political
authority was ordained by God Himself, to the end that
justice should be maintained by men. "Before, ye have
heard how for a long tyme, that is until after the general
flood, there was no civille or politike power, and how it was
first ordayned by God Himself, and for what purpose He
ordayned it: that is (to comprehende all briefly) to mayntene
justice: for every one, doing his deutie to God, and one to
another, is but justice " (Id. id. , Part. II. p. 18).
It is, however, his constitutional principles which are
most fully and emphatically developed. He asks the question
again, whether kings and princes have an absolute authority
over their subjects, and answers confidently: "Ye have
heard also, how States, Bodies politike, and Commonwealths,
have authority to make lawes for the maintenance of the
Policie, so that they be not contrary to Goddes lawe, and the
lawes of Nature, which if ye note well the question before
propounded, whether kings and princes have an absolute
power, shall appear not doubtful, or if any wolde affirm it,
that he shall not be able to maintain it " (Id. id. , Part II. p. 18).
And this leads him to make the same distinction, with
which we are familiar in Fortescue, between those States
which are governed by laws made by the prince, and those
in which the community has retained the legislative power in
its own hands. There are two kinds of princes, "the one,
who alone maye make positive laws, because the whole State
and body of the country have geven and resigned to them
their authoritie so to do. Which nevertheless is rather to be
compted a Tiranne than a king. . . . And thother be suche
unto whom the people have not geven such an authority, but
keep it themselves; as we have before sayed concerning the
mixte State " (Id. id. , Part. II. p. 21).
Ponet recognised that the Eoman Empire had the first
character, but this Empire had long ceased to exist, and he
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? CHAP, l] the source and authority of law.
331
exclaims impatiently, " I beseech thee, what certayntie should
there be in anything, when all should depend on one's will and
affectione? " (Id. id. , Part II. p. 24).
He had already pointed out that it was just in order to
prevent the oppression of the members by the head, that the
various constitutional forms had been created in various states:
Ephors in Sparta, the Tribunes in Eome, the Council or Diet
in Germany; "in Fraunce and England, Parliamentes, wherein
there mette and assembled of all sortes of people, and nothing
could be done without the knowledge and consent of all"
(Id. id. , Part I. p. 10).
In a later section of the treatise Ponet considers the
question whether it is lawful to depose a wicked ruler and to
kill a tyrant, and his answer is very explicit. He cites the
deposition of Chilperic by the Pope, the depositions of
Edward II. and Eichard U. in England, and the recent
deposition of the King of Denmark, and he urges that "the
reasones, argumentes and lawe that serve for the deposing
and displacing of an evil governour, will doe as muche for
the proofo that it is lawful to kill a tiranne" (Id. id. , Part
VI. ).
With special reference to England, he says that it pertained
to the authority of the High Constable, " not only to summone
the king personally before the Parliament or other Courtes
of Judgment (to answer and receave according to justice),
but also on just occasion to commit him unto warde " (Id. id. ,
Part VI. ); and in more general terms, "Kings, princes and
governours have their authoritie of the people, as all lawes,
usages and policies declare and testifie . . . and, is any man
so unreasonable to denie that the hole maie do as much as
they have permitted one member to doo? or those that have
appointed an office upon trust, have not authoritie upon
juste occasion (as the abuse of it) to take awaie that they
gave! " (Id. id. , Part VI. ).
The only limitation he makes is that no private person
may kill the tyrant except by public authority, except in the
case that the public authority is utterly negligent; but the
prince, committing crimes against any of his people, such as
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? 332
[PABT IV.
THE LATER SIXTEENTH CENTURY.
murder, theft, rape, &c. , should be punished like any other
criminal (Id. id. id. ).
The theories of Ponet are, especially in this last part of
his treatise, developed in terms far removed from Sir Thomas
Smith's restrained and judicious manner, but the substance of
his constitutional position is the same, and serves to indicate
the importance in England of the political tradition of Bracton,
Fortescue, and St Germans; and even some of Ponet's
most drastic contentions were, after all, founded upon political
traditions which were not unimportant.
So far we have been dealing with writings which are not
related to the great political controversies of the latter part
of the century. We must now turn to the literature which
belongs to these. We turn to that great Humanist, George
Buchanan, who vindicated the deposition of Mary, Queen of
Scots. In his treatise, 'De Jure Eegni apud Scotos,' pub-
lished in 1578, he deals first with the origin and nature of
Law, for, as he evidently thought, until this had been made
clear it was not possible to discuss properly the place and
authority of the ruler.
The treatise is in the form of a dialogue between Buchanan
and a person he calls Maetellanus (presumably Maitland).
God, he says, is the author of human society, and He im-
planted in man the Law of Nature, of which the sum is that
man should love God and his neighbour as himself; it is
this Divine Law which is the source of human society. This
society must have an authority to maintain peace and harmony,
and this authority is that of the king. If the qualities re-
quired for a king were fully and properly developed in one
man, we should recognise him as king by Nature, not by
election, and give him an unrestrained power; even if these
qualities are not perfect, we shall still call the ruler king, but
we should give him as companion and restraint the Law.
"Metellanus " asks whether, then, Buchanan does not think
that the prince should have a complete authority, and Buch-
anan answers that he should by no means have this, for he
is not only a king but a man, and liable to err through ignorance
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? CHAP. I.
] THE SOURCE AND AUTHORITY OF LAW. 333
or sin, and therefore the wisest men have thought that the
law should be added, to enlighten his ignorance, and to bring
him back into the right way if he errs. 1
Buchanan expresses this again in more general terms, and
says that kings were created to maintain "aequitas," and
if they had done this they would have retained an authority
free and "legibus solutus "; but, as is natural in human
things, the authority which was intended for the public
good changed into a " proud lordship. " Laws therefore were
made by the people, and the kings were compelled to obey
the law which the people had created. They had found, by
much experience, that it was better to entrust their liberty
to the law than to the king. 2
The king is subject to the law, and Buchanan then dis-
cusses the question, who is the legislator? The people, he
says, who have conferred authority upon the prince should
have the power to impose a limit upon this authority. He
explains that he did not mean that this power should be
given to the whole mass of the people, but that, as "our"
1 Georgo Buchanan, 'De Jure Regni
apud Scotos. '
(p. 8): "B. Haec igitur (prudential,
si sirama et perfecta in quopiam
esset, tum natura, non suffragiis
regem esse diceremus; liboramque
re rum omnium potestatem ei tra-
ileremus: sin talem non reperiamus,
qui proximo ad ilism eccellentem
naturae praestantiam accesserit, simili-
tudinem quandam in eo veri regis
amplexi, etiam regem appellabimus
. . . Et quoniam advorsus animi affec-
tionos, quae possum et plerumque
solent avertere a vero, ne satis firmus
sit, timemus, legem ei, velut collegam,
aut potius moderatricem libidinum,
adjiciemus.
M. Non censes igitur re rum omnium
arbitrium penes regom osse debere!
B. Hinime. Nam eum, non solum
regem, sed etiam hominem esse memini,
multa per ignorant iam errantom, multa
sponte poccantem, multa prope invi-
tum; quippe animal ad omnem favoris
et odii auram facile mutabile. . . .
Quamobrem legem ei adjungendam
censuerunt homines prudentissimi, quae
vel ignoranti viam ostendat, vel aber-
rantem in viam reducat. Ex his
opinor, intelligis, ui iv Tuiry, quodnam
ego veri regis officium esse reor. "
* Id. id. (p. 8): "Ulud igitur, quod
initio diximus, tenere semper oportet,
reges primum tuendae aequitati fuisse
constitutos. Id illi si tenere potuissent,
imperium, quale acceperant, tenere
perpetuo potuissent, hoc est liberum
et legibus solutum. Sed (ut humana
sunt omnia) statu re rum in pejus pro-
labente, quod publicae utilitatis causa
fuerat constitutum imperium, in super-
bam dominationem vertit. . . . Leges
igitur, hae de causa, inventae sunt a
populis, regesque coacti, non sua in
judiciis Iicentia, sed, quod populus in
se dedisset, jure uti. Multis enim
edooti erant experimentis, melius libor-
? ? tatem legibus quam regibus credi. "
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? 334
[PABT IV.
THE LATER SIXTEENTH CENTURY.
custom is, men chosen from all the "orders" should enter
into counsel with the king, and only after this Trpo/3ov\ev/j. a
should the final judgment be given by the people. 1 Maitland
objected that the people were rash and inconstant, and
says that these advisers will be no better. Buchanan replies
that he thinks differently. For the many not only know more,
and are wiser than any one of them, but they are wiser and
know more than any single person, even if he excel every one
of them in prudence and intelligence; the multitude judges
all questions better than any one man. 2
Buchanan also maintains that the interpretation of the
Law must not be left to the judgment of the king. 3
We shall return to Buchanan later when we deal with the
whole question of the position of the king, but in the mean-
while it is clear where he stands with regard to the source
and the authority of the Law. He is, under his own terms,
setting out the normal medieval conceptions.
We must turn to the treatment of law in the great and
complex mass of. the political tracts of the period of the civil
wars in France. The immediate occasion of these civil wars
was, no doubt, the question of religion; but it is also evident
that the religious conflict was the occasion rather than the
cause of the development of a very emphatic constitutionalism.
? Id. id. (p. 13): "M. Quando
igitur re gem solvere legibus non licet,
quia tandem est legislator, quem ei
tanquam pedagogum dabimus? . . .
B. Neminem ergo ei dominum impono,
sed populo, qui ei imperium in se dedit,
licere volo, ut ejus imperii modum ei
prescribat: eoque jure, quod populus
in se dederit, ut rex utatur, postulo.
Nequo has leges per vim, ut tu inter-
pretaris imponi volo, sed communicato
cum rege consilio, communiter statuen-
dum arbitror, quod ad omnium salu-
tem communiter faciat. . . . Ego
nunquam existimavi universi populi
judicio, eam rem permitti deberi;
sed ut, prope ad consuetudinem nos-
tram, ex omnibus ordinibus selecti ad
regem in concilium coirent. Deinde,
ubi apud eos, wpo$oi':\tvfia factum osset,
id ad populi judicium deferetur. "
> Id. id. (p. 13): "B. At ego
longe aliud ac tu opinaris exspecto. . . .
Primum, non omnino verum est, quod
tu putas, nihil ad rem facere multi-
tudinis advocationem, quorum e
numero nemo fortassis erit excellenti
sapientia praeditus. Non enim solum
plus vident et sapiunt multi, quam
unus quilibet eorum soorsum, sed etiam
quam unus, qui quemvis eorum ingenio
et prudentia praecedat. Nam multi-
tudo fere melius quam singuli de rebus
omnibus judicat. "
>> Id. id. , p. 121.
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? CHAP. I. ] THE SOURCE AND AUTHORITY OF LAW. 335
It was between the years 1573 and 1579 that there appeared
several tracts or pamphlets, the ' Eemonstrance aux Seigneurs
Gentilshommes et autres,' the 'Droit des Magistrats,' the
'Franco Gallia,' the ' Archon et Politie ' (or ' la Politique '), and
the ' Vindiciae contra tyrannos,' and others which are related
to each other in subject-matter and in principles. The general
principle, which they seek to assert, is well expressed in the
'Eemonstrance. ' This work is addressed, primarily, to the
nobles and gentlemen of the Eeformed Eeligion in France,
but also to all those Frenchmen who sought the preservation
of the kingdom, and it begins with the declaration that the
name of Frenchman (Francs) was a proper description of
men who desired to maintain an honourable liberty under the
authority of their kings. 1
It goes on a little later to denounce the flatterers and
parasites who tell the king that if he were under the rule and
order of the Law he would be nothing but a ' valet" of the
people, and to lament the fact that the Courts of Parlement,
which were formerly over the kings and resisted their absolute
power, were now basely servile to the commands of those
from whom they expected rewards. 2 The statement that
the king was under and not over the Law, and that the
Parliament was the organ of the supremacy of the Law, may
seem somewhat extreme, but it should be remembered that
it is practically what had been said in the early years of
the sixteenth century by de Seyssel in the ' La Grant Monarchie
de France. ' 3
The same principle is restated in the 'Droit des Magis-
trats. ' It is the part of a detestable flatterer, and not of
* "Remonstrance aux Seigneurs,
gentils hommee, et autres, faisans pro-
fession de la Religion reformee en
France, et tous autres bons Francais
deeirant la conservation de ce royaume. "
(In 'Memoires de l'estat de France,'
Ed. 1576, vol. iii. p. 64. )
* Id. id. (p. 73): "Voyons nostre
roi, environne de tels flattoroaus et
parasites, qui pour lui gratifier, osent
dire, que de reduire les Roys a la roigle
et ordre prescrit par les loix c'est autant
que les faire valets du peuple. . . .
(p. 74): Les cours de parlement qui
anciennement estoyent pardessus les
Rois, et s'opposoient avec grande
integrite? a leur puissanoes absolues,
aujourd'hui se laschent servilement aux
commandements de tous ceux dont ils
esperent prouflt. "
? Cf. pp. 219 225.
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? 336
THE LATER SIXTEENTH CENTURY. [PART IV.
a loyal subject, to tell the prince that sovereigns are not
bound by the Laws. On the contrary, they are bound
to govern by them, for they have sworn to maintain and
to protect them. 1 In a later passage of the same work we
find a good illustration of the circumstances under which
the Huguenots thus appealed to the supremacy of the
Law. The author admits that subjects have not the right
to force their lord to change the order of the State in matters
of religion, but must submit to persecution, if the laws com-
mand it, for their religion. It is, however, wholly different
if by public edicts, lawfully issued and confirmed by public
authority, they have been permitted to exercise their religion.
In that case the prince is bound to obey them, or by the
same authority to revoke them. Otherwise he is exercising
a manifest tyranny, and it is lawful, under proper conditions,
to resist. 2
The same conceptions are restated and further developed in
the treatise called 'La Politique, Dialogue de l'authorite? des
Princes, et de la liberte? des peuples,' generally cited as 'Archon
et Politie. ' Tyranny, Politie says, in an hereditary kingdom,
is when a legitimate prince is not content with what he has
1 "Du Droit des Magistrats" (in
'Me? moires de l'estat de France,' Ed.
1576), vol. ii. p. 750: "Car, pour
certain, c'est une parole tres fausse,
et non poinet d'un loyal sujet a` son
Prince, mais d'un de? testable flatteur,
de dire que les souverains ne sont
astraints a` nulles loix. Car, au con-
traire, il n'y en a pas une, par laquelle
il ne doyve et soit tenu de regler
son gouvernement, puis qu'il a jure?
d'estre le mainteneur et protecteur de
toutes. "
1 Id. id. (p. 788): "En tel cas, donc-
ques, assavoir, si on veut forcer les
consciences d'idolatrer, que ferons les
sujets? Certainement, de vouloir
contraindre leurs seigneur a` changer
l'estat publio il n'y auroit ordre: et
pourtant il faut que tous endurent
patiemment la persecution, ce neant-
moins servans a` Dieu, ou bien qu'ils
se retirent d'ailleurs.
Mais, les Edits, estans legitimement
dresses et emologuez par authorite?
publique, par lesquels sera permis
d'exercer la vraye Religion: je dis
que le prince est d'autant plus tonu
de les observer, que nuls autre, que
l'estat de la Religion est de plus grande
consequence que nul autre: ou bien
par mosme ordre, et telle connaissance
de cause qu'il appartient, les revoquer.
Sinon, je dis, qu'il use de manifeste
tyrannie, a` laquelle il est permis de
s'opposer, avec les distinctions ci-
dessus mentionnees; voire par raison
d'autant meilleure, que nos ames et
nos consciences nous doyvent estre
plus cheres que tous les biens de ce
monde. "
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? CHAP. I. ] THE SOURCE AND AUTHORITY OP LAW.
337
lawfully acquired, but violates the ancient laws and customs
of his country. 1
Archon protests that this is to put the king under the
law, but there is a sentence in the Pandects which says that
he is not under the law, though " par honnestete? " he should
carry it out. For it is he who makes the law, and he does
not submit to it except so far as he pleases, otherwise his
power is not sovereign but bridled and restrained. 2
To this contention Politie replies by considering the real
source of laws. He cites the definitions of law by Papinian,
Demosthenes, and Chrysippus (' Dig. ,' i. 3. 1, and 2), and
the opinion of Cicero that the deliberation and consent of the
commonwealth are implied in the laws, and that the prince
must therefore be subject to them. 3
When Archon contends that the Civil Law is composed of
the ordinances of princes, and that in all its parts it is subject
to their power, Politie replies that in general terms the Law
includes all ordinances which are just; these have been
formed by the people in their customs. If they are not suit-
able, the prince can adjust them to the needs of particular
times and persons, but must not usurp the power to do this
without the consent of those who are most concerned* Archon
objects that this is very far indeed from the opinion of many
kings, who consider that their subjects, their lives, and
property are completely under their power. Politie agrees
that they are under their jurisdiction, but only by process of
1 "Archon et Politie," in (' Me-
moiros do l'etat do Franco,' Ed. 1576),
vol. iii. p. 102: "Politie. Mais celle
(tyrannie) qui survient en una royaume
qui est tenu pour hereditaire, est,
quand un prince, le? gitimement pour-
venu, no se contente pas de ce qu'il
trouve de droit equitable luy estre
acquis, ains pour dominer plus seig-
neurialement viole les anciennes loix
et ooutumes do ses pays. "
? Id. id. (p. 110): "Archon. Tout
cocy tend a mettre le Roi sous la
loi, touteffois il y a un axiomo aux
Paudoctes, qui dit qu'il n'est sous la
VOL. VI.
loi, combien que par honneetete? , il
s'y doit ranger. Par ainsi, puis que
e'est lui qui la donne, il ne s'y subniet
pas s'il ne luy plait; ou autrement
on ne doit pas nommer sa puissance,
souveraine, mais bridee et restrainte.
