Distinction between king who
governs according to laws, and
the king who makes laws as
he wills, 76, 77.
governs according to laws, and
the king who makes laws as
he wills, 76, 77.
Thomas Carlyle
Such
a constitution, he continues, combines the character of a
monarchy, an aristocracy, and a democracy. St Thomas
claimed to derive this from Aristotle, and he found an example
of it in the constitution established by Moses for the people of
Israel. 2
St Thomas then clearly thought that the mixed constitution,
in which the authority of the whole community--king, nobles,
and people--was represented, would be the best form of
government. How far he was conscious that this corresponded
1 Of. vol. vi. part iv. chap. 2, Theologica,' 1. 2, 105, 1. (Of. vol. v.
? eot. 4. p. 94. )
>> Si Thomas Aquinas, 'Summa
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? 524
[PABI V.
CONCLUSION.
with the development of the representative system which was
taking place in his time we cannot say, but he thought of the
mixed government as superior to all the simple forms, and
he found the essence of this in the elective and representative
method.
We have often said that it was the supremacy of justice and
law which was the fundamental principle of Mediaeval Political
Theory, but we must now put beside this the principle that,
subject to the final authority of justice and the divine and
natural laws, it was the community which was supreme--
the community which included the king, the nobles, and the
people. This was the principle out of which the representative
system grew.
It is a rather curious incompetence of judgment which sees
in the words of Edward I. 's summons of the bishops to the
Parliament of 1295, "quod omnes tangit, ab omnibus appro-
betur," nothing but the rhetorical use of an incidental
phrase in the " Corpus Juris Civilis. " What it meant to those
who drafted the summons is quite immaterial; the fact is
that it expressed the development of the political self-con-
sciousness of the community. Implicit indeed it had alwayB
been in the authority which lay behind the custom and law
of the community, but in the later centuries of the Middle
Ages it found for itself a new form in the representative
system.
The Huguenot pamphlets of the sixteenth century may
express this conception of the supremacy of the community
in extravagant terms, but they were saying nothing more
than Mariana said in Spain and than Hooker said in England:
"In kingdoms, therefore, of this quality the highest governor
hath indeed universal dominion, but with dependence upon
that whole entire body, over the several parts of which he hath
dominion; so that it standeth for an axiom in this case. The
king is ' maior singulis, universis minor. ' "1
It was the supreme power of the community which, in the
judgment of the most important political writers of the
1 Of. vol. vi. part iv. chap. 2, sect. 2.
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? PAHT V. ]
525
CONCLUSION.
sixteenth century, found its embodiment in the Diet of the
Empire, in the Cortes of Spain, in the States General of
France, and In the Parliament of England.
It is in the Parliament, says Sir Thomas Smith, that the
whole absolute power resides, for there are present the king,
the nobles, the commons, and the clergy are represented by
the bishops. . The Huguenot writers demanded the restoration
of the Estates to that place which they had held till some of
the French kings had desired to rule absolutely and uncon-
trolled, and Boucher, representing the Catholic League, said
that the "Maiestas " was embodied in the Estates. Mariana
in Spain contemptuously repudiated the contention that the
authority of the king was equal to that of the Cortes. Hooker
says, "The Parliament of England, together with the con-
vocation annexed thereunto, is that whereupon the very essence
of all government within this realm doth depend; it is even
the body of the whole realm; it consisteth of the king and of
all that within this realm are subject to him; for they are
all there present, either in person or by such as they volun-
tarily have derived their very personal right unto. " And
Althusius expresses the principle of the authority of these
representative assemblies when he says that it is by such
Councils that the liberty of the people is preserved, and
that the "public administrators" are taught that the
people--that is, the universal community--is their lord. 1
The representative system was then the form of the prin-\
ciple of the supremacy of the community, of the whole
community, including the king, the nobles, and the
commons.
We are not here dealing with the developments of the
seventeenth and eighteenth centuries, with the conditions or
circumstances which brought about the conflicts between
the monarchy and the community, whether in England or in
the continental countries. We are in this work concerned
with the development of the principles of political civilisation
in the Middle Ages, and we think that it is true to say that
'Cf. vol. vi. p. 368, and part iv. chap. 5.
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? CONCLUSION.
[PART V.
in these we can see not only principles of profound and
permanent value, but also that the moral and political genius
of the Western nations was making its way through immense
difficulties, and through what often seems an intolerable
confusion, to rational and intelligible ends, to some kind of
reconciliation of the principles of liberty and authority.
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? INDEX.
Absolute monarchy: in later sixteenth
century, 415-461.
See L'Hopital, President of Parlia-
ment of Paris, Bod in, Bilson, Black-
wood, Cunerus, James I. , Belloy,
Peter Gregory, Barclay, Albericus
Oentilis, Cowell.
Accoltis, Franciscus de: prince bound
by contracts, both M naturaliter '' and
"civiliter," 154.
Aeneas Sylvius (Pius II. )--
Emperor " legibus solutus," but it
is honourable that he should
observe them, 188.
No one may revile or resist the
prince, 189.
Pnnce rides in God's place, 190.
U'Ailly, Peter--
King of France submits to judg-
ment of "Parlement," 141.
It is not true that "major non
judicatur a minora," 141, 164.
Mixed government is best, 162.
Albericus Gentilis--
Supreme prince has no superior
except God, neither man nor
law, 451.
Authority of the law of the prince
has no relation to " ratio, 451.
Admits that there are states where
authority of prince is subject to
conditions, such as Imperial
cities in Germany, Papal States,
Switzerland, and Netherlands,
452.
In England king has an extra-
ordinary power, as well as
ordinary, former subject to no
laws. Prerogative, reference to
Baldus, 453.
Prince cannot take private
property without a just cause,
but prince determines what is
just cause, 453.
Aware of contention that no
people could have been so sense-
less as to give such absolute
power to prince, but appeals
to Aristotle, Bodin, and James
I. , that it had been done, and
still was done, 453.
All princes bound by Divine and
Natural law, and Jus Gentium,
453.
All princes bound by their con-
tracts, 453.
Repudiates arguments drawn from
feudal law, 454.
Authority of prince belongs to
Divine law, ia greater than that
of a father, 454.
Albericus a Rosate: municipal law of
Italian cities, 27, 28.
Alciatus--
Political authority can only be
derived from the people, 298.
Charlemagne elected by Roman
people, emperor now elected by
? ? German electors, 298.
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? 528
INDEX.
"Dominium Civile" by which
man has "civil" property and
"jurisdiction "--i. e. , the "mate-
rial sword" added after sin
came into the world, 241.
Political authority a Divine in-
stitution, even outside of the
Church, 242.
Community has by natural law
power of life and death over
its members, 242.
Prince cannot slay a man by his
own authority, 242, 243.
Community cannot renounce its
authority over the prince, whom
it establishes and can depose,
243-245.
Community cannot bestow a
monarchy "pure regalis," 243.
Kingdom of France established by
the people, 244.
Monarchy the best form of
government, but the assembly
is superior to him and can
depose him, 245.
Functions and limitations of auth-
ority of prince: he is not
absolute, 246.
Cites constitution of Aragon as
including judicial authonty not
created by prince, 246.
Althusius, Joannes--
Origin of political society, Aris-
totelian, 368.
Defmition of political society, Cicero,
358.
Object of political society, the
common good, 358.
Final end of political society, the
service of God, 358.
Political society formed by con-
tract of members, 358.
Government nothing else than
execution of law, 359.
Supremacy of law is supremacy
of God, supremacy of man is
that of a beast, 359.
Magistrates bound by laws of the
kmgdom and the "Maiestas,"
359.
Magistrate is not "legibus gener-
alibus solutus," refers to Cujas,
359.
Law may give him right of dis-
pensation in some cases, 359.
Nature of "Maiestas," it does not
belong to prince or " optimates,"
but to the whole commonwealth,
260, 261, 500.
Authority to rule granted only by
community, and must be exer-
cised according to law, 371, 372.
No commonwealth ever formed
without contract between prince
and subjects, 394.
Contracts existed in almost all
moder n kingdoms elective or
? ? hereditary, 395.
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? INDEX.
529
"Souverainete" are inferior to
"8ouverain," as private persons,
but superior to him m their
public capacity, 375.
Contract between prince and
people, 388.
Baldus--
diatom overrides law locally, cites
Boniface VIII. and Gratian, 19.
Prince should obey law, but not
"de necessitate," 20, 82.
Prince has a supreme and absolute
authority as well as an ordinary
one--referred to by Albericus
Gentilus, 20, 82, 452.
Prince and his successors bound
by contracts, and by "Con-
mietudines. " Customary law has
authority over tho prince (Super
Feudis). 20, 21.
Good king better than good law,
82.
Cited by Jason de Mayno as saying
that Pope and prince has
"plenitudo potostat is " and can
do anything, "supra ius et
contra ms et extra ius," 83, 149.
Cited by Jason do Mayno as saying
it must always be presumed
that prince desires what-is just,
and that his actions should be
rrgulated "a institia poli et
fori," 150.
Prince cannot take away private
property without cause, for it
belongs to 'ius gentium" or
"ius naturale," 85.
Dealing with feudal law, maintains
that emperor cannot deprive
a vassal of his fief without
proved offence, 85.
Dealing with feudal law, good and
natural laws bind the prince, 85.
Prince has right to impose
"collecto," but only if it is
useful to the state; subject is
not bound by natural obligations
to pay, if the tax is levied merely
by his " effrenata voluntas," 86.
Subjects may expel king who acts
tyrannically, but cannot deprive
him of his " dignitas," 87.
Barclay, William--
Denies that laws were made to
restrain kings, 445.
Repudiates Buchanan's assertion
that in Scotland laws required
consent of "Procores" and
people, 446.
In Scotland and France king made
laws without Senate, 446.
No one is king who is bound by
the laws, 446.
Royal authority is Divine. King
VOL. VI.
is constituted by men, but God
gives him an inviolable authority,
? ? 446.
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? 530
INDEX.
it is " aequum et dignum " that
he should obey them, 19.
Prince is bound by any contract
made with a city, contracts
belong to " ius gentium," 19.
Municipal laws of Italian cities,
made with permission of prince,
cannot overrido " ius commune,"
26.
Methods of legislation in these
cities, 27.
"De Regimine Civitatis," 76-80.
Definition of good and bad
governments from Aristotle, 76.
Distinction between king who
governs according to laws, and
the king who makes laws as
he wills, 76, 77.
Description of kings in 1. Sam. viii.
is that of tyrant, 77.
King has right to impose taxes for
royal expenses, 77.
Different kinds of government
adapted to states according to
their size; small state best
governed by whole people,
larger (like Florence and Vemce)
by a few, largest by a king, 78.
Tyranny the worst of oil forma
of government. Italy full of
tyrants, 79.
'De Tyranno,' 4, 80, 81.
Definitions of tyrant, from Aristotle,
St Ieidore, and St Gregory the
Great, 80.
Two kinds of tyrants, " ex defectu
tituli," and " ex parte exercitus,"
81.
'De Guelfis et Gebellinis,' tyrant
may rightfully be deposed;
cites St Thomas Aquinas that
it is not sedition to overthrow
the tyrant, 81, 87.
Repudiates the contention of
Jo. Butrigarius, that prince
could take a man's property
without cause, 85.
'Comm. on Digest' cites William
of Cuneo and Cynus as saying
that Roman people could revoke
the authority given to the
emperor, 87.
Cited by Jason de Mayno as
saying that when prince acts
"ex certa scientia " he removes
all legal obstacles, 149.
Beaufremont, M. de--
Address of nobles to king at States
General of Orleans, 1576, his
ancestors had always called the
Estates when it was necessary
to set things in order, 475.
"Bekenntniss, Unterricht und Ver-
manung der Christlichen Kirchen zu
Magdeburg "--
Tho inferior public authorities
may rightly defend their sub-
? ? jects against tho attacks of tho
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? INDEX.
531
be admitted to any share in the
supreme authority, even if
kings wished to do so, 435.
The nature of monarchy is such
that it cannot be divided or
shared, 435.
Monarchy in Scotland founded
by Kenneth on force, and the
people therefore have no legal
rights, 435.
Authority of the king analogous to
those of father over his family,
masters over their slaves, 436.
Law has no authority over the
king, 436.
Not only persons but property of
all people are in the hands of the
king, 437.
Bodin, Jean--
Definition of " Respublica," 418.
Controlled by reason and power,
418.
Supreme authority has " Maiostas,"
and is " potestas legibus soluta,"
418.
Supreme authority is subject to
lex divina," "lex naturae,"
and " lex omnium gontium com-
munis," 419.
Political authority rests on force.
Aristotle and others were wrong
when they thought that in the
beginning kings received auth-
ority on the ground of their
justice, 420.
Natural liberty is that of a man
who, under God, rejects all
authority but that of himself
and right reason, 420.
The citizen is one who is under
the supreme authority of
another, ne has lost his natural
liberty, 421.
Contradicts the opinion of Aristotle
that a man is not a citizen who
does not share in "imperium,"
421.
The people can transfer its auth-
ority, without limit, to one man,
421.
Prince who has complete power
has " Maiestas," 421.
Prince who is bound by laws, or
holds authority only for a time,
and has to render account to
the people, has not "Maiestas,"
421.
Prince should not swear to the
laws, this destroys "Maiestas,"
421, 422.
Supreme authority is limited by
contracts, 422.
Prince not limited by custom, 422.
"Propiietas" and "Possessio"
belong to individual. Prinoe
has only "Imperium" over
them, 423.
? ? There is no suoh thing as a " mixed
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? 532
INDEX.
pecially to Empire, Arsgon. and
England, 369.
Cites deposition of Merovingian
and Carolingian kings in France,
of Richard II. , ana recently of
King of Denmark, 369.
Absence of constitutional forms in
France due to recent tyrannical
innovations of Louis XI. , 369.
Contractual relation between prince
and people. Relation to feudal
law, 391.
Bracton: cited by Hooker, 356, 357,
378.
Britten--
Laws made by king with barons,
court, and other members of his
council, 7.
King can only repeal laws with the
consent of the same, 33.
In cases where king is a party,
court is judge, not king, 33.
Buchanan, George--
King is subject to the law, 332, 333,
491.
The people acting through Parlia-
ment is the legislator, 332, 333,
491.
The many are wiser than the one,
334.
Interpretation of laws must not
be left to king, 334.
Kings of Scotland hereditary, but
are created by the law and will
of the people, just as much as
elective kings, 366.
There is a contract between king
and people: it is void if king
breaks it, 387.
Defends resistance to, and de-
position of, prince who abuses his
power, 399.
Authority of law greater than that
of king, and authority of people
greater than that of law; they
can therefore call him to account
in greater matters as well as
small, 400.
Bud<<, G. --
"Princeps legions solutus," 294-
296.
Appeals to Aristotle on natural
monarchy of king who is in-
comparably superior to his
subjects, 294.
Absurd to impose laws upon such
a man, 294, 295.
Roman emperors, at least in
Ulpian's time, and kings of France
have this quality, they are human
Jovos, 294, 295.
No reason why laws should stand
between prince and people, 295.
Appeals to Romans xiii. 1, 295.
Compares "Curia in qua summa
jurisdictions Gallicao . . . sita
est" with Roman Senate, 296.
? ? "Maiestas" of Roman people
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? INDEX.
533
political law! ) of Moses are
binding on the states, 267.
Subject to moral law, which is
eternal law of justice; every
state can make its own laws, 268.
Moral law of God is the "testi-
mony" of the natural law,
which is written in men's hearts
by God, 268.
Principle of restraint of kings
by proper authority illustrated
in his letters, 269, 270.
Commines, Philippe de--
Taxation without consent of sub-
jects is mere tyranny, 202.
Neither king of France nor other
kings had the right to do this,
202.
Charles V. never claimed such a
right, 202.
His high opinion of the value of
the States General, 214, 485.
His contempt for those who
opposed their meetings, 214, 215.
Connon, Francis--
Primitive world ruled by kings,
chosen for their virtue, and
without fixed system of law, 301.
When kings began to abuse their
power, men imposed restraints
of law upon them, 301, 302.
Cites Aristotle as saying that to
obey the law is to obey God,
to obey a man is to obey a wild
beast, 302.
Cites Demosthenes and Papinian
as saying that law is an agree-
ment of the whole "Civitas,"
302.
In France it is the king's authority
which binds men by law, but
his authority is drawn from
consent of the people, 302.
Prince does not need to take
counsel when he legislates, 303.
Contemptuously rejects the notion
that law is superior to custom,
303.
Unjust law is not law at all, 303.
If hereditary king becomes tyrant,
ho should be deposed, 303.
The prince is not "legibus sol-
utus," 303.
Contract--
Cynus discusses question whether
emperor was bound by his
contracts made with city or
province, 15, 16.
Pnnoe is bound by contracts
made with city, Baldus, 19.
Contracts belong to " ius gentium,"
Bartolus, 19.
Contracts binding on prince and
his successor, Baldus, 20.
Contractual relations of ruler
and subject in Dauphine and
Briancon, 67-69.
? ? Contractual conception with re-
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? 534
INDEX.
No kingdom or commonwealth
ever created without a contract
between prince and people,
Althusius, 394, 395.
The emperor bound by his contract,
refers to an oath of Maximilian
that he would not obstruct the
proceedings of the "Kammer-
Gericht," Zasius, 323.
Prince is bound by his contracts
as much as private persons,
Bod in, 422.
When law of prince has passed
into contract he is bound by it,
this belongs to natural law,
Peter Gregory, 443.
Prince bound by his contracts,
Albericus Gentilis, 453.
Cortes of Castile and Leon--
Kings cannot annul the law
without the consent of Cortes,
Burgos and Bribiesca, 1379,
1387, 4.
Royal briefs contrary to custom
or law to be disregarded, 5, 91.
No "carta blanca to bo used
by king, 65.
No person to be injured or killed
by king, till he has been judged
accordmg to '' fuero" and law,
68, 91.
Contractual conception in posi-
tion of regents or Tutores--in
minority of king, 69.
Cortes meet frequently in four-
teenth century, a normal part
of government, especially during
minority of king, 90.
Protests against illegal taxation,
91-93.
Demand that some of its members
should sit in king's council, 95.
Juan II. repudiates in 1431 the
constitutional provisions of
Bribiesca, but Cortes reaffirms
them, 1440, 1442, 1451, 133-135.
No taxation without consent of
Cortes, 203-205.
Cortes at Olmedo, 1445, affirms
the "Divine Right" of kings,
186-188.
Protests against royal interference
in elections of members, 207-209.
Their place in all important
affairs of kingdom, 209, 210.
Summoned by Ferdinand and
Isabella to provide for legislation,
I486, 231, 462.
No law could be made or revoked
except in Cortes, 1506, 232, 463.
Replies of crown to petition of
Cortes, to be registered and
observed as law, 232, 233. 464.
All "Cartas de suspenzyon" to be
revoked. 1518, 1523, 233, 464.
Frequent meetings throughout
sixteenth century, 462.
? ? Taxation, 465-468.
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? INDEX.
535
But king is above Parliament, or
he is not an absolute king, 456.
Prerogative is the special power
of the king above the ordinary
course of the common law, 457.
By custom king makes no law
without consent of the Three
Estates, 457.
Whether this is of necessity or
policy Cowell leave? to judgment
of wiser men, but king is absol-
ute, 457.
Subsidies "assessed by Parlia-
ment and granted by the
commons," 457.
Some hold that the subsidie is
granted by subjects in considera-
tion that whereas prince might
make laws of his absolute
power, he doth of favour admit
the consent of his subjects, 457.
Cujas--
Men who are not ruled by law and
oustom are not a People,"
and do not form a " Respublica,"
311.
There may be men who live like
the beasts without government
of right reason which is the law
of nature, but this may be stirred
up in them, 311.
"Jus" made by "consensus" or
"consuetudo or by "necessi-
tos," 312.
"Lex " is made by "consensus"
of all in community, 312.
"Jus " which is made by " neeessi-
tas" ismade by senate or prince.
(Cites Dig. i. 2, 2,9, and 11), 313.
Custom, approved by reason,
consent of all, and judgment
of court, abrogates law which
has ceased to be of use to the
commonwealth, 314.
No law is binding which is not
approved by custom, 314.
The people had transferred its
authonty to the prince, or rather
had shared it with him, 315.
Discussion of "legibus solutus,"
315-318.
The words apply properly only to
"leges caducariae," such as
"Lex Julia et Papia " on which
Ulpiani*commenting, 316, not e '2.
This was not true with regard to
many other laws, even if prince
had not sworn obedience to
thom, much less if he had done
this, 316.
"Hodie," the princes swear to the
laws, and aro not "legibus
Forati," 316, note 2.
Prince has power to make and
unmake the laws, but is bound
by them so long as they are
laws, 316-318.
? ? Prince has "imperium" not
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a constitution, he continues, combines the character of a
monarchy, an aristocracy, and a democracy. St Thomas
claimed to derive this from Aristotle, and he found an example
of it in the constitution established by Moses for the people of
Israel. 2
St Thomas then clearly thought that the mixed constitution,
in which the authority of the whole community--king, nobles,
and people--was represented, would be the best form of
government. How far he was conscious that this corresponded
1 Of. vol. vi. part iv. chap. 2, Theologica,' 1. 2, 105, 1. (Of. vol. v.
? eot. 4. p. 94. )
>> Si Thomas Aquinas, 'Summa
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? 524
[PABI V.
CONCLUSION.
with the development of the representative system which was
taking place in his time we cannot say, but he thought of the
mixed government as superior to all the simple forms, and
he found the essence of this in the elective and representative
method.
We have often said that it was the supremacy of justice and
law which was the fundamental principle of Mediaeval Political
Theory, but we must now put beside this the principle that,
subject to the final authority of justice and the divine and
natural laws, it was the community which was supreme--
the community which included the king, the nobles, and the
people. This was the principle out of which the representative
system grew.
It is a rather curious incompetence of judgment which sees
in the words of Edward I. 's summons of the bishops to the
Parliament of 1295, "quod omnes tangit, ab omnibus appro-
betur," nothing but the rhetorical use of an incidental
phrase in the " Corpus Juris Civilis. " What it meant to those
who drafted the summons is quite immaterial; the fact is
that it expressed the development of the political self-con-
sciousness of the community. Implicit indeed it had alwayB
been in the authority which lay behind the custom and law
of the community, but in the later centuries of the Middle
Ages it found for itself a new form in the representative
system.
The Huguenot pamphlets of the sixteenth century may
express this conception of the supremacy of the community
in extravagant terms, but they were saying nothing more
than Mariana said in Spain and than Hooker said in England:
"In kingdoms, therefore, of this quality the highest governor
hath indeed universal dominion, but with dependence upon
that whole entire body, over the several parts of which he hath
dominion; so that it standeth for an axiom in this case. The
king is ' maior singulis, universis minor. ' "1
It was the supreme power of the community which, in the
judgment of the most important political writers of the
1 Of. vol. vi. part iv. chap. 2, sect. 2.
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? PAHT V. ]
525
CONCLUSION.
sixteenth century, found its embodiment in the Diet of the
Empire, in the Cortes of Spain, in the States General of
France, and In the Parliament of England.
It is in the Parliament, says Sir Thomas Smith, that the
whole absolute power resides, for there are present the king,
the nobles, the commons, and the clergy are represented by
the bishops. . The Huguenot writers demanded the restoration
of the Estates to that place which they had held till some of
the French kings had desired to rule absolutely and uncon-
trolled, and Boucher, representing the Catholic League, said
that the "Maiestas " was embodied in the Estates. Mariana
in Spain contemptuously repudiated the contention that the
authority of the king was equal to that of the Cortes. Hooker
says, "The Parliament of England, together with the con-
vocation annexed thereunto, is that whereupon the very essence
of all government within this realm doth depend; it is even
the body of the whole realm; it consisteth of the king and of
all that within this realm are subject to him; for they are
all there present, either in person or by such as they volun-
tarily have derived their very personal right unto. " And
Althusius expresses the principle of the authority of these
representative assemblies when he says that it is by such
Councils that the liberty of the people is preserved, and
that the "public administrators" are taught that the
people--that is, the universal community--is their lord. 1
The representative system was then the form of the prin-\
ciple of the supremacy of the community, of the whole
community, including the king, the nobles, and the
commons.
We are not here dealing with the developments of the
seventeenth and eighteenth centuries, with the conditions or
circumstances which brought about the conflicts between
the monarchy and the community, whether in England or in
the continental countries. We are in this work concerned
with the development of the principles of political civilisation
in the Middle Ages, and we think that it is true to say that
'Cf. vol. vi. p. 368, and part iv. chap. 5.
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? CONCLUSION.
[PART V.
in these we can see not only principles of profound and
permanent value, but also that the moral and political genius
of the Western nations was making its way through immense
difficulties, and through what often seems an intolerable
confusion, to rational and intelligible ends, to some kind of
reconciliation of the principles of liberty and authority.
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? INDEX.
Absolute monarchy: in later sixteenth
century, 415-461.
See L'Hopital, President of Parlia-
ment of Paris, Bod in, Bilson, Black-
wood, Cunerus, James I. , Belloy,
Peter Gregory, Barclay, Albericus
Oentilis, Cowell.
Accoltis, Franciscus de: prince bound
by contracts, both M naturaliter '' and
"civiliter," 154.
Aeneas Sylvius (Pius II. )--
Emperor " legibus solutus," but it
is honourable that he should
observe them, 188.
No one may revile or resist the
prince, 189.
Pnnce rides in God's place, 190.
U'Ailly, Peter--
King of France submits to judg-
ment of "Parlement," 141.
It is not true that "major non
judicatur a minora," 141, 164.
Mixed government is best, 162.
Albericus Gentilis--
Supreme prince has no superior
except God, neither man nor
law, 451.
Authority of the law of the prince
has no relation to " ratio, 451.
Admits that there are states where
authority of prince is subject to
conditions, such as Imperial
cities in Germany, Papal States,
Switzerland, and Netherlands,
452.
In England king has an extra-
ordinary power, as well as
ordinary, former subject to no
laws. Prerogative, reference to
Baldus, 453.
Prince cannot take private
property without a just cause,
but prince determines what is
just cause, 453.
Aware of contention that no
people could have been so sense-
less as to give such absolute
power to prince, but appeals
to Aristotle, Bodin, and James
I. , that it had been done, and
still was done, 453.
All princes bound by Divine and
Natural law, and Jus Gentium,
453.
All princes bound by their con-
tracts, 453.
Repudiates arguments drawn from
feudal law, 454.
Authority of prince belongs to
Divine law, ia greater than that
of a father, 454.
Albericus a Rosate: municipal law of
Italian cities, 27, 28.
Alciatus--
Political authority can only be
derived from the people, 298.
Charlemagne elected by Roman
people, emperor now elected by
? ? German electors, 298.
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? 528
INDEX.
"Dominium Civile" by which
man has "civil" property and
"jurisdiction "--i. e. , the "mate-
rial sword" added after sin
came into the world, 241.
Political authority a Divine in-
stitution, even outside of the
Church, 242.
Community has by natural law
power of life and death over
its members, 242.
Prince cannot slay a man by his
own authority, 242, 243.
Community cannot renounce its
authority over the prince, whom
it establishes and can depose,
243-245.
Community cannot bestow a
monarchy "pure regalis," 243.
Kingdom of France established by
the people, 244.
Monarchy the best form of
government, but the assembly
is superior to him and can
depose him, 245.
Functions and limitations of auth-
ority of prince: he is not
absolute, 246.
Cites constitution of Aragon as
including judicial authonty not
created by prince, 246.
Althusius, Joannes--
Origin of political society, Aris-
totelian, 368.
Defmition of political society, Cicero,
358.
Object of political society, the
common good, 358.
Final end of political society, the
service of God, 358.
Political society formed by con-
tract of members, 358.
Government nothing else than
execution of law, 359.
Supremacy of law is supremacy
of God, supremacy of man is
that of a beast, 359.
Magistrates bound by laws of the
kmgdom and the "Maiestas,"
359.
Magistrate is not "legibus gener-
alibus solutus," refers to Cujas,
359.
Law may give him right of dis-
pensation in some cases, 359.
Nature of "Maiestas," it does not
belong to prince or " optimates,"
but to the whole commonwealth,
260, 261, 500.
Authority to rule granted only by
community, and must be exer-
cised according to law, 371, 372.
No commonwealth ever formed
without contract between prince
and subjects, 394.
Contracts existed in almost all
moder n kingdoms elective or
? ? hereditary, 395.
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? INDEX.
529
"Souverainete" are inferior to
"8ouverain," as private persons,
but superior to him m their
public capacity, 375.
Contract between prince and
people, 388.
Baldus--
diatom overrides law locally, cites
Boniface VIII. and Gratian, 19.
Prince should obey law, but not
"de necessitate," 20, 82.
Prince has a supreme and absolute
authority as well as an ordinary
one--referred to by Albericus
Gentilus, 20, 82, 452.
Prince and his successors bound
by contracts, and by "Con-
mietudines. " Customary law has
authority over tho prince (Super
Feudis). 20, 21.
Good king better than good law,
82.
Cited by Jason de Mayno as saying
that Pope and prince has
"plenitudo potostat is " and can
do anything, "supra ius et
contra ms et extra ius," 83, 149.
Cited by Jason do Mayno as saying
it must always be presumed
that prince desires what-is just,
and that his actions should be
rrgulated "a institia poli et
fori," 150.
Prince cannot take away private
property without cause, for it
belongs to 'ius gentium" or
"ius naturale," 85.
Dealing with feudal law, maintains
that emperor cannot deprive
a vassal of his fief without
proved offence, 85.
Dealing with feudal law, good and
natural laws bind the prince, 85.
Prince has right to impose
"collecto," but only if it is
useful to the state; subject is
not bound by natural obligations
to pay, if the tax is levied merely
by his " effrenata voluntas," 86.
Subjects may expel king who acts
tyrannically, but cannot deprive
him of his " dignitas," 87.
Barclay, William--
Denies that laws were made to
restrain kings, 445.
Repudiates Buchanan's assertion
that in Scotland laws required
consent of "Procores" and
people, 446.
In Scotland and France king made
laws without Senate, 446.
No one is king who is bound by
the laws, 446.
Royal authority is Divine. King
VOL. VI.
is constituted by men, but God
gives him an inviolable authority,
? ? 446.
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? 530
INDEX.
it is " aequum et dignum " that
he should obey them, 19.
Prince is bound by any contract
made with a city, contracts
belong to " ius gentium," 19.
Municipal laws of Italian cities,
made with permission of prince,
cannot overrido " ius commune,"
26.
Methods of legislation in these
cities, 27.
"De Regimine Civitatis," 76-80.
Definition of good and bad
governments from Aristotle, 76.
Distinction between king who
governs according to laws, and
the king who makes laws as
he wills, 76, 77.
Description of kings in 1. Sam. viii.
is that of tyrant, 77.
King has right to impose taxes for
royal expenses, 77.
Different kinds of government
adapted to states according to
their size; small state best
governed by whole people,
larger (like Florence and Vemce)
by a few, largest by a king, 78.
Tyranny the worst of oil forma
of government. Italy full of
tyrants, 79.
'De Tyranno,' 4, 80, 81.
Definitions of tyrant, from Aristotle,
St Ieidore, and St Gregory the
Great, 80.
Two kinds of tyrants, " ex defectu
tituli," and " ex parte exercitus,"
81.
'De Guelfis et Gebellinis,' tyrant
may rightfully be deposed;
cites St Thomas Aquinas that
it is not sedition to overthrow
the tyrant, 81, 87.
Repudiates the contention of
Jo. Butrigarius, that prince
could take a man's property
without cause, 85.
'Comm. on Digest' cites William
of Cuneo and Cynus as saying
that Roman people could revoke
the authority given to the
emperor, 87.
Cited by Jason de Mayno as
saying that when prince acts
"ex certa scientia " he removes
all legal obstacles, 149.
Beaufremont, M. de--
Address of nobles to king at States
General of Orleans, 1576, his
ancestors had always called the
Estates when it was necessary
to set things in order, 475.
"Bekenntniss, Unterricht und Ver-
manung der Christlichen Kirchen zu
Magdeburg "--
Tho inferior public authorities
may rightly defend their sub-
? ? jects against tho attacks of tho
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? INDEX.
531
be admitted to any share in the
supreme authority, even if
kings wished to do so, 435.
The nature of monarchy is such
that it cannot be divided or
shared, 435.
Monarchy in Scotland founded
by Kenneth on force, and the
people therefore have no legal
rights, 435.
Authority of the king analogous to
those of father over his family,
masters over their slaves, 436.
Law has no authority over the
king, 436.
Not only persons but property of
all people are in the hands of the
king, 437.
Bodin, Jean--
Definition of " Respublica," 418.
Controlled by reason and power,
418.
Supreme authority has " Maiostas,"
and is " potestas legibus soluta,"
418.
Supreme authority is subject to
lex divina," "lex naturae,"
and " lex omnium gontium com-
munis," 419.
Political authority rests on force.
Aristotle and others were wrong
when they thought that in the
beginning kings received auth-
ority on the ground of their
justice, 420.
Natural liberty is that of a man
who, under God, rejects all
authority but that of himself
and right reason, 420.
The citizen is one who is under
the supreme authority of
another, ne has lost his natural
liberty, 421.
Contradicts the opinion of Aristotle
that a man is not a citizen who
does not share in "imperium,"
421.
The people can transfer its auth-
ority, without limit, to one man,
421.
Prince who has complete power
has " Maiestas," 421.
Prince who is bound by laws, or
holds authority only for a time,
and has to render account to
the people, has not "Maiestas,"
421.
Prince should not swear to the
laws, this destroys "Maiestas,"
421, 422.
Supreme authority is limited by
contracts, 422.
Prince not limited by custom, 422.
"Propiietas" and "Possessio"
belong to individual. Prinoe
has only "Imperium" over
them, 423.
? ? There is no suoh thing as a " mixed
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? 532
INDEX.
pecially to Empire, Arsgon. and
England, 369.
Cites deposition of Merovingian
and Carolingian kings in France,
of Richard II. , ana recently of
King of Denmark, 369.
Absence of constitutional forms in
France due to recent tyrannical
innovations of Louis XI. , 369.
Contractual relation between prince
and people. Relation to feudal
law, 391.
Bracton: cited by Hooker, 356, 357,
378.
Britten--
Laws made by king with barons,
court, and other members of his
council, 7.
King can only repeal laws with the
consent of the same, 33.
In cases where king is a party,
court is judge, not king, 33.
Buchanan, George--
King is subject to the law, 332, 333,
491.
The people acting through Parlia-
ment is the legislator, 332, 333,
491.
The many are wiser than the one,
334.
Interpretation of laws must not
be left to king, 334.
Kings of Scotland hereditary, but
are created by the law and will
of the people, just as much as
elective kings, 366.
There is a contract between king
and people: it is void if king
breaks it, 387.
Defends resistance to, and de-
position of, prince who abuses his
power, 399.
Authority of law greater than that
of king, and authority of people
greater than that of law; they
can therefore call him to account
in greater matters as well as
small, 400.
Bud<<, G. --
"Princeps legions solutus," 294-
296.
Appeals to Aristotle on natural
monarchy of king who is in-
comparably superior to his
subjects, 294.
Absurd to impose laws upon such
a man, 294, 295.
Roman emperors, at least in
Ulpian's time, and kings of France
have this quality, they are human
Jovos, 294, 295.
No reason why laws should stand
between prince and people, 295.
Appeals to Romans xiii. 1, 295.
Compares "Curia in qua summa
jurisdictions Gallicao . . . sita
est" with Roman Senate, 296.
? ? "Maiestas" of Roman people
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? INDEX.
533
political law! ) of Moses are
binding on the states, 267.
Subject to moral law, which is
eternal law of justice; every
state can make its own laws, 268.
Moral law of God is the "testi-
mony" of the natural law,
which is written in men's hearts
by God, 268.
Principle of restraint of kings
by proper authority illustrated
in his letters, 269, 270.
Commines, Philippe de--
Taxation without consent of sub-
jects is mere tyranny, 202.
Neither king of France nor other
kings had the right to do this,
202.
Charles V. never claimed such a
right, 202.
His high opinion of the value of
the States General, 214, 485.
His contempt for those who
opposed their meetings, 214, 215.
Connon, Francis--
Primitive world ruled by kings,
chosen for their virtue, and
without fixed system of law, 301.
When kings began to abuse their
power, men imposed restraints
of law upon them, 301, 302.
Cites Aristotle as saying that to
obey the law is to obey God,
to obey a man is to obey a wild
beast, 302.
Cites Demosthenes and Papinian
as saying that law is an agree-
ment of the whole "Civitas,"
302.
In France it is the king's authority
which binds men by law, but
his authority is drawn from
consent of the people, 302.
Prince does not need to take
counsel when he legislates, 303.
Contemptuously rejects the notion
that law is superior to custom,
303.
Unjust law is not law at all, 303.
If hereditary king becomes tyrant,
ho should be deposed, 303.
The prince is not "legibus sol-
utus," 303.
Contract--
Cynus discusses question whether
emperor was bound by his
contracts made with city or
province, 15, 16.
Pnnoe is bound by contracts
made with city, Baldus, 19.
Contracts belong to " ius gentium,"
Bartolus, 19.
Contracts binding on prince and
his successor, Baldus, 20.
Contractual relations of ruler
and subject in Dauphine and
Briancon, 67-69.
? ? Contractual conception with re-
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? 534
INDEX.
No kingdom or commonwealth
ever created without a contract
between prince and people,
Althusius, 394, 395.
The emperor bound by his contract,
refers to an oath of Maximilian
that he would not obstruct the
proceedings of the "Kammer-
Gericht," Zasius, 323.
Prince is bound by his contracts
as much as private persons,
Bod in, 422.
When law of prince has passed
into contract he is bound by it,
this belongs to natural law,
Peter Gregory, 443.
Prince bound by his contracts,
Albericus Gentilis, 453.
Cortes of Castile and Leon--
Kings cannot annul the law
without the consent of Cortes,
Burgos and Bribiesca, 1379,
1387, 4.
Royal briefs contrary to custom
or law to be disregarded, 5, 91.
No "carta blanca to bo used
by king, 65.
No person to be injured or killed
by king, till he has been judged
accordmg to '' fuero" and law,
68, 91.
Contractual conception in posi-
tion of regents or Tutores--in
minority of king, 69.
Cortes meet frequently in four-
teenth century, a normal part
of government, especially during
minority of king, 90.
Protests against illegal taxation,
91-93.
Demand that some of its members
should sit in king's council, 95.
Juan II. repudiates in 1431 the
constitutional provisions of
Bribiesca, but Cortes reaffirms
them, 1440, 1442, 1451, 133-135.
No taxation without consent of
Cortes, 203-205.
Cortes at Olmedo, 1445, affirms
the "Divine Right" of kings,
186-188.
Protests against royal interference
in elections of members, 207-209.
Their place in all important
affairs of kingdom, 209, 210.
Summoned by Ferdinand and
Isabella to provide for legislation,
I486, 231, 462.
No law could be made or revoked
except in Cortes, 1506, 232, 463.
Replies of crown to petition of
Cortes, to be registered and
observed as law, 232, 233. 464.
All "Cartas de suspenzyon" to be
revoked. 1518, 1523, 233, 464.
Frequent meetings throughout
sixteenth century, 462.
? ? Taxation, 465-468.
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? INDEX.
535
But king is above Parliament, or
he is not an absolute king, 456.
Prerogative is the special power
of the king above the ordinary
course of the common law, 457.
By custom king makes no law
without consent of the Three
Estates, 457.
Whether this is of necessity or
policy Cowell leave? to judgment
of wiser men, but king is absol-
ute, 457.
Subsidies "assessed by Parlia-
ment and granted by the
commons," 457.
Some hold that the subsidie is
granted by subjects in considera-
tion that whereas prince might
make laws of his absolute
power, he doth of favour admit
the consent of his subjects, 457.
Cujas--
Men who are not ruled by law and
oustom are not a People,"
and do not form a " Respublica,"
311.
There may be men who live like
the beasts without government
of right reason which is the law
of nature, but this may be stirred
up in them, 311.
"Jus" made by "consensus" or
"consuetudo or by "necessi-
tos," 312.
"Lex " is made by "consensus"
of all in community, 312.
"Jus " which is made by " neeessi-
tas" ismade by senate or prince.
(Cites Dig. i. 2, 2,9, and 11), 313.
Custom, approved by reason,
consent of all, and judgment
of court, abrogates law which
has ceased to be of use to the
commonwealth, 314.
No law is binding which is not
approved by custom, 314.
The people had transferred its
authonty to the prince, or rather
had shared it with him, 315.
Discussion of "legibus solutus,"
315-318.
The words apply properly only to
"leges caducariae," such as
"Lex Julia et Papia " on which
Ulpiani*commenting, 316, not e '2.
This was not true with regard to
many other laws, even if prince
had not sworn obedience to
thom, much less if he had done
this, 316.
"Hodie," the princes swear to the
laws, and aro not "legibus
Forati," 316, note 2.
Prince has power to make and
unmake the laws, but is bound
by them so long as they are
laws, 316-318.
? ? Prince has "imperium" not
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