We turn back to a saner world than that of the
absolute
A,
prince of some interpreters of the Eoman Law, and of those
who upheld the "Divine Eight," and, curiously enough, we
find it in the terms of a conception which has sometimes
1 Cf.
prince of some interpreters of the Eoman Law, and of those
who upheld the "Divine Eight," and, curiously enough, we
find it in the terms of a conception which has sometimes
1 Cf.
Thomas Carlyle
* Of.
vol.
ii.
p.
57.
vol. i. p. 69. )
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? PABT V. ]
515
CONCLUSION.
emperor in such a sense that they retained nothing and could
reclaim nothing. This seems to have been the judgment of
some of the best-known Civilians of the twelfth and thirteenth
centuries, of Irnerius, Placentinus, and Eoger; but, on the
other hand, Azo, Hugolinus, and Odofridus maintained that
the Eoman people had indeed given their authority to the
emperor, but they could reclaim it. Hugolinus indeed describes
the emperor as a "procurator at hoc," and they and John
Bassianus were agreed that the custom of the Eoman people
still retained its legislative authority. 1 In the fourteenth
century the Civilians were aware of the controversy, and
inclined to the view that the custom of the Eoman people
still retained its authority; this seems doubtful in the
fifteenth century, but one Civilian, Christophorus Porcius,
stoutly maintained an opinion similar to that of Azo and
Hugolinus. 2
This is indeed interesting and important, but at the same
time, even to those Civilians who thought that the custom
of the Eoman people retained its authority in making and
unmaking law, and that it might reclaim its general legislative
authority, the emperor was normally the legislator.
This conception was wholly alien to the principles of the
Middle Ages, from Hincmar of Eheims in the ninth century
to Hooker in the sixteenth.
More important still was the question of the subordination
of the prince to the Law. What the real doctrine of tho Eoman
Jurists had been we do not pretend to determine, but Ulpian
had in one place said that the prince was "legibus solutus"
(' Dig. ' I. 3, 31), while Bracton said that the king was under
God and the Law. 3 The mediaeval Civilians were, it seems to
us, often gravely perplexed as to the real meaning of Ulpian's
words, for it was difficult to reconcile these with the words of
Theodosius and Valentinian, "Digna vox, &c. ," and they
were apparently contradicted by the rescripts of the same
1 Cf. vol. ii. pp. 60-66. 1 Bracton, 'De Legibus,' I. 8, 5.
* Cf. vol. vi. part i. chap. 2; part ii. (Cf. vol. iii. p. 67. )
chap. 2.
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? 516
[PABT V.
CONCLUSION.
emperor (' Cod. ' I. 19, 7) and of Anastasius (' Cod. ' I. 22, 6),
which commanded the magistrate to ignore any imperial
rescript or Pragmatic Sanction which was contrary to the Law
and the public service. In the fourteenth century, however,
while Bartolus uses such phrases as that it is "aequum et
dignum" that the prince should obey the Law, this is of
his own free will and not "de necessitate," Baldus speaks
of a supreme and absolute authority in the prince which is
not under the law, as contrasted with his ordinary authority,
which is subject to it; and as Jason de Mayno, writing in
the later fifteenth century, reports, Baldus had in another
place said that the Pope and the prince can do anything,
"supra ius et contra ius et extra ius. " 1
| It is true that some of the French Civilians of the sixteenth
[century, under the influence probably of Alciatus of Milan
and Bourges, and especially the great Cujas, felt that this was
a dangerous doctrine, and set out in various terms what seemed
to them the necessary correction of this interpretation of the
words that the prince was "legibus solutus. " We have
dealt with this in detail, and here we need only recall that
Cujas maintained that these words could only refer to those
laws upon which Ulpian was in this passage (' Dig. ' I. 3, 31)
commenting, and that the prince was not free from many
others, especially if they had sworn to observe them. What
the French Civilians thus contended was also maintained by
Zasius of Freiburg 2 and by Althusius. 3
I On the other hand, we can see that this doctrine that the
/king was above the law was held by some in the sixteenth
century. It was stated or implied in the words of the Presi-
dent of the Parliament of Paris in 1527, and of Michel
L'Hfipital; * it was asserted in somewhat ludicrous terms by
Bude in his 'Annotations on the Pandects. ' 5 This power
seems at times to be attributed by Bodin to the King of France,
in whom the Maiestas resides, while at other times he seems
to express a different view. 8 It is asserted dogmatically by
1 Of. vol. vi. pp. 19, 20, 149.
9 Cf. vol. vi. part iii, chap. 5.
1 Cf. vol. vi. p. 359.
? Cf. vol. vi. pp. 416, 417.
? Cf. vol. vi. pp. 293 96.
? Cf. vol. vi. p. 427.
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? PART V. ]
517
CONCLUSION.
Peter Gregory of Toulouse,1 and Barclay appeals rather
recklessly to the most eminent Civilians of the fourteenth and
fifteenth centuries as holding that the Pope and the prince,
when acting " ex certa scientia," can do anything, " supra ius
et contra ius et extra ius. " 2
We do not indeed suggest that the development of the *
conception that the prince was above the law was due
entirely to the influence of the Roman jurisprudence, but
we think that it is clear that it was related to it, and we
think that such phrases as those which we have just quoted
illustrate the growth of this influence, for these men were no
longer merely commenting upon and endeavouring to interpret
the " Corpus Juris Civilis " as the mediaeval Civilians had done,
but they were applying principles drawn from this to the actual
constitutional and legal conditions of the Western kingdoms.
The truth is that this was an innovation, and a somewhat
barbarous innovation, for the supremacy of the law over all
persons is perhaps almost the most essential characteristic
of a rational social order, and mediaeval political theory
had always maintained it. We have thus felt compelled to
recognise that the influence of Eoman Law, great and useful
as it was in other aspects of life, was in some respects mis-
chievous and retrograde. The feudal system had its grave
defects: it tended always towards the anarchy of the noble
class, that anarchy which Machiavelli spoke of in a passage
to which we have referred, in which he said that the very
existence of a noble class (" gentiluomini," meaning by these
a feudal territorial nobility) made a " vivere politico " almost
impossible. 3
It is perfectly true that the absolute monarchies of
the seventeenth and eighteenth centuries represented the
necessity of controlling this aristocratic anarchy, but that
can hardly justify before history the attempt to control it
by the anarchical autocracy of an absolute king.
>>
There was indeed another element in the political conceptions K
1 Cf. vol. vi. p. 443.
1 Cf. vol. vi. pp. 447, 448.
>> Cf. vol. vi. p. 250, note 8.
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? 518 CONCLUSION. [PABT v.
of the sixteenth century whose influence was parallel to that
of the Roman Law, as we have just been dealing with it;
that is, the conception of the king as being the vicar of God
in such a sense that he was above all human authority, that
resistance even to his unjust and illegal actions and com-
mands was resistance to God Himself. This conception, as
has been well pointed out by Professor A. Kern in his admir-
able work, 'Gottesgnaden und Widerstandsrecht im Mittel-
i alter,' had grown out of various elements in the earlier
Middle Ages, but in the political literature with which we
(have been concerned, it was derived almost wholly from some
of the Christian Fathers, and especially from St Gregory the
Great, who drew it from certain parte of the Old Testament
and the conception of the " Lord's Anointed. "
The authority of Gregory the Great was naturally so strong
that in the ninth century we find even Hincmar of Eheims
sometimes citing his words, and a Church Court threatening
those guilty of rebellion with excommunication. 1 In the
stormy times of the great conflict between Hildebrand and
Henry rV. we find not only Henry IV. but some of the clergy
maintaining that the king could be judged by God only,
and Wenrich of Trier and the author of the treatise 'De
Unitate Ecclesiae Conservanda' (Walther of Naumburg) appeal-
ing to the authority of Gregory the Great, and Gregory
of Catino maintaining that it was God only who could take
away the authority of the king. 2
* Practically, however, the conception of Gregory the Great
was overpowered by the principle that political authority
was founded upon justice and law, and the distinction between
the king and the tyrant. If Manegold and John of Salisbury
maintain this in the sharpest terms,3 it must be remembered
that it was St Thomas Aquinas himself, as we have seen,
who declared that while sedition was a mortal sin, resistance
to the unjust rule of a tyrant was not sedition. * These
are the principles of the political literature of the fourteenth
1 Cf. vol. i. pp. 217-18.
1 Cf. vol. iii. part ii. chap. 4.
>> Cf. vol. iii. part ii. chaps. 8 and 6.
? Cf. vol. v. p. 92.
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? . PART V. ]
519
CONCLUSION.
and fifteenth centuries. Only very rarely, as in Wycliffe, in the
proceedings of the Cortes of Olmedo in 1445, and in a treatise
of JSneas Sylvius (afterwards Pope Pius II. ) do we find this
appeal to the authority of God as forbidding all resistance to
the king, for he was the vicar of God. 1
It was not till the sixteenth century that this conception
had any real importance in political thought, and we have
treated it in some detail in this volume, first in Luther and
Tyndale in the earlier part of the century,2 and again in
some later writers, especially Bilson, James I. , Peter Gregory
of Toulouse, and Barclay. 3 Luther, however, after 1530
abandoned this view, and admitted that it was the law and
not the king which was supreme,4 and the other writers who
maintained this conception of the "Divine Eight" were
unimportant, and their authority cannot be measured against
that of Calvin and Hooker among the Protestants, or of the
great Jesuits among the Catholics. How a manifestly fantastic!
conception such as this should have come to have some import-'
ance in the seventeenth century, it is not for us to say; perhaps
the dreadful experience of the French Civil Wars, and the
incompetent absurdities of the Fronde in France, and the
dependence of the Anglican Church upon the Crown may
serve to explain it in part.
We are clear that, as in the conception of the prince
and his absolute authority, which was derived by some
Civilians from the Eoman Law, we have here a merely
intrusive conception, which was wholly alien to the rational
and intelligible political tradition of the Middle Ages, that
the law was supreme and not the prince.
We turn back to a saner world than that of the absolute A,
prince of some interpreters of the Eoman Law, and of those
who upheld the "Divine Eight," and, curiously enough, we
find it in the terms of a conception which has sometimes
1 Cf. vol. vi. p. 54, and part ii.
chap. 4.
* Cf. vol. vi. part iii. chap. 4.
? Cf. vol. vi. part iv. ohap. 3 (pp.
430-SO).
? Cf. vol. vi. pp. 280-86.
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? 520
[PABT V.
CONCLUSION.
been thought merely antiquarian and even irrational, that
is, in the principle of the contractual relation between the
ruler and the ruled.
t\ Whatever we may think of it, this was, next to the prin-
jciple of the supremacy of law, perhaps the most important
Sof all the political conceptions of the Middle Ages. We need
hardly again point out that we do not mean that unhistorical
and unscientific conception of a contract by which men had
formed themselves into political societies. It may be said
that this was implied in the Stoic theory of the conventional
nature of political institutions, but it had no real place in
mediaeval thought, though there may be occasional traces
of it. It was not till the seventeenth and eighteenth cen-
turies that it became the fashionable, if only hypothetical,
starting-point of political theory.
J The principle of the contract between the ruler and the
ruled was, on the other hand, the general assumption of all
mediaeval political theory, and it was upon this that there
were built up the principles of the nature and limitations of
the authority of the prince.
<< This conception indeed, so far from being merely abstract,
was founded upon certain conditions of political authority
which found a definite expression in the coronation cere-
- monies of Western Europe at least from the eighth century--
that is, in the mutual oaths of the prince and the people.
It is indeed a little strange that some writers should not have
observed that in the ninth century these principles of mutual
obligation were not only a part of the "recognition" of the
prince, but that continual appeal was made to them as deter-
mining the nature of the relations of prince and people. 1
For in these mutual oaths the prince swore to maintain not
only abstract justice, but the concrete law, and the people
swore to obey the prince. This was indeed an intelligible
and practical conception of the relations of ruler and ruled;
indeed it was only another form of the principle that the law
was supreme. The contractual conception then goes back to
the earlier Middle Ages, but it continued to find expression
1 C/. vol. i. chap. 20.
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? PAM V. ]
521
CONCLUSION.
throughout them in the importance attached to the coronation
oaths.
There can, however, be no doubt that this was immensely |
strengthened by the development of the feudal system. For, I
as we have endeavoured to make plain in the third volume
of this work--while there are elements in the feudal relation,
especially as set out in the poetical literature, of a purely
personal nature, implying an almost complete and uncon-
ditional loyalty of the vassal to his lord--when we examine
the juridical literature of feudalism, it is the contractual
conception of the mutual obligations of lord and vassal which
we find to be dominant. Even that well-known passage in
the letters of Fulbert of Chartres which sets out the obliga-
tions of the vassal in comprehensive terms, concludes by
saying that the lord must also fulfil the same obligations to
his vassal. And the structure of feudal society provided
the methods by which this should be enforced, for in case
of a dispute between the lord and vassal, the determination
belonged to the Court which was composed of all the vassals
and not to the lord. 1
The conception of the contractual relation between thex
prince and the community may be expressed in sharper terms
by Manegold than by others, but in substance he represents
the normal mode of mediaival political thought, that the
prince is bound to the community by his obligation to
obey the law, and that the tyrant--that is, as John of
Salisbury especially puts it, the prince who ignores or
defies the law--has forfeited all claim to authority. 4
When therefore Marsilius of Padua laid special stress upon *
the principle that it was the community which was the source
of all positive law, that it was from the community that the
ruler (pars principans) received his authority, and that the
community which had given this authority could also with-
draw it, if he violated the law, he was implicitly asserting
the doctrine of the contract. 3
There is therefore nothing to surprise us when we find
1 Cf. vol. iii. part i. chaps. 1, 2, 3. 4. and 6.
'Cf. esp. vol. iii. part ii. chaps. 5 * Vol. vi. pp. 8 ff. , 40 ff;
i
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? 522
[PABT V.
CONCLUSION.
that in the later sixteenth century the principle of a contract
between the prince and the community, as expressing the
condition on which authority was granted to him, should be
reaffirmed not only by controversialists, but by the most
i careful and restrained political thinkers.
It is particularly interesting to find that in the ' Apologie'
of William of Orange the conception of the contract is stated
under the terms of the conditions on which Philip II. held
his power in the Netherlands; the oath which he took before
they swore obedience to him, and the right of his vassals to
enforce these conditions upon him, under the terms of feudal
law. George Buchanan asserts roundly against Maitland,
who urged that subjects are bound by their oath of obedience
to the king, that kings are bound by their promise to administer
the law, and that there is therefore a "mutual contract"
between the king and the citizens. The ' Droit des Magistrats'
maintains that the people had only surrendered their liberty
to the king on certain conditions, and that, if these were
violated, they had the right to withdraw the authority which
they had granted. The 'Vindiciae Contra Tyrannos' sets
out the principle of a "fcedus" between king and people.
It was the people who created the king on the condition
that he should rule justly and according to the law, and the
people and those who are responsible for their protection
have the right to enforce this; and it maintains that a
"pactum" of this kind was part of the constitution, not
only of the empire and other elective monarchies, but also
of the great hereditary monarchies like France, Spain, and
England, and was embodied in the coronation oaths. Hooker,
with characteristic breadth of judgment, observes that the
nature of this "compact" is to be determined not by a
search for "the articles only of compact at the first
beginning, which for the most part are either clean worn
out of knowledge, or else known unto very few, but whatso-
ever hath been after in free and voluntary manner con-
descended unto, whether by express consent, whereof positive
laws are witnesses, or else by silent allowance famously
notified through custom reaching beyond the memory of man. "
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? PART V. ]
523
CONCLUSION.
It is the whole body of the public laws of the community
which constitutes the terms of the contract. Althusius, like
the author of the 'Vindiciae,' maintains that the contract
between the "Chief Magistrate" and the community was a
part of the constitutional system in almost all modern king-
doms, whether elective or hereditary, and he relates it to the
form of the mutual oaths of kings and subjects; and, in still
more general terms, he declares that no kingdom, no common-
wealth was ever created without a mutual contract between the
prince and his future subjects, which was to be religiously
kept by both, and that if this were violated the authority
founded upon it would fall to the ground. 1
f >V 'sr. -
Finally, we must also recognise that in the political structure ;;
of the Middle Ages there was always implicit, and sometimes
expressed, the principle that the best form of government
was that in which all the members of the political community
had their share. St Thomas Aquinas said that in his judg- k
ment, in a good form of government it was in the first place
important that all should have some share in authority;
this tends to the peace of the community, for all men
will love and maintain such an order; and he found
this in a monarchy in which one should rule "secundum
virtutem," and under him others, also ruling "secundum
virtutem," and yet the authority would belong to all, for
they may be elected from all, and are elected by all. 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.
vol. i. p. 69. )
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? PABT V. ]
515
CONCLUSION.
emperor in such a sense that they retained nothing and could
reclaim nothing. This seems to have been the judgment of
some of the best-known Civilians of the twelfth and thirteenth
centuries, of Irnerius, Placentinus, and Eoger; but, on the
other hand, Azo, Hugolinus, and Odofridus maintained that
the Eoman people had indeed given their authority to the
emperor, but they could reclaim it. Hugolinus indeed describes
the emperor as a "procurator at hoc," and they and John
Bassianus were agreed that the custom of the Eoman people
still retained its legislative authority. 1 In the fourteenth
century the Civilians were aware of the controversy, and
inclined to the view that the custom of the Eoman people
still retained its authority; this seems doubtful in the
fifteenth century, but one Civilian, Christophorus Porcius,
stoutly maintained an opinion similar to that of Azo and
Hugolinus. 2
This is indeed interesting and important, but at the same
time, even to those Civilians who thought that the custom
of the Eoman people retained its authority in making and
unmaking law, and that it might reclaim its general legislative
authority, the emperor was normally the legislator.
This conception was wholly alien to the principles of the
Middle Ages, from Hincmar of Eheims in the ninth century
to Hooker in the sixteenth.
More important still was the question of the subordination
of the prince to the Law. What the real doctrine of tho Eoman
Jurists had been we do not pretend to determine, but Ulpian
had in one place said that the prince was "legibus solutus"
(' Dig. ' I. 3, 31), while Bracton said that the king was under
God and the Law. 3 The mediaeval Civilians were, it seems to
us, often gravely perplexed as to the real meaning of Ulpian's
words, for it was difficult to reconcile these with the words of
Theodosius and Valentinian, "Digna vox, &c. ," and they
were apparently contradicted by the rescripts of the same
1 Cf. vol. ii. pp. 60-66. 1 Bracton, 'De Legibus,' I. 8, 5.
* Cf. vol. vi. part i. chap. 2; part ii. (Cf. vol. iii. p. 67. )
chap. 2.
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? 516
[PABT V.
CONCLUSION.
emperor (' Cod. ' I. 19, 7) and of Anastasius (' Cod. ' I. 22, 6),
which commanded the magistrate to ignore any imperial
rescript or Pragmatic Sanction which was contrary to the Law
and the public service. In the fourteenth century, however,
while Bartolus uses such phrases as that it is "aequum et
dignum" that the prince should obey the Law, this is of
his own free will and not "de necessitate," Baldus speaks
of a supreme and absolute authority in the prince which is
not under the law, as contrasted with his ordinary authority,
which is subject to it; and as Jason de Mayno, writing in
the later fifteenth century, reports, Baldus had in another
place said that the Pope and the prince can do anything,
"supra ius et contra ius et extra ius. " 1
| It is true that some of the French Civilians of the sixteenth
[century, under the influence probably of Alciatus of Milan
and Bourges, and especially the great Cujas, felt that this was
a dangerous doctrine, and set out in various terms what seemed
to them the necessary correction of this interpretation of the
words that the prince was "legibus solutus. " We have
dealt with this in detail, and here we need only recall that
Cujas maintained that these words could only refer to those
laws upon which Ulpian was in this passage (' Dig. ' I. 3, 31)
commenting, and that the prince was not free from many
others, especially if they had sworn to observe them. What
the French Civilians thus contended was also maintained by
Zasius of Freiburg 2 and by Althusius. 3
I On the other hand, we can see that this doctrine that the
/king was above the law was held by some in the sixteenth
century. It was stated or implied in the words of the Presi-
dent of the Parliament of Paris in 1527, and of Michel
L'Hfipital; * it was asserted in somewhat ludicrous terms by
Bude in his 'Annotations on the Pandects. ' 5 This power
seems at times to be attributed by Bodin to the King of France,
in whom the Maiestas resides, while at other times he seems
to express a different view. 8 It is asserted dogmatically by
1 Of. vol. vi. pp. 19, 20, 149.
9 Cf. vol. vi. part iii, chap. 5.
1 Cf. vol. vi. p. 359.
? Cf. vol. vi. pp. 416, 417.
? Cf. vol. vi. pp. 293 96.
? Cf. vol. vi. p. 427.
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? PART V. ]
517
CONCLUSION.
Peter Gregory of Toulouse,1 and Barclay appeals rather
recklessly to the most eminent Civilians of the fourteenth and
fifteenth centuries as holding that the Pope and the prince,
when acting " ex certa scientia," can do anything, " supra ius
et contra ius et extra ius. " 2
We do not indeed suggest that the development of the *
conception that the prince was above the law was due
entirely to the influence of the Roman jurisprudence, but
we think that it is clear that it was related to it, and we
think that such phrases as those which we have just quoted
illustrate the growth of this influence, for these men were no
longer merely commenting upon and endeavouring to interpret
the " Corpus Juris Civilis " as the mediaeval Civilians had done,
but they were applying principles drawn from this to the actual
constitutional and legal conditions of the Western kingdoms.
The truth is that this was an innovation, and a somewhat
barbarous innovation, for the supremacy of the law over all
persons is perhaps almost the most essential characteristic
of a rational social order, and mediaeval political theory
had always maintained it. We have thus felt compelled to
recognise that the influence of Eoman Law, great and useful
as it was in other aspects of life, was in some respects mis-
chievous and retrograde. The feudal system had its grave
defects: it tended always towards the anarchy of the noble
class, that anarchy which Machiavelli spoke of in a passage
to which we have referred, in which he said that the very
existence of a noble class (" gentiluomini," meaning by these
a feudal territorial nobility) made a " vivere politico " almost
impossible. 3
It is perfectly true that the absolute monarchies of
the seventeenth and eighteenth centuries represented the
necessity of controlling this aristocratic anarchy, but that
can hardly justify before history the attempt to control it
by the anarchical autocracy of an absolute king.
>>
There was indeed another element in the political conceptions K
1 Cf. vol. vi. p. 443.
1 Cf. vol. vi. pp. 447, 448.
>> Cf. vol. vi. p. 250, note 8.
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? 518 CONCLUSION. [PABT v.
of the sixteenth century whose influence was parallel to that
of the Roman Law, as we have just been dealing with it;
that is, the conception of the king as being the vicar of God
in such a sense that he was above all human authority, that
resistance even to his unjust and illegal actions and com-
mands was resistance to God Himself. This conception, as
has been well pointed out by Professor A. Kern in his admir-
able work, 'Gottesgnaden und Widerstandsrecht im Mittel-
i alter,' had grown out of various elements in the earlier
Middle Ages, but in the political literature with which we
(have been concerned, it was derived almost wholly from some
of the Christian Fathers, and especially from St Gregory the
Great, who drew it from certain parte of the Old Testament
and the conception of the " Lord's Anointed. "
The authority of Gregory the Great was naturally so strong
that in the ninth century we find even Hincmar of Eheims
sometimes citing his words, and a Church Court threatening
those guilty of rebellion with excommunication. 1 In the
stormy times of the great conflict between Hildebrand and
Henry rV. we find not only Henry IV. but some of the clergy
maintaining that the king could be judged by God only,
and Wenrich of Trier and the author of the treatise 'De
Unitate Ecclesiae Conservanda' (Walther of Naumburg) appeal-
ing to the authority of Gregory the Great, and Gregory
of Catino maintaining that it was God only who could take
away the authority of the king. 2
* Practically, however, the conception of Gregory the Great
was overpowered by the principle that political authority
was founded upon justice and law, and the distinction between
the king and the tyrant. If Manegold and John of Salisbury
maintain this in the sharpest terms,3 it must be remembered
that it was St Thomas Aquinas himself, as we have seen,
who declared that while sedition was a mortal sin, resistance
to the unjust rule of a tyrant was not sedition. * These
are the principles of the political literature of the fourteenth
1 Cf. vol. i. pp. 217-18.
1 Cf. vol. iii. part ii. chap. 4.
>> Cf. vol. iii. part ii. chaps. 8 and 6.
? Cf. vol. v. p. 92.
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? . PART V. ]
519
CONCLUSION.
and fifteenth centuries. Only very rarely, as in Wycliffe, in the
proceedings of the Cortes of Olmedo in 1445, and in a treatise
of JSneas Sylvius (afterwards Pope Pius II. ) do we find this
appeal to the authority of God as forbidding all resistance to
the king, for he was the vicar of God. 1
It was not till the sixteenth century that this conception
had any real importance in political thought, and we have
treated it in some detail in this volume, first in Luther and
Tyndale in the earlier part of the century,2 and again in
some later writers, especially Bilson, James I. , Peter Gregory
of Toulouse, and Barclay. 3 Luther, however, after 1530
abandoned this view, and admitted that it was the law and
not the king which was supreme,4 and the other writers who
maintained this conception of the "Divine Eight" were
unimportant, and their authority cannot be measured against
that of Calvin and Hooker among the Protestants, or of the
great Jesuits among the Catholics. How a manifestly fantastic!
conception such as this should have come to have some import-'
ance in the seventeenth century, it is not for us to say; perhaps
the dreadful experience of the French Civil Wars, and the
incompetent absurdities of the Fronde in France, and the
dependence of the Anglican Church upon the Crown may
serve to explain it in part.
We are clear that, as in the conception of the prince
and his absolute authority, which was derived by some
Civilians from the Eoman Law, we have here a merely
intrusive conception, which was wholly alien to the rational
and intelligible political tradition of the Middle Ages, that
the law was supreme and not the prince.
We turn back to a saner world than that of the absolute A,
prince of some interpreters of the Eoman Law, and of those
who upheld the "Divine Eight," and, curiously enough, we
find it in the terms of a conception which has sometimes
1 Cf. vol. vi. p. 54, and part ii.
chap. 4.
* Cf. vol. vi. part iii. chap. 4.
? Cf. vol. vi. part iv. ohap. 3 (pp.
430-SO).
? Cf. vol. vi. pp. 280-86.
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? 520
[PABT V.
CONCLUSION.
been thought merely antiquarian and even irrational, that
is, in the principle of the contractual relation between the
ruler and the ruled.
t\ Whatever we may think of it, this was, next to the prin-
jciple of the supremacy of law, perhaps the most important
Sof all the political conceptions of the Middle Ages. We need
hardly again point out that we do not mean that unhistorical
and unscientific conception of a contract by which men had
formed themselves into political societies. It may be said
that this was implied in the Stoic theory of the conventional
nature of political institutions, but it had no real place in
mediaeval thought, though there may be occasional traces
of it. It was not till the seventeenth and eighteenth cen-
turies that it became the fashionable, if only hypothetical,
starting-point of political theory.
J The principle of the contract between the ruler and the
ruled was, on the other hand, the general assumption of all
mediaeval political theory, and it was upon this that there
were built up the principles of the nature and limitations of
the authority of the prince.
<< This conception indeed, so far from being merely abstract,
was founded upon certain conditions of political authority
which found a definite expression in the coronation cere-
- monies of Western Europe at least from the eighth century--
that is, in the mutual oaths of the prince and the people.
It is indeed a little strange that some writers should not have
observed that in the ninth century these principles of mutual
obligation were not only a part of the "recognition" of the
prince, but that continual appeal was made to them as deter-
mining the nature of the relations of prince and people. 1
For in these mutual oaths the prince swore to maintain not
only abstract justice, but the concrete law, and the people
swore to obey the prince. This was indeed an intelligible
and practical conception of the relations of ruler and ruled;
indeed it was only another form of the principle that the law
was supreme. The contractual conception then goes back to
the earlier Middle Ages, but it continued to find expression
1 C/. vol. i. chap. 20.
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? PAM V. ]
521
CONCLUSION.
throughout them in the importance attached to the coronation
oaths.
There can, however, be no doubt that this was immensely |
strengthened by the development of the feudal system. For, I
as we have endeavoured to make plain in the third volume
of this work--while there are elements in the feudal relation,
especially as set out in the poetical literature, of a purely
personal nature, implying an almost complete and uncon-
ditional loyalty of the vassal to his lord--when we examine
the juridical literature of feudalism, it is the contractual
conception of the mutual obligations of lord and vassal which
we find to be dominant. Even that well-known passage in
the letters of Fulbert of Chartres which sets out the obliga-
tions of the vassal in comprehensive terms, concludes by
saying that the lord must also fulfil the same obligations to
his vassal. And the structure of feudal society provided
the methods by which this should be enforced, for in case
of a dispute between the lord and vassal, the determination
belonged to the Court which was composed of all the vassals
and not to the lord. 1
The conception of the contractual relation between thex
prince and the community may be expressed in sharper terms
by Manegold than by others, but in substance he represents
the normal mode of mediaival political thought, that the
prince is bound to the community by his obligation to
obey the law, and that the tyrant--that is, as John of
Salisbury especially puts it, the prince who ignores or
defies the law--has forfeited all claim to authority. 4
When therefore Marsilius of Padua laid special stress upon *
the principle that it was the community which was the source
of all positive law, that it was from the community that the
ruler (pars principans) received his authority, and that the
community which had given this authority could also with-
draw it, if he violated the law, he was implicitly asserting
the doctrine of the contract. 3
There is therefore nothing to surprise us when we find
1 Cf. vol. iii. part i. chaps. 1, 2, 3. 4. and 6.
'Cf. esp. vol. iii. part ii. chaps. 5 * Vol. vi. pp. 8 ff. , 40 ff;
i
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? 522
[PABT V.
CONCLUSION.
that in the later sixteenth century the principle of a contract
between the prince and the community, as expressing the
condition on which authority was granted to him, should be
reaffirmed not only by controversialists, but by the most
i careful and restrained political thinkers.
It is particularly interesting to find that in the ' Apologie'
of William of Orange the conception of the contract is stated
under the terms of the conditions on which Philip II. held
his power in the Netherlands; the oath which he took before
they swore obedience to him, and the right of his vassals to
enforce these conditions upon him, under the terms of feudal
law. George Buchanan asserts roundly against Maitland,
who urged that subjects are bound by their oath of obedience
to the king, that kings are bound by their promise to administer
the law, and that there is therefore a "mutual contract"
between the king and the citizens. The ' Droit des Magistrats'
maintains that the people had only surrendered their liberty
to the king on certain conditions, and that, if these were
violated, they had the right to withdraw the authority which
they had granted. The 'Vindiciae Contra Tyrannos' sets
out the principle of a "fcedus" between king and people.
It was the people who created the king on the condition
that he should rule justly and according to the law, and the
people and those who are responsible for their protection
have the right to enforce this; and it maintains that a
"pactum" of this kind was part of the constitution, not
only of the empire and other elective monarchies, but also
of the great hereditary monarchies like France, Spain, and
England, and was embodied in the coronation oaths. Hooker,
with characteristic breadth of judgment, observes that the
nature of this "compact" is to be determined not by a
search for "the articles only of compact at the first
beginning, which for the most part are either clean worn
out of knowledge, or else known unto very few, but whatso-
ever hath been after in free and voluntary manner con-
descended unto, whether by express consent, whereof positive
laws are witnesses, or else by silent allowance famously
notified through custom reaching beyond the memory of man. "
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? PART V. ]
523
CONCLUSION.
It is the whole body of the public laws of the community
which constitutes the terms of the contract. Althusius, like
the author of the 'Vindiciae,' maintains that the contract
between the "Chief Magistrate" and the community was a
part of the constitutional system in almost all modern king-
doms, whether elective or hereditary, and he relates it to the
form of the mutual oaths of kings and subjects; and, in still
more general terms, he declares that no kingdom, no common-
wealth was ever created without a mutual contract between the
prince and his future subjects, which was to be religiously
kept by both, and that if this were violated the authority
founded upon it would fall to the ground. 1
f >V 'sr. -
Finally, we must also recognise that in the political structure ;;
of the Middle Ages there was always implicit, and sometimes
expressed, the principle that the best form of government
was that in which all the members of the political community
had their share. St Thomas Aquinas said that in his judg- k
ment, in a good form of government it was in the first place
important that all should have some share in authority;
this tends to the peace of the community, for all men
will love and maintain such an order; and he found
this in a monarchy in which one should rule "secundum
virtutem," and under him others, also ruling "secundum
virtutem," and yet the authority would belong to all, for
they may be elected from all, and are elected by all. 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.
