No More Learning

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? ERRATA.
Page 4. For " 1310 " read " 1311. "
? 39. For " Babenburg " read " Bebenburg. "
? 161. For " viaegio " read " viagio. "
? 169. Lines 8-10, omit marks of quotation and read "such"
for " some. "
188. Line 7 from bottom, omit " it. "
? 210. Line 12 from bottom, omit " could. "
? 225, note 1. Omit " Super," read " Sopra. "
? 284, note 2. In reference, read "note 1. "
? 297, note 1. Omit comma after "credidit. "
? 430. Line 15 from bottom, omit marks of quotation after
"him. "
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? PART I.
FOURTEENTH CENTURY.
INTEODUCTIOK
We have seen in earlier volumes that the political principles
of the Middle Ages were clear and intelligible, and thaty
though the forms of the organisations in which they expressed
themselves were in many respects different from those of the
present day, the principles themselves were really not very far
removed from our own. The confusion about this which is still
to be found in the minds of some people is simply a confused
ignorance. The medieval world was a rational world; indeed,
as has sometimes been suggested, its defect was that it was
somewhat too rational. The great schoolmen, especially,
appear to us sometimes to have too great a confidence in the
power of the human reason to analyse the complexity of
human life. However this may be, the political thinkers of
the twelfth and thirteenth centuries are to us intelligible and
rational.
It is very different when we come to some of the political
ideas of the seventeenth century; it is difficult to say which
seems to us most irrational: the absurdity of the theory
of the divine right of the monarch, or the absurdity of
the theory cf the absolute sovereignty of the State as
represented l'y Hobbes. It is no doubt true that we can
recognise belind both these absurdities some historical con-
ditions whicli serve to explain their appearance, but they do
VOL. VI. A
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? 2
INTRODUCTION.
not justify them. To us these conceptions seem, and indeed
they are, irrational and mischievous. The conception of the
divine right of the monarch has happily, even if only in our
days, disappeared, and the theory of the absolute sovereignty
of the State only lingers on among politically uneducated
people or societies.
Our task, then, in this volume, is clear; we have to con-
sider, first, the continuity of' political civilisation, and,
secondly, the conditions or circumstances under which this
continuity was in part interrupted by the reappearance of
that confused orientalism of Gregory the Great, the theory of
the divine right of the monarch, and by the appearance of
the conception of the absolute power of the prince, in the
State.
i
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? 3
CHAPTER I.
THE SOURCE AND AUTHORITY OF LAW: CONSTITU-
TIONAL PRACTICE AND GENERAL THEORY.
We have seen that the most important political conception
of the Middle Ages was the conception of the supremacy of
law, the law which was the expression, not merely of the will
of the ruler, but of the life of the community; and this life,
which expressed itself in the customs, and therefore the law
of the community, was conceived of as itself the expression
of moral principles. The law was supreme, because it was the
expression of justice; the unjust law was not law at all.
This conception can, as we have shown, be traced through
all mediaeval literature from the ninth century to the thirteenth.
It is sometimes expressed in the technical terms of the deriva-
tion of Jus from Justitia, or of the subordination of all positive
lawtqjthe natural law, sometimesTn the more popular terms
of the distinction between the king and the tyrant.
It is then these profound conceptions of the real nature of
political authority which the Middle Ages handed down to
the modern world, and our first task is to consider how far
these conceptions may have been modified in the period with
which we are now dealing. We begin, therefore, with the
consideration of the conception of the immediate source of
the authority of the positive law of a political community.
As we have, in former volumes, endeavoured to show, there
was from the twelfth century at least a divergence between
what we have called the normal conceptions and practice of
mediaeval society, and the theory of some at least of the
students and teachers of the Eoman law, and we shall have
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? 4
[PABT I.
FOURTEENTH CENTURY.
to consider this divergence carefully in the period with which
we are now dealing, and shall have to ask how far the absolutist
theory of some of the great civilians may have modified the
traditional political principles of mediaeval society.
We begin with some observations on the actual methods of
legislation in the fourteenth century.
There is a noteworthy phrase in the coronation oath of
Edward II. and Edward III. of England, which will serve to
express the constitutional procedure and theory of the time.
They swear to hold and maintain, not only the laws and cus-
toms granted by former kings, but also the laws and lawful
customs which the community shall have chosen. 1 The words
express both the place of custom in the system of mediaeval
law, and also the recognition of the principle that laws derive
their authority, not only from the consent of the king but
from the determination of the community. The words in
which the ordinances of 1310 were annulled in 1322 only
add to this the statement of the method in which the deter-
mination of the king, the barons, and the whole community
was to be expressed? all those matters which are to be estab-
lished for the kingdom and people are to be discussed, agreed
upon, and established in Parliament by the king, with the
assent of the prelates, counts, barons, and the community
of the kingdom, as had heretofore been the custom. 2
It is interesting to observe the parallel between these
conceptions and those of the Cortes of Castile at Burgos in 1379,
and at Bribiesca in 1387. At Burgos the Cortes complained
that certain persons produced "Cartas" (briefs) annulling
ordinances made by the king in the Cortes, and petitioned
1 Rymer, 'Fcedera,' vol. iii. p. 63:
'' Sire, graunte vous a tenir et garder
les Loys et les custumes droitureles,
les quiels la Communaute de votro
Roiaumo aura esleu, et les defendroz
et afforterez, al honur de Dieu, a
vostre poer. Jeo les graunte et pro-
mette. " Cf. Id. id. , vol. iv. p. 24*.
* 'The Statutes of the Realm,' vol. i.
p. 189: "Mes les ehoses q. s'rount a
establir . . . pour lestat du roialme
et du peuple, soient tretes, accordeee,
establios, eu parlementz, par notre
Seigneur le Roi, et par l'assent des
Prelatz, Countes et Barouns, et la
communalte du roialme; auxint come
ad este accustume cea enarere. "
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? CHAP. I. ]
5
THE LAW: PRACTICE AND THEORY.
the king that nothing done in the Cortes should, be undone
except by the Cortes. The king, Juan I. , seems in his reply to
be a little evasive and to reserve to himself some freedom of
action1 (of suspending or dispensing).
At Bribiesca, however, Juan I. laid down in the most
explicit terms that royal briefs (Cartas), which were contrary to
custom or law, were not to be regarded, that the royal officials
were not to seal any briefs which contained " non obstante"
clauses, and that laws, customs and ordinances were not to be
annulled except by ordinances made in the Cortes. 2
These are statements of constitutional practice, and when
we consider the actual methods or forms of legislation we find
that there was no other method of legislation in Castile than
that of the king acting with the advice, in earlier times, of his
prelates, nobles and magnates, and as the representative
syBtem developed, of the prelates, nobles and delegates of the
1 'Cortes of Castile,' vol. ii. 22, 37
(1379): "Otrosy nos pedieron por
merced que por algunos omes de
nuestros sennorios ganan cartas para
dsate los ordinamientos que nos
fetimos enlas Cortes e ayuntamientos
por servicio de Dios et nuestro: e que
mandasemos, quelas tales cartas que
sean obdedecidas e non cunplydas, e lo
que es fecho por Cortes o por ayunta-
mientos que non se puede des fazer
por los tales cartas, saluo por Cortes.
A esto respondemos que nos auemos
ordenado quelas cartas que fueren
ganadas contra derecho que sean
obedecidas e non cunplydas fasta que
nos seamos rrequerido dello; pero en
rrazon de desatar los ordenamientos o
delos dexar en su estado nos taremos
en ello lo que entendieremos que
cunple a nuestro servicio. "
? 'Cortes of Castile,' ii. 28, Tercero
Tractado, 9 (1387): "Et por que
nuestra voluntad es queia justicia
florezca, e las cosas que contra ella
podiessen venir non ayan poder dela
contrariar, establescemos que si en
nuestras cartas mandaremos alguna
oausa que sea contra ley fuero o derecho,
quela tal carta ssea obedescida e non
conplida, non enbargante que enla
dicha carta faga mencion especial o
general dela ley fuero o ordenamiento
contra quien se de: nin embargante
otrosy que faga mencion especial desta
ley nuestra nin delas clausulas derroga-
torias enella contenidas; ca nuestra
voluntad es quelas tales cartas non
ayan efecto.
Et otrossy que les fueros ualedores e
leyes e ordinamientos que non fueron
rrevocatos por otras, non sean periu-
dicados synon por ordinamientos fechos
en Cortes, maguer que enlas cartas
ouiose las majores firmezas que pudi-
esen ser puestas.
E todo lo que en contrario desta
ley se fezidse, nos lo damos por ninguno,
et mandamos aloe de nuestro conseio e
alos nuestros oydores e otros oficiales
? ? quales quier, so pena de perder los
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? 6
[PABT I.
FOURTEENTH CENTURY.
cities. There is really no trace of any other system in Castile
or England, and it is a curious misconoeption which has led
some serious historical writers to speak as though the legis-
lative authority in Castile belonged to the king alone. This
has arisen partly from a hasty interpretation of the phrases
which describe the law as the king's law, and such phrases
as those used by Alfonso XI. of Castile in issuing a new law-
book at the Cortes of Alcala? de Henares in 1348: "Et por
que al Eey pertenesce el poder de fazer fueros e leyes e delas
entrepretar e declarar e emendar. " 1 We have pointed out
in the last volume that the similar phrase used by Alfonso X.
in the 'Especulo ' cannot be taken to mean that he claimed an
absolute or sole right to make or unmake law, but only that
no law could be made without him, and that it was his part to
promulgate or declare the law. 2 And it must be observed that
in issuing the new law book at Alcala? , Alfonso XI. was acting
with the counsel of the prelates and nobles and the good men
of the cities,3 and that it was in this same Cortes that the
great law book of Alfonso X. , the 'Siete Partidas,' was first
formally recognised as having legal authority, for it had not
hitherto been promulgated by the king or received as law. *
With regard to France it is more difficult to speak precisely;
while, as we shall see in a later chapter, there is frequent men-
tion of the States general, and of the Provincial Estates, the
former at least did not meet so regularly as Parliament in
England, or the Cortes in Castile, and it is more difficult,
? 'Cortes of Castile,' i. 52, 64.
? Cf. vol. v. pp. 56-88.
>> 'Cortes of Castile,' i. 52: "Por
ende nos Don Alfonso . . . con conseio
delos perlados e rricos e caualleros, e
ommes buenos que son connusco en
estos Cortes quo mandamos fazer en
Alcala de Henares . . . fazemos e
establescemos estas leyes que se
siguen. "
4 Id. id.
, 52, 64: "E los pleitos e
contiendas que se non podieren librar
por las leyes dee te libro e por loe dichos
fueros, mandamos que so libren per las
leyes contenidas enlos libros delas
Siete Partidas que el Rey Don Alfonso
nuestro visauelo? mando ordenar, commo
quier que fasta aqui non se fabla que
fuesen publicadas por mandado del
Rey, nin fueron auidas, nin rescibidas
por leyes; pero nos mandamos los
rrequerir e concentar e emendar en
algunas cosas que cunplia. Et asy
concertadas e emendadas porque fueron
sacadas e tomadas delos dichos
sanctos Padres e delos derechos e dichos
de muchos sabios antiquos, e de fueros
e de costumbres antigos, de Espanns,
damos las por neustras leyes. "
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? CHAP. L] THE LAW: PRACTICE AND THEORY. 7
therefore, to make precise statements about the methods of
legislation; but it seems, from examining the collection of
Eoyal Ordinances, that, so far as these can be described as
having the nature of law, they were promulgated under the
same terms as those of the thirteenth century, by the great
council, sometimes with reference to the barons and others,
sometimes with the advice of the estates. 1
The formulas of legislation in the Empire are more explicit,
and seem to imply normally the presence of the members
of the Diet. 2
We can now turn to the general theory of the legislative
authority in the fourteenth century. It seems hardly
necessary to cite the opinions of the English writers, for it is
obvious that they adhere to, and indeed frequently simply
repeat, the opinions of Bracton.
Britton represents the king as issuing a law book, and as
commanding that it was to be obeyed in England and Ireland,
but reserves the right to repeal or annul these laws with the
consent of the barons and counts and the other members of
his council. 3 Fleta restates almost literally the judgments of
Bracton. The king has indeed no equal, but it is the law which
has made him king, and it is therefore right that he should
recognise the authority of the law. * The king can do nothing
except that which he can do lawfully, and the saying that the
prince's pleasure has the force of law must be understood
under the terms of the statement that it was from the "lex
regia" that he derived his authority, and that, therefore, it
is to be understood that that only is law which has been made
after due deliberation by the ad-vice of the " magnates " and
''Recueil des anciennes Lois Fran-
chise* '--eg. , vol. iii. p. 31S: vol. V.
PP-J, 156.
'Cf. Introduction to the Golden
Bull of 1356. Senckenburg and
Schmaus, 'Neue Sammlung der Reich-
? beehiede,' vol. i. p. 46.
1 Britton, i. Prologue: "Edouard
pu la gracei Deu Roi de Engleterre.
. . . Et volums et commandums qe par
tut Engleterre et tut Hyrelaunde soient
issi usez et tenus en tous poyntz, sauve
a nous de repeler les et de enyter
et de amenuser et de amonder a totes
les foiz, qe nous verums qe bon serra,
par le assent de nos Countes et
Bexouns et autres de noster conseyl. "
4 Fleta, i. 5, 4.
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? 8
[PABT I.
FOURTEENTH CENTURY.
the authority of the king. The king must restrain his
authority by the law which is the bridle of power, and must
live according to law, for it is the principle of human law
that laws bind the legislator. 1 This was evidently the normal
opinion of English lawyers, and there is therefore nothing
surprising in the terms used by that curious work, the
'Mirror of Justices. ' The worst of all abuses is that the
king should be against the law, for he ought to be subject
to it, as is expressed in his coronation oath. It is a grave
abuse that ordinances should be made by the king and
his clerks and others who would not venture to oppose the
king, while laws ought to be made by the common consent of
the king and his counts. 2
It is, then, from this standpoint that we can understand
the real significance of the treatment of the source of authority
of law by Marsilius of Padua in the 'Defensor Pacis. 3 He
1 Fleta, i. 17, 7: "Nec obstat, quod
dicitur, quod principi placet legia
habet poteetatem, quia sequitur, cum
lege regia quae de ejus imperio lata est,
quod est, non quicquid de voluntate
regis, tantopere praesumptum est,
sed quod magnatum suorum consilio.
Rege auctoritatem praeetaute, et
habita e? uper hoc deliberatione et trac,
tatu, recte fuorit definitum. . . . 11.
Temperent igitur reges potentiam euam
per legem quae fraenum est potentiae,
quod secundum leges vivant ; quia hoc
sanxit lex humana, quod leges suam
ligent latorem; et alibi, digna vox
majestate regnantis est, legibus alli
gatum se principem profited. "
* 'Mirror of Justices,' V. 1. : "La
preme`re e la so ver ai n abusion est qe li
Roi est contre la loi, car il doist e^stre
subject, sicom est contenu en son sere-
ment, 2. Abusion est qe ou les parle-
menta se duissent fere sur les sauvacions
des aimes des trespassoeurs e ceo a`
Londres e a`s deux fois per an, la ne se
font il ore forque rarement e a` la
volontie le roi sur eides e cueillettes
de tresor. Et ou les ordenaunces se
duissent fere de com un assent del roi
e de ses countee, la ce funt ore par le
roi e ses clers e par aliens e autres qi
noseut contreriner le Roi, einz desirent
del plere e de li conseiller as son promt,
tut ne soit mie lur conseil covenable al
com un del people, sanz appeler les
countes e saunz suire les riules de
droit, e donc plusours ordenaunces se
fondent ore plus sur la voluntie qe
sur droit. "
For a critical discussion of the date
and authorship of this work, of. the
edition of Whitaker and Maitland,
published by the Sel den Society in
1695.
* We desire to express the gratitude,
which all students of Medieval Litera-
ture must feel, to Mr Previte-Orton of
St John's College, Cambridge, and to
Professor R. Scholz of Halle, that we
have now in their editions of 1928 and
? ? 1932 a masterly criticism of the text
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? CHAP, t]
9
THE LAW: PRACTICE AND THEORY.
is not, as appears to be thought by some writers who are not
very well acquainted with mediaeval political literature, setting
out some new and revolutionary democratic doctrine, but is
rather expressing, even if in rather drastic and unqualified
terms, the normal judgment and practice of the Middle Ages:
he represents not the beginning of some modern and revolu-
tionary doctrine, but the assertion of traditional principles.
It is, however, true and not unimportant that the author
derives his doctrines from various sources, that he combines
the principles of the actual practice of the Middle Ages with
conceptions derived, on the one side, from Aristotle, and
on the other, to some extent from the Civilians.
He lays down, for instance, the principle that there is no
"politia" when the law is not supreme, and he cites in sup-
port of this some words of Aristotle1; but this doctrine
had been implied in the Assizes of Jerusalem, and asserted by
Bracton. 2 Again, he sets out with great emphasis the principle
that the source of law is the "populus" or "unrversitas
emum " or its " valencior pars," and not either one man or a
few men, for either the one or the few might make bad laws
directed to their own advantage rather than to the common
good. 3 Marsuius refers to Aristotle as having laid down this
occur. We must refer the reader to
the admirable introductions to these
editions for a full discussion of the most
interesting textual questions, as well
as for those relating to the authorship
of this work.
1 Harsilius, 'Defensor Pacis,' i. 11
(*)-
1 'Assizes of Jerusalem,' Assises
de la Cour dee Bourgeois, 26: Bracton,
'De Legibus,' i. 8, 5. Cf. vol. iii.
pp. 32, 67.
>> Marsilius of Padua, 'Defensor
Pacis,' i. 12, 3: "Nos autem dicamus
secundum veritatem atque consilium
Aristotelia 3? Politico Cap. 6? , legia
latorem seu causam legis effectivam
primam et propriam esse populum
seu civium universitatem, aut ei us
valenciorem partem, per suam elec-
cionem seu voluntatem in generali
civium congrogacione per sermonem
expressam, precipientem seu deter-
minantem aliquid fieri vel omitti circa
civiles actus humanos, sub poena vel
supplicio temporali; valenciorem in-
quam partem, considerata quantitate
personarum et qualitate m com-
muuitate ilia super quam lex fertur;
sive id fecerit universitas predicta
civium aut ejus pars valencior per se
ipsam immediate, sive id alicui vel
aliquibus commiserit faciendum, qui
legislator simpliciter non sunt, nec
esse possunt, sed solum ad aliquid et
quandoque ac secundum primi legis -
latoris auctoritatem. " Id. , i. 12, 8:
"Aut legum lacionis auctoritas ad
solam civium universitatem pertinet,
ut diximus, vel ad hominem unicum
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? 10
[PAHT I.
FOURTEENTH CENTURY.
doctrine that the universitas is the source of law, but the
principle had been suggested by some of the earliest Civilians.
We have drawn attention in the second volume to the words
of works attributed to Irnerius and Bulgarus, that it is the
"populus" or "universitas" which is the ultimate source
of law,1 and it is evident that they had learned this from the
Eoman law books. It seems reasonable to say that Marsilius
is restating the doctrine of the ancient Eoman law and of the
media)val Civilians.
But further, as we have seen, there is scarcely any trace
whatever, either in the constitutional systems or in the
writers on political theory of the Middle Ages, except in the
mediawal Civilians,. of the conception that law could be made
by any one person, even by the prince, except with the advice
and consent of the community as a whole, or those who stood
for it, whether they were the great and wise men, or the elected
representatives of the community. Bgidius Colonna stands
practically alone in suggesting that the king should rule
according to his own will and the laws which he had made,
and not according to the laws which the citizens had made. 2
So far, then, Marsilius was simply expressing in clear terms
the normal conception of the Middle Ages, but there are some
aspects of his statement which deserve further notice, and
especially the emphatic phrase which he uses about the
nut pauciores. Non ad solum unum,
propterea quae dicta sunt in 11" hujus
et in prima demonstracione quam in
hoc addun'mus; posset enim propter
ignoranciam vel malitiam, aut utrum-
que legem pravam ferre, inspiciendo
scilicet magis proprium conferens quam
commune, unde tyrampnica foret.
Propter candem vero causam non
pertinet hoc ad pauciores: possent
onim peccare in ferendo legem, ut
prius, ad quorundam, scilicet pau-
corum, et non commune conferens,
quaomadmodum videre est in olig-
archiis. Pertinet hoc igitur ad civium
univereitatem aut ejus partem valen-
ciorem, de quibus est altera et
opposita ratio. "
1 Imerius, 'De Aquitate,' 2: "Uni-
versitas id est populus, hoo habet
officium singulis scilicet hominibas
quasi membris providere. Huic de-
scendit hoo ut legem condat. "
Bulgarus, 'Comm. on Digest,' 50,
17, 176: "Vigor judiciarius ideoest in
medio constitutus ne singuli jus sibi
dioant. Non enim oompetit singulis
quod permissum est tantum univer-
sitati, vel ei qui obtinet vicem universi-
tatis, id est populi, qualis est magis-
trate. "
Of. vol. ii. p. 57.
>> Cf. vol. v. p. 74.
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? CHAP. I. ]
11
THE LAW: PRACTICE AND THEORY.
"valencior pars" of the populus. It will be observed that
he explains these words when he adds, "Valenciorem inquam
partem, considerata quantitate personarum et qualitate'in
eommunitate ilia super quam lex fertur," for there seems to be
no doubt that this is the correct reading. It seems clear that
he does not mean simply the greater number. The history,
however, of the development of the theory of the majority
in the political and ecclesiastical organisations of the Middle
Ages is one of great complexity, and we do not feel that we
are competent to discuss this subject. 1
It should also be observed that Marsilius sets out a very
important defence of the authority of the whole people in
making law. Men, he says, are more ready to maintain a law
which they have imposed upon themselves, and it is therefore
well that whatever may concern the common convenience
Bhould be known and heard by all2; and, while he admits
that the legislative power should not be entrusted to a base
and incompetent authority, he meets the contention that
the " universitas civium " is a body of this kind with a fiat
denial. For, he declares, the great mass of the citizens (civium
pluralitas) are not normally or generally base or incompetent,
rather they arejill^ or for the most part,, of sound mind and
reason, and have a right intention towards the Common-
1 We desire to draw the attention of
those who wish to study this subject
to the very careful and interesting
monographs written by Dr E. Ruffini
Avondo: "H principio Maggiori-
tario nelle eleuoni dei re e imperatori
Romano-Germanici" in "Atti della
reals Academia delle Scienze di Torino,'
vol. 60 (1924-25). "I\ principio mag-
gioritario nella storia del Diritto
Canomco" in 'Archivio Giuridico,'
vol. 93, faac. I. (Quarta Serie, vol. ix.
faac. 1). "I systemi di deliberations
eollettiva nel Medioevo Italiano" in
Collezione di Ope re Giuri-
dkbe,' n. 243. Torino, Fratelli Bocca,
1927. "D Defensor Pacts di Harsilio
di Padova," in 'Rivista Storica Itali-
aca,' faac. H. , 1924. "11 Prineipio
Maggioritario," ? Profilo Storico,'
Torino, Fratelli Bocca, 1927 (an ex-
cellent summary).
* Marsilius, 'Defensor Pacis,' i. 12, 6:
"Socundam propositionem probo:
quoniam lex ilia melius observatur a
quocunque civium, quam sibi quilibet
imposuisse videtur; talis est lex lata
ex auditu et precepto universe mul-
tudinis civium . . . (i, 12, 7). Con-
venerunt enim homines ad civilem com-
municationem propter commodum et
vite sufficienciam consequendam, et
opposita doclinandum. Que igitur
omnium possunt tangere commodum
et incommodum, ab omnibus sciri
debent et sndiri, ut commodum assequi
et oppositum repellere possint. "
? ? Generated for (University of Chicago) on 2014-12-19 10:33 GMT / http://hdl. handle. net/2027/mdp. 39015002404211 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 12
[PART I.
FOURTEENTH CENTURY.
wealth and what is necessary for its maintenance. And,
therefore, although every individual, or the greater multitude,
is not capable of devising new laws, yet everyone oan judge
and determine as to that which is devised and proposed to him
by others. 1
It seems to us, then, to be clear that the constitutional pro-
cedure and the general political theory of the fourteenth
century represent the same principles as to the source and
supremacy of the law which, as we have seen in former
volumes, were characteristic of the Middle Ages. The law of
the State is the expression of the custom and will of the whole
community, and it is supreme over all members of the com-
munity, even over the king and prince. We shall, however, have
more to say about this in later chapters, when we deal directly
with the conception of the nature and limitation of the
authority of the prince in the fourteenth century.
1 Id. id. , i. 13, 3: "Cum ergo
primum dicebatur, 'ad pravum et in
pluribus indiscretum, non pertinot
legumlacionis auctoritas,' conceditur.