If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
Thomas Carlyle
?
ordinary as well as an ordinary author-
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY.
453
It is true that in another place he seems to admit that he
might concede that the prince could not, even in his "pleni-
tudo potestatis," take away his subjects' property without just
cause; but he seems to mean that this was not of much im-
portance, for the absolute prince himself determines what is a
just cause. 1
He was indeed aware that it had been argued that no
people could be found so senseless as to confer such an absolute
authority upon the prince; but this contention was, he says,
false, and he appeals to Aristotle, and also to Bodin, who had
shown that such absolute kingdoms existed even to-day in
Asia, Africa, and Europe, and he refers to that learned prince
(meaning presumably James I. ) who had maintained that
the Hebrew monarchy had been of this kind. 2
Albericus admits, however, like Bodin and the Civilians,
that all princes were subject to the Divine Law, the Law of
Nature, and the Law of Nations, and, like Bodin and many
Civilians, that he was bound by his contracts. 3
In the third of these ' Eegales Disputationes,' " De Vi Civium
in Eegem semper iniusta," he does not add much of import-
ance; he condemns all violence offered to the prince by his
subjects; but he again makes the important reservation that
1 Id. id. id. (p. 27): "Etiam illud Bodinum peritissimum, qui hodieque
dare possum aliis et doctori mi Thobio dominatus in Asia, Africa, Europa
Nonio, Principem nec de plenitudine ostondit, sicut dominorum in servos,
potestatis posse privare subditos dom- Doctus Princops contendit, et talem
inio rerum suarum, sine iusta causa, fuisse regem Ebraeorum, de quo
quiquid de aliis doctori bus an tea audit scilicet ilia, 'Haeo est ratio
posui. Sed sio dicimus, de hao tamen ipsa regis, qui regnabit supra vos:
causarum institia censere, id esse Filios vestros accipiet, Ac. ,' in primo
arbitrii Principis absoluti. In quo sit Samuelis. "
differentia cum Principe alteri, cui * Id. id. id. (p. 17): "Princeps,
arbitrii non est, iudicare de causis, in quit Baldus, supra ius, scilicet
at ex legibus iudicare habet. " civile, infra ius, scilicet naturale et
* Id. id. id (p. 18): "Profertur gentium. Non supra divinum ius, ut
tertium (argumentum), quod non re- idem scribit hie, et Bartolus et Angelus.
periatur usquam populum adeo amens, Ligatur Princeps et lege contractus,
qui tantam umquam dotulerit prin- ut hie idem et Jason. "
eipi potestatem. Imo populus posuerit (p. 30): "Tertius casus in actu, qui
aliquas principilus leges, quem ultra eis fit inter principem et privatum, ut in
progredi non liceret. Quod itidem est contrrotu, ut Princeps solutus non est
argumentum falsum, ut contra osten- hisce legibus. "
sum de Aristotele est. Cui adde
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? 454
[PABT IV.
THE LATER SIXTEENTH CENTURY.
this does not apply to the cases when the prince was subject to
a judge or a guardian, as was alleged to be the case in France
and the Netherlands. 1 It is worth noticing that Albericus
was aware of the arguments which had been drawn from the
feudal laws in favour of the right to resistance, but he repudi-
ated this on the ground that the nature of feudal authority
was wholly different from that of a king: it was of the nature
of a contract. 2
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone. 3
Albericus does not add much to the general theory of the
absolute monarchy and its Divine authority, but he is oi some
interest as asserting that whatever might be the case in other
countries, the English monarchy possessed in its Prerogative
an extraordinary authority subject to no laws or limitations
except those of the Divine and natural law, and of contract.
The other work of this same time is that of James Co well,
Professor of Civil Law in Cambridge, 'The Interpreter,'
published in 1607.
He had indeed in an earlier work, 'Institutiones Juris
Anglicani,' published in 1605, set out constitutional concep-
tions similar to those of St Germans and Sir Thomas Smith.
He distinguished in this work two elements in the laws of
1 Id. id. , III. , "De Vi Civium in
Regom" (p. 99): "Vim omnem
civium iniustum semper in Principem
esse defendimus (this does not apply
to a prince like the Doge of Venice,
who should rather be called a magis-
trate). Sed neque de illo Principe
lociuimur, qui iudicem aliquem ha bet,
nut custodem. Quemadmodum sub
oustode faciunt quidam Regem Galli-
arum, et plurimi Belgae Principem
suum,"
? Id. id. id. (p. Ill): "Sextum
(argument in defence of the right of
resistance) . . . quod sicut potest feu-
datarius vi obsistere violento domino,
imo etiam proditori obsistere potest:
ita et subditus possit obsistere simili
domino suo. Hoc enim argumentum
tanto est infirmius, quanto ius feudi
ligat vasallum minus. Feudum non
dat domino imperium in vasaellum,
est enim quidam contractus, quo quia
alteri obligatur, non autem imperium
concoditur . . . Alia subditorum, alia
vassalorum iura. "
>> Id. id. id. (p. 101): "Cui respon-
demus ad enunciatum, quod imo
Principi amplius debemus quam
patri. . . . Est iuris divini potestas
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii. p. 38),
Fortescue in the fifteenth (cf. this vol. p. 143), and Hooker in
the sixteenth; and, as we have seen, the principles of the
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? 460
[PABT IV.
THE LATER SIXTEENTH CENTURY.
political theorists correspond with the constitutional traditions
in Spain as well as in England. It is true that the mediaeval
Civilians were by no means certain or clear in their inter-
pretation of the words "legibus solutus "; such a statement
as that which Jason de Mayno attributes to Baldus, that the
Pope and the prince could do anything " supra ius et contra
ius et extra ius," may have corresponded with Jason's own
opinion (cf. this vol. , p. 83 and p. 149), but it can scarcely
be said to have been asserted by the Civilians generally.
As we have seen, in the sixteenth century Alciatus and the
most important French Civilians from Connon to Cujas frankly
criticised or repudiated the whole conception (cf. this vol. ,
part iii. chap. 5). And even Bude? and Bodin seem clearly
to confirm the judgment that the " Parlement " could protect
private rights against the king.
At the same time, the conception that the king was not
only the source of law, but above it, was apparently present
in the Eoman law, and we see the reflection of it even in such
a prudent and judicious official of the French Court as Michel
L'Hdpital. 1
Bodin clearly held the principle that the king was above
the law, when he maintains that in spite of the rescript of
Emperor Anastasius (Cod. I. 22, 6) the magistrates must obey
the command of the prince even when he knew it to be contrary
to the law ; 2 and Barclay sums up the opinion of the Civilians
as he understood them as being that the Pope and the prince,
who have "plenitudo potestatis," could do anything "supra
ius, contra ius et extra ius," for he was " legibus solutus. " 3
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth. We
do not, we think, go too far if we say that it is surely the
foundation of any rational system of society that the authority
of the law is greater than that of any individual member of
the community.
? Cf. p. 415 ft. 1 Cf. p. 424. >> Cf. p. 448.
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? CHAP. III. ] THEORY OF THE ABSOLUTE MONARCHY. 461
It is no doubt true and important that we can see in the
work, especially of the Huguenot pamphleteers and of Bodin,
the development of a conception that there must be in every
community an authority behind the positive law, and greater
than that law; and we may ask how far this was related to
the theory of an absolute monarchy. It is obvious that,
properly speaking, it has nothing to do with it. The
"Maiestas " might in theory belong either to the whole com-
munity, or a few, or to one; there is no necessary relation
between the conception of an ultimate supreme power and
that of an absolute monarch, nor indeed does Bodin pretend
that there is; but that there may have been in some men's
minds a confused impression that there was such a relation,
is possible.
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? 462
CHAPTER IV.
REPRESENTATIVE INSTITUTIONS IN PRACTICE.
We have dealt with these in the fourteenth and fifteenth
centuries, and have seen their importance as illustrating the
general conceptions of men in Central and Western Europe
about political authority; we must now inquire what place
they occupied in the sixteenth century, in fact and in political
theory. In this chapter we shall consider briefly what we
know about the meetings of these representative bodies,
especially in Castile and in France, and the part they played
in public affairs, while in the next chapter we shall put together
some of the contemporary theories of their powers and
importance.
When we examine the proceedings of the Cortes of Castile
we find that they were meeting frequently, and that they
were occupied not only with questions of taxation, but with
a variety of important public affairs. The first and most
important of these, however, was legislation, and we have a
very important statement with regard to this in the prologue
to the proceedings of the Cortes at Toledo in 1480. In this
year Ferdinand and Isabella, in calling together the repre-
sentatives of the town, said that they did this because the
conditions of the time required the provision of new laws,
and they describe the process of legislation, as being carried
out with the consent of their Council, but on the petition of
the Cortes. 1 It is deserving of notice, too, that Ferdinand and
1 'Cortes,' vol. iv. Toledo. 1480.
Preface: "E nos conosciendo que estos
casos occurrian al presente in que esce
nocessario y provechoso proveer de
remedio por leyes nuevamente fee has,
ansi para eseoutar las pasadas, como
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 463
Isabella declared that all royal "mercedes e facultades " con-
trary to "desta ley" were to be treated as null and void,
and that it was provided that royal Briefs using the phrases
"proprio motu e certa sciencia" or containing a "non-
obstante clause " were to be treated in the same way. 1
We may compare the terms in which the Cortes at Valla-
dolid in 1506 promised obedience and fealty to the Queen
Joanna, and her husband Philip; that is according to the
laws and "fueros " and the ancient custom of the country.
In another clause they declared that the kings (i. e. , the former
kings) had laid it down that when it was necessary to make
laws, the Cortes should be summoned, and that it was estab-
lished that no laws should be made or revoked except in Cortes;
they petitioned that from henceforth this procedure should
be followed. 2
para proveer e remediar los nuevos
caeos, accordamos de enbiar mandar a
les cibdades e villas de nuestros
Reynos que suelen enbiar procuradores
de Cortes en nombre de todos nuestros
Reynos, que enbiasen los dichos procu-
radores de Cortes asi para jurar al
principe nuestro fijo primogenito here-
dero destos Reynos, como para entender
con ellos e platicar e proveer en las
otras cosas que sean nescessarias de se
proveer por leyes para la buena
gouernacion destos dichos Reynos.
Los quales dichos procuradores . . .
nos preguntaron e dieren certas peti-
ciones, e nes suplicaran que sobrellas
mandamos proveer e remediar como
viesemos que complia a servicio de
Dios e nuestro, a bien de la republica,
e pacifico estado destos dichos nuestros
reynos , sobre las quales dichas peti-
ciones, y sobre las otras cosas que nos
entendimos ser complideras, con aocu-
erdo de las perlados e caualleros e
doctores del nuestro Conseio, proueimes
e ordanamos, e statuimoe los leyes que
se siguen. "
1 Id. id. , Toledo, 1480, 84 (p. 164):
''E queremos e ordinamo. '* que todos
e quales quior mercedes e facultades
que de aqui adelante fueron fechas o
dadas contra al tenor desta ley, o
contra lo ennella contenido, sean en si
ningunas e de ningund valor, aunque
contenen en si quales quier clausulas
derogatorias e no obstancias. "
95: Clause abolishing offices
created since 1440, on the death of
the present occupant, and even if
they were renewed by Briefs " proprio
motu e certa sciencia" and containing
a "non-obstanto" clause, these were to
be treated as "ningunas o de ningund
valer. "
1 Id. id. , Valladolid, 1506, Preface:
"Y prometen que les seran buenos e
leales vasalles e suditos naturales, . . .
segund las leyes e fueros e antigua
costumbre destos Reynos lo dis-
pone. . .
(p. 225) 6: "Y por esto los rreys
establecieron que, quando obiesen de
hazer leys, para que fuesen probechosas
? ? a sus rreynos, e cada provincia fuese
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? 464
THE LATER SIXTEENTH CENTURY. [PABT IV.
Again at Valladolid in 1518 and in 1523 the Cortes petitioned
Charles (the Emperor Charles V. ) that the "Cartas e Cednlas
de suspensyones" which had been given by him and his
predecessors should be revoked, and Charles assented. 1 At
the Cortes in Madrid in 1534, in response to a petition to the
same effect, Charles said he did not intend to issue any such
Briefs. 2
In the proceedings of the Cortes at Valladolid in 1523
we have a formal declaration by the king, that the answers
given by him to their petitions and "capitulos" were to
be enrolled and carried out as laws and pragmatic sanctions
made and promulgated by him in Cortes. 3 The Cortes at
Madrid in 1534 petitioned the king that all the "capitulos
proveydos" in past and present Cortes should be recorded
in one volume, with the laws of the "Ordinamiento," as
amended and corrected, and that every city and "villa"
should have a copy of the book; the king replied that he was
providing for this. *
Towards the end of the century we find in the proceedings
of the Cortes of Madrid of 1579-82 an important petition and
reply with respect to the laws of the kingdom. The Cortes
petitioned Philip II. that no law or pragmatic was henceforth
to be made or published until it had been before them (sin
darle primero parte della). The king replied that it was
just that the kingdom should receive satisfaction on this
point. 5
e fags asy, e quando leys se obieren de
hazer, manden llamar sus rreynos e
procuradores dellos, por que para
las tales leys seran dellos muy mas
entera mente ynformadas, y vuestros
rreynos juste e derechamente provey-
dos: e porque fuera desta horden, se
an fecho muchas prematicas, de que
estor vuestros rreynos se syenten por
agrabiados, mande que aquellos ssean
rrebistos, e probo an e rremedian los
agrabios quelas tales prematicos tienen.
R. (Royal reply) que quando fuere
nescesario, su alteza lo mandara? proveer
de manera que se de? cuenta dello. "
1 Id. id. , Valladolid, 1518, 23;
1523, 62.
>> Id. id. , Madrid, 1534, 42.
? Id. id. , Valladolid, 1523 (p. 402).
? Id. id. , Madrid, 1534 (1).
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY.
453
It is true that in another place he seems to admit that he
might concede that the prince could not, even in his "pleni-
tudo potestatis," take away his subjects' property without just
cause; but he seems to mean that this was not of much im-
portance, for the absolute prince himself determines what is a
just cause. 1
He was indeed aware that it had been argued that no
people could be found so senseless as to confer such an absolute
authority upon the prince; but this contention was, he says,
false, and he appeals to Aristotle, and also to Bodin, who had
shown that such absolute kingdoms existed even to-day in
Asia, Africa, and Europe, and he refers to that learned prince
(meaning presumably James I. ) who had maintained that
the Hebrew monarchy had been of this kind. 2
Albericus admits, however, like Bodin and the Civilians,
that all princes were subject to the Divine Law, the Law of
Nature, and the Law of Nations, and, like Bodin and many
Civilians, that he was bound by his contracts. 3
In the third of these ' Eegales Disputationes,' " De Vi Civium
in Eegem semper iniusta," he does not add much of import-
ance; he condemns all violence offered to the prince by his
subjects; but he again makes the important reservation that
1 Id. id. id. (p. 27): "Etiam illud Bodinum peritissimum, qui hodieque
dare possum aliis et doctori mi Thobio dominatus in Asia, Africa, Europa
Nonio, Principem nec de plenitudine ostondit, sicut dominorum in servos,
potestatis posse privare subditos dom- Doctus Princops contendit, et talem
inio rerum suarum, sine iusta causa, fuisse regem Ebraeorum, de quo
quiquid de aliis doctori bus an tea audit scilicet ilia, 'Haeo est ratio
posui. Sed sio dicimus, de hao tamen ipsa regis, qui regnabit supra vos:
causarum institia censere, id esse Filios vestros accipiet, Ac. ,' in primo
arbitrii Principis absoluti. In quo sit Samuelis. "
differentia cum Principe alteri, cui * Id. id. id. (p. 17): "Princeps,
arbitrii non est, iudicare de causis, in quit Baldus, supra ius, scilicet
at ex legibus iudicare habet. " civile, infra ius, scilicet naturale et
* Id. id. id (p. 18): "Profertur gentium. Non supra divinum ius, ut
tertium (argumentum), quod non re- idem scribit hie, et Bartolus et Angelus.
periatur usquam populum adeo amens, Ligatur Princeps et lege contractus,
qui tantam umquam dotulerit prin- ut hie idem et Jason. "
eipi potestatem. Imo populus posuerit (p. 30): "Tertius casus in actu, qui
aliquas principilus leges, quem ultra eis fit inter principem et privatum, ut in
progredi non liceret. Quod itidem est contrrotu, ut Princeps solutus non est
argumentum falsum, ut contra osten- hisce legibus. "
sum de Aristotele est. Cui adde
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? 454
[PABT IV.
THE LATER SIXTEENTH CENTURY.
this does not apply to the cases when the prince was subject to
a judge or a guardian, as was alleged to be the case in France
and the Netherlands. 1 It is worth noticing that Albericus
was aware of the arguments which had been drawn from the
feudal laws in favour of the right to resistance, but he repudi-
ated this on the ground that the nature of feudal authority
was wholly different from that of a king: it was of the nature
of a contract. 2
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone. 3
Albericus does not add much to the general theory of the
absolute monarchy and its Divine authority, but he is oi some
interest as asserting that whatever might be the case in other
countries, the English monarchy possessed in its Prerogative
an extraordinary authority subject to no laws or limitations
except those of the Divine and natural law, and of contract.
The other work of this same time is that of James Co well,
Professor of Civil Law in Cambridge, 'The Interpreter,'
published in 1607.
He had indeed in an earlier work, 'Institutiones Juris
Anglicani,' published in 1605, set out constitutional concep-
tions similar to those of St Germans and Sir Thomas Smith.
He distinguished in this work two elements in the laws of
1 Id. id. , III. , "De Vi Civium in
Regom" (p. 99): "Vim omnem
civium iniustum semper in Principem
esse defendimus (this does not apply
to a prince like the Doge of Venice,
who should rather be called a magis-
trate). Sed neque de illo Principe
lociuimur, qui iudicem aliquem ha bet,
nut custodem. Quemadmodum sub
oustode faciunt quidam Regem Galli-
arum, et plurimi Belgae Principem
suum,"
? Id. id. id. (p. Ill): "Sextum
(argument in defence of the right of
resistance) . . . quod sicut potest feu-
datarius vi obsistere violento domino,
imo etiam proditori obsistere potest:
ita et subditus possit obsistere simili
domino suo. Hoc enim argumentum
tanto est infirmius, quanto ius feudi
ligat vasallum minus. Feudum non
dat domino imperium in vasaellum,
est enim quidam contractus, quo quia
alteri obligatur, non autem imperium
concoditur . . . Alia subditorum, alia
vassalorum iura. "
>> Id. id. id. (p. 101): "Cui respon-
demus ad enunciatum, quod imo
Principi amplius debemus quam
patri. . . . Est iuris divini potestas
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii. p. 38),
Fortescue in the fifteenth (cf. this vol. p. 143), and Hooker in
the sixteenth; and, as we have seen, the principles of the
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? 460
[PABT IV.
THE LATER SIXTEENTH CENTURY.
political theorists correspond with the constitutional traditions
in Spain as well as in England. It is true that the mediaeval
Civilians were by no means certain or clear in their inter-
pretation of the words "legibus solutus "; such a statement
as that which Jason de Mayno attributes to Baldus, that the
Pope and the prince could do anything " supra ius et contra
ius et extra ius," may have corresponded with Jason's own
opinion (cf. this vol. , p. 83 and p. 149), but it can scarcely
be said to have been asserted by the Civilians generally.
As we have seen, in the sixteenth century Alciatus and the
most important French Civilians from Connon to Cujas frankly
criticised or repudiated the whole conception (cf. this vol. ,
part iii. chap. 5). And even Bude? and Bodin seem clearly
to confirm the judgment that the " Parlement " could protect
private rights against the king.
At the same time, the conception that the king was not
only the source of law, but above it, was apparently present
in the Eoman law, and we see the reflection of it even in such
a prudent and judicious official of the French Court as Michel
L'Hdpital. 1
Bodin clearly held the principle that the king was above
the law, when he maintains that in spite of the rescript of
Emperor Anastasius (Cod. I. 22, 6) the magistrates must obey
the command of the prince even when he knew it to be contrary
to the law ; 2 and Barclay sums up the opinion of the Civilians
as he understood them as being that the Pope and the prince,
who have "plenitudo potestatis," could do anything "supra
ius, contra ius et extra ius," for he was " legibus solutus. " 3
This conception was even more revolutionary than the
first, and more completely contrary to the whole character
of the political civilisation of the Middle Ages, for, as we have
so often said, the foundation of this was the principle that
the law was the supreme power in the commonwealth. We
do not, we think, go too far if we say that it is surely the
foundation of any rational system of society that the authority
of the law is greater than that of any individual member of
the community.
? Cf. p. 415 ft. 1 Cf. p. 424. >> Cf. p. 448.
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? CHAP. III. ] THEORY OF THE ABSOLUTE MONARCHY. 461
It is no doubt true and important that we can see in the
work, especially of the Huguenot pamphleteers and of Bodin,
the development of a conception that there must be in every
community an authority behind the positive law, and greater
than that law; and we may ask how far this was related to
the theory of an absolute monarchy. It is obvious that,
properly speaking, it has nothing to do with it. The
"Maiestas " might in theory belong either to the whole com-
munity, or a few, or to one; there is no necessary relation
between the conception of an ultimate supreme power and
that of an absolute monarch, nor indeed does Bodin pretend
that there is; but that there may have been in some men's
minds a confused impression that there was such a relation,
is possible.
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? 462
CHAPTER IV.
REPRESENTATIVE INSTITUTIONS IN PRACTICE.
We have dealt with these in the fourteenth and fifteenth
centuries, and have seen their importance as illustrating the
general conceptions of men in Central and Western Europe
about political authority; we must now inquire what place
they occupied in the sixteenth century, in fact and in political
theory. In this chapter we shall consider briefly what we
know about the meetings of these representative bodies,
especially in Castile and in France, and the part they played
in public affairs, while in the next chapter we shall put together
some of the contemporary theories of their powers and
importance.
When we examine the proceedings of the Cortes of Castile
we find that they were meeting frequently, and that they
were occupied not only with questions of taxation, but with
a variety of important public affairs. The first and most
important of these, however, was legislation, and we have a
very important statement with regard to this in the prologue
to the proceedings of the Cortes at Toledo in 1480. In this
year Ferdinand and Isabella, in calling together the repre-
sentatives of the town, said that they did this because the
conditions of the time required the provision of new laws,
and they describe the process of legislation, as being carried
out with the consent of their Council, but on the petition of
the Cortes. 1 It is deserving of notice, too, that Ferdinand and
1 'Cortes,' vol. iv. Toledo. 1480.
Preface: "E nos conosciendo que estos
casos occurrian al presente in que esce
nocessario y provechoso proveer de
remedio por leyes nuevamente fee has,
ansi para eseoutar las pasadas, como
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? CHAP. IV. ] REPRESENTATIVE INSTITUTIONS IN PRACTICE. 463
Isabella declared that all royal "mercedes e facultades " con-
trary to "desta ley" were to be treated as null and void,
and that it was provided that royal Briefs using the phrases
"proprio motu e certa sciencia" or containing a "non-
obstante clause " were to be treated in the same way. 1
We may compare the terms in which the Cortes at Valla-
dolid in 1506 promised obedience and fealty to the Queen
Joanna, and her husband Philip; that is according to the
laws and "fueros " and the ancient custom of the country.
In another clause they declared that the kings (i. e. , the former
kings) had laid it down that when it was necessary to make
laws, the Cortes should be summoned, and that it was estab-
lished that no laws should be made or revoked except in Cortes;
they petitioned that from henceforth this procedure should
be followed. 2
para proveer e remediar los nuevos
caeos, accordamos de enbiar mandar a
les cibdades e villas de nuestros
Reynos que suelen enbiar procuradores
de Cortes en nombre de todos nuestros
Reynos, que enbiasen los dichos procu-
radores de Cortes asi para jurar al
principe nuestro fijo primogenito here-
dero destos Reynos, como para entender
con ellos e platicar e proveer en las
otras cosas que sean nescessarias de se
proveer por leyes para la buena
gouernacion destos dichos Reynos.
Los quales dichos procuradores . . .
nos preguntaron e dieren certas peti-
ciones, e nes suplicaran que sobrellas
mandamos proveer e remediar como
viesemos que complia a servicio de
Dios e nuestro, a bien de la republica,
e pacifico estado destos dichos nuestros
reynos , sobre las quales dichas peti-
ciones, y sobre las otras cosas que nos
entendimos ser complideras, con aocu-
erdo de las perlados e caualleros e
doctores del nuestro Conseio, proueimes
e ordanamos, e statuimoe los leyes que
se siguen. "
1 Id. id. , Toledo, 1480, 84 (p. 164):
''E queremos e ordinamo. '* que todos
e quales quior mercedes e facultades
que de aqui adelante fueron fechas o
dadas contra al tenor desta ley, o
contra lo ennella contenido, sean en si
ningunas e de ningund valor, aunque
contenen en si quales quier clausulas
derogatorias e no obstancias. "
95: Clause abolishing offices
created since 1440, on the death of
the present occupant, and even if
they were renewed by Briefs " proprio
motu e certa sciencia" and containing
a "non-obstanto" clause, these were to
be treated as "ningunas o de ningund
valer. "
1 Id. id. , Valladolid, 1506, Preface:
"Y prometen que les seran buenos e
leales vasalles e suditos naturales, . . .
segund las leyes e fueros e antigua
costumbre destos Reynos lo dis-
pone. . .
(p. 225) 6: "Y por esto los rreys
establecieron que, quando obiesen de
hazer leys, para que fuesen probechosas
? ? a sus rreynos, e cada provincia fuese
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? 464
THE LATER SIXTEENTH CENTURY. [PABT IV.
Again at Valladolid in 1518 and in 1523 the Cortes petitioned
Charles (the Emperor Charles V. ) that the "Cartas e Cednlas
de suspensyones" which had been given by him and his
predecessors should be revoked, and Charles assented. 1 At
the Cortes in Madrid in 1534, in response to a petition to the
same effect, Charles said he did not intend to issue any such
Briefs. 2
In the proceedings of the Cortes at Valladolid in 1523
we have a formal declaration by the king, that the answers
given by him to their petitions and "capitulos" were to
be enrolled and carried out as laws and pragmatic sanctions
made and promulgated by him in Cortes. 3 The Cortes at
Madrid in 1534 petitioned the king that all the "capitulos
proveydos" in past and present Cortes should be recorded
in one volume, with the laws of the "Ordinamiento," as
amended and corrected, and that every city and "villa"
should have a copy of the book; the king replied that he was
providing for this. *
Towards the end of the century we find in the proceedings
of the Cortes of Madrid of 1579-82 an important petition and
reply with respect to the laws of the kingdom. The Cortes
petitioned Philip II. that no law or pragmatic was henceforth
to be made or published until it had been before them (sin
darle primero parte della). The king replied that it was
just that the kingdom should receive satisfaction on this
point. 5
e fags asy, e quando leys se obieren de
hazer, manden llamar sus rreynos e
procuradores dellos, por que para
las tales leys seran dellos muy mas
entera mente ynformadas, y vuestros
rreynos juste e derechamente provey-
dos: e porque fuera desta horden, se
an fecho muchas prematicas, de que
estor vuestros rreynos se syenten por
agrabiados, mande que aquellos ssean
rrebistos, e probo an e rremedian los
agrabios quelas tales prematicos tienen.
R. (Royal reply) que quando fuere
nescesario, su alteza lo mandara? proveer
de manera que se de? cuenta dello. "
1 Id. id. , Valladolid, 1518, 23;
1523, 62.
>> Id. id. , Madrid, 1534, 42.
? Id. id. , Valladolid, 1523 (p. 402).
? Id. id. , Madrid, 1534 (1).
