1 : "
Revertamur
ergo ad pro-
positum, et dieamus, quod non est
super naturam negotii, nec supra con-
ditionem rerum, quod homines homi-
nibus prfflferuntur : immo est naturalis,
quod qui sunt potentiores in intellectu
et magis vigent industria, illi prsesint.
positum, et dieamus, quod non est
super naturam negotii, nec supra con-
ditionem rerum, quod homines homi-
nibus prfflferuntur : immo est naturalis,
quod qui sunt potentiores in intellectu
et magis vigent industria, illi prsesint.
Thomas Carlyle
72
[PABT L
POLITICAL PRINCIPLES.
Sir John Fortescue was not, for his own time, pressing the
distinction too far, whether it was really true that the con-
stitutional principles of the French kingdom were in his time
as clearly defined as he thought; but he was only anticipat-
ing the full developments of the seventeenth and eighteenth
centuries.
However this may be, the distinction which Fortescue
made was one of the greatest significance, and it is here,
for our purposes, important to observe that the distinction
between the two forms of government was already being
made at the end of the thirteenth century, and that
Egidius Colonna expressed his preference for the "regimen
regale. "
Before we consider his position, we may, however, observe
that a distinction which is parallel, if not quite identical, is
discussed by Ptolemy of Lucca, to whom is now generally
ascribed the authorship of the greater part of the treatise,
' De Eegimine Principum,' which was begun by St Thomas
Aquinas. 1 In one place Ptolemy ascribes to Aristotle the
distinction between two forms of government, the political
and the despotic. He describes the first as that in which the
country or community is governed, whether by many or by
one, according to its own laws (ipsorum statuta), while in
the second the prince governs according to a law which is
in his own heart, and this form of government has the advan-
tage that it is more like that of God. On the other hand, the
despotic government, which is in its nature like the relation
of the master to the slave, is in its nature arbitrary, and
he illustrates this by the words in which Samuel described
the nature of kingship to the Israelites (1 Sam. viii.
10-18), and pointed out to them the advantages of the
" regimen politicum " which he and the judges had adminis-
tered. Ptolemy contends that there are considerations in
favour of each form, which he now distinguishes as the
" regimen politicum " and the " dominium regale. " The first
is well adapted to the state of innocence or to the rule of men
1 Cf. p. 24.
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 73
who are wise and virtuous, like the ancient Eomans, but the
second to the government of those who are perverse and
foolish, and the number of the foolish is infinite. He also
urges that the characteristics of the peoples who inhabit
different parts of the world are different, and that some seem
adapted to slavery and some to freedom. There are therefore,
he concludes, some reasons for preferring the " polity " to the
kingdom, and some for preferring the " regale dominium " to
the "polity. "1
1 Ptolemy of Lucca (St Thomas
Aquinas), ' De Regimino Principum,'
ii. 8 : " Duplex enim principatus ab
Aristotele ponitur in sua Politica
quorum quilibet suos habet mimstros,
licet plures ponat in v. Politicorum,
ut supra est distinctum, et infra etiam
declarabitur, politicus videlicet, et
despoticus. Politicus quidem, quando
regio sive provincia, sive civitas, sive
castrum, per unum vel plures regitur
secundum ipso rum statuta, ut in
regionibus contingit Italise, et precipue
Romse, ut per senatores et consules
pro maj ore parte ab urbe condita. . . .
Et inde sequitur in regimine politico
diminutio, quia legibus solum rector
politicus judicat populum, quod per
regale dominium suppletur, dum non
legibus obligatus, per eam censeat,
quse est in poctore principis, propter
quod divinam magis sequitur provi-
dentiam, cui est cura de omnibus, ut
in libro Sapientise dicitur. . . .
ii. 9. Est autem hie advertendum,
quod principatus despoticus dicitur qui
est domini ad servum, quod quidem
nomen grocum est. Unde quidam
domini illuis provincise adhuc hodie
despoti vocantur, quem princpatum
ad regalem possumus reduce re, ut ex
sacra liquet scriptura. . . . Traduntur
enim leges regales per Samuelem pro-
phet am Israelitico populo quss servi-
tutem important. . . . Filios vestros
toilet, et ponet in curibus suis . . . et
prsecursores quadrigarum suarum, et
constituet aratores agrorum suorum
. . . et sic de aliis conditionibus ad
servitutem pertinentibus, quse in 1 Lib.
Re gum traduntur, per hoc quasi volens
ostendere quod regimen politicum,
quod erat judicum, et suum fuerat,
fructuosius erat populo, cujus tamen
superius contrarium est ostensum. Ad
cujus dubii declarationem sciendum
est quod ex duplici parte regimen
politicum regali preponitur: primo
quidem, si referamus dominium ad
statum integrum humanse naturse, qui
status innocentise appellatur, in quo
non fuisset regale regimen sed politi-
cum. . . . Unde apud sapientes et
homines virtuosos, ut fuerunt antiqui
Romani, seoundum imitationem talis
nature regimen politicum ejus fuit.
Sed quia perversi difficile corri-
gentur, et stultorum infinitus est
numerus, ut dicitur in Eoclesiastico,
? ? in natura eorrupta regimen regale est
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? 74
[past r.
POLITICAL PRINCIPLES.
Ptolemy of Lucca was a pupil of St Thomas Aquinas,
but we must not attribute to St Thomas the responsibility
for the indifference with which he treats the two forms
of government. St Thomas does, indeed, recognise that in
some cases a people is free and makes its own laws, while
in others it does not possess this power; but in one place at
least, as we have seen,1 he does express his own preference
for the mixed constitution in which the laws are made by
the " majores natu cum plebibus. " Still less must we attri-
bute to St Thomas the responsibility for the dogmatic prefer-
ence which Egidius Colonna expresses for the " regimen
regale. "
We must now examine the position of Egidius in more detail.
The work with which we are here concerned is his treatise,
' De Eegimine Principum. ' It was written probably before
the death of Philip III. of France, to whose son, afterwards
Philip IV. , Egidius was apparently in some relation of tutor
or teacher. We have already drawn attention to his position,
as having learned, probably through St Thomas Aquinas,
to know of the Aristotelian political theories. We are here
concerned with his conception of law and its relation to the
prince.
Egidius makes a distinction between the " regimen regale "
and the " regimen politicum " like that of Ptolemy of Lucca.
The State may, he says, be ruled in two ways ; the " regimen
regale " is that under which the prince rules according to
his own will (arbitrium) and according to laws which he
has made himself. The regimen politicum is that where
the prince rules, not according to his own will or
according to laws which he made, but according to the
law which the citizens have made. 2 As he puts it in
another place, laws may be made either by the prince or
1 Cf. pp. 69, 70.
>> Egidius Colonna, ' De Regimine
Principum,' ii. 1, 14 : " Civital autem,
quantum ad prsesens, spectat, duplici
regimine regi potest, politico scilicet et
regali. Dicitur autem quia prseesso
regali dominio : cum preest secundum
arbitrium et secundum leges quas ipse
instituit. Sed tune prseest regimine
politico, quum non prseest secundum
arbitrium, nec secundum leges quas
ipse instituit, sed secundum eas quas
cives instituerunt. "
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? CHAP. VI. ] SOUBCE OF THE LAW OF THE STATE--II.
75
by the whole people, if it is the people which rules and
elects the ruler. 1
Like Ptolemy he recognises the two forms of government
as possible and legitimate, but he also contends that it is
better to be ruled by the king than by the law. This is the
more remarkable, because he carefully states that Aristotle
had maintained that the true prince was an instrument of
the law, and that it was better to be governed *by a
good law than by a good king. Egidius states Aristotle's
argument as he understood it, but only in order to main-
tain the opposite--namely, that it is better to be ruled
by the king than by the law; and he adds that, while
the king is under the natural law, he is not under the
positive law. 2
This is, indeed, a highly significant development of political
1 Id. id. , iii. 2, 27 : " Leges que
ordinant nos in commune bonum con-
dende sunt a principe, cui est ordinare
et dirigere alios in tale bonum, vel
condende sunt a toto populo, si tot us
populus principetur, et sit in potestate
ejus eligere principantem. Nulla est
ergo lex quse non sit edita ab eo cujus
est dirigere in bonum commune : nam
si est lex divina et naturalis condita
a Deo, cujus est omnia dirigere in
seipsum ; qui maxime est commune
bonum ; quia est bonum omnis boni:
lex vero humana et positiva condita
est a principe vel a toto populo, si
tot us populus principetur. "
>> Id. id. , iii. 2, 29 : " Nam ut dicitur
5 Ethicorum, princeps debet esse custos
justi id est justelegis. Est ergo princeps,
si debite principetur, quasi quoddam
organum juste legis, ut, quod lex fieri
prsecipit, rex per civilem potentiam
observari f acit: quare si quod est
principalius eligibilius est in regimine,
q. organum et instrumentum; regi
optima lege eligibilius est quam regi
optimo rege : hoc est ergo quod ait
philosophus III. Politicorum, quod
eligibilius est principari legem, quia
hos s. reges aut principes instituendum
esse servatores legis et ministros legum.
. . . Sciendum est regem et quemlibet
principantem esse medium inter legem
naturalem et positivam : nam nullus
recte principatur nisi agat ut recta
ratio dictat . . . . .
Quare positiva lex est infra princi-
pantem sicut lex naturalis est supra,
et si dicatur legem aliquam positivam
esse supra principantem, hoc non est
ut positiva sed ut in ea reservatur
virtus juris naturalis. Cum ergo
queritur utrum melius sit regnum aut
ci vita tem regi optimo rege aut optima
lege; si loquamur de lege naturali
patet hano principaliorem esso in
regendo quam sit ipse rex, eo quod
nullus sit rectus rex nisi in quantum
innititur illi legi
Sed si loquamur de lege positiva, melius
est regi optimo rege, quam maxime
in casibus illis in quibus talis lex deficit,
? ? et dicit universaliter quod non est
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? 76
[PART I.
POLITICAL PRINCIPLES.
theory, for this is a thoroughgoing contradiction of the prin-
ciples of Bracton, and practically of all mediseval theory ; for
the principle that the king is the servant and not the master
of law belongs not only to the feudal system, but to the
whole structure of mediseval society, and is expressed by
practically all the mediseval writers, except some of the
Bologna Civilians. 1 It is, indeed, with Egidius Colonna, as
we have said, that we come on the beginning of that con-
ception of the monarchy which was to be developed in the
sixteenth and seventeenth centuries.
It must, however, be observed that Egidius carefully and
consistently maintains the Aristotelian principle that the test
of all good government is that it is directed to the common
good, and that, just because the prince makes the laws and
is himself a living law, he must maintain justice; and that
if he fails to do this he is not worthy to be a king, and loses
the royal dignity. 2 He does not hesitate to describe the ruler
who pursues his private good and not the public welfare as
a tyrant. 3
1 Cf. especially vol. i. chap. 19 ; vol.
ii. part i. chap. 7; vol. iii. part i.
chap. 2 : part ii. chap. 5.
1 Id. id. , i. 1, 12: " Nam regens
multitudinem debet intendere com-
mune bonum. Prima via sic patet;
nam si lex est regula agendorum : ut
haberi potest ex 5 Ethic, ipse judex
et multum magis ipse rex cujus est
leges ferre debet esse quedam regula
in agendis. Est enim rex sive princeps
quivdam lex ; et lex est qusedam rex
sive princeps. Nam lex est quidam
inanimatus princeps. Princeps vero
est qusedam animata lex. Quantum
ergo animatum inanimatum superat,
tantum rex sive princeps debet supe-
rare legem. Debet etiam rex esse
tante justitie et tante equitatis ut
posset ipsas leges dirigere, cum in
aliquo casu leges observari non de-
beant ut infra patebit. Dubitare ergo
utrum rex debeat esse equal is et justus
est dubitare utrum ipsa regula debeat
esse regulata. Si enim regula ab
equalitate deficiat nihil regulatum erit,
quum omnia per regulam regulentur.
Sio si reges sunt injusti, disponunt
regnum ut non observetur justitia.
Maxime ergo studere debent ne sint
injusti et inequales; quia eorum in-
justitia et inequalitas tollit ab eis
rogiam dignitatem. Nam reges injusti
etsi dominant per civilem potentiam
non tamen digni sunt ut sint reges,
cum enim deceat regulam esse rectam
et equalem. Rex, quia est qusedam
animata lex, est qusedam animata
regula agendorum, ex parte ipsius
personse regise maxime decet ipse ser-
vare justitiam. "
* Id. id. , i. 3, 3 : " Nam ut superius
dicebatur et ut philosophus in Pol.
probat differentiam esse inter regem
et tyrannum, quod rex principaliter
intendit bonum commune, et intern-
dendo bonum commune intendit bonum
? ? privatum, quia salvato regno salvatur
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 77
In a later work, written, as it is thought, in 1297, with
reference to the abdication of the Papal throne by Pope
Celestine in 1294, while Egidius maintains that those who
are superior in intelligence and energy should rule over others,
he also argues that this must be done by the consent of men,
and that by this same consent the ruler may retire or be
deposed. 1 This belongs, however, rather to the subject of
our next chapter, but we mention it here as confirming the
impression of the last passage cited.
It is, however, also noticeable that in one place he urges
that when it is considered how much good arises from king-
ship, not only when kings rule well, but even when in some
respects they play the tyrant, the people should strive to
obey, for some tyranny on the part of the ruler is more toler-
able than the evils which would arise from disobedience to
the prince. 2
The position of Egidius Colonna is, as we have said, re-
markable, and different from the normal mediseval tradition.
rex. Tyrannus autem e contrario
principaliter intendit bonum priva-
tum, ex consequenti autem et quasi
per accidens intendit bonum com-
mune. "
Cf. iii. 2, 2 and 6.
1 Id. , ' De Renuntiatione Papse,'
xvi.
1 : " Revertamur ergo ad pro-
positum, et dieamus, quod non est
super naturam negotii, nec supra con-
ditionem rerum, quod homines homi-
nibus prfflferuntur : immo est naturalis,
quod qui sunt potentiores in intellectu
et magis vigent industria, illi prsesint.
Et ideo videmus, quod homines natu-
raliter presunt bestiis, viri feminis,
senes pueris. . . . Inter adultos etiam
aliquibus dedit Deus majorem indus-
triam, quam aliis. Ex hoo ergo voluit,
quod non solum homines bestiis, viri
feminis, adulte pueris prseessent, sed
etiam voluit quod et ipsi adulti aliquem
super se praificerent, quia ut dieitur
in Proverbiis, ' Intelligens gubernacula
possidebit. '
Vult enim sapiens Solomon, quod
per intelligentiam homo sit aptus ad
alios gubernandum. Sed quamvis sic
requirit natura negotii, quod scientes
melius pericula pravidere aliis prse-
ficiantur, ut aub eorum gubernaculo
multitudo salvetur, oportet tamen
quod hoc compleatur per consensum
hominum. Et sicut per consensum
hominum perficitur et completur, ut
quia aliis praficiatur, sic per consensum
hominum contrario modo factum fieri
potest, quod prsefectus cedat, vel quod
etiam deponatur. "
>> Id. , ' De Regimine Principum,' iii.
2, 34 : " Si ergo consideretur quantum
bonum advenit ex rege; non solum
regibus recte regentibus, sed etiam
dato quod in aliquo, tyrannizarent,
studeret populus qbedire illis. Nam
magis est tolerabilis aliqualis tyran-
nides principantis, quam sit malum
quod consurgit ex inobedientia prin-
cipis, et ex prevaricatione mandatorum
? ? ejus. "
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? 78
[PART I.
POLITICAL PRINCIPLES.
It may possibly be suggested that we have here at least
some significant evidence as to the tendency of the political
institutions and theory of France. We must observe, how-
ever, that while it is true that Egidius was writing in France,
and for a French prince, he was not himself a Frenchman,
but an Italian.
There are two contemporary French writers with whom
we shall have more to do later, but whose work we may
examine with regard to our present point. The first is the
author of the tract entitled ' Disputatio inter Clericum et
Militem,' which deals with the conflict between Boniface VIII.
and Philip the Fair, written not earlier than 1296. In one
passage he claims that the legislative power of the king of
France is the same as that of the emperor, that as the emperor
has power to make and unmake laws for the whole empire,
so also the king of France has power not only to repudiate
the laws of the emperor, but also to promulgate new ones ;
he can add to, can diminish, or modify laws and privi-
leges, taking account always of equity and reason, for he has
no superior. The author seems to mean that he can do this,
either by his own authority or with his chief men. 1 The
author is clearly thinking of the legislative power of the
French king in terms of the position of the emperor in the
Eoman jurisprudence ; and while he formally allows for the
possibility of the king legislating with the advice of his " pro-
ceres," he does not seem to think of this as essential.
1 ' Disputatio inter Clericum et Mih-
tem,' p. 80 : " Et ideo sicut omnia
quse infra terminos imperii sunt, sub-
jecta esse noscuntur imperio, sio quse
infra terminos regni, regno. Et sicut
imperator supra totum imperium suum
habet leges condere, addere eia, aut
demere : sio et rex Francise aut omnino
leges imperatoris repellere aut quam-
libot placuerit permutare, aut illis a
toto regno suo prascriptis et abolitis,
novas si placuerit promulgare. Alio-
quin si aliquid novi, ut ssepe accidit,
visum fuerit statuendum, si rex non
posset hoc qui est summus: tunc
nullus poterit. Quia ultra sum non
est superior ullus. Et ideo domine
clerice, linguam vestram coercete et
agnoscite re gem legibus, consuetudini-
bus, et privilegiis vestris et libertatibus
datis, regia potestate prse. esse, posse
addere, posso minuere quselibit, sequi-
tate et ratione consultis, aut cum suis
proceribus, sicut visum fuerit, tempe-
rare. "
Cf. for a critical discussion of the
date, &c. , of this work, R. Scholz,
' Die Publizistik zur Zeit Philippe des
Schonen,' &o.
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 79
The second is John of Paris, whose tract on the Eoyal
and Papal power was written probably in 1302 or 1303, also
in relation to the conflict between Boniface VIII. and Philip
the Fair. John of Paris was a determined advocate of the
position of Philip, and a penetrating critic of the papal claims.
He maintains stoutly that the royal power was in no sense
derived from the papal, but from God and from the people
who had elected the king or his family. 1 To maintain that it
was the Pope who gave laws to princes, and that the prince
could not establish his laws unless they were sanctioned by
the Pope, was really to destroy the "regimen regale et poli-
ticum " ; and he goes on to make the distinction between the
State where the ruler governs according to the laws which
he had made, and that which is governed not according to
the will (arbitrium) of the ruler, but according to laws which
the citizens or others had established. The first government
is called regalis, the second " civilis vel politicus. " 2
John of Paris does not in this place express any preference
for the one or the other, but a little later, in a passage probably
founded upon St Thomas Aquinas, which we shall consider
in the next chapter, he says that in his opinion the best
form of government was that in which all the members of
the community have their share. Such a form of government,
he says, is the best security for the peace of the people, and
all men love and maintain it. He ingeniously argues that this
was the form of government which God instituted for the
Hebrews when Moses or Joshua occupied the position of a
1 John of Paris, ' Tractatus de
Potestate Regia et Papali,' 11:
" Ergo potestas regia neo secundum
se, nec quantum ad executionem,
est a papa I sod est a Deo, et a
populo rcgem oligente in persona vel
domo. "
For a full discussion of this work and
its date, cf. R. Scholz, op. cit.
* Id. id. , 18: " Dicere autem ut
isti magistri dicunt, quod papa tradit
leges principibus, et quod prinoeps non
potest legem aliunde sumere, nisi per
papam fuerint approbatse; est omnino
destruere regimen regale et politicum,
et incidere in errorem Herodis timentis
et putantis Christum regnum destruere
terrenum ; quia secundum philoso-
phum in 1. Politicorum, principatus
tunc solum dicitur regalis quando quis
prseest secundum leges quas ipe insti-
tuit. Quum vero prseest non secundum
arbitrium suum, sed secundum leges
quas cives vel alii instituerunt, dicitur
principatus civilis vel politicus, et non
regalis. "
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? 80
[PART I.
POLITICAL PRINCIPLES.
king, and seventy-two elders were appointed under them as
an aristocracy of virtue, while these seventy-two were elected
by the people and from the people, thus representing the
principle of democracy. It is a mixed government of this
kind which he considered to be the best, for in this constitu-
tion all would have some part. 1
It is clear that if, as is just possible, the author of the
' Disputatio inter Clericum et Militem ' thinks of the king as
the absolute legislator, John of Paris, like St Thomas Aquinas,2
prefers a mixed or constitutional government.
We have, then, considered in these two chapters how far
the traditional mediseval conceptions of the nature and source
of law were continued in the later thirteenth century, and
how far other conceptions had begun to appear, and as the
subject is of the first importance for political theory, it may
be well to state our conclusion in summary form.
We have seen that there was no hesitation about the
principle that all positive law must express the principles of
justice and " sequitas," and that its authority is always
subject to that of the Natural Law. We have also seen that
the writers of this century, whether theologians like St Thomas
1 Id. id. , 20: " Sed quare ergo,
indignatus concessit (Deus) eis regem ?
Dicendum, quod nori ideo, quia regale
regimen ei displiceret simpliciter ut
malum : sed ideo quia ilium populum
sibi elegerat ut peculiarem, Deut. vi. ,
et instruxerat eis regimen melius puro
regali, saltem illi populo, propter duo.
Primum est, quia licet regimen regium,
in quo unus simpliciter principatur
secundum virtutem. sit melius quolibet
alio regimine simplici, ut ostendit
philosophus in III. Politicorum : tamen
si fiat mixtum cum aristocratia et
democratia melius est puro, in quan-
tum in regimine mixto omnes aliquam
partem habent in principatu. Per hoc
enim servatur pax populi, et omnes
talem dominationem amant et custo-
diunt, ut dicitur in II. Politioorum : et
tale erat regimen a Deo optime insti-
tutum in populo: quia erat regale,
in quantum unus prseerat simpliciter
omnibus singulariter, ut Moises vel
Josue. Erat etiam aliquid de aristo-
cratia, qui est principatus aliquorum
optimorum principantium secundum
virtutem, in quantum sub illo viro
elegebantur 72 Seniores, Deut. i. Erant
etiam ibi aliqui de democratia, i.
principatu populi, in quantum 72
elegebantur a populo et de toto populo,
ut dicitur ibidem : et sic erat optime
mixtum in quantum omnes in regimine
illo aliquid habebant, sive aliquam
partem. "
Cf. St Thomas Aquinas, ' Summa
Theologica,' i. 2, 105, 1.
>> Cf. pp. 69, 70.
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? CHAP. VI. ] SOUECE OF THE LAW OF THE STATE--EE.
81
or Civilians and Canonists like Odofridus and Hostiensis, all
held that custom was both the original form of law, and
continued to have the force of law, and that they were
therefore in substantial agreement with the great French
and English feudal jurists of the century, like Beaumanoir
and Bracton.
We have, however, also seen that in the course of the thir-
teeuth century the conception of law as custom was being
modified by another--that is, by the conception of law as
the expression of a conscious will and determination. There
is, as we have pointed out, an evident incoherence in the
principles of law as set out even by Bracton and Beaumanoir.
Bracton begins with the broad statement that English law
was not written but customary, but he goes on to say that,
in England, that has the force of law which was defined and
approved by the authority of the king, with the counsel and
consent of the great men, and the approval of the whole
commonwealth ; and Beaumanoir, who laid down the general
principle that all pleas were determined by custom, and that
not only the counts but the king must maintain the custom,
also said that the king has power to make laws for the
whole kingdom " par tres grant conseil et pur le commun
pourfit. " 1
To us it seems evident that there are here two conceptions
or principles of law, and we venture to urge that the transi-
tion from the one to the other was of far-reaching importance,
for we think that it is here that we find the first beginning of
the modern theory of sovereignty--that is, the conception
that there is in every political society the power of making
and unmaking laws, that there is some final authority which
knows no legal limits, and from which there is no legal
appeal. (We do not, of course, mean that this conception
is really adequate to the proper conception of law or
sovereignty. )
It is, we think, clear where this conception found its literary
source. The passage of Bracton, to which we have referred,
1 Cf. vol. iii. part i. chap. 3.
VOL. V.
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? 82
[PABT I.
POLITICAL PRTNCIPLES.
seems to us to be an adaptation and modification of the
famous phrase of Papinian. 1 It was the Eoman jurisprudence
with its clear and emphatic doctrine that law was that which
the Eoman people, or those to whom it gave legislative
authority, commands and establishes, which was the literary
source of this conception. It is no doubt true that the prin-
ciple was recognised as early as the ninth century, as we
can see from the famous phrase of the Edictum Pistense,
" Quoniam lex consensu populi et constitutione regis fit," 2
and it may reasonably be urged that the mere development
of mediseval society and the growing complexity of its insti-
tutions would have, in the long-run, compelled men to recog-
nise the necessity of some deliberate legislative process. It is,
however, we venture to think, perfectly clear that it was the
influence of the revived study of the Eoman law, and the
interpretation and popularisation of its principles by the
Civilians of Bologna, which gave form and expression to the
new principle.
We can, indeed, also see the terms under which the new
conception was reconciled to the older. In another phrase
of Bracton, which we have cited in the fifth chapter,3 the
laws made by the king with the advice and consent of the
great men and the common approval, when they have been
confirmed by the consent of those who are concerned (uten-
tium) cannot be changed without the consent of those by
whose counsel and consent they were made. Laws may,
indeed, be made by enactment, but they are confirmed by
custom. We see here the significance of that doctrine of
Gratian's, that laws have no force unless they are approved
by custom. * We have pointed out that, while there was
much controversy among the Civilians about the principle
of the continuance of the legal effect of custom, the great
mass of opinion was still clear that, even when laws were
1 ' Digest,' i. 3, 1 : " Lex est com- * Cf. vol. i. p. 238.
mune preceptum, virorum prudentium 1 Cf. p. 51, note 2.
consultum, delicto rum quse sponte vel 4 Grata an, Deerotum D. 4 (after c. 3).
ignorantia contrahuntux coercitio, com- Cf. vol. ii. p. 155.
munis reipublicse sponsio. "
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--n.
83
made by a definite and legitimate authority, the custom of
the people remained supreme, and Gregory IX. recognised
this principle as holding in ecclesiastical law. 1
We have also seen that, so far as law was thought of in the
thirteenth century as something deliberately made and pro-
mulgated, it was normally held that it was established, not
by the prince alone, but by the prince with the counsel and
consent of the great men and, in some general sense, the
approval of the whole community. This is the principle of
legislation which the Middle Ages left to the modem world.
This was the principle of the feudal jurisprudence, and was
represented in the constitutional practice not only of Eng-
land, but of Western Europe.
The truth is that the conception of an absolute monarch,
the source of law, and superior to all law, was wholly alien
to mediseval civilisation. Bracton's famous saying that the
king is under God and the law 2 represented the tradition
not only of England, but of all Western Europe. 3 So far as
the law was not merely the custom of the community, it was
the expression of the will and command of the community.
This principle was, indeed, admirably expressed by one of the
earliest jurists of Bologna, possibly Imerius himself, when he
said that the " universitas "--that is, the people--establishes
and interprets the law, for it is its function to care for all its
members. *
It is, however, also true that in the twelfth and thir-
teenth centuries we have found the first beginnings for the
modern world of another conception of the source of law,
that it is the prince or ruler who is the legislator, the fount of
law; and there cannot be any doubt as to the origin of this
conception. It came from Bologna, from the revived study
of the Eoman jurisprudence, from the Civilians. It was in
1 Cf. vol. ii. part i. chap. 7 ; part ii. officium, singulis scilicet hominibus
chap. 8 ; vol. iii.
[PABT L
POLITICAL PRINCIPLES.
Sir John Fortescue was not, for his own time, pressing the
distinction too far, whether it was really true that the con-
stitutional principles of the French kingdom were in his time
as clearly defined as he thought; but he was only anticipat-
ing the full developments of the seventeenth and eighteenth
centuries.
However this may be, the distinction which Fortescue
made was one of the greatest significance, and it is here,
for our purposes, important to observe that the distinction
between the two forms of government was already being
made at the end of the thirteenth century, and that
Egidius Colonna expressed his preference for the "regimen
regale. "
Before we consider his position, we may, however, observe
that a distinction which is parallel, if not quite identical, is
discussed by Ptolemy of Lucca, to whom is now generally
ascribed the authorship of the greater part of the treatise,
' De Eegimine Principum,' which was begun by St Thomas
Aquinas. 1 In one place Ptolemy ascribes to Aristotle the
distinction between two forms of government, the political
and the despotic. He describes the first as that in which the
country or community is governed, whether by many or by
one, according to its own laws (ipsorum statuta), while in
the second the prince governs according to a law which is
in his own heart, and this form of government has the advan-
tage that it is more like that of God. On the other hand, the
despotic government, which is in its nature like the relation
of the master to the slave, is in its nature arbitrary, and
he illustrates this by the words in which Samuel described
the nature of kingship to the Israelites (1 Sam. viii.
10-18), and pointed out to them the advantages of the
" regimen politicum " which he and the judges had adminis-
tered. Ptolemy contends that there are considerations in
favour of each form, which he now distinguishes as the
" regimen politicum " and the " dominium regale. " The first
is well adapted to the state of innocence or to the rule of men
1 Cf. p. 24.
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 73
who are wise and virtuous, like the ancient Eomans, but the
second to the government of those who are perverse and
foolish, and the number of the foolish is infinite. He also
urges that the characteristics of the peoples who inhabit
different parts of the world are different, and that some seem
adapted to slavery and some to freedom. There are therefore,
he concludes, some reasons for preferring the " polity " to the
kingdom, and some for preferring the " regale dominium " to
the "polity. "1
1 Ptolemy of Lucca (St Thomas
Aquinas), ' De Regimino Principum,'
ii. 8 : " Duplex enim principatus ab
Aristotele ponitur in sua Politica
quorum quilibet suos habet mimstros,
licet plures ponat in v. Politicorum,
ut supra est distinctum, et infra etiam
declarabitur, politicus videlicet, et
despoticus. Politicus quidem, quando
regio sive provincia, sive civitas, sive
castrum, per unum vel plures regitur
secundum ipso rum statuta, ut in
regionibus contingit Italise, et precipue
Romse, ut per senatores et consules
pro maj ore parte ab urbe condita. . . .
Et inde sequitur in regimine politico
diminutio, quia legibus solum rector
politicus judicat populum, quod per
regale dominium suppletur, dum non
legibus obligatus, per eam censeat,
quse est in poctore principis, propter
quod divinam magis sequitur provi-
dentiam, cui est cura de omnibus, ut
in libro Sapientise dicitur. . . .
ii. 9. Est autem hie advertendum,
quod principatus despoticus dicitur qui
est domini ad servum, quod quidem
nomen grocum est. Unde quidam
domini illuis provincise adhuc hodie
despoti vocantur, quem princpatum
ad regalem possumus reduce re, ut ex
sacra liquet scriptura. . . . Traduntur
enim leges regales per Samuelem pro-
phet am Israelitico populo quss servi-
tutem important. . . . Filios vestros
toilet, et ponet in curibus suis . . . et
prsecursores quadrigarum suarum, et
constituet aratores agrorum suorum
. . . et sic de aliis conditionibus ad
servitutem pertinentibus, quse in 1 Lib.
Re gum traduntur, per hoc quasi volens
ostendere quod regimen politicum,
quod erat judicum, et suum fuerat,
fructuosius erat populo, cujus tamen
superius contrarium est ostensum. Ad
cujus dubii declarationem sciendum
est quod ex duplici parte regimen
politicum regali preponitur: primo
quidem, si referamus dominium ad
statum integrum humanse naturse, qui
status innocentise appellatur, in quo
non fuisset regale regimen sed politi-
cum. . . . Unde apud sapientes et
homines virtuosos, ut fuerunt antiqui
Romani, seoundum imitationem talis
nature regimen politicum ejus fuit.
Sed quia perversi difficile corri-
gentur, et stultorum infinitus est
numerus, ut dicitur in Eoclesiastico,
? ? in natura eorrupta regimen regale est
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? 74
[past r.
POLITICAL PRINCIPLES.
Ptolemy of Lucca was a pupil of St Thomas Aquinas,
but we must not attribute to St Thomas the responsibility
for the indifference with which he treats the two forms
of government. St Thomas does, indeed, recognise that in
some cases a people is free and makes its own laws, while
in others it does not possess this power; but in one place at
least, as we have seen,1 he does express his own preference
for the mixed constitution in which the laws are made by
the " majores natu cum plebibus. " Still less must we attri-
bute to St Thomas the responsibility for the dogmatic prefer-
ence which Egidius Colonna expresses for the " regimen
regale. "
We must now examine the position of Egidius in more detail.
The work with which we are here concerned is his treatise,
' De Eegimine Principum. ' It was written probably before
the death of Philip III. of France, to whose son, afterwards
Philip IV. , Egidius was apparently in some relation of tutor
or teacher. We have already drawn attention to his position,
as having learned, probably through St Thomas Aquinas,
to know of the Aristotelian political theories. We are here
concerned with his conception of law and its relation to the
prince.
Egidius makes a distinction between the " regimen regale "
and the " regimen politicum " like that of Ptolemy of Lucca.
The State may, he says, be ruled in two ways ; the " regimen
regale " is that under which the prince rules according to
his own will (arbitrium) and according to laws which he
has made himself. The regimen politicum is that where
the prince rules, not according to his own will or
according to laws which he made, but according to the
law which the citizens have made. 2 As he puts it in
another place, laws may be made either by the prince or
1 Cf. pp. 69, 70.
>> Egidius Colonna, ' De Regimine
Principum,' ii. 1, 14 : " Civital autem,
quantum ad prsesens, spectat, duplici
regimine regi potest, politico scilicet et
regali. Dicitur autem quia prseesso
regali dominio : cum preest secundum
arbitrium et secundum leges quas ipse
instituit. Sed tune prseest regimine
politico, quum non prseest secundum
arbitrium, nec secundum leges quas
ipse instituit, sed secundum eas quas
cives instituerunt. "
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? CHAP. VI. ] SOUBCE OF THE LAW OF THE STATE--II.
75
by the whole people, if it is the people which rules and
elects the ruler. 1
Like Ptolemy he recognises the two forms of government
as possible and legitimate, but he also contends that it is
better to be ruled by the king than by the law. This is the
more remarkable, because he carefully states that Aristotle
had maintained that the true prince was an instrument of
the law, and that it was better to be governed *by a
good law than by a good king. Egidius states Aristotle's
argument as he understood it, but only in order to main-
tain the opposite--namely, that it is better to be ruled
by the king than by the law; and he adds that, while
the king is under the natural law, he is not under the
positive law. 2
This is, indeed, a highly significant development of political
1 Id. id. , iii. 2, 27 : " Leges que
ordinant nos in commune bonum con-
dende sunt a principe, cui est ordinare
et dirigere alios in tale bonum, vel
condende sunt a toto populo, si tot us
populus principetur, et sit in potestate
ejus eligere principantem. Nulla est
ergo lex quse non sit edita ab eo cujus
est dirigere in bonum commune : nam
si est lex divina et naturalis condita
a Deo, cujus est omnia dirigere in
seipsum ; qui maxime est commune
bonum ; quia est bonum omnis boni:
lex vero humana et positiva condita
est a principe vel a toto populo, si
tot us populus principetur. "
>> Id. id. , iii. 2, 29 : " Nam ut dicitur
5 Ethicorum, princeps debet esse custos
justi id est justelegis. Est ergo princeps,
si debite principetur, quasi quoddam
organum juste legis, ut, quod lex fieri
prsecipit, rex per civilem potentiam
observari f acit: quare si quod est
principalius eligibilius est in regimine,
q. organum et instrumentum; regi
optima lege eligibilius est quam regi
optimo rege : hoc est ergo quod ait
philosophus III. Politicorum, quod
eligibilius est principari legem, quia
hos s. reges aut principes instituendum
esse servatores legis et ministros legum.
. . . Sciendum est regem et quemlibet
principantem esse medium inter legem
naturalem et positivam : nam nullus
recte principatur nisi agat ut recta
ratio dictat . . . . .
Quare positiva lex est infra princi-
pantem sicut lex naturalis est supra,
et si dicatur legem aliquam positivam
esse supra principantem, hoc non est
ut positiva sed ut in ea reservatur
virtus juris naturalis. Cum ergo
queritur utrum melius sit regnum aut
ci vita tem regi optimo rege aut optima
lege; si loquamur de lege naturali
patet hano principaliorem esso in
regendo quam sit ipse rex, eo quod
nullus sit rectus rex nisi in quantum
innititur illi legi
Sed si loquamur de lege positiva, melius
est regi optimo rege, quam maxime
in casibus illis in quibus talis lex deficit,
? ? et dicit universaliter quod non est
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? 76
[PART I.
POLITICAL PRINCIPLES.
theory, for this is a thoroughgoing contradiction of the prin-
ciples of Bracton, and practically of all mediseval theory ; for
the principle that the king is the servant and not the master
of law belongs not only to the feudal system, but to the
whole structure of mediseval society, and is expressed by
practically all the mediseval writers, except some of the
Bologna Civilians. 1 It is, indeed, with Egidius Colonna, as
we have said, that we come on the beginning of that con-
ception of the monarchy which was to be developed in the
sixteenth and seventeenth centuries.
It must, however, be observed that Egidius carefully and
consistently maintains the Aristotelian principle that the test
of all good government is that it is directed to the common
good, and that, just because the prince makes the laws and
is himself a living law, he must maintain justice; and that
if he fails to do this he is not worthy to be a king, and loses
the royal dignity. 2 He does not hesitate to describe the ruler
who pursues his private good and not the public welfare as
a tyrant. 3
1 Cf. especially vol. i. chap. 19 ; vol.
ii. part i. chap. 7; vol. iii. part i.
chap. 2 : part ii. chap. 5.
1 Id. id. , i. 1, 12: " Nam regens
multitudinem debet intendere com-
mune bonum. Prima via sic patet;
nam si lex est regula agendorum : ut
haberi potest ex 5 Ethic, ipse judex
et multum magis ipse rex cujus est
leges ferre debet esse quedam regula
in agendis. Est enim rex sive princeps
quivdam lex ; et lex est qusedam rex
sive princeps. Nam lex est quidam
inanimatus princeps. Princeps vero
est qusedam animata lex. Quantum
ergo animatum inanimatum superat,
tantum rex sive princeps debet supe-
rare legem. Debet etiam rex esse
tante justitie et tante equitatis ut
posset ipsas leges dirigere, cum in
aliquo casu leges observari non de-
beant ut infra patebit. Dubitare ergo
utrum rex debeat esse equal is et justus
est dubitare utrum ipsa regula debeat
esse regulata. Si enim regula ab
equalitate deficiat nihil regulatum erit,
quum omnia per regulam regulentur.
Sio si reges sunt injusti, disponunt
regnum ut non observetur justitia.
Maxime ergo studere debent ne sint
injusti et inequales; quia eorum in-
justitia et inequalitas tollit ab eis
rogiam dignitatem. Nam reges injusti
etsi dominant per civilem potentiam
non tamen digni sunt ut sint reges,
cum enim deceat regulam esse rectam
et equalem. Rex, quia est qusedam
animata lex, est qusedam animata
regula agendorum, ex parte ipsius
personse regise maxime decet ipse ser-
vare justitiam. "
* Id. id. , i. 3, 3 : " Nam ut superius
dicebatur et ut philosophus in Pol.
probat differentiam esse inter regem
et tyrannum, quod rex principaliter
intendit bonum commune, et intern-
dendo bonum commune intendit bonum
? ? privatum, quia salvato regno salvatur
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 77
In a later work, written, as it is thought, in 1297, with
reference to the abdication of the Papal throne by Pope
Celestine in 1294, while Egidius maintains that those who
are superior in intelligence and energy should rule over others,
he also argues that this must be done by the consent of men,
and that by this same consent the ruler may retire or be
deposed. 1 This belongs, however, rather to the subject of
our next chapter, but we mention it here as confirming the
impression of the last passage cited.
It is, however, also noticeable that in one place he urges
that when it is considered how much good arises from king-
ship, not only when kings rule well, but even when in some
respects they play the tyrant, the people should strive to
obey, for some tyranny on the part of the ruler is more toler-
able than the evils which would arise from disobedience to
the prince. 2
The position of Egidius Colonna is, as we have said, re-
markable, and different from the normal mediseval tradition.
rex. Tyrannus autem e contrario
principaliter intendit bonum priva-
tum, ex consequenti autem et quasi
per accidens intendit bonum com-
mune. "
Cf. iii. 2, 2 and 6.
1 Id. , ' De Renuntiatione Papse,'
xvi.
1 : " Revertamur ergo ad pro-
positum, et dieamus, quod non est
super naturam negotii, nec supra con-
ditionem rerum, quod homines homi-
nibus prfflferuntur : immo est naturalis,
quod qui sunt potentiores in intellectu
et magis vigent industria, illi prsesint.
Et ideo videmus, quod homines natu-
raliter presunt bestiis, viri feminis,
senes pueris. . . . Inter adultos etiam
aliquibus dedit Deus majorem indus-
triam, quam aliis. Ex hoo ergo voluit,
quod non solum homines bestiis, viri
feminis, adulte pueris prseessent, sed
etiam voluit quod et ipsi adulti aliquem
super se praificerent, quia ut dieitur
in Proverbiis, ' Intelligens gubernacula
possidebit. '
Vult enim sapiens Solomon, quod
per intelligentiam homo sit aptus ad
alios gubernandum. Sed quamvis sic
requirit natura negotii, quod scientes
melius pericula pravidere aliis prse-
ficiantur, ut aub eorum gubernaculo
multitudo salvetur, oportet tamen
quod hoc compleatur per consensum
hominum. Et sicut per consensum
hominum perficitur et completur, ut
quia aliis praficiatur, sic per consensum
hominum contrario modo factum fieri
potest, quod prsefectus cedat, vel quod
etiam deponatur. "
>> Id. , ' De Regimine Principum,' iii.
2, 34 : " Si ergo consideretur quantum
bonum advenit ex rege; non solum
regibus recte regentibus, sed etiam
dato quod in aliquo, tyrannizarent,
studeret populus qbedire illis. Nam
magis est tolerabilis aliqualis tyran-
nides principantis, quam sit malum
quod consurgit ex inobedientia prin-
cipis, et ex prevaricatione mandatorum
? ? ejus. "
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? 78
[PART I.
POLITICAL PRINCIPLES.
It may possibly be suggested that we have here at least
some significant evidence as to the tendency of the political
institutions and theory of France. We must observe, how-
ever, that while it is true that Egidius was writing in France,
and for a French prince, he was not himself a Frenchman,
but an Italian.
There are two contemporary French writers with whom
we shall have more to do later, but whose work we may
examine with regard to our present point. The first is the
author of the tract entitled ' Disputatio inter Clericum et
Militem,' which deals with the conflict between Boniface VIII.
and Philip the Fair, written not earlier than 1296. In one
passage he claims that the legislative power of the king of
France is the same as that of the emperor, that as the emperor
has power to make and unmake laws for the whole empire,
so also the king of France has power not only to repudiate
the laws of the emperor, but also to promulgate new ones ;
he can add to, can diminish, or modify laws and privi-
leges, taking account always of equity and reason, for he has
no superior. The author seems to mean that he can do this,
either by his own authority or with his chief men. 1 The
author is clearly thinking of the legislative power of the
French king in terms of the position of the emperor in the
Eoman jurisprudence ; and while he formally allows for the
possibility of the king legislating with the advice of his " pro-
ceres," he does not seem to think of this as essential.
1 ' Disputatio inter Clericum et Mih-
tem,' p. 80 : " Et ideo sicut omnia
quse infra terminos imperii sunt, sub-
jecta esse noscuntur imperio, sio quse
infra terminos regni, regno. Et sicut
imperator supra totum imperium suum
habet leges condere, addere eia, aut
demere : sio et rex Francise aut omnino
leges imperatoris repellere aut quam-
libot placuerit permutare, aut illis a
toto regno suo prascriptis et abolitis,
novas si placuerit promulgare. Alio-
quin si aliquid novi, ut ssepe accidit,
visum fuerit statuendum, si rex non
posset hoc qui est summus: tunc
nullus poterit. Quia ultra sum non
est superior ullus. Et ideo domine
clerice, linguam vestram coercete et
agnoscite re gem legibus, consuetudini-
bus, et privilegiis vestris et libertatibus
datis, regia potestate prse. esse, posse
addere, posso minuere quselibit, sequi-
tate et ratione consultis, aut cum suis
proceribus, sicut visum fuerit, tempe-
rare. "
Cf. for a critical discussion of the
date, &c. , of this work, R. Scholz,
' Die Publizistik zur Zeit Philippe des
Schonen,' &o.
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--H. 79
The second is John of Paris, whose tract on the Eoyal
and Papal power was written probably in 1302 or 1303, also
in relation to the conflict between Boniface VIII. and Philip
the Fair. John of Paris was a determined advocate of the
position of Philip, and a penetrating critic of the papal claims.
He maintains stoutly that the royal power was in no sense
derived from the papal, but from God and from the people
who had elected the king or his family. 1 To maintain that it
was the Pope who gave laws to princes, and that the prince
could not establish his laws unless they were sanctioned by
the Pope, was really to destroy the "regimen regale et poli-
ticum " ; and he goes on to make the distinction between the
State where the ruler governs according to the laws which
he had made, and that which is governed not according to
the will (arbitrium) of the ruler, but according to laws which
the citizens or others had established. The first government
is called regalis, the second " civilis vel politicus. " 2
John of Paris does not in this place express any preference
for the one or the other, but a little later, in a passage probably
founded upon St Thomas Aquinas, which we shall consider
in the next chapter, he says that in his opinion the best
form of government was that in which all the members of
the community have their share. Such a form of government,
he says, is the best security for the peace of the people, and
all men love and maintain it. He ingeniously argues that this
was the form of government which God instituted for the
Hebrews when Moses or Joshua occupied the position of a
1 John of Paris, ' Tractatus de
Potestate Regia et Papali,' 11:
" Ergo potestas regia neo secundum
se, nec quantum ad executionem,
est a papa I sod est a Deo, et a
populo rcgem oligente in persona vel
domo. "
For a full discussion of this work and
its date, cf. R. Scholz, op. cit.
* Id. id. , 18: " Dicere autem ut
isti magistri dicunt, quod papa tradit
leges principibus, et quod prinoeps non
potest legem aliunde sumere, nisi per
papam fuerint approbatse; est omnino
destruere regimen regale et politicum,
et incidere in errorem Herodis timentis
et putantis Christum regnum destruere
terrenum ; quia secundum philoso-
phum in 1. Politicorum, principatus
tunc solum dicitur regalis quando quis
prseest secundum leges quas ipe insti-
tuit. Quum vero prseest non secundum
arbitrium suum, sed secundum leges
quas cives vel alii instituerunt, dicitur
principatus civilis vel politicus, et non
regalis. "
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? 80
[PART I.
POLITICAL PRINCIPLES.
king, and seventy-two elders were appointed under them as
an aristocracy of virtue, while these seventy-two were elected
by the people and from the people, thus representing the
principle of democracy. It is a mixed government of this
kind which he considered to be the best, for in this constitu-
tion all would have some part. 1
It is clear that if, as is just possible, the author of the
' Disputatio inter Clericum et Militem ' thinks of the king as
the absolute legislator, John of Paris, like St Thomas Aquinas,2
prefers a mixed or constitutional government.
We have, then, considered in these two chapters how far
the traditional mediseval conceptions of the nature and source
of law were continued in the later thirteenth century, and
how far other conceptions had begun to appear, and as the
subject is of the first importance for political theory, it may
be well to state our conclusion in summary form.
We have seen that there was no hesitation about the
principle that all positive law must express the principles of
justice and " sequitas," and that its authority is always
subject to that of the Natural Law. We have also seen that
the writers of this century, whether theologians like St Thomas
1 Id. id. , 20: " Sed quare ergo,
indignatus concessit (Deus) eis regem ?
Dicendum, quod nori ideo, quia regale
regimen ei displiceret simpliciter ut
malum : sed ideo quia ilium populum
sibi elegerat ut peculiarem, Deut. vi. ,
et instruxerat eis regimen melius puro
regali, saltem illi populo, propter duo.
Primum est, quia licet regimen regium,
in quo unus simpliciter principatur
secundum virtutem. sit melius quolibet
alio regimine simplici, ut ostendit
philosophus in III. Politicorum : tamen
si fiat mixtum cum aristocratia et
democratia melius est puro, in quan-
tum in regimine mixto omnes aliquam
partem habent in principatu. Per hoc
enim servatur pax populi, et omnes
talem dominationem amant et custo-
diunt, ut dicitur in II. Politioorum : et
tale erat regimen a Deo optime insti-
tutum in populo: quia erat regale,
in quantum unus prseerat simpliciter
omnibus singulariter, ut Moises vel
Josue. Erat etiam aliquid de aristo-
cratia, qui est principatus aliquorum
optimorum principantium secundum
virtutem, in quantum sub illo viro
elegebantur 72 Seniores, Deut. i. Erant
etiam ibi aliqui de democratia, i.
principatu populi, in quantum 72
elegebantur a populo et de toto populo,
ut dicitur ibidem : et sic erat optime
mixtum in quantum omnes in regimine
illo aliquid habebant, sive aliquam
partem. "
Cf. St Thomas Aquinas, ' Summa
Theologica,' i. 2, 105, 1.
>> Cf. pp. 69, 70.
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? CHAP. VI. ] SOUECE OF THE LAW OF THE STATE--EE.
81
or Civilians and Canonists like Odofridus and Hostiensis, all
held that custom was both the original form of law, and
continued to have the force of law, and that they were
therefore in substantial agreement with the great French
and English feudal jurists of the century, like Beaumanoir
and Bracton.
We have, however, also seen that in the course of the thir-
teeuth century the conception of law as custom was being
modified by another--that is, by the conception of law as
the expression of a conscious will and determination. There
is, as we have pointed out, an evident incoherence in the
principles of law as set out even by Bracton and Beaumanoir.
Bracton begins with the broad statement that English law
was not written but customary, but he goes on to say that,
in England, that has the force of law which was defined and
approved by the authority of the king, with the counsel and
consent of the great men, and the approval of the whole
commonwealth ; and Beaumanoir, who laid down the general
principle that all pleas were determined by custom, and that
not only the counts but the king must maintain the custom,
also said that the king has power to make laws for the
whole kingdom " par tres grant conseil et pur le commun
pourfit. " 1
To us it seems evident that there are here two conceptions
or principles of law, and we venture to urge that the transi-
tion from the one to the other was of far-reaching importance,
for we think that it is here that we find the first beginning of
the modern theory of sovereignty--that is, the conception
that there is in every political society the power of making
and unmaking laws, that there is some final authority which
knows no legal limits, and from which there is no legal
appeal. (We do not, of course, mean that this conception
is really adequate to the proper conception of law or
sovereignty. )
It is, we think, clear where this conception found its literary
source. The passage of Bracton, to which we have referred,
1 Cf. vol. iii. part i. chap. 3.
VOL. V.
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? 82
[PABT I.
POLITICAL PRTNCIPLES.
seems to us to be an adaptation and modification of the
famous phrase of Papinian. 1 It was the Eoman jurisprudence
with its clear and emphatic doctrine that law was that which
the Eoman people, or those to whom it gave legislative
authority, commands and establishes, which was the literary
source of this conception. It is no doubt true that the prin-
ciple was recognised as early as the ninth century, as we
can see from the famous phrase of the Edictum Pistense,
" Quoniam lex consensu populi et constitutione regis fit," 2
and it may reasonably be urged that the mere development
of mediseval society and the growing complexity of its insti-
tutions would have, in the long-run, compelled men to recog-
nise the necessity of some deliberate legislative process. It is,
however, we venture to think, perfectly clear that it was the
influence of the revived study of the Eoman law, and the
interpretation and popularisation of its principles by the
Civilians of Bologna, which gave form and expression to the
new principle.
We can, indeed, also see the terms under which the new
conception was reconciled to the older. In another phrase
of Bracton, which we have cited in the fifth chapter,3 the
laws made by the king with the advice and consent of the
great men and the common approval, when they have been
confirmed by the consent of those who are concerned (uten-
tium) cannot be changed without the consent of those by
whose counsel and consent they were made. Laws may,
indeed, be made by enactment, but they are confirmed by
custom. We see here the significance of that doctrine of
Gratian's, that laws have no force unless they are approved
by custom. * We have pointed out that, while there was
much controversy among the Civilians about the principle
of the continuance of the legal effect of custom, the great
mass of opinion was still clear that, even when laws were
1 ' Digest,' i. 3, 1 : " Lex est com- * Cf. vol. i. p. 238.
mune preceptum, virorum prudentium 1 Cf. p. 51, note 2.
consultum, delicto rum quse sponte vel 4 Grata an, Deerotum D. 4 (after c. 3).
ignorantia contrahuntux coercitio, com- Cf. vol. ii. p. 155.
munis reipublicse sponsio. "
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? CHAP. VI. ] SOURCE OF THE LAW OF THE STATE--n.
83
made by a definite and legitimate authority, the custom of
the people remained supreme, and Gregory IX. recognised
this principle as holding in ecclesiastical law. 1
We have also seen that, so far as law was thought of in the
thirteenth century as something deliberately made and pro-
mulgated, it was normally held that it was established, not
by the prince alone, but by the prince with the counsel and
consent of the great men and, in some general sense, the
approval of the whole community. This is the principle of
legislation which the Middle Ages left to the modem world.
This was the principle of the feudal jurisprudence, and was
represented in the constitutional practice not only of Eng-
land, but of Western Europe.
The truth is that the conception of an absolute monarch,
the source of law, and superior to all law, was wholly alien
to mediseval civilisation. Bracton's famous saying that the
king is under God and the law 2 represented the tradition
not only of England, but of all Western Europe. 3 So far as
the law was not merely the custom of the community, it was
the expression of the will and command of the community.
This principle was, indeed, admirably expressed by one of the
earliest jurists of Bologna, possibly Imerius himself, when he
said that the " universitas "--that is, the people--establishes
and interprets the law, for it is its function to care for all its
members. *
It is, however, also true that in the twelfth and thir-
teenth centuries we have found the first beginnings for the
modern world of another conception of the source of law,
that it is the prince or ruler who is the legislator, the fount of
law; and there cannot be any doubt as to the origin of this
conception. It came from Bologna, from the revived study
of the Eoman jurisprudence, from the Civilians. It was in
1 Cf. vol. ii. part i. chap. 7 ; part ii. officium, singulis scilicet hominibus
chap. 8 ; vol. iii.
