CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE' JA82 GOs""" ""'*"*">' '■"'"'V '"miSSfiLJSS?."*® "' "'« middle age olin 3 1924 032 623 518 S^lPtPUE Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032623518 POLITICAL THEORIES OF THE MIDDLE AGE POLITICAL THEORIES OF THE MIDDLE AGE BY OTTO GIERKE TRANSLATED WITH AN INTRODUCTION BY FREDERIC WILLIAM MAITLAND CAMBRIDGE AT THE UNIVERSITY PRESS 1951 s^v PUBLISHED BY THE SYNDICS OF THE CAMBRIDGE UNIVERSITY PRESS London Office : Bentley House, n.w. i American Branch : New York Agents for Canada, India, and Pakistan : Macmillan First Edition 1900 Reprinted 1913 1922 1927 1938 1951 Printed in Great Britain at the University Press, Cambridge (Brooke Crutchley, University Printer) CONTENTS. PAGE Translator's Introduction vii Analytical Summary xlvii Subject Matter of the Notes Ivi List of Authorities Ixiii Index to List of Authorities Ixxviii Political Theories of the Middle Age .... i Notes loi ERRATA. pp. 44, 46, 66, 67. For Leopold oj Babenberg read Leopold of Bebenburg. p. 67. The new section should be numbered VIII not VII. p. 150, note 158. Add to what is said of the opinions of Baldus the following: — ' But in Ruhr. C. 10, 1, nr. 12, he holds that the camera imperii may in a secondary sense be said to belong to the Roman people; quia princeps repraesentat ilium populum et ille populus imperium etiam, mortuo principe.' INTRODUCTION. Had what is here translated, namely, a brief account of the political theories of the Middle Ages, appeared as a whole book, it would hardly have stood in need of that distorting medium, an English translation. Englishmen who were approaching the study of medieval politics, either from the practical or from the theoretical side, would have known that there was a book which they would do well to master, and many who were not professed students or whose interests lay altogether in modern times would have heard of it and have found it profitable. The elaborate notes* would have shewn that its writer had read widely and deeply; they would also have guided explorers into a region where sign-posts are too few. As to the text, the last charge which could be made against it would be that of insufificient courage in generalization, unless indeed it were that of aimless medievalism. The outlines are large, the strokes are firm, and medieval appears as an introduction to modern thought. The ideas that are to possess and divide mankind from the sixteenth until the nineteenth century — Sovereignty, the Sovereign Ruler, the Sovereign People, the Representation of the People, the Social Contract, the Natural Rights of Man, the Divine Rights of Kings, the Positive Law that stands below the State, the Natural Law that stands above the State — these are the ideas whose early history is to be detected, and they are set before us as thoughts which, under the influence of Classical Antiquity, necessarily shaped themselves in the course of medieval debate. And if the thoughts are interesting, so too are the thinkers. In Dr Gierke's list of medieval publicists, beside the divines and schoolmen, stand great popes, great lawyers, great reformers, men who were clothing concrete projects in abstract Political Theories of the Middle Age. vesture, men who fashioned the facts as well as the theories of their time. Moreover, Englishmen should be especially grateful to a guide who is perhaps at his strongest just where they must needs be weak: that is, among the books of the legists and canonists. An educated Englishman may read and enjoy what Dante or Marsiglio has written. An English scholar may face Aquinas or Ockham or even the repellent Wyclif. But Baldus and Bartolus, Innocentius and Johannes Andreae, them he has never been taught to tackle, and they are not to be tackled by the untaught. And yet they are important people, for political philosophy in its youth is apt to look like a sublimated jurisprudence, and, even when it has grown in vigour and stature, is often compelled or content to work with tools — a social contract for example — which have been sharpened, if not forged, in the legal smithy. In that smithy Dr Gierke is at home. With perfect modesty he could say to a learned German public ' It is not probable that for some time to come anyone will tread exactly the same road that I have trodden in long years of fatiguing toil.' But then what is here translated is only a small, a twentieth, part of a large and as yet unfinished book bearing a title which can hardly attract many readers in this country and for which an English equivalent cannot easily be found, namely Das deutsche Genossenschaftsrecht. Of that work the third volume contains a section entitled Die publicistischen Lehren des Mittelalters, and that is the section which is here done into English. Now though this section can be detached and still bear a high value, and though the author's permission for its detachment has been graciously given, still it would be untrue to say that this amputating process does no harm. The organism which is a whole with a life of its own, but is also a member of a larger and higher organism whose life it shares, this, so Dr Gierke will teach us, is an idea which we must keep before our minds when we are studying the political thought of the Middle Ages, and it is an idea which we may apply to his and to every good book. The section has a life of its own, but it also shares the life of the whole treatise. Nor only so ; it is membrum de membro. It is a section in a chapter entitled 'The Medieval Doctrine of State and Corporation,' which stands in a volume entitled ' The Antique and Medieval Doctrine of State and Translator' s Introduction. ix Corporation and its Reception in Germany' ; and this again is part of Das deutsche Genossenschaftsrecht. Indeed our section is a member of a highly organized system, and in that section, are sentences and paragraphs which will not yield their full meaning except to those who know something of the residue of the book and something also of the controversial atmosphere in which a certain Genossenschaftstheorie has been unfolding itself. This being so, the intervention of a translator who has read the whole book, who has read many parts of it many times, who deeply admires it, may be of service. In a short introduction, even if his own steps are none too sure, he may be able to conduct some of his fellow- countrymen towards a point of view which commands a wide prospect of history and human affairs. Staats- und Korporationslehre — the Doctrine of State and Corporation. Such a title may be to some a stumbling-block set before the threshold. A theory of the State, so it might be said, may be very interesting to the philosophic few and fairly interesting to the intelligent many, but a doctrine of Cor- porations, which probably speaks of fictitious personality and similar artifices, can only concern some juristic speculators, of whom there are none or next to none in this country. On second thoughts, however, we may be persuaded to see here no rock of offence but rather a stepping-stone which our thoughts should sometimes traverse. For, when all is said, there seems to be a | , genus of which State and Corporation are species. They seem to | be permanently organized groups of men ; they seem to be group- I i units ; we seem to attribute acts and intents, rights and wrongs to these groups, to these units. Let it be allowed that the State is a highly peculiar group-unit ; still it may be asked whether we ourselves are not the slaves of a jurist's theory and a little behind the age of Darwin if between the State and all other groups we fix an immeasurable gulf and ask ourselves no questions about the origin of species. Certain it is that our medieval history will go astray, our history of Italy and Germany will go far astray, unless we can suffer communities to acquire and lose the character of States somewhat easily, somewhat insensibly, or rather unless we both know and feel that we must not thrust our modern 'State- concept,' as a German would call it, upon the reluctant material. Englishmen in particular should sometimes give themselves Political Theories of the Middle Age. this warning, and not only for the sake of the Middle Ages. Fortunate in littleness and insularity, England could soon exhibit as a difference in kind what elsewhere was a difference in degree, namely, to use medieval terms, the difference between a com- munity or corporation {universitas) which does and one which does not 'recognize a superior.' There was no likelihood that the England which the Norman duke had subdued and surveyed would be either Staatenbund or Bundesstaat, and the aspiration of Londoners to have 'no king but the mayor' was fleeting. This, if it diminished our expenditure of blood and treasure — an expenditure that impoverishes — diminished also our expendi- ture of thought — an expenditure that enriches — and facilitated (might this not be said ?) a certain thoughtlessness or poverty of ideas. The State that En^phmen knew was a singularly unicellular State, and at a crirKl time they were not too well equipped with tried and traditional thoughts which would meet the case of Ireland or of some communities, commonwealths, corpora- tions in America which seemed to have wills — and hardly fictitious wills — of their own, and which became States and United States'. The medieval Empire laboured under the weight of an incon- gruously simple theory so soon as lawyers were teaching that the Kaiser was the Princeps of Justinian's law-books. The modern and multicellular British State — often and perhaps harmlessly called an Empire — may prosper without a theory, but does not suggest and, were we serious in our talk of sovereignty, would hardly tolerate, a theory that is simple enough and insular enough, and 3'et withal imperially Roman enough, to deny an essentially state- like character to those 'self-governing colonies,' communities, commonwealths, which are knit and welded into a larger sovereign whole. The adventures of an English joint-stock company which happed into a rulership of the Indies, the adventures of another English company which while its charter was still very new had become the puritan commonwealth of Massachusett's Bay should ' See the remarks of Sir C. Ilbert, The Government of India, p. 55: 'Both the theory and the experience were lacking which are requisite for adapting English insti- tutions to new and foreign circumstances. For want of such experience England was destined to lose her colonies in the Western hemisphere. For want of it mistakes were committed which imperilled the empire she was building up in the East.' The want of a theory about Ireland which would have mediated between absolute dependence and absolute independence was the origin of many evils. Translators Introduction. be enough to shew that our popular English Staatslehre if, instead of analyzing the contents of a speculative jurist's mind, it seriously grasped the facts of English history, would shew some inclination to become a Korporationslehre also. Even as it is, such a tendency is plainly to be seen in many zones. Standing on the solid ground of positive law and legal orthodoxy we confess the king of this country to be a ' corporation sole,' and, if we have any curiosity, ought to wonder why in the sixteenth century the old idea that the king is the head of a ' cor- poration aggregate of many*' gave way before a thought which classed him along with the parish parson of decadent ecclesiastical law under one uncomfortable rubric. Deeply convinced though our lawyers may be that individual men are the only 'real' and •natural' persons, they are comj^Ued to find some phrase which places State and Man upon on^^evel. ' The greatest of artificial persons, politically speaking, is the State ' : so we may read in an excellent First Book of Jurisprudence". Ascending from the legal plain, we are in a middle region where a sociology emulous of the physical sciences discourses of organs and organisms and social tissue, and cannot sever by sharp lines the natural history of the state-group from the natural history of other groups. Finally, we are among the summits of philosophy and observe haw a doctrine, which makes some way in England, ascribes to the State, or, more vaguely, the Community, not only a real will, but even 'the' real will, and it must occur to us to ask whether what is thus affirmed in the case of the State can be denied in the case of other organized groups : for example, that considerable group the Roman Catholic Church. It seems possible to one who can only guess, that even now-a-days a Jesuit may think that the will of the Company to which he belongs is no less real than the will of any State, and, if the reality of this will be granted by the philosopher, can he pause until even the so-called one-man-company has a real will really distinct from the several wills of the one man and his six humble associates ? If we pursue that thought, not only will our philo- sophic Staatslehre be merging itself in a wider doctrine, but we shall already be deep in the Genossenschaftstheorie. In any case, however, the law's old habit of co-ordinating men and 'bodies ' A late instance of this old concept occurs in Plowden's Commentaries, 234. ' Pollock, First Book of Jurisprudence, 115. xii Political Theories of the Middle Age. politic' as two kinds of Persons seems to deserve the close attention of the modern philosopher, for, though it be an old habit, it has become vastly more important in these last years than it ever was before. In the second half of the nineteenth century corporate groups of the most various sorts have been multiplying all the world over at a rate that far outstrips the increase of ' natural persons,' and a large share of all our newest law is law concerning corporations'. Something not unworthy of philosophic discussion would seem to lie in this quarter : either some deep-set truth which is always bearing fresh fruit, or else a surprisingly stable product of mankind's propensity to feign. — Howbeit, this rare atmosphere we do not easily breathe and therefore will for a while follow a lower road. I. A large part in the volume that lies before the translator is played by 'the Reception.' When we speak of the Renaissance and the Reformation we need not be at pains to name what was reformed or what was born anew, and even so a German historian will speak of the Reception when he means the Reception of Roman law. Very often Renaissance, Reformation and Reception will be set before us as three intimately connected and almost equally important movements which sever modern from medieval history. Modern Germany has attained such a pre-eminence in the study of Roman law, that we in England may be pardoned for forgetting that of Roman law medieval Germany was innocent and ignorant, decidedly more innocent and more ignorant than was the England of the thirteenth century. It is true that in Germany the theoretical continuity of the Empire was providing a base for the argument that the law of Justinian's books was or ought to be the law of the land ; it is also true that the Corpus luns was furnishing weapons useful to Emperors who were at strife with Popes ; but those weapons were fashioned and wielded chiefly by Italian hands, and the practical law of Germany was as German as it well could be. Also-and here lay the possibility of ■ In 1857 an American judge went the length of saying • It is probably true that more corporations were created by the legislature of Illinois at its la^t session ^ale."^ I^L:^^.;:^^: ''' — - -^ P-' century.^ -C Translator' s Introduction. xiii a catastrophe — it was not learned law, it was not taught law, it was far from being Juristenrecht. Englishmen are wont to fancy that the law of Germany must needs savour of the school, the lecture room, the professor ; but in truth it was just because German law savoured of nothing of the kind, but rather of the open air, oral tradition and thoroughly unacademic doomsmen that the law of Germany ceased to be German and that German law has had to be disinterred by modern professors. Of the geographical and histori- cal causes of the difference we need not speak, but in England we see a very early concentration of justice and then the rapid growth of a legal profession. The Year Books follow and the Inns of Court and lectures on English law and scholastic exercises and that 'call to the bar' of the Inn which is in fact an academically earned degree. Also long before Germany had universities, Roman law was being taught at Oxford and Cambridge, so that it would not come hither with the glamour of the Renaissance. A certain modest place had been assigned to it in the English scheme of life ; some knowledge of it was necessary to the students of the lucrative law of the Church, and a few civilians were required for what we should call the diplomatic service of the realm. But already in the fourteenth century Wyclif, the schoolman, had urged that if law was to be taught in the English universities it ought to be English law. In words which seem prophetic of modern ' Ger- manism' he protested that English was as just, as reasonable, as subtle, as was Roman jurisprudence*. Thus when the perilous time came, when the New Learning was in the air and the Modern State was emerging in the shape of the Tudor Monarchy, English law was and had long been lawyers' law, learned law, taught \di.v!, Juristenrecht. Disgracefully barbarous, so thought one enlightened apostle of the New Learning. Reginald Pole — and his advice was brought to his royal cousin — was for sweeping it away. In so many words he desired that England should ' receive' the civil law of the Romans : a law so civil that Nature's self might have dictated it and a law that was being re- ceived in all well governed lands'. We must not endeavour to tell 1 Wyclif, De Officio Regis (ed. Pollard and Sayle, 1887), p. 193: ' Sed non credo quod plus viget in Romana civilitate subtilitas racionis sive iusticia quam in civilitate Anglicana.' » Starkey's England (Early Eng. Text Soc. 1878), 192—5. xiv Political Theories of the Middle Age the story of the danger that beset English law when the future Cardinal Archbishop was speaking thus : a glance towards Scot- land would shew us that the danger was serious enough and would have been far more serious but for the continuous existence of the Inns of Court, and that indoctissimum genus doctissimorum homt- num which was bred therein. Then late in the sixteenth century began the wonderful resuscitation of medieval learning which attains its completion in the books and acts of Edward Coke. The political side of this movement is the best known. Anti- quarian research appears for a while as the guardian and renovator of national liberties, and the men who lead the House of Commons are becoming always more deeply versed in long-forgotten records. However, be it noted that even in England a certain amount of foreign theory was received, and by far the most remarkable instance is the reception of that Italian Theory of the Corporation of which Dr Gierke is the historian, and which centres round the phrase persona ficta. It slowly stole from the ecclesiastical courts, which had much to say about the affairs of religious corporations' into our temporal courts, which, though they had long been dealing with English group-units, had no home-made theory to oppose to the subtle and polished invader. This instance may help us to understand what happened in Germany, where the native law had not reached the doctrinal stage of growth, but was still rather ' folk law' than lawyers' law and was dissipating itself in countless local customs. Italian doctrine swept like a deluge over Germany. The learned doctors from the new universities whom the Princes called to their councils, could explain everything in a Roman or would-be Roman sense. Those Princes were consolidating their powers into a (by Englishmen untranslatable) Landeshoheit -. something that was less than modern sovereignty, for it still would have the Empire above it, but more than feudal seignory since classical thoughts about 'the State' were coming to its aid. It is noticeable that, except in his hereditary dominions, the Emperor profited little by that dogma of continuity which served as an apology for the Reception. The disintegrating process was so far advanced that not the Kaiser but the FUrst appeared as 'the Prmce of political theory and the Princeps of the Corpus luris The doctors could teach such a prince much that was to his Translatoi^s Introduction. xv advantage. Beginning late in the fifteenth century the movement accomplished itself in the sixteenth. It is catastrophic when compared with the slow and silent process whereby the customary law of northern France was partially romanized. No legislator had said that Roman law had been or was to be received in Germany; the work was done not by lawgivers but by lawyers, and from age to age there remained some room for controversy as to the exact position that the Corpus luris occupied among the various sources of law actual and potential. Still the broad fact remains that Germany had bowed her neck to the Roman yoke. In theory what was received was the law of Justinian's books. In practice what was received was the system which the Italian commentators had long been elaborating. Dr Gierke frequently insists that this is an important difference. In Italy the race of glossators who were sincerely endeavouring to discover the meaning of classical texts had given way to a race of commentators whose work was more or less controlled by a desire for practically acceptable results, and who therefore were disposed to accommo- date Roman law to medieval life. Our author says that especially in their doctrine of corporations or communities there is much that is not Roman, and much that may be called Germanic. This facilitated the Reception : Roman law had gone half-way to meet the facts that it was to govern. Then again, at a later time the influence of what we may call the 'natural' school of jurists smoothed away some of the contrasts between Roman law and German habit. If in the eyes of an English lawyer systems of Natural Law are apt to look suspiciously Roman, the modern Romanist will complain that when and where such systems were being constructed concrete Rome was evaporating in abstract Reason, and some modern Germanists will teach us that ' Nature Right' often served as the protective disguise of repressible but ineradicable Germanic ideas. With the decadence of Nature Right and the advent of 'the historical school' a new chapter began. Savigny's teaching had two sides. We are accustomed to think of him, and rightly, as the herald' of evolution, the man who substitutes development for manufacture, organism for mechanism, natural laws for Natural Law, the man who is nervously afraid lest a code should impede the beautiful processes of gradual growth. But then he was also xvi Political Theories of the Middle Age. the great Romanist, the great dogmatist, the expounder of classical texts according to their true — which must be their original — intent and meaning. There was no good, he seemed to say, in playing at being Roman. If the Common Law of Germany was Roman law, it ought to be the law of the Digest, not the law of glossators or commentators or 'natural' speculators. This teaching, so we are told, bore fruit in the practical work of German courts. They began to take the Corpus luris very seriously and to withdrav;^ concessions that had been made — some will say to national life and modern fact, others will say to slovenly thought and slipshod practice. But that famous historical school was not only a school of historically minded Romanists. It was also the cradle of Ger- manism. Eichhorn and Grimm stood by Savigny's side. Every scrap and fragment of old German law was to be lovingly and scientifically recovered and edited. Whatever was German was to be traced through all its fortunes to its fount. The motive force in this prolonged effort— one of the great efforts of the nineteenth century — was not antiquarian pedantry, nor was it a purely dis- interested curiosity. If there was science there was also love. At this point we ought to remember, and yet have some difficulty in remembering, what Germany, burdened with the curse of the translated Imperium, had become in the six centuries of her agony. The last shadow of political unity had vanished and had left behind a 'geographical expression,' a mere collective name for some allied states. Many of them were rather estates than states ; most of them were too small to live vigorous lives ; all of them were too small to be the Fatherland. Much else besides blood, iron and song went to the remaking of Germany. The idea of a Common Law would not die. A common legislature there might not be, but a Common Law there was, and a hope that the law of Germany might someday be natively German was awakened. Then in historical retrospect the Reception began to look like disgrace and disaster, bound up as cause and effect with the forces that tore a nation into shreds. The people that defied the tyranny of living popes had fallen under the tyranny of dead emperors unworthily reincarnate in petty princelings. The land that saw Luther burn one 'Welsh' Corpus luris had meekly accepted another. It seemed shameful that Germans, not unconscious of Translator's Introdtiction. their mastery of jurisprudence, should see, not only in England, but in France and even the France of Napoleon's Code the survival of principles that might certainly be called Germanic, but could not be called German without a sigh. Was not ' a daughter of the Salica,' or a grand-daughter, reigning over the breadth of North America ? And then, as might be expected, all manner of causes and parties sought to suck advantage out of a patriotic aspiration. The socialist could denounce the stern and bitter individualism, the consecrated selfishness, of the alien slave-owners' law, and the Catholic zealot could contrast the Christiano-German law of Germany's great days with the Pagano-Roman law in which disruptive Protestantism had found an unholy ally. In all soberness, however, it was asserted that old German law, blighted and stunted though it had been, might yet be nursed and tended into bearing the fruit of sound doctrine and reformed practice. The great men were neither dreamers nor purists. Jacob Grimm once said that to root out Roman ideas from German law would be as impossible as to banish Romance words from English speech. The technical merits of Roman law were admitted, admired and emulated. Besides Histories of German Law, Systems were produced and ' Institutes.' The Germanist claimed for his science a parity of doctrinal rank with the science of the Romanist. He too had his theory of possession ; he too had his theory of corporations; and sometimes he could boast that, willingly or unwillingly, the courts were adopting his con- clusions, though they might attain the Germanic result by the troublesome process of playing fast and loose with Ulpian and his fellows. Happier days came. Germany was to have a Civil Code, or rather, for the title at least would be German, a Biirgerliches Gesetzbuch. Many years of keen debate now lie behind the most carefully considered statement of a nation's law that the world has ever seen. Enthusiastic Germanists are not content, but they have won something and may win more as the work of interpretation pro- ceeds. What, however, concerns us here is that the appearance of ' Germanistic ' doctrines led to controversies of a new and radical kind. It became always plainer that what was in the field was not merely a second set of rules but a second and a disparate set of ideas. Between Romanist and Germanist, and again within each school, M. b Political Theories of the Middle Age. the debate took a turn towards what we might call an ideal morphology. The forms of legal thought, the 'concepts' with which the lawyer * operates," were to be described, delimited, com- pared. In this work there was sometimes shewn a delicacy of touch and a subtlety of historical perception, of which in this country we, having no pressing need for comparisons, can know little, especially if our notion of an analytical jurisprudence is gathered from Austin's very ' natural ' exploits. Of special interest to Englishmen should be the manner in which out of the rude material of old German law the Germanists will sometimes re- construct an idea which in England needs no reconstruction since it is in all our heads, but which bears a wholly new value for us when we have seen it laboriously composed and tested. II. At an early moment in the development of Germanism a Theory of the Corporation, which gave itself out to be the orthodox Roman Theory and which Savigny had lately defined in severe outline, was assailed by Georg Beseler who lived to be a father among Germanists^ You will never, he said in effect, force our German fellowships, our German Genossenschaften, into the Roman scheme : we Germans have had and still have other thoughts than yours. Since then the Roman Corporation {uni- versitas) has been in the crucible. Romanists of high repute have forsaken the Savignian path ; Ihering went one way, Brinz another, and now, though it might be untrue to say that there are as many doctrines as there are doctors, there seems to be no creed that is entitled to give itself the airs of orthodoxy. It is important to remember that the materials which stand at the Romanist's dis- posal are meagre. The number of texts in the Digest which, even by a stretch of language, could be said to express a theory of Corporations is extremely small, and as to implied theories it is easy for different expositors to hold different opinions, especially if they feel more or less concerned to deduce a result that will be I tolerable in modern Germany. The admission must be made that ^ there is no text which directly calls the universitas a persona, and * still less any that calls \t persona ficta* . ' Beseler, Volksrecht und Juristenrecht, Leipzig, 1843, pp. 158—194. « It does not seem to be proved that the Roman jurists went beyond the 'personae Translator' s Introduction. xix According to Dr Gierke, the first man who used this famous phrase was Sinibald Fieschi, who in 1243 became Pope Innocent IV.' More than one generation of investigators had passed away, indeed the whole school of glossators was passing away, before the Roman texts would yield a theory to men who lived in a Germanic en- vironment, and, when a theory was found, it was found by the canonists, who had before their eyes as the typical corporation, no medieval city, village or gild, but a collegiate or cathedral church. In Dr Gierke's view Innocent, the father of ' the Fiction Theory,' appears as a truly great lawyer. He really understood the texts ; the head of an absolute monarchy, such as the catholic Church was tending to become, was the very man to understand them ; he found the phrase, the thought, for which others had sought in vain. The corporation is a person ; but it is a person by fiction and only by fiction. Thenceforward this was the doctrine professed alike by legists and canonists, but, so our author contends, it never com- pletely subdued some inconsistent thoughts of Germanic origin which found utterance in practical conclusions. In particular, to mention one rule which is a good touchstone for theories, Innocent, being in earnest about the mere fictitiousness of the corporation's personality and having good warrant in the Digest', proclaimed that the corporation could commit neither sin nor delict. As pope he might settle the question of sin, and at all events could prohibit the excommunication of an universitas', but as lawyer he could not convince his fellow lawyers that corporations must never be charged with crime or tort. Then Savigny is set before us as recalling courts and lawyers from unprincipled aberrations to the straight but narrow Roman road. Let us bring to mind a few of the main traits of his renowned doctrine. vice fungitur ' of Dig. 46, i, 22. Any modern text-book of Pandektenrecht will introduce its reader to the controversy, and give numerous references. Here it may be enough to name Ihering, Brinz, Windscheid, Pemice, Dernburg and Regelsberger as prominent expositors of various versions of the Roman theory. Among recent discussions may be mentioned, Kniep, Societas Publicanorum, 1896 ; Kuhlenbeck, Von den Pandekten zum biirgerlichen Gesetzbuch (1898), I. 169 if. ' Gierke, Genossenschaftsrecht, III. 279. » Dig. 4, 3, 15 § 1. * Gierke, Genossenschaftsrecht, III. 280. b2 Political Theories of the Middle Age. Besides men or 'natural persons,' the law knows as 'subjects ' of proprietary rights certain fictitious, artificial or juristic persons, and as one species of this class it knows the corporation. We must carefully sunder this ideal person from those natural persons who are called its members. It is capable of proprietary rights ; but it is incapable of knowing, intending, willing, acting. The relation between it and the corporators may best be compared to that between pupillus and tutor, or that between a lunatic and the committee of his estate. By the action of its guardians it can acquire property, and, if it is to take the advantage of contracts, it must take the burden also. To allow it possession is difficult, for possession is matter of fact; still after hesitation the Roman lawyers made this concession. An action based upon unjust enrichment may lie against it; but it must not be charged with delict. To attempt to punish it is. both absurd and unjust, though the State may dissolve a noxious group in an administrative way. Being but a fiction of the law, its personality must have its com- mencement in some authoritative act, some declaration of the State's will. Finally, it may continue to exist though it no longer has even one member. For the last three centuries and more Englishmen have been repeating some of the canonical phrases, but Dr Gierke would probably say that we have never taken them much to heart. We are likely therefore to overlook some points in the Savignian theory which seem serious to those who have not raised con- venient inconsequence to the level of an intellectual virtue. In particular, having made 'the corporation itself a mindless being that can do no act, we must not think of the organized group of corporators as an 'agent' appointed by a somewhat inert 'prin- cipal.' Were the corporation 'itself capable of appointing an agent, there would be no apparent reason why ' itself should not do many other acts. Savigny is far more skilful. It is not in agency but in guardianship of the Roman kind that he finds the • Germans distinguish between the Subject and the Object of a right. If Styles owns a horse, Styles is the Subject and the horse the Object of the right. 'ITien if we ascribe the ownership of the horse to the Crown, we make the Crown a, Subject ; and then we can speak of the Crown's Subjectivity. And so in political theory, if we ascribe Sovereignty to the Crown or the Parliament or the People, we make the Crown, Parliament or People the Subject of Sovereignty. The reader of the following pages may be asked to remember this not inconvenient usage. Translator' s Introduction. xxi correct analogy. Those who wish to make fun of the theory say that it fills the legal world with hopeless idiots and their State- appointed curators ; but, if we mean logic, we must be careful to see that our 'corporation itself — that Ding an sick which some- how or another lies beyond the phenomenal group of corporators' — does no act, speaks no word, thinks no thought, appoints no agent. Also we may observe, and in history this is important, that this theory might play into the hands of a Prince or princeling inclined to paternal despotism. Really and truly the property of a corporation — for example a city or university — belongs to no real person or persons, and over the doings of guardians and curators the State should exercise, no mere jurisdiction, but administrative control. Of 'natural rights' there can here be no talk, for 'artificial persons ' can have no natural rights. Furthermore, the strict con- finement of the persona ficta within the sphere of Private Law may escape notice in a country where (to use foreign terms) 'publicistic' matter has been wont to assume ' private-rightly ' form in a fashion that some would call shamefully medieval but others enviably Germanic. The Savignian corporation is no 'subject' for 'liberties and franchises ' or ' rights of self-government.' Really and ' pub- licistically ' it can hardly be other than a wheel in the State's machinery, though for the purposes of Property Law a personifi- cation of this wheel is found to be convenient. Lastly, some popular thoughts about 'body' and 'members' must needs go overboard. The guardian is no ' member ' of his ward ; and how even by way of fiction could a figment be composed of real men ? We had better leave body and members to the vulgar. Savigny wrote on the eve of a great upheaval. A movement in which England played a prominent and honourable part was thrusting the joint-stock company to the very forefront of those facts whence a theory of corporations must draw its sustenance. Whatever may be said of municipal and other communes, of universities and colleges and churches, the modern joint-stock company plainly resents any endeavour to 'construe' it as a piece of the State's mechanism, though we may profitably remember that ^ Pollock, Contract, ed. 6, p. io8 ; ' If it is allowable to illustrate one fiction by another, we may say that the artificial person is a fictitious substance conceived as supporting legal attributes.' But this happy phrase is not by itself an adequate expression of Sir F. Pollock's view. See the context. Political Theories of the Middle Age. early and exemplary specimens, notably the Bank of England and the East India Company, were closely related to the State. More- over, the modern joint-stock company, if it is an universitas, is exceedingly like a societas, a partnership, a Gesellschaft, and this resemblance seemed to threaten one of the securest results of legal science. There were a few phrases in the Digest capable of per- plexing the first glossators, but in clear words Innocent IV. had apprehended the distinction: the universitas is a person; the societas is only another name, a collective name, for the socii^. Since then jurisprudence had kept or endeavoured to keep the two in very different boxes, in spite of the efforts of Natural Law to break down the partition. In a system of Pandektenrecht the universitas appeared on an early page under the rubric 'Law of Persons,' while the societas was far away, probably in another volume, for a Partnership is a kind of Contract and Contract is a kind of Obligation. Here, however, was a being whose very name of Aktiengesellschaft strongly suggested partnership, and yet the German legislators who had designed its mould had almost certainly meant that it should exhibit personality or legal 'sub- jectivity,' though they had not said this in so many words. Was it universitas, or societas, or neither, or both .' Could a mean term be found between unity and plurality? What was, what could be, the 'juristic nature' of a shareholder's 'share,' as we call it in England? Was it any conceivable form of co-ownership, any ' real ' right in the company's lands and goods ? Could it, on the other hand, be reduced to the mere benefit of a contract between the shareholder and the artificial person .' Ideal walls were rocking and material interests were at stake. Was it, for example, decent of the Prussian government to tax first the income of the company and then the dividends of the shareholders and yet disclaim all thought of double taxation"? Pausing here for a moment, we may notice that an Englishman ' Gierke, Genossenschiiftsrecht, iii. 185. ' Dernburg, Pandekten, ed. 6, I. 146. The German lawyer has had a good many different types of association to consider, such as the Gesellschaft des biirgerlkhen Sechtes, the offene Handelsgesellschaft, the KommandUgesellschaft, the KovtmandUgesellschaft auf Aktien, and the Aktiengesellschaft; and, so I understand, the legislature had not explicitly told him which, if any, of these types were to display personality. So a large room was left for rival ' constructions.' Translator' s Introduction. will miss a point in the history of political theory unless he knows that in a strictly legal context the Roman societas, the French social, and the German Gesellschaft should be rendered by the English partnership and by no other word. Also he should know that, just as the English lawyer maintains that our English ' firm ' is a mere collective name for the partners and displays no ' artificial personality,' so also he will be taught in Germany that the Roman societas and the German Gesellschaft are not 'juristic persons.' Now-a-days it will perhaps be added that the German Gesellschaft — and the same would be said of the English partnership — shews a tendency to develop towards corporate organization, from which tendency the extremely 'individualistic' societas of the Romans was wholly free\ That is a small matter ; but it is a great matter that before the end of the Middle Ages the Roman word for partnership was assuming a vastly wide meaning and, under the patronage of Ciceronian comparisons^, was entering the field of politics. ' Human Society ' should be the partnership of mankind ; ' Civil Society ' should be the partnership of citizens ; ' the Origin of Civil Society ' should be a Social Contract or contract of part- nership. If Rousseau writes of le Contrat Social and Pothier of le Contrat de Soci^ti, there should be, and there is, a link between their dissimilar books, and a German can say that both discussed the Gesellschaftsvertrag, the one with passion, the other with erudi- tion. Here then we face one of the historical problems that Dr Gierke raises. How came it about that political theory, which went to the lawyers for most of its ideas, borrowed the contract of partnership rather than the apparently far more appropriate act of incorporation ? In brief the answer is that the current doctrine of corporations, the classical and Innocentian doctrine, stood beneath the level of philosophic thought. A merely fictitious personality, created by the State and shut up within the limits of Private Law, was not what the philosopher wanted when he went about to construct the State itself. And then political philosophy reacted upon legal theory. When the State itself had become a merely collective unit — a sum of presently existing individuals bound together by the operation of their own wills — it was not likely that any other group would seem capable of withstanding similar analysis. Where philosophy and 1 Dernburg, loc. cit. ^ See below, p. 187. Political Theories of the Middle Age. jurisprudence met in such systems of Natural Law as were fashion- able in the eighteenth century, the wiiversitas was lowered to the rank of the societas, or (but this was the same process) the societas was raised to the rank of the universitasK Both alike exhibited a certain unity in plurality; both alike might be called 'moral persons ' ; but in the one case as in the other this personality was to be thought of as a mere labour-saving device, like stenography or the mathematician's symbols. What we may call the Bracket Theory or Expansible Symbol Theory of the Corporation really stands in sharp contrast with the Fiction Theory as Savigny conceived it, though sometimes English writers seem to be speaking of the one and thinking of the other. The existing corporators, who in the one scheme are mere guardians for a somewhat that the State has instituted, become in the other scheme the real 'subjects' of those rights and duties that are ascribed to the corporation, though legal art usually keeps these 'subjects' enclosed within a bracket. However, despite this tendency of a 'natural' jurisprudence — a tendency which seems to have left an abiding mark in the legal terminology of Scotland — the Romanists of Germany had been holding fast the doctrine that the universitas is, while the societas is not, a person, when the joint-stock company, a new power in the theoretic as in the economic world, began to give trouble. That the Aktiengesellsckaft was a corporation was generally admitted ; but of all corporations a joint-stock company is that which seems to offer itself most kindly to the individualistic analyst. When all is said and done, and all due praise has been awarded to the inventors of a beautiful logarithm, are not these shareholders, these men of flesh and blood, the real and only sustainers of the company's rights and duties? So great a Romanist as Ihering* trod this 'individualistic' or ' collectivistic ' path, and in America where law schools flourish, where supreme courts are many and the need for theory is more urgent than it is in England, highly interesting attempts have been made to dispel the Fiction, or rather to open the Bracket and find therein nothing but contract-bound men'. Contract, that greediest of legal categories, • Gierke, Johannes Althusius, 103. ' See especially Geist des rom. Rechts, vol. in. , p. 343. ' Dissatisfaction with the Fiction^r, as Americans sometimes say, with 'the Entity'— is expressed in some well-known text-books, e.g., Taylor, Law of Private Corporations, § 60 ; Morawetz, Law of Private Corporations, ch. i. Translator's Introduction. xxv which once wanted to devour the State, resents being told that it cannot painlessly digest even a joint-stock company. Maine's famous sentence about Contract and Status might indeed be boldly questioned by anyone who remembered that, at least for the philologian, the Roman Status became that modern State, Etat, Staat which refused to be explained by Contract into a mere ' Civil Society.* Few words have had histories more adventurous than that of the word which is the State of public and the estate of our private law, and which admirably illustrates the interdependence that exists between all parts of a healthily growing body of jurisprudence. Still, though the analytic powers of Contract are by no means what they once seemed to be, many will think them equal to the task of expanding what they might call the Corpora- tion Symbol. It was in a Germany that was full of new ideas and new hopes that a theory was launched which styled itself 'the German Genossensckaftstheorie.' Even the hastiest sketch of its environ- ment, if it notices the appearance of the joint-stock company, should give one word to the persistence in Germany of agrarian communities with world-old histories, to the intricate problems that their dissolution presented, and to the current complaint that Roman law had no equitable solution for these questions and had done scant justice to the peasant. Nor should the triumphs of biological science be forgotten. A name was wanted which would unite many groups of men, simple and complex, modern and archaic; and Genossenschaft was chosen. The English translator must carefully avoid Partnership ; perhaps in our modern usage Company has become too specific and technical; Society also is dangerous; Fellowship with its slight flavour of an old England may be our least inadequate word. Beginning with Beseler's criticism of Savigny, the theory gradually took shape, especially in Dr Gierke's hands, and a great deal of thought, learning and con- troversy collected round it. Battles had to be fought in many fields. The new theory was to be philosophically true, scientifically sound, morally righteous, legally iniplicit in codes and decisions, practically convenient, historically destined, genuinely German, and perhaps exclusively Germanistic*. No, it seems to say, whatever 1 However, some Romanists of repute have asserted their right to adopt and have adopted this theory. See in particular Regelsberger, Pandekten, vol. i. p. 289 ff. See also Dernburg, Pandekten, § 59. XXVI Political Theories of the Middle Age. the Roman universitas may have been— and Dr Gierke is for pinning the Roman jurists to Savignianism— our German Fellow- ship is no fiction, no symbol, no piece of the State's machinery, no collective name for individuals, but a living organism and a real person, with body and members and a will of its own. Itself can will, itself can act ; it wills and acts by the men who are its organs as a man wills and acts by brain, mouth and hand. It is not a fictitious person ; it is a Gesammtperson, and its will is a Gesammt- ■wille ; it is a group-person, and its will is a group-will'. This theory, which we might call Realism, may seem to carry its head among the clouds, though no higher perhaps than the Fiction Theory ; but a serious effort has been made to give it feet that walk upon the earth. In one long book" Dr Gierke has in great detail argued his case throughout the whole domain of practicable modern law, contending, not indeed that all German 'authority' (as an English lawyer would say) is on his side, but that he has the support of a highly respectable body of authority, express and implied, and that legislatures and tribunals fall into self-contradiction or plain injustice when they allow themselves to be governed by other theories. Nothing could be more concrete than the argument, and, though it will sometimes shew an affection for ' the German middle age ' and a distrust of ancient Rome, it claims distinctively modern virtues : for instance, that of giving of the shareholder's 'share' the only lawyerly explanation that will stand severe strain. Then in another book our author has been telling the history of German Fellowship Law*. Let us try to imagine — we are not likely to see — a book with some such title as English Fellowship Law, which in the first place ^ The works of Dr Gierke which deal with this matter are (i) Das deutsche Genossenschaftsrecht, whereof three volumes were published in 1868, 1873, and 1881 ; (2) Die Genossenschaftstheorie und die deutsche Rechtsprechung, 1887; (3) The first volume of Deutsches Privatrecht, 1895, which contains a more succinct and more recent statement ; (4) The monograph on Johannes Althusius, 1880, which should be well known to all students of political theory. Those who would rather begin their study of the realistic theory in French than in German may be sent to A. Mestre, Les Personnes Morales, 1899. French lawyers have been conservative, and Savignianism was in harmony with the spirit of the Codes ; nevertheless the doctrine of the real group-will is finding disciples. The only English statement that I have seen of this theory is by Ernst Freund, The Legal Nature of Corporations, University Press, Chicago, 1897. * This is the Genossenschaftstheorie of 1887. * This is the Genossenschaftsrecht of 1868 — 73 — 81. Translator's Introduction. xxvii described the structure of the groups in which men of English race have stood from the days when the revengeful kindred was pur- suing the blood feud to the days when the one-man-company is issuing debentures, when parliamentary assemblies stand three deep above Canadian and Australian soil and 'Trusts and Cor- porations' is the name of a question that vexes the great Republic of the West. Within these bounds lie churches, and even the medieval church, one and catholic, religious houses, mendicant orders, non-conforming bodies, a presbyterian system, universities old and new, the village community which Germanists revealed to us, the manor in its growth and decay, the township, the New England town, the counties and hundreds, the chartered boroughs, the gild in all its manifold varieties, the inns of court, the merchant adventurers, the militant "companies' of English condottieri who returning home help to make the word ' company ' popular among us, the trading companies, the companies that become colonies, the companies that make war, the friendly societies, the trade unions, the clubs, the group that meets at Lloyd's Coffee-house, the group that becomes the Stock Exchange, and so on even to the one-man-company, the Standard Oil Trust and the South Australian statutes for communistic villages. The English historian would have a wealth of group-life to survey richer even than that which has come under Dr Gierke's eye, though he would not have to tell of the peculiarly interesting civic group which hardly knows whether it is a municipal corporation or a sovereign republic. And then we imagine our historian turning to inquire how Englishmen have conceived their groups : by what thoughts they have striven to distinguish and to reconcile the manyness of the members and the oneness of the body. The borough of the later middle ages he might well regard with Dr Gierke as a central node in the long story. Into it and out from it run most of the great threads of development, economic and theoretical. The borough stretches one hand back to the village community and the other forward to freely formed companies of all sorts and kinds. And this Dr Gierke sets before us as the point at which the unity of the group is first abstracted by thought and law from the plurality, so that 'the borough' can stand out in contrast to the sum of existing burgesses as another person, but still as a person in whom they are organized and embodied. Political Theories of the Middle Age. To his medieval Germans Dr Gierke attributes sound and wholesome thoughts, and in particular a deep sense of the organic character of all permanent groups great and small. Not that, according to him, their thoughts were sharply defined : indeed he has incurred the dissent of some of his fellow Germanists by refusing to carryback to the remotest time the distinction between co-ownership and corporate ownership. In deeply interesting chapters he has described the differentiating process which gives us these two ideas. That process was prospering in the German towns when the catastrophe occurred. When German law was called upon to meet the alien intruder, it had reached 'the stage of abstraction,' but not ' the stage of reflection.' It had its Korper- schaftsbegriff, but no Korporationstheorie. It could co-ordinate Man and Community as equally real persons of different kinds ; but it had never turned round to ask itself what it was doing. And so down it went before the disciplined enemy: before the theory which Italian legists and decretists had been drilling. Then in another volume we have the history of this theory. We should misrepresent our author if, without qualification, we spoke of Italian science as the enemy. All technical merits were on its side ; it was a model for consequent thinking. Still, if it did good, it did harm. Its sacred texts were the law of an unassociative people. Roman jurisprudence, starting with a strict severance oiius publicum from ius privatum, had found its highest development in ' an absolutistic public law and an individualistic private law.' Titius and the State, these the Roman lawyers understood, and out of them and a little fiction the legal universe could be constructed. The theory of corporations which derives from this source may run (and this is perhaps its straightest course) into princely absolutism, or it may take a turn towards mere collectivism (which in this context is another name for in- dividualism); but for the thought of the hving group it can find no place; it is condemned to be 'atomistic' and 'mechanical' For the modern German ' Fellowship Theory ' remained the task of recovering and revivifying 'the organic idea' and giving to it a scientific form. It is not easy for an Englishman to throw his heart or even his mind into such matters as these, and therefore it may not be easy for some readers of this book at once to catch the point of Translator's Introduction. all Dr Gierke's remarks about the personality of States and Cor- porations. If we asked why this is so, the answer would be a long story which has never yet been duly told. However, its main theme can be indicated by one short phrase which is at this moment a focus of American politics: namely, 'Corporations and Trusts.' That puts the tale into three words. For the last four centuries Englishmen have been able to say, ' Allow us our Trusts, and the law and theory of corporations may indeed be important, but it will not prevent us from forming and maintaining permanent groups of the most various kinds : groups that, behind a screen of trustees, will live happily enough, even from century to century, glorying in their unincorporatedness. If Pope Innocent and Roman forces guard the front stairs, we shall walk up the back.' From the age when, among countless other unchartered fellowships, the Inns of Court were taking shape, to the age, when monopolizing trusts set America ablaze, our law of corporations has only been a part of our Genossenschaftsrecht, and not perhaps the most important part'. We will mention but one example. If we speak the speech of daily life, we shall say that in this country for some time past a large amount of wealth has 'be- longed' to religious 'bodies' other than the established church, and we should have thought our religious liberty shamefully im- perfect had our law prevented this arrangement. But until very lately our 'corporation concept' has not stood at the disposal of Nonconformity, and even now little use is made of it in this quarter: for our 'trust concept' has been so serviceable. Behind the screen of trustees and concealed from the direct scrutiny of legal theories, all manner of groups can flourish : Lincoln's Inn or Lloyd's' or the Stock Exchange or the Jockey Club, a whole presbyterian system, or even the Church of Rome with the Pope at its head. But, if we are to visit a land where Roman law has ' See the Stat, of {1531 — 2) 23 Hen. VIII., 1. 10 ; lands are already being held to the use of unincorporated 'guilds, fraternities, comminalities, companies or brotherheads,' and this on so large a scale that King Henry, as supreme landlord, must interfere. Happily the lawyers of a later time antedated by a few years King Henry's dislike of ' superstition,' and therefore could give to this repressive statute a scope far narrower than that which its royal author assuredly intended. The important case is Porter's Case, I Coke's Reports, 22 b. » At length incorporated in 187 1: see F. Martin, History of Lloyd's, pp. 356—7, a highly interesting book. Political Theories of the Middle Age. been 'received,' we must leave this great loose 'trust concept' at the Custom House, and must not for a moment suppose that a meagre fideicommissum will serve in its stead. Then we shall understand how vitally important to a nation— socially, politically, religiously important— its Theory of Corporations might be. If it be our task legally to construct and maintain comfortable homes wherein organic groups can live and enjoy whatever ' liberty of association' the Prince will concede to them, a little, but only a little, can be done by means of the Romanist's co-ownership {condominium, Miteigentum) and the Romanist's partnership \societas, Gesellschaft). They are, so we are taught, intensely individualistic categories: even more individualistic than are the parallel categories of English law, for there is no 'jointness' {Gesammthandtschaff) in them. If then our Prince keeps the universitas, the corporate form, safe under lock and key, our task is that of building without mortar. But to keep the universitas safe under lock and key was just what the received theory enabled the Prince to do. His right to suppress collegia illicita was supple- mented by the metaphysical doctrine that, from the very nature of the case, 'artificial personality' must needs be the creature of sovereign power. At this point a decisive word weis said by Innocent IV. One outspoken legist reckoned as the fifty-ninth of the sixty-seven prerogatives of the Emperor that he, and only he, makes fictions : ' Solus princeps fingit quod in rei veritate non est'.' Thus 'the Fiction Theory' leads us into what is known to our neighbours as 'the Concession Theory.' The corporation is, and must be, the creature of the State. Into its nostrils the State must breathe the breath of a fictitious life, for otherwise it would be no animated body but individualistic dust Long ago English lawyers received the Concession Theory from the canonists. Bred in the free fellowship of unchartered Inns, they were the very men to swallow it whole. Blackstone could even boast that the law of England went beyond ' the civil law' in its strict adhesion to this theory"; and he was right, for the civilians of his day generally admitted that, though in principle the State's consent to the erection of a corporation was absolutely necessary, still there were Roman texts which might be deemed 1 Lucas de Penna, cited by Gierke, Genossenschaftsrecht, m. 371. ' Comment. I. 472. Translator s Introdtiction. xxxi to have given that consent in advance and in general terms for the benefit of corporations of certain innocuous kinds. But then, what for the civilians was a question of life and death was often in England a question of mere convenience and expense, so wide was that blessed back stair. The trust deed might be long ; the lawyer's bill might be longer ; new trustees would be wanted from time to time; and now and again an awkward obstacle would require ingenious evasion ; but the organized group could live and prosper, and be all the more autonomous because it fell under no solemn legal rubric. Lawyers could even say that the common law reckoned it a crime for men ' to presume to act as a corpora- tion'; but as those lawyers were members of the Inns of Court, we should hardly need other proof — there is plenty to be had — that the commission of this crime (if crime it were) was both very difficult and wholly needless'. Finally it became apparent that, unless statute law stood in the way, even a large company trading with a joint-stock, with vendible shares and a handsome measure of 'limited liability' could be constructed by means of a trust deed without any incorporation". Nowhere has the Concession Theory been proclaimed more loudly, more frequently, more absolutely, than in America ; no- where has more lip-service been done to the Fieschi. Ignorant men on board the 'Mayflower' may have thought that, in the presence of God and of one another, they could covenant and combine themselves together into 'a civil body politic'.' Their descendants know better. A classical definition has taught that ' a Corporation is a Franchise,' and a franchise is a portion of the State's power in the hands of a subject*. A Sovereign People * Lindley, Company Law, Bk. I., ch. 5, sect. 1. In the curious case of Lloyd v. Loaring, 6 Ves. 773, Lord Eldon had before him a lodge of Freemasons which had made an imprudent display of what a Realist would call its corporate character. His lordship's indignation was checked by the thought that ' Mr Worseley's silver cup ' belonged to 'the Middle Temple.' ' The directors are bound to give notice to every one who gives credit that he has nothing' to look to beyond the subscribed fimd, and that no person will be personally liable to hiin. As to these 'attempts to limit liability,' see Lindley, Company Law, Bk. II., ch. 6, sec. i. ' The Mayflower Compact can be found, among other places, in Macdonald, Select Charters, p. 33. ' Kent, Comment. Lect. 33 : 'A corporation is a franchise possessed by one or more individuals, who subsist as a body politic under a special denomination, and are vested, xxxu Political Theories of the Middle Age. has loved to deck itself in the purple of the Byzantine Basileus and the triple crown of the Roman Pontiff. But the picture has another side. Those 'Trusts' that convulsed America were assuredly organized bodies which acted as units, and if ever a Gesammtwille was displayed in this world, assuredly they dis- played it : but some of them were not corporations'. A reader of American trust deeds may well find himself asking what, beyond a few highly technical advantages, an incorporating act could bestow. No doubt, if the State mutters some mystical words there takes place in the insensible substance of the group, some change of which lawyers must say all that a Roman or Romanesque orthodoxy exacts; but to the lay eyes of debtors and creditors, brokers and jobbers, all sensible accidents seem much what they were. Already in 1694 in the stock and share lists that John Houghton was publishing the current prices of ' actions ' in unincorporated bodies were placed alongside the prices of the stocks of chartered corporations^ Certainly it will be curious, but it will not be inexplicable, if when the Concession Theory has perished in other lands it still lurks and lingers in England or among men of English race. Probably our foreign critics would not suffer us to say that it does us no harm ; but they would confess that the harm which it does is neither very grave nor very obvious. A certain half-heartedness in our treat- ment of unincorporate groups, whose personality we will not frankly recognize while we make fairly adequate provision for their continuous life, is the offence against jurisprudence with which we might most fairly be charged, and it is an offence which tends to disappear now that groups of many kinds, cricket clubs, religious societies, scientific societies, and so forth, are slowly taking advantage of that offer of legal corporateness which has been open to them for nearly forty years' and are discovering that it is well to be regarded as persons. We can therefore imagine a German Realist bringing to bear by the policy of the law, with the capacity of perpetual suocession, and of acting in several respects, however numerous the association may be, as a single individual.' ^ Of late — so we understand on this side of the sea — some of the largest combinations of capitalists have taken corporate form under the laws of New Jersey. ' Houghton, A Collection for the Improvement of Trade. See especially No. 98 ff. where the author gives an account of joint-stock enterprise. * Companies Act, 1862, sec. 6. Translator s Introduction. xxxiii upon English law some such criticism as the following : — ' There is much in your history that we can envy, much in your free and easy formation of groups that we can admire. That great ' trust concept' of yours stood you in good stead when the days were evil : when your Hobbes, for example, was instituting an un- savoury comparison between corporations and ascarides^, when your Archbishop Laud (an absolutist if ever there was one) brought Corporation Theory to smash a Puritan Trust", and two years afterwards his friend Bishop Montague was bold enough to call the king's attention to the shamelessly unincorporate character of Lincoln's Inn'. And your thoroughly un-Roman ' trust concept ' is interesting to us. We have seen the like of it in very ancient Lombard charters*; and, by the way, it was Georg Beseler who suggested to the present Chief Justice of Massachusetts the quarter in which the origin of your trusts might be found". Also the connexion between trust and group takes back our thoughts all the way to the Lex Salica where the trustis is a group of comrades. Then, again, we can well understand that English lawyers were concerned to deny, at least in words, the personality of what you call an ' unincorporate body ' — a term which seems to us to make for truth, but also for self-contradiction. An open breach with Innocentian orthodoxy and cosmopolitan enlightenment seemed impossible, and so you maintained that the unincorporate body could, as we should say, be 'construed' as a mere sum of in- dividuals bound only by co-ownership and agreement. But you must excuse us for doubting whether you have pressed this theory to its logical conclusion. For example, we feel bound to ask whether, when a man is elected to one of your clubs (and you have been great makers of clubs), the existing members execute an assignment to him of a share in the club-house and its furniture, * Leviathan, II. 29 (Works, ed. Molesworth, vol. in., p. 321); 'like worms in the entrails of a natural man.' ' For this case of the Feoffees of Impropriations, see Gardiner, Hist, of England, ann. 1633, vol. VII., 258. * Black Book of Lincoln's Inn, vol. II., p. 333, ann. 1635. * Schultze, Die Lombardische Treuhand, Breslau, 1895. " O. W. Holmes, Law Quart. Rev. I. 163 : ' The feoffee to uses of the early English law corresponds point by point to the Salman of the early German law as described by Beseler fifty years ago.' M. C Political Theories of the Middle Age. and whether, when he resigns, he executes a release to the con- tinuing members. If that be not so, and we fancy that it is not, election to, and resignation of, membership in ' unincorporate bodies' should appear somewhat prominently in your books among the modes in which rights are acquired and lost, and then it would be plain enough that, beside a Korporationstheorie of Italian origin, you have a Kdrperschaftsbegriff of your own : an idea of a ' bodiliness ' which is not the effect of the State's fiat. Then why, we should like to know, did your legislature lately impose a tax on the property of ' unincorporate bodies ' as well as on that of corporate bodies .? When the property of individuals and of corporations was already taxed, was there still property that escaped taxation'? And what can your legislature mean when it says that in Acts of Parliament (unless a contrary in- tention appears) the word ' person ' is to include ' any body of persons corporate or unincorporate'"? If once we are allowed to see personality wherever we see bodiliness, the victory of Realism is secure, though an old superstition may die very hard. Some day the historian may have to tell you that the really fictitious fiction of English law was, not that its corporation was a person, but that its unincorporate body was no person, or (as you so suggestively say) was nobody. There are many other questions that we should like to ask of you. Why, for instance, are free-born and commercially-minded Englishmen prohibited by statute from trading in large partnerships'? Is it not because your good sense and experience have taught you that, do what you will and say what you will, the large trading group will assuredly display, as it does in America, the phenomena of corporateness and therefore ought to stand under the law for corporations ? And do you not think that some part at least of the appalling mess — forgive us — the appalling mess that you made of your local government was due to a bad and foreign theory which, coupling corporateness with princely 'privilege,' refused to recognize and foster into vigour the bodiliness that was immanent in every ' Customs and Inland Revenue Act, 1885, sec. 11 : 'Whereas certain property, by reason of the same belonging to or being vested in bodies corporate or unincorporate, escapes liability to probate, legacy, or succession duty.' ' Interpretation Act, 1889, sec. 19. ' Companies Act, 1862, sec. 4. Translator's Introduction. xxxv English township, in every rural Gemeindet Even our theory- ridden Romanists were not guilty of that fatal blunder which you are now endeavouring tardily to repair by the invention of Parish Councils and from which some of your less pedantic kinsmen in the colonies kept themselves free when they suffered 'the New England town' to develop its inherent corporatenessV To say these few words of our own law has seemed advisable in order that foreign controversies over the nature and origin of a corporation's or a State's personality may be the better under- stood. We may spend one moment more in observing that the English Trust, nurtured though it was within the priviest recesses of Private Law, and educated, if we may so say, in a private school, has played a famous part on the public, the world-wide, and world-historic stage. When by one title and another a ruler- ship over millions of men in the Indies had come to the hands of an English Fellowship, this corporation aggregate was (some- what unwillingly) compelled by Acts of Parliament to hold this precious thing, this ' object of rights,' this rulership, upon trust for a so-called corporation sole, namely, the British Crown". If at the present time our courts and lawgivers find it needless openly to declare that the colonies are, to use the old phrase, 'bodies corporate and politic in deed, fact and name,' this is because our hard-worked Crown is supposed to hold some property for or ' in right of the Dominion of Canada and other property for or ' in right of the Province of Ontario, and a court, after hearing the attorneys-general for these beneficiaries, these communities or commonwealths, will decide how much is held for one, and how much for another. Certainly we work our Trust hard and our Crown harder, and it seems possible that some new thoughts or some renovation of old thoughts about the personality of the organized group might shew us straighter ways to desirable and even necessary ends. In the days when Queen Elizabeth was our ' Prince,' she did ^ A case of 1497 (Year Book, Trin. 12 Hen. VII., f. 27, pi. 7) marks the beginning of an unhappy story. See Toulmin Smith, The Parish, ed. 2, p. 269. 2 The theory finds explicit statement in the Act of 1833 (3 & 4 Will. IV., c. 85), preamble : ' And whereas it is expedient that the said territories now under the govern- ment of the said Company be continued under such government, but in trust for the Crown of the United Kingdom.' Political Theories of the Middle Age. not forbid her secretary to write in Latin de Republica Anglorum, or in English of the Commonwealth of England: Prince and Re- public were not yet incompatibles. Events that happened in the next century outlawed some words that once were good and lawful, and forced us to make the most that we could of the ' Subject ' (or subjectified Object) that lies in the Jewel House at the Tower. Much we could make of it, but not quite all that was needful. Not having always been a punctual payer, the Crown was not always a good borrower, and so our Statute Book taught us to say that the National Debt was owed, not by the Crown, but by 'the Publick'; and this Public looks much like a Respublica which, to spare the feelings of ' a certain great personage,' has dropped its first syllabled Those who rely upon 'the faith of the Public' receive their annuities in due season, even if we have no neat theory about the relationship between that "passive subject,' the Public, which owes them money, and that ' active subject,' the Crown, to which they pay their taxes. Possibly the Crown and the Public are reciprocally trustees for each other ; possibly there is not much difference now-a-days between the Public, the State, and the Crown", for we have not appraised the full work of the Trust until we are quitting the province of jurisprudence to enter that of political or constitutional theory. In the course of the eighteenth century it became a parlia- mentary commonplace that 'all political power is a trust'; and this is now so common a commonplace that we seldom think over it. But it was useful*. Applied to the kingly power it gently ^ Already in 1697 (8 & 9 Will. III., u. 20, sec. 20) provision is made for 'the better restoring of the credit of the Nation.' There follow a good many financial transactions between ' the Publick ' and the East India Company. For example in 1786 'the Publick stands indebted' to the Company in a sum of four millions and upwards. Stat. 26 Geo. III., c. 62. " Pensions (Colonial Service) Act, 1887, sec. 8: 'The expressions 'permanent civil service of the State,' 'permanent civil service of Her Majesty,' and 'permanent civil service of the Crown ' are hereby declared to have the same meaning.' ' At the time when these words were being written one of Her Majesty's Principal Secretaries of State was ' operating ' on a magnificent scale with our ' trust concept.' Her Majesty's Government, he was repeatedly saying, is (or are) a trustee (or trustees) for 'the whole Empire.' Already in Locke's Essay on Civil Government (e.g. sees. 142, 149) a good deal is said of trust and breach of trust. As the beneficiary (cestui que trust) who seeks the enforcement of a trust is not necessarily or even normally the trustor or creator of the trust, the introduction of talk about trusts into such work as Locke's serves to conceal some of the weak points in the contractual theory of Government. Translator s Introduction. relaxed that royal chord in our polity which had been racked to the snapping point by Divine right and State religion. Much easier and much more English was it to make the king a trustee for his people than to call him officer, official, functionary, or even first magistrate. The suggestion of a duty, enforceable indeed, but rather as a matter of ' good conscience ' than as a matter of * strict law ' was still possible ; the supposition that God was the author of the trust was not excluded, and the idea of trust was extremely elastic. For of trusts we know many, ranging from those which confer the widest discretionary powers to those which are the nudest of nude rights and the driest of legal estates. Much has happened within and behind that thought of the king's trusteeship: even a civil death of 'personal government,' an euthanasia of monarchy. And now in the year 1900 the banished Commonwealth, purged of regicidal guilt, comes back to us from Australia and is inlawed by Act of Parliament. Wonderful conjuring tricks with a crown or a basket {fiscus) may yet be played by deft lawyers, especially by such as are familiar with trusts for ' unincorporate bodies'; but we may doubt whether they will much longer be able to suppress from legal records the thought that was in Bracton's mind when he spoke of the uni- versitas regni^. ' The crown,' said Coke, ' is an hieroglyphic of the laws".' Such hieroglyphics, personified dignities, abstract rulerships, subjectified crowns and baskets are (so the realistic historian would tell us) the natural outcome of a theory which allows a real personality and a real will only to Jameses and Charleses and other specimens of the zoological genus komo and yet is compelled to find some expression, however clumsy, for the continuous life of the State. Names, he might add, we will not quarrel over. Call it Crown, if you please, in your Statute Book, and Empire in your newspapers ; only do not think, or even pretend to think, of this mighty being as hieroglyphic or as persona ficta or as collective name. In Germany (for we must return) the Concession Theory has fallen from its high estate; the Romanists are deserting it»; it is yielding before the influence of laws similar to, though less 1 Bracton, f. 171 b. ' Calvin's Case, 7 Rep. 11 b. » Windscheid, Pandekten, § 60; Demburg, Pandekten, § 63; Regelsberger, Pan- dekten, § 78. See also Mestre, Les Personnes Morales, 197 ff. Political Theories of the Middle Age. splendidly courageous than, our Act of 1862, that 'Magna Carta of co-operative enterprise^' which placed corporate form and legal personality within easy reach of "any seven or more persons associated for any lawful purpose.' It has become difficult to maintain that the State makes corporations in any other sense than that in which the State makes marriages when it declares that people who want to marry can do so by going, and cannot do so without going, to church or registry. The age of corporations created by way of ' privilege ' is passing away. The constitutions of some American States prohibit the legislatures from calling corporations into being except by means of general laws^ and among ourselves the name ' Chartered ' has now-a-days a highly specific sense. What is more, many foreign lawyers are coming to the conclusion that in these days of free association, if a group behaves as a corporation, the courts are well-nigh compelled to treat it as such, at least in retrospect. It has purposely, let us say, or negligently omitted the act of registration by which it would have obtained an unquestionable legal personality. Mean- while it has been doing business in the guise of a corporation, and others have done business with it under the belief that it was what it seemed to be. It is strongly urged that in such cases injustice will be done unless corporateness is treated as matter of fact, and American courts have made large strides in this direction*. It seems seriously questionable whether a permanently organized group, for example a trade union, which has property held for it by trustees, should be suffered to escape liability for what would generally be called ' its ' unlawful acts and commands by the technical plea that ' it ' has no existence ' in the eye of the law^' Spectacles are to be had in Germany which, so it is said, enable the law to see personality wherever there is bodiliness, and a time seems at hand when the idea of ' particular creation ' will be as antiquated in Corporation Law as it is in Zoology. Whether we like it or no, the Concession Theory has notice to quit, and may carry the whole Fiction Theory with it. ' Palmer, Company Law, p. i. ' Morawetz, Private Corporations, § 9 ff.; Dillon, Municipal Corporations, § 45. ^ For the treatment of these 'de facto corporations' see Taylor, Private Corporations, § 146 ff. ; Morawetz, § 735 ff. * This was written some months before Mr Justice Farwell issued an injunction against a Trade Union (Times, 6 Sept. 1900). Of this matter we are likely to hear more. Translator's Introduction. XXXIX The delicts, or torts and crimes, of corporations have naturally- been one burning point of the prolonged debate. To serious minds there is something repulsive in the attribution of fraud or the like to the mindless persona ficta. The law would set a bad example if its fictions were fraudulent. But despite some fairly- clear words in the Digest, and despite the high authority- of the great Innocentius, the practice of holding communities liable for delict was, so Dr Gierke says, far too deeply rooted in the Ger- manic world to be eradicated. Even Savigny could not per- manently prevail when the day of railway collisions had come. And so in England we may see the speculative doubt obtruding itself from time to time, but only to be smothered under the weight of accumulating precedents, while out in America the old sword of Quo warranto, forged for the recovery of royal rights from feudal barons, is descending upon the heads of joint-stock companies with monopolizing tendencies. When an American judge wields that sword and dissolves a corporation, he is performing no such act of discretionary administration as Savigny would have permitted ; he uses the language of penal justice ; he may even say that he passes sentence of death, and will expend moral indignation on the culprit that stands before him'. It is worthy of remark, however, that in this region Englishmen have been able to slur a question which elsewhere assumes great importance : namely, whether a corporation 'itself can do unlawful, or indeed any acts. We have been helped over a difficulty by the extremely wide rule of employers' liability which prevails among us and towards which some of our neighbours have cast wistful eyes. A servant of Styles acting within the scope of his employment does a wrong ; we hold Styles liable. We sub- stitute a corporation for Styles, and then this corporation is liable. This being so, we can say that ' of course' the corporation would be liable if the wrongful act were done or commanded by its directorate or by its members in general meeting. It matters little whether we affirm or deny that in this case the act would be that of the corporation ' itself,' for if it were not this, it could still be represented as the act of an agent or servant done within ' For example see the solemn words of Finch, J. in People v. North River Sugar Refining Co., 1890 ; Jer. Smith, Select Cases on Private Corporations, II. 944. xi Political Theories of the Middle Age. the scope of his employment. Whether that picture of the assembled members or directors as agents or servants of an Un- knowable Somewhat, which cannot have appointed or selected them, is a life-like picture we need hardly ask: the conclusion is foregone. Such is our happy state. But where Roman law has been received the primary rule is that a master has not to answer for acts that he has not commanded, at all events if he has shewn no negligence in his choice of a servant. If then the directorate of a company has done wrong, for example has published a libel, much may depend on the manner in which the case is envisaged. If we say that the corporation itself has acted by its organs, as a man acts by brain and hand, then the corporation is liable ; but the result may be very different if we reduce the directors to the level of servants or agents. Those therefore who have been striving for the 'organic idea' have not been fighting for a mere phrase ; and now the term ' Organ ' stands in the Civil Code of Germany. That is no small triumph of Realism ^ That the theory of the Group Person and the Group Will has a long struggle before it if it is ever to dominate the jurisprudence of the world would be admitted even by its champions. We have just been touching the confines of a region in which lies the stronghold of an opposing force. That ancient saying — its sub- stance is as old as Johannes Andreae — which bids the body politic fear no pains in another world represents profound beliefs. Not- withstanding all that we may say of 'national sins' and 'the national conscience' and the like, a tacit inference is drawn from immunity (real or supposed) to impeccability, and, until they are convinced that corporations and States can sin, many people will refuse to admit that a corporation or State is a thoroughly real person with a real will. We cannot wait for eschatology to say its last word, but even in quarters where jurisprudence is more at its ease there are many contestable points of which we must not speak. However, the general character of the debate is worthy of observation. The Realist's cause would be described by those who are forwarding it as an endeavour to give scientific precision and legal operation to thoughts which are in all modern minds and which are always displaying themselves especially in the political ' Biirgerliches Gesetzbuch, § 32. The term has for some time past been used in German laws and by German courts. Gierke, Genossenschaftstheorie, p. 614. Translator' s Introduction. xii field. We might be told to read the leading article in to-day's paper and observe the ideas with which the writer ' operates ' : the will of the nation, the mind of the legislature, the settled policy of one State, the ambitious designs of another : the praise and blame that are awarded to group-units of all sorts and kinds. We might be asked to count the lines that our journalist can write without talking of organization. We might be asked to look at our age's criticism of the political theories and political projects of its immediate predecessor and to weigh those charges of abstract in- dividualism, atomism and macadamization that are currently made. We might be asked whether the British Empire has not yet revolted against a Sovereign that was merely Many (a Sovereign Number as Austin said) and in no sense really One, and whether 'the People' that sues and prosecutes in American courts is a collective name for some living men and a name whose meaning changes at every minute. We might be referred to modern philosophers : to the social tissue of one and the general will, which is the real will, of another. Then perhaps we might fairly be charged with entertaining a deep suspicion that all this is metaphor : apt perhaps and useful, but essentially like the personi- fication of the ocean and the ship, the storm and the stormy petrel. But we, the Realist would say, mean business with our Group Person, and severe legal logic. We take him into the law courts and markets and say that he stands the wear and tear of forensic and commercial life. If we see him as the State in an exalted sphere where his form might be mistaken for a cloud of rhetoric or mysticism, we see him also in humble quarters, and there we can apprehend and examine and even vivisect him. For example, we are obliged to ask precise questions concerning the inferior limit of group-life. Where does it disappear ? That is no easy question, for the German Partnership goes near to disengaging a group-will from the several wills of the several partners ; but on the whole we hold, and can give detailed reasons for holding, that in this quarter the line falls between our partnership and our joint-stock company. By those who have neither leisure nor inclination to understand competing theories of German partnerships, German companies and German communes, it may none the less be allowed that theories of the State and theories of the Corporation must be closely connected. The individualism which dissolves the com- xiii Political Theories of the Middle Age. pany into its component shareholders is not likely to stop at that exploit, and the State's possession of a real will is insecure if no other groups may have wills of their own. Hence the value of a theory which at all events endeavours to cover the whole ground. To say more would be to say much more ; and enough, it is hoped, has been said to enable a reader of the following pages to under- stand the place that they hold in an historical and doctrinal exposition of ' German Fellowship Right' We have, it must be supposed, made a brief survey of the history from first to last of German groups ; then we have turned back to explore the thoughts that were implicit in the Group Law of medieval Germany ; then, having reached the eve of the Reception, we have investigated the genesis and adventures of that learned theory of Corporations which is about to cross the Alps ; we have been among Greek philosophers, Roman lawyers, Christian fathers, and have spent a long time in Italy with the canonists and legists. We are now on the point of returning to the Germany of the sixteenth century to watch the Reception of this theory and the good and ill that follow, when Dr Gierke interpolates the following brief, but surely valuable, account of the political (or rather ' publicistic ') theories of the Middle Age : theories which, as he remarks, have numerous points of contact with the main theme of his book. The reader need not fear that he will here encounter much that he could call technical jurisprudence. Indeed so much as has been said in this Introduction touching Corporation Law and German Fellowships has been intended to explain rather the context than the text of an excerpted chapter. It will be seen, however, that while Dr Gierke is careful of those matters to which any historian of political theory would attend — for instance, the growth of definitely monarchical and definitely democratic doctrines — an acute accent, which some English readers might not have an- ticipated, falls upon the manner in which States, rulers and peoples were conceived or pictured when theorists made them the 'subjects' of powers, rights and duties. The failure of medieval theorists to grasp the personality of the State appears as a central defect whence in later times evil consequences are likely to issue. It will be seen that the stream of political theory when it debouches from the defile of the Middle Age into the sun-lit plain is flowing in a direction which, albeit destined and explicable, is not regarded by Translator' s Introduction. xUii our author as ultimate. However much the river may be gaining in strength and depth and lucidity as it sweeps onwards towards the Leviathan and the Contrat Social, its fated course runs for some centuries away from organization and towards mechanical construction, away from biology and towards dynamics, away from corporateness and towards contractual obligation, away (it may be added) from Germanic lands and towards the Eternal City. It will be gathered also that the set of thoughts about Law and Sovereignty into which Englishmen were lectured by John Austin appears to Dr Gierke as a past stage. For him Sovereignty is an attribute, not of some part of the State, but of the Gesammtperson, the whole organized community. For him it is as impossible to make the State logically prior to Law {Recht) as to make Law logically prior to the State, since each exists in, for and by the other. Of these doctrines nothing must here be said, only let us remember that if the Rechtsstaatsidee, much discussed in Germany, seems to us unfamiliar and obscure, that may be because we have no practical experience of a Polizeistaat or Beamtenstaat. Some friendly critics would say that in the past we could afford to accept speciously logical but brittle theories because we knew that they would never be subjected to serious strains. Some would warn us that in the future the less wp say about a supralegal, suprajural plenitude of power concentrated in a single point at Westminster — concentrated in one single organ of an increasingly complex commonwealth — the better for that commonwealth may be the days that are coming. III. The task of translating into English the work of a German lawyer can never be perfectly straightforward. To take the most obvious instance, his Recht is never quite our Right or quite our Law. I have tried to avoid terms which are not current in England. For this reason I have often written political when I would gladly have written publicistic. On the other hand I could not represent our author's theory without using the term Subject in the manner in which it is used by German jurists and publicists'. For nature-rightly an apology may be due, but there was a pressing ^ See above p. xx., note r. xiiv Political Theories of the Middle Age. need for some such adjective. A doctrine may be naturrechtlich, though it is not a doctrine of Natural Law nor even a doctrine about Natural Law, and a long periphrasis would probably say more or less than Dr Gierke intendeds It will be seen that in his historical scheme a large part is played by the contrast between genuinely medieval thought and 'antique-modern' ideas. These are ideas which proceeding from Classical Antiquity are be- coming modern in their transit through the Middle Ages, but not without entering into combination with medieval elements. I could call them by no other name than that which Dr Gierke has given to them : they must be ' antique-modern.' I would not if I could induce the reader to forget that he has before him the work not only of a German jurist but of a leader among Germanists. Some of the treatises to which Dr Gierke refers in his notes have been re-edited since his book was published (i88i). The main event of this kind is, so I believe, the publication in the Monu- menta Germaniae of the numerous pamphlets which were evoked by the struggle over the Investitures and which set before us the papal and imperial theories of Public Law in the first stage of their formation". I have thought it best to repeat Dr Gierke's references as I found them and not to attempt the perilous task of substituting others. Among the new materials is the highly interesting and astonishingly anti-papal treatise of an anonymous canon of York, apparently of Norman birth, who about the year i lOO was warmly taking our king's side in the dispute about Investitures and was writing sentences that Marsiglio and Wyclif would not have dis- owned. But of him we may read in Bohmer's valuable and easily accessible history of Church and State in England and Normandy'. A few notes about some English publicists I might have been tempted to add, had I not made this translation in a land where ' When, for example, Dr Brunner (v. Holtzendorfij Encyklopadie, ed. 5, p. 347) mentioned ' die naturrechtlichen Theorien Benthams und Austins iiber den radikalen Beruf des Gesetzgebers ' he was not accusing Bentham and Austin of believing in what they would have consented to call Natural Law. Austin's projected science of General Jurispradence which was to bring to light 'necessary' principles (p. 1108) would apparently have been very like a system of Naturrecht. ^ Libellj de lite imperatorum et pontificum, 3 vols., 1891 — 1 — 7. See Fisher, The Medieval Empire, II. 57. ' Bohmer, Kirche und Staat in England und in der Noimandie, Leipzig, 1899, p. 177 ff. Translator s Introduction. xiv books of any kind are very rare. Some references to Richard Fitz Ralph, to the Song of Lewes, to Sir John Fortescue and the English law-books might have been inserted. But the works of Mr Poolei, Mr Kingsford" and Mr Plummer' are likely to be in the hands of every English student of medieval politics; to John'of Salisbury and William of Ockham — who belong rather to the World-State than to England — Dr Gierke seems to have done ample justice ; I know of little, if anything, that would tend to impair the validity of his generalizations * ; and my endeavour has been to obtain for him the hearing to which he is justly entitled. I hope that I may induce some students of medieval and modern history, law and political theory to make themselves acquainted with his books'. ^ A large part of the treatise of Fitz Ralph (Armachanus) is to be found in Mr R. L. Poole's edition of Joh. Wycliffe, De dominio divino, Wyclif Society, 1890. See also Mr Poole's Illustrations of the History of Medieval Thought, 1884. ' Kingsford, The Song of Lewes, 1890. ' Plummer, Fortescue's Governance of England, 1885. An English reader will hardly need to be told that Dr Creighton's History of the Papacy will introduce him to the practical aims and projects of some of the medieval publicists. Mr Jenks's Law and Politics in the Middle Ages (1898) will also deserve his attention. '' In England the idea of a World-State which is governed by the Emperor appears chiefly in the much modified form of a notion that somehow or another the king of England either is an Emperor or will do instead of an Emperor. Henry I. was Gloriosus Caesar Henricus : Leg. Hen. Prim. pref. Bracton, f. 5 bj Bracton and Azo (Seld. Soc), p. 57. Rishanger, Chron. et Ann. (Rolls Ser.), p. 255 : Speech of the bishop of Byblos : dominus Rex hie censetur imperator. Rot. Pari. in. 343 : Richard II. is 'entier Emperour de son Roialme.' On the other side stands that strange book the Mirror of Justices (Seld. Soc), pp. xxxiv., 195. " Dr Gierke's notes are foot-notes. I thought that I should consult the tastes of English readers by placing them at the end of the book. The marginal catch-words are mine, but the summary of the argument is Dr Gierke's. I owe my thanks for many valuable suggestions to Mr J. N. Figgis whose essays on the Divine Right of Kings (1896) and on Politics at the Council of Constance (Trans. Roy. Hist. Soc. N. S. xili. 103) will be knovm to students. Last year, being sent from England, I was encouraged to undertake this translation by Professor Henry Sidgwick. What encouragement was like when it came from him his pupils are now sorrowfully remembering. ANALYTICAL SUMMARY. I. The Evolution of Political Theory. Development of a Political Theory (p. i). It becomes a Philosophy of State and Law (i). Cooperation of the various Sciences (i). Unity and generality of the doctrine beneath all controversies (2). Combination into a system of elements which came from various quarters (2). The various methods mutually complete each other (3). Theologico-philo- sophical Speculation, political pamphleteering, and professional Juris- prudence (3). The Medieval Theory of State and Society is a stream which flows in a single bed (3). Relation of Medieval to Antique-Modern Thought (3). The system of the Medieval Spirit (4). Reception of the antique ideas of State and Law (4). Genesis of the specifically modern ideas (4). Growth of an antique-modern kernel in the shell of the medieval system (4). Stages in the work of dissolution and reconstruc- tion (5). Relation of Political Theory to the Romano-Canonical Theory of Corporations (6). IL Macrocosm and Microcosm. The Political Thought of the Middle Age starts from the Whole but attributes intrinsic value to every partial whole down to the ihdividual (7). Hence its theocratic and spiritualistic traits (7). Idea of the divinely- willed Harmony of the Universe (7). The Universe as Macrocosm and every pairtial whole as Microcosm (8). The first principles of the Doctrine of Human Society must be borrowed from the idea of the divinely- organized Universe (8). III. Unity in Church and State. The Principle of Unity (9). It is the constitutive principle of the Universe (9). Therefore it must be valid in every Partial Whole (9). Unitv as the source and goal of Plurality (9). The Ordinatio ad unum an ali-pervading principle (9). AppUcation thereof to Human Society (9). Widei and narrower social units (10). xiviii Political Theories of the Middle Age. The postulate of an external unity of All Mankind (lo). Mankind as a mystical body, Ecdesia universalis, Respublica generis humani (lo). The divinely appointed severance of this body into two Orders of Life the Spiritual and the Temporal (lo). Each of these Orders a separate external realm (ii). This dualism cannot be final, but must find recon ciliationin some higher unity (ii). The clerical party sees the solution in the Sovereignty of the Spiritual Power (ii). The Principle of Unity is the philosophic foundation of the hierarchical theory which is developed from the time of Gregory VII. onward (ii). The Church is the true Cosmopolis (ii). The Pope is its earthly Head (12). The divinely appointed separation of the two Powers extends only to their use (12). The Temporal Power possesses a divine sanction and mandate only through the mediation of the Church (12). Unholy origin of the State (12). It needs hallowing by ecclesi- astical authority (13). « Institutio ' of the Realm by the Priesthood (13) The Temporal Order remains a subservient part of the Ecclesiastical Order and a means for ecclesiastical ends (13). Leges and Canones (13). Duty of obeying the Church (13). Worldly Rulership as ecclesiastical office (13). Papal claims to Overlordship above the Emperor and other independent wielders of worldly power (13). The Theory of the Two Swords (13) The Pope has utrumque gladium but demises the use of the Temporal Sword (14). Application of the feudal idea (14). The Temporal Sword to be wielded in the service and at the instance of the Church (14). The Pope's right of supervision by virtue of the Spiritual Sword (14). Right and duty of the Pope in certain cases to make a direct use of the Temporal Sword (14). Translatio imperii (14). Institution of Emperors and Kings (14). Guardianship of the Realm when it is vacant or the Ruler is neglectful (15). Jurisdiction over Emperors and Kings, Protection of Peoples against Tyranny, Deposition of Rulers and Liberation of Subjects (15). All these claims are the direct outcome of ius divinum (15). Positive Law cannot derogate from them (15). The champions of the State but very rarely deduce a Sovereignty of State over Church from the Principle of Unity (16). Reminiscences of an older condition of affairs (16). Ockham (16). Marsilius of Padua(i6). In general the doctrine of two co-ordinate Powers each with a divinely appomted sphere is maintained (16). Battle for the independence of lemporal Law (16). And for the maxim Imperium immediate a Deo (17). Particular claims of the Church Party resisted (17). Concession of an equal Sovereignty and Independence to the Spiritual Sword (17). Superior rank allowed to the Church (17). Twofold attempt to resolve the duality in a higher unity (17). Christ's invisible Headship a sufficient present- Analytical Summary. xUx ment of Unity (17). An internal Unity of the two Orders of Life resulting from their intimate connexion and mutual support (17). Re- ciprocal completion of the two Powers in the production of a single Life (17). Curious theory of a law of necessity permitting one of the two Powers to assume functions that are not its own (18), The Principle of Unity within Church and State respectively (18). In the Church (18). The Church as a single visible Polity (19). Reaction against the tendency to make a State of the Church (19). Unity in the Temporal Sphere (19). Necessity and divine origin of the World-State (19). The imperium mundt of the Romano-German Emperor (20). Controversy as to possible exemptions from the Empire (20). Universality of the Empire denied in principle (20). The visible Unity postulated in Church and State does not extend beyond those matters which lie within the purpose that is common to All Mankind (20). Organically Articulated Structure of Human Society (21). The units that mediate between the Community of Mankind and the Individual (21). Attempt to establish general schemes of these inter- mediate units: village, city, kingdom etc. (21). Appearance of a centralizing tendency in Church and State which is opposed to this federal- istic system (21). IV. TAe Idea of Organization. Comparison of Mankind and every smaller group to a body informed by a soul (22). Mankind as a Corpus Mysticum (22). Heads of this Body (22). Church and State as soul and body (22). Inferences drawn from this picture resisted (23). Nicholas of Cues on the Body of Mankind (23). The ecclesiastical or temporal group as a Corpus mysticum (24). The Corpus morale et politicum of Engelbert of Volkersdorf (24). The comparison descending to particulars (24). Anthropomorphic conceits of John of Salisbury (24). Of Aquinas and others in relation to the Church (25). Ptolemy of Lucca (25). Aegidius Colonna (25). Engelbert of Volkersdorf (26). Marsilius of Padua (26). Ockham (27). Later writers (27), Nicholas of Cues (27). Derivation of other ideas from the fundamental idea of the Social Organism (27). Idea of Membership (27). Differentiation and grouping of members (28). Idea of Mediate Articulation (28). Idea of Organiza- tion (28). Idea of Function (28). Idea of an Organ (28). Idea of the governing part as the Living Principle (28). Idea of the natural growth of social bodies is suppressed by the idea of Creation (29). M. ^ Political Theories of the Middle Age. As in Antiquity, so in the Middle Age, the idea of Organization fails to issue in the legal concept of the Personality of the unified Whole (29). Just for this reason it can conceal, but cannot hinder, the progress of the atomistic and mechanical mode of constructing the State (30). V. The Idea of Monarchy. God as Monarch of the Universe and therefore of the spiritual and temporal Community of Mankind (30). As an Institution, all Rulership proceeds from God (30). But from Him proceed also the office and mandate of every particular wielder of earthly power (31). All power immediately or mediately demised by God (31). Since every Partial Whole should be like the Universal Whole, a monarchical constitution of Church and State seems self-evident (31). The medieval Publicist's preference for Monarchy (31). Divine institution of Monarchy in the Church (32). Divine institution of Monarchy in the Empire (32). In every smaller body Monarchy is normal (32). Dissolution of these thoughts under the influence of Antiquity (32). Relative rightfulness of Republican Constitutions (32). Attacks on the divine origin of Monarchy in Church and State (33). Preference for Republics among the Humanists (33). Rejection of inferences favourable to Monarchy that are drawn from the Principle of Unity (33). The Doctrine of the Monarch's position (33). The genuinely Medieval Doctrine, in which the Germanic idea of Lordship lives on but is deepened by Christianity, sees in every Lordship an Office proceeding from God (33). Exaltation of the Ruler's person (33). But energetic development of the official character of Rulership (34). Reciprocal Rights and Duties of Ruler and Community (34). All duty of obedience con- ditioned by the rightfulness of the command (35). The Doctrine of Active Resistance (35). Development of the idea of the Ruler's Sovereignty beside that of the Ruler's Office (35). Tht plenitudo potestatis of the Pope (36). Struggle between this notion and that of poiestas limiiaia (36). The plenitude potestatis of the Emperor (36). Opposition (36). Starting points of a doctrine limiting monarchical rights (37). VI. The Idea of Popular Sovereignty. The medieval notion of the active and aboriginal Rights of the Community (37). Conflict over the quality and scope of these Rights (37). Original influence of the Germanic idea of Fellowship (37). Transmuta- tion under the influence of antique elements (37). Issue in the direction Analytical Summary. of Popular Sovereignty (38). Combinations of People's Sovereignty with Ruler's Sovereignty (38). 1. In the Temporal Sphere : Rights of the Community (38). The People's Will the source of Lordship (38). Doctrine of the State of Nature (38). Appeal to the Corpus luris Civilis to prove that the highest earthly power proceeds from the Will of the People (39). Legal origin of all subjection in the voluntary and contractual submission of the Com- munity (39). Escheat of the Imperium to the People (40). Claims of the Roman townsfolk (41). Rejection of those claims by Leopold of Bebenburg (41). Cooperation of the People in the transfer of the Empire from the Greeks to the Germans (41). Guardianship of the vacant Empire (42). Right of the People to choose its Head (42). The pure Elective Principle preferable to the institution of Hereditary Dignities (42). Legal foundation and legal nature of the electoral rights of the Prince Electors (42). Rights of the Community as against a legitimately instituted Ruler (43). Controversy among the Glossators as to the significance of the translatio imperii by the populus to the princeps (43). Theory of an out-and-out conveyance (43). Theory of a mere concessio (43). Extension of this controversy to the general case of Prince and People (43). The champions of Ruler's Sovereignty (43). Derivation of Absolute Monarchy from an Abdication of the Community (43). But even on this side a continuing right of the People as against the Ruler is conceded (44). Contractual relationship between Ruler and People (44). A right of active participation in the life of the State conceded to the People (44). Acts prejudicial to the Community's Rights require the consent of the Community (44). Cooperauon of the People in Legislation and Govern- ment (44). Deposition of the Ruler in a case of necessity (45). The champions of an intermediate theory (45). Limited Monarchy (45). The Mixed Constitution (45). The champions of the People's Sovereignty (45). They also maintain a contractual relationship between People and Ruler and so concede an independent right of ruling to the Ruler (45). But they declare the People to be the true Sovereign: 'populus maior principe' (45). Conse- quences touching Legislative Power (4S)- Deposition and punishment of the Ruler who neglects his duties (46). Popular Sovereignty in Leopold of Bebenburg (46). The system of Marsilius of Padua (46). The system of Nicholas of Cues (47). Similar doctrines in cent. xv. (48). 2. Development of analogous thoughts about the Church and their significance in political theory (49). Survival of the idea of a right of the ecclesiastical Community even within the Doctrine of an Absolute d 9 Hi Political Theories of the Middle Age. papal Monarchy (49). Superiority of Council over Pope in matters of faith (50). Extension of this Superiority to other matters (50). Bolder doctrines after the beginning of cent. xiv. (51). Transfer to the eccle- siastical sphere of the idea of Popular Sovereignty (51). John of Paris (51). Marsilius (51). Ockham (52). The writers of the Concihar Age (52). The system of Conciliar Sovereignty in d'Ailly, Gerson, Zabarella, Andreas Randuf, Dietrich of Nieni and their contemporaries (52). The 'Subject' of Ecclesiastical Power (52). Rights of the Council over the Pope (53), Idea of the Mixed Constitution in the Church (53). Its relation to the idea of Monarchy in the Church (54). Nicholas of Cues and the principle of the Sovereignty of the Community (54). Gregory of Heimburg (57) The Canonists (57). Antonius Rosellus (57). Beginning of the scientific reaction in favour of the Papacy with a general negation of Popular Sovereignty (57). Torquemada (57). The Conciliar Movement does not call in question the exclusive right of the Clergy in the Church (57). At the most it admits a subordinate participation on the part of the Temporal Magistrate (57). Even when the Church is regarded as a Fellowship of the Faithful this does not concede active rights to the Laity (58). Still even in the Middle Age there are precursors of the Reformers' ideas of the Universal Priesthood and of the rights of the Christian commune (58). But even the medieval theories of this tendency are apt to issue in an introduction of the Temporal Magistrate into the Church (58). Marsilius on the rights of the Laity (58). Ockham on the rights of the Laity (59). VII. The Idea of Representation. The representative character of the Monarch (61). Pope and Church (62). Kaiser and Ikeich (62). Perception and theoretical formu- lation of the contrast between the private and public capacities of the Monarch, between his private property and State property, between acts of the Man and acts of the Ruler (63). Relation of the People as a whole to the Body of the People (63). Rights of the People to be exercised by the People collectively, not distributively (63). Requirement of a con- stitutional Assembly (63). Application of the Doctrine of Corporate Resolutions (64). To the Council (64). To Temporal Assemblies (64). Extension to Nations of the Doctrine of Corporate Delict (64). Exercise of the Rights of the People by Representative Assemblies (64). Repre- sentative functions of the Council (64). Their scope (65). Their foundation in Election (66). Representation of the People in the State (66). Parliamentary system of Nicholas of Cues (66). Marsilius Analytical Summary. liii reserves the exercise of true rights of Sovereignty for a primary Assembly (66). Limited representative functions of collegiate bodies (66). Leopold of Bebenburg on the Prince Electors (66). The Cardinals (66). Be- ginnings of the doctrine that the Representatives of the People act repre- sentatively when, and only when, they act as a Corporate Whole (67). VIII. The Idea of Personality. Personality of Church and State (67). The idea does not receive at the hands of the Publicists the development that might have been ex- pected (68). The professional Jurists work with this idea, but employ only a 'fictitious' personality developed within the province of Private Law (68). Hence a tendency which increasingly prevails until our own day (68). Church and State as juristic persons for the Jurists (69). Baldus on the State's Personality (69). No application of the notion of Personality by the Publicists when they discuss the 'Subject' in which State-Power resides (70). Disruption of the State-Person into two 'Subjects' embodied respectively in Ruler and People (70). The Ruler's Personality (7 1 ). The Community as a ' Subject ' of rights and duties (71). The concept of the People tends to take the 'individual-collective' shape (72). In the Church (72). In the State (72). Influence of this on the theory of Representation (72). Germs of the later theories of Natural Right (73). IX. The Relation of the State to Law. The ancient Germanic conception of a Reign of Law yields before the influence of Antiquity (73). The Idea of the State becomes independent of the Idea of Law (73). Howbeit, genuinely Medieval Thought holds fast the independence of the Idea of Law (74). Solution of the problem by a distinction between Positive and Natural Law (74). The Medieval Doctrine of Natural Law (74). The lex naturalis before and above all earthly power (75). The ius naturale strictly so called (75). The ius divinum (75). The ius gentium (76). Limitation of the principle (76). The Medieval Doctrine of Positive Law (76). The ius civile as product, instrument and sphere of human power (77). Exaltation of the Ruler above the Law (77). Resistance to this on the part of the advocates of the People's Sovereignty (78). But they contend for a Popular Assembly which is similarly before and above all Positive Law (78). AppHcation of these principles to the Rights given respectively by the liv Political Theories of the Middle Age. two kinds of Law (78). Rights derived from Positive Law are subjected to the free disposal of the Sovereign (79). The conflict between Martinus and Bulgarus (79). The Right of Expropriation as a right of Sovereignty (79). Establishment of limitations to this Right (79). Requirement of iusta causa (80). Compensation for the expropriated (80). Acquired Rights protected only in so far as they are grounded on Natural Law (80). The scheme of Property Law proceeds from the ius gentium (80). The binding force of Contracts derived from the ius naturae (80). A ius mere positivum is not protected against the Sovereign (81). Revocation of privileges (81). Absolute validity of Rights and Duties which flow immediately from the Law of Nature (81). They need no 'title' and cannot be displaced by any 'title' (81). Innate and indestructible Rights of the Individual (81). Original and essential Rights of Superiority residing in the Whole Com- munity (82). Development of a Doctrine of a State-Power one and indivisible involved in the very idea of the State (82). Completion of the idea of Sovereignty (83). Inalienable Rights of the Crown (83). Inalienable Rights of the People (83). Distinction between Rights of Sovereignty and Fiscal Rights (83). Sharp severance of Public and Private Right (83). Medieval Doctrine as to the effect of Acts of State which transcend the limits of State-Power (84). Genuinely medieval doctrine holds such acts to be formally null and void (84), Consequences (84). A modern tendency appears which will make the Sovereign formally omnipotent in the sphere of Law (84). Consequences (85). Still there is life in the notion that the limits set to State-Power by Natural Law are truly legal limits (85). Consequences (85). Beginnings of a contrary doctrine (86). Machiavelli (86). Politics and Natural Law in later times (86). X. The Beginnings of the Modern State. The modern elements in medieval doctrine (87). Preparation for the ' nature-rightly ' construction of Society (87). Absolutism and Indi- vidualism (87). Theories touching the Origin and Legal Foundation of the State (88). Transition from the State of Nature to Civil Society (88). The Contract of Subjection (88). How arises that Society which erects a State? (88). The Theory of a Social Contract (89). The aim and object of the State (90). Its rights are measured by its aim and object (91). Demand that Public Law be brought into accord with the Principles of Reason (92). The cry for Reformation (92). Analytical Smnmary. iv The fundamental notions of Public Law (92). The Idea of Sovereignty (93). Formulation thereof in the Middle Age (93). But not then exalted to its modern height (93). Still it necessarily induces a concentration of all State Power at a single point (94). The concen- trated State Power begins to claim an equal and equally immediate control over all individuals (94). Tendency towards a dissolution of all intermediate Communities (94). Development of the notion of the State as The (exclusive) Community (94). Reservation of equal or superior rights of the Church (94). But ahready Medieval Theory is preparing an absorption of Church in State (94). The Church is pure State Institution for Marsilius of Padua (95). Particular consequences of the same principle drawn by other writers (95). The Medieval Idea of the Empire shattered by the Modern Idea of the State (95). Reception of the Aristotelian definition of the State (96). Inconsequence of Philosophers who adopt it (96). Inconsequence of Jurists (96). Gradual emergence in philosophic doctrine of the State's exclusive character (97). Aid derived from the legist's concept of an universitas superiorem non recognoscens (97). External Sovereignty becomes the characteristic mark of the State (97). Above there is no room for a World-State and below there are only communes and corporations (97). The concentration of all State Life at a single point did not necessarily imply a concentration at that point of all Communal Life (97). Idea of the Organic Articulation of Communities within the State (98). Still on the whole, even in the Middle Age, the prevailing tendency of Theory is towards such an exaltation of the State's Sovereignty as would make the State the only representative of Communal Life (98). In this direction Philosophy precedes Jurisprudence with giant strides (98). Theoretic dissolution of the independent lordship-rights of Germanic origin (99). Treatment by Philosophy of Germanic fellowship-rights (99). Natural Law outlaws the Corporation (100). SUBJECT MATTER OF THE NOTES' NOTE PAGE 1 Importance of the Jurists ... loi 2 Macrocosm and Microcosm loi 3 Unity as Source and Goal . . loi 4 Partial Wholes 102 5 The Praises of Unity 102 6 The Purpose of Corporate Mankind 103 7 The Universal Church and the Commonwealth of Mankind 103 8 Priesthood and Realm 104 9 Temporal Power of the Pope and the Principle of Unity 104 10 Absorption of State in Church 105 11 Insufficiency of an Invisible Unity 106 12 Temporal Sovereignty of the Pope 106 13 Direct Power of the Pope in Temporalities 107 14 Inferiority of Temporal Power 108 15 The Powers that be are or- dained of God 109 16 Sinful Origin of the State ... 109 17 Ordination of State by Church no 18 The State an Ecclesiastical Institution in 19 The Sphere of Temporal is defined by Spiritual Law . 112 20 Subjection of Temporal Power 112 21 Temporal Rulers as Servants of Church and Pope 113 NOTE PAGE 22 The High Church Doctrine of the Two Swords 113 23 Emperors and Temporal Rulers as the Pope's Vassals 114 24 The Temporal Sword at the Disposal of the Church ... 115 25 Direct Use by the Church of theTemporal Sword... 115 26 The Church should respect the Rights of Rulers 115 27 Extraordinary Use of Tem- poral Power by the Church 116 28 Translation of the Empire by the Pope 116 29 Translatio Imperii 116 30 Papal Appointment of Kaisers and Kings 116 31 The Pope and the German Electors 117 32 The Pope's Part in the Election of an Emperor. 117 33 The Pope's Guardianship of the vacant Realm I17 34 The Pope's power to de- pose Rulers and free Subjects from the Oath of Fealty 117 35 The Pope's power over Rulers other than the Emperor... II 8 36 Reminiscences of the Sub- jection of Church to Realm 118 38 Church and State are co- ordinate 118 39 Temporal Law is not de- pendent on the Canons ... 118 1 The titles given to the notes proceed from the translator. Subject Matter of the Notes. Ivii NOTB PAGE 40 Imperium non dependet ab ecclesia 119 41 Imperialists on Papal Claims 120 42 The Church a purely Spiritual Realm 121 43 Imperialists concede supe- rior Dignity of the Church 122 44 The Celestial Head gives sufficient Unity to the two powers 122 4« Church and State in Co- operation 122 46 Superiority of Church in Spirituals and of State in Temporals 123 47 Occasional Interference of Pope in Temporal Affairs 124 48 Occasional Interference of Kaiser in Spiritual Affairs 124 49 Unity within the Church ... 124 50 The Church and the Infidels 124 5 1 The Church is a State, Polity or Commonwealth 125 53 The Necessity of External Unity doubted 125 52' The Church as conceived by WyclifandHus 125 53 Universality of the Empire . 125 54 Legitimacy of the Roman Empire 125 55 Transfer of the Empire 126 56 Universal Extent of the Em- pire 126 57 The Empire is indestructible de facto 127 58 The Empire is indestructible de iure 127 59 Exemption from the Empire by Privilege or Prescrip- tion 128 60 Exemptions would not de- stroy theoretical Univer- sahty 128 61 Necessity of an Universal Realm denied 128 NOTE PAGE 62 Wider and narrower Groups 128 63 Independence of the smaller Groups 12S 64 Graduated Articulation of Communities 129 66 The Organic Comparison ... 129 67 The Mystical Body and the Pope as its Head 130 68 Bicephalism would be mon- strous 130 69 Need for a Temporal Head 130 71 Possibility of Many-headed- ness 130 72 The Priesthood as Soul of the Body Politic 130 73 The Representation of Soul by the Priesthood ques- tioned 131 74 The Catholic Concordance of Nicholas of Cues 131 75 The Body Mystical, Moral, Politic 131 76 Anthropomorphic Conceits . 131 77 The beginnings of Anthro- pomorphism 132 78 Anthropomorphism con- tinued 132 79 Anthropomorphism and State Medicine 132 81 Some Theories of Aquinas .. 133 82 Harmony of Organic Forces 133 83 Coordination of Limbs 133 84 Goods of State and Goods of Individual 133 86 Mutually Supplettve Power among Organs 133 87 The Idea of Membership ... 134 88 Likeness and Unlikeness among Members 134 89 Mediate Articulation 134 90 Papal Absolutism and the Mediate Articulation of the Church 135 91 Organization and Interde- pendence 135 iviii Political Theories of the Middle Age. NOTE PAGE 92 The Idea of Function 135 93 The Idea of Organ 135 94 The Governing Part 135 96 Connexion with a Rightful Head 136 97 Need for a single Head denied 136 98 The State a work of Human Reason 136 99 Marsilius on the Origin of the State 136 100 The Divine Monarchy 137 loi Divine Origin of the State 137 102 Immediately Divine Origin of the State 138 103 The Pope as Christ's Vicar 138 104 The Emperor as Christ's Vicar 138 105 Mediation of the Church between the State and God 138 106 Delegation by God of all Human Power 139 107 Monarchy and Unity 139 108 Singleness of Will in a Monarchy 139 109 The Church a Monarchy... 139 no Divine Institution of Tem- poral Monarchy 139 111 Monarchythe Normal Form ofGovemment 139 112 References to Republics ... 140 113 Comparison of Forms of Government 140 114 An Aristocratic World-State 140 115 Necessity of Monarchy in the Church doubted 140 116 Preference of the Repub- lican Form 140 117 'Unitas principatus' in a Republic 140 118 Republican Assembly as a Collective Man 140 119 The Monarch outside and above the Group 141 NOTE PAGE 120 The Monarch represents Divinity 141 121 Apotheosis of the Pope ... 141 122 Apotheosis of the Emperor 141 123 Kingship is Office 141 124 Princes exist for the Com- mon Weal 142 125 Purpose of the Ruler 142 126 Declension to Tyranny ... 142 127 God rather than Man is to be obeyed 143 128 Passive Resistance 143 129 Nullity of Commands that are ultra vires statuentis 143 130 Active Resistance and Ty- rannicide 143 131 The Pope's Plenitude of Power 144 132 Limits to Papal Sovereignty 144 133 Limited Monarchy of the Pope 145 134 Conditional Obedience due to the Pope. The Law of Necessity 145 136 Limited Monarchy in the Empire 145 137 The State of Nature 145 138 Beginnings of the Original Contract 146 139 Right of a People to choose a Superior 146 140 The People as instruments of God 146 141 God and the People as the Source of Power 146 142 TheLexRegia 147 143 Voluntary Subjection the Ground of Lordship 147 146 Rights of the Burghers of Rome when the Empire is vacant 147 147 The People of Rome and the Roman People 147 148 The People's Part in the Translation of the Empire 147 Subject Matter of the Notes. lix NOTE PAGE 149 The Roman Citizens and the Translation 148 1 50 Right of the People during a Vacancy of the Em- pire 148 151 The Right to choose a Ruler 148 152 Consensual Origin of Here- ditary Kingship 148 153 Elective Rulership is pre- ferable 149 154 The Empire Elective 149 155 Theory and the Princely Electors 149 156 The Pope as a Popular Delegate 149 157 Election, not Coronation, confers the Imperial Rights 149 158 Lex Regia: an irrevocable Conveyance 150 159 Lex Regia : a revocable Delegation 150 160 Absolute Monarchy and the Will of the People 150 161 Nullity of the Monarch's Acts if they impair his Fundamental Rights ... 150 162 Nullity of Acts subjecting the Empire to the Church 1 50 1 64 The Right to depose a Ruler in a case of Necessity ... 151 16s The Mixed Constitution ... 151 167 Justice to be done upon the Ruler 152 168 The Deposition of Kings... 152 171 The Projects of Nicholas of Cues 153 172 Popular Sovereignty in France 153 173 Papal Theory of General Councils 153 174 Papal Elections : Repre- sentative Character of Cardinals 154 176 177 178 179 180 182 183 184 187 188 189 190 191 192 193 194 19s 196 197 198 Deposition of an Heretical Pope The Heretical Pope is de- posed ipso facto In Matters of Faith the Pope is below the Council Deposition of aSchismatical or Criminous Pope Rejection of a Pope in a case of Necessity Marsilius on Pope and Council Divine Right of the Papal Primacy contested Abolition of Papal Primacy suggested The Council may judge the Pope Right of the Church to as- semble and to constitute a Council Theory of the Conciliar Party Gerson's Theory Practical Powers of the Council Power of the Church to assemble..... Power of the Council during a Vacancy of the Holy See The Cardinals are Repre- sentatives of the Whole Church An independent position as- signed to the Cardinals . Mixed Government in the Church The Council above the Pope Gerson on Divine Right of the Papacy Popular Sovereignty in the Church Canonists and the Council k Political Theories of the Middle Age. NOTE PAGE 203 System of Antonius de Rosellis 160 204 Popular Sovereignty denied 161 205 Lay Representatives in the Councils 161 206 The Church an Institution rather than a Fellowship 161 208 Fallibility of every part of the Church 161 209 The Laity and the Election of Popes 162 210 The Emperor's Part in Papal Elections 162 211 The Temporal Magistrate a Representative of the Laity 162 212 The Objectification of Office or Dignity 162 213 The Prelate as Representa- tive of his Church 162 214 Is the Pope the Church?... 162 215 Is the Pope's Representa- tion of the Church un- limited? 162 216 Representation of the Em- pire by the Emperor 163 217 Representative Character of Kingship 163 218 The Monarch's double Per- sonality 163 219 King's Property and State's Property 164 220 Acts of the Prince and Acts of the Man 164 222 Duties towards Individuals and Duties towards the Community 164 223 Rights of the Community exercised by its Active Members 165 224 Representation of the People as a System of Estates 165 225 Will of the People ex- pressed by Assemblies . 165 NOTE PAGR 226 Rules of Corporation Law applied to Political As- semblies 165 227 Corporation Law and the General Council 166 228 Majorities how reckoned... 166 229 Majorities and Nations in the Council 167 230 The Majority as a Repre- sentation of the Whole... 167 231 Corporate Torts of the Roman People 167 232 Representative Character of the Council 167 233 The Council a mere Repre- sentative 168 234 Election and Representa- tion 168 235 Election of Lay Repre- sentatives 168 236 RepresentationinTemporal Assemblies 168 238 The Representative Parlia- mentarism of Nicholas of Cues 169 239 The Radicahsm of Mar- silius 169 240 The Prince Electors as Representatives 169 241 The Cardinals as Repre- sentatives 169 242 Corporation Law and Im- perial Elections 170 243 Corporation Law and Papal Elections 170 244 Churches as Corporations . 170 24s The Empire or State as Corporation 171 246 The State has no Will 171 252 Mere Collectivism in the Concept of the State ... 171 253 The Church as a Subject of Rights 171 254 The People as Collective Unit 172 Subject Matter of the Notes. Ixi NOTE PAGE 255 The Law of Nature and the Essence of Law 172 257 Nullity of Laws contra- vening the Law of Nature 1 74 258 Revealed Law and Natural Law 174 259 Nature of the lus Gentium 1 75 260 Principles and Secondary Rules of the Law of Nature 175 261 Positive Modifications of the Law of God 175 262 Primeval and Secondary lus Gentium 176 263 Mutability of Positive Law 176 264 The Prince and Positive Law 176 265 Potestas legibus soluta 176 266 Only in a Republic is the Ruler below the Laws ... 177 267 The Ruler is always below the Laws I77 268 The 'Rechtsstaatsidee' ... 177 269 Popular Assemblies above the Laws 178 270 Omnia principis esse in- telliguntur 178 271 Eminent Domain 178 272 The Right of Expropria- tion 179 273 No Expropriation without Just Cause: an absolute Rule of Law 179 274 No Expropriation without Just Cause : a good general Rule 179 275 Compensation for the Ex- propriated 180 276 No Compensation in case of General Expropriatory Law 180 277 No Compensation in a case of Necessity 180 278 Proprietary Rights proceed from the lus Gentium ... 180 NOTE PAGE 279 Sacredness of Contracts made by the State 181 280 Rights founded on Positive Law are at the mercy of the State 181 281 Revocation of ' Privileges' . 181 283 Nullity of the Donation of Constantine 182 284 Inalienability of Public Power 182 285 Nullity of Acts tending to diminish the State's Power 183 286 Inalienability of Sove- reignty 183 287 Indestructible Sovereignty of the People 183 288 Essential Rights of the State and casually acquired Rights of the Fisc 183 289 Gradual apprehension of the Distinction between lus Publicum and lus Privatum 184 290 Nullity of the Sovereign's Acts if they conflict with Natural Law 184 292 Tribunals must give effect to Acts of the Sovereign if done deliberately 185 293 Natural Law not reduced to the level of mere Ethics . 185 294 Coercive and Directive Force of Law 185 295 Legal Limits to the Duty of Obedience 186 296 Unjust Acts of Sovereignty to be interpreted into Rightfulness 186 297 Discharge of the Sovereign from the Moral Law 186 302 Natural Growth of the State 186 303 Rational Origin of the State 187 ixii Political Theories of the Middle Age. NOTE PAGE 304 The State erected by Vio- lence 187 305 The State founded by In- corporation 187 306 The Social Contract 187 307 Voluntary Subjection the Ground of Obedience... 1 88 30B The Terms of the Contract of Subjection 188 310 Limitation of the Work of the State to the Main- tenance of Peace and Law 188 311 Purposes of State and Church 189 312 Extension of the State's Power in a Spiritual Direction 189 313 Spiritual Aims of the State 189 315 Lessons in the Art of Government 190 316 The Forms of Government 190 319 Possible Limitation of Monarchy 190 320 Mixed Constitutions 190 323 The Growth of the Modem State. The Taxing Power 190 324 Equality before the Law ... 191 325 State and Citizen. Influ- ence of Antiquity 191 326 The Marsilian Absorption of Church in State 191 327 Attitude of the State to- wards the Church 192 NOTE PAGE 328 Church Property and Public Property 192 329 The State's Right to reform the Church 193 330 lus Sacrum is part of lus Publicum 193 332 Definition of the State 193 333 State, Realm, Empire, Civitas 193 334 The Imperium as the only true Civitas 194 335 Legal Definitions of Civitas 194 336 City and Republic 194 337 The State cutting itself loose from the Empire... 195 338 Communities which do and Communities which do not recognize a Superior 195 339 No Community above the State and only Communes below the State 195 340 Federal States 195 341 Resistance to the Central- izing Idea of the State... 196 342 Political Theory and Feu- dalism 196 343 All other Power is derived by Delegation from Sove- reign Power 197 344 Early Officialism 197 345 All power proceeds from and is revocable by the State 197 LIST OF AUTHORITIES. I. The Medieval Publicists. Century XI. 1. Petrus Damiani (bom about 990, died 1072). Opera: ed. Migne, Patrologiae Cursus Corapletus, Tom. 145. [See also Libelli de Lite (Mon. Germ.) i., p. 15 ff] 2. Gregory VII. (pope 1073 — 1085). Registrum; a collection of his letters compiled, according to JafK, by himself; together with such letters as have otherwise become known; edited by Jaffe, BibUotheca rerum Germanicarum, 11. (Monumenta Gregoriana, Berol. 1865); also in Migne, Tom. 148. 3. Henry IV. (reign. 1053 — 1106). Laws and Proclamations in Monu- menta Germaniae, Leges 11., p. 14 sq. 4. Petrus Crassus Cardinalis. Complaint against Gregory VII. on behalf of the Synod at Brixen on 25 June 1080 : in Sudendorf, Registrum, Jenae, 1849, i., pp. 22 — 50; compared with the edition in Picker, Forschungen, iv., pp. 106 — 124. [See Libelli de Lite (Mon. Germ.) I. 432 ff.] 5. Wenrich of Trier. Epistola ad Gregorium VII. Papam, d. a. 1083 ; in Martene, Thesaurus Novorum Anecdotorura, I., pp. 214 — 230. [See Libelli de Lite (Mon. Germ.) i., p. 280 ff.] 6. Manegold of Lautenbach. Tract against Wenrich, written 1085 (comp. P. Ewald, in Forsch. zur Deut. Gesch., vol. 16, pp. 383—5) ; extracts in Floto, Heinrich IV., vol. 11., pp. 299—303, and information in v. Giesebrecht, Magister Manegold v. Lautenbach, Sitzungsberichte der Bair. Akad. 1868, 11., pp. 297—326. [See LibeUi de Lite (Mon. Germ.) i., p. 301 ff.] 7. Wido Episcopus Ferrariensis. De scismate Hildebrandi; composed in 1086 (according to the most recent investigation: K. Panzer, Wido v. Ferrara de scismate Hildebrandi, Leipz. 1880); ed. Wilmans in Mon. Germ. Scriptores xii., pp. 148—179. [See Libelli de Lite (Mon. Germ.) i., p. 529 ff.] ixiv Political Theories of the Middle Age. 8. Walram Episcopus Naumburgensis. De unitate ecclesiae conser- vandae; composed 1093; in Schard, De iurisdictione auctontate et praeeminentia imperiali ac potestate ecclesiastica, Basil. 1566, pp. 1—126. [See Libelli de Lite (Men. Germ.) 11., p. 285 fif.] 9. Letter of the Schismatical Cardinals against the Decree of P. Gregory VIL an. 1095; in Sudendorf, loc. cit. 11., nr. 34, pp. 45—90- 10. Deusdedit Cardinalis (d. 1099). Contra invasores et simoniacos et reliquos schismaticos ; in Mai, Nova P. P. Bibl. vii., pars ult., pp. 77— III (only a very imperfect extract in Migne, loc. cit., Tom. 150, pp. 1569—72). [See Libelli de Lite (Men. Germ.) 11., p. 292 ff.] 11. Goffredus abbas Vindocinensis (d. 1132). Opera omnia; in Migne, loc. cit., Tom. 157. [See Libelli de Lite (Mon. Germ.) 11., p. 676.] 12. S. Anselmus Cantuariensis archiepiscopus (1033 — 1109). Opera omnia; in Migne, loc. cit., Tom. 158 — 9. 13. Ivo Carnotensis episcopus (d. 1115). Opera omnia; in Migne, loc. cit., Tom. 161 — 2 ; the Epistolae in Tom, 162. [See Libelli de Lite (Mon. Germ.) 11., p. 640 flf.] Century XII. 14. Sigebert of Gembloux. Writings in defence of the Church of Liittich against Paschal IL, d. a. 1103; in Jaffd, Bibl. rer. Germ. v. 201 flf.; also in Schard, loc. cit., pp. 127 — 141. [See Libelli de Lite (Mon. Germ.) 11., 436 flf.J 15. Tractatus de investitura episcoporum per imperatores facienda; a. 1 109; in Schard, loc cit., pp. 711 — 17 and Kunstman in Tiib. Theol. Quartalschrift for 1837: ascribed to Walram by Schard; ascribed to the diocese of Liittich by Bernheim, Forsch. zur Deut Gesch., vol. 16, pp. 281 — 95. [See Libelli de Lite (Mon. Germ.) II., p. 495 ff.] 16. Hugo Floriacensis. Tractatus de regia et sacerdotal! dignitate; written between 1100 and 1106; in Stephani Baluzii Miscellaneorum hber quartus, Paris, 1683, pp. 9—68. [See Libelli de Lite (Mon. Germ.) II., 465.] 17. Honorius Augustodunensis (d. soon after 1152). Summa gloria de Apostolico et Augusto sive de praecellentia sacerdotii prae regno; in Migne, Tom. 172, pp. 1257—1270. [See Libelli de Lite (Mon. Germ.) iii., p. 29 ff.] List of Authorities. ixv 18. Hugo de S. Victore (d. 1141). Opera omnia; in Migne, loc. cit, Tom. 175—7. 19. S. Bernhardus abbas Clarevallensis (1091 — 1153)- Operaomnia; in Migne, loc. cit, Tom. 182 — 6 (Nov. ed. Paris. 1879): especially the Epistolae (Tom. 182, p. 67 sq.) ; those to the Emperor Lothar and King Conrad, also in Goldast, Monarchia Romani Imperii, Hanov. 1612, 11., p. 66 sq. ; and the Tract De consideratione libri v. ad Eugenium III. Papam, Lc, Tom. 186, p. 727 sq. (in Goldast, l.c., p. 68 sq.). 20. Gerhohus Reicherspergensis (1093 — 1169). Opera omnia; in Migne, 1. c, Tom. 193 — 4. [See Libelli de Lite (Mon. Germ.) iii., p. 131 ff-] 21. S. Thomas Cantuariensis archiepiscopus (Thomas Becket, 11 16 — 1 170). Opera omnia; in Migne, 1. c, Tom. 190. 22. Johannes Saresberiensis (11 20 — 1180). Opera omnia; in Migne, Tom. 199; therein the Epistolae, p. i sq., the Polycraticus, ann. iiS9i P- 3^5 sq. ; for the latter the edition used was Polycraticus sive de nugis curialium et vestigiis philosophorum libri octo, Lugd. Bat. 1639. 23. Frederick I. (reign. 1152 — 11 90). Laws and Proclamations in Monumenta Germaniae, Leges 11., p. 89 sq. and Boehmer, Regesta Imperii ; Information in Wibald and Otto of Freisingen. 24. Wibald of Stablo and Corvey. Epistolae ; in Jaflf^, Monumenta Cor- beiensia, Berol. 1864. 25. Writings of the Arnoldists, 1152, in Wibald's Book of Concepta, in Jaffd, 1. c. 26. Otto Frisingensis (b. not before iiii, d. 1158). Chronicon; com- posed between 1 143 — 6 ; in Monumenta Germaniae, Scriptores, xx., p. 131 sq. — Gesta Friderici (to 1156) with the continuation by Ragewin(to 1160) ib., p. 351 sq. 27. Alexander III. (pope 1159 — 1181). Opera; in Migne, 1. c, Tom. 200. 28. Petrus Blesensis (d. 1200). Opera omnia; in Migne, 1. c, Tom. 207. 29. Petrus Blesensis iunior (nephew of the above). Opusculum de dis- tinctionibus sive Speculum iuris canonici, ed. Reimarus, Berol. 1837; written about 11 80. 30. Innocent III. (pope 1198 — 1216). Opera; in Migne, 1. c., Tom. 214 — 7 ; therein the collection of his letters (vols. 214 — 6) and the Registrum supernegotiis Romani Imperii (vol. 216, p. 995 sq.). 31. Philip of Swabia (1198 — 1208) and Otto IV. (1198 — 1218) in Monu- menta Germaniae, Leges 11., p. 201 sq. M. ixvi Political Theories of the Middle Age. Century XIII. 32. Frederick II. (1211—1250), in Monumenta Germaniae, Leges 11., p. 223 sq.; in P. Huillard-BrdhoUes, Historia diplomatica Friderici II., Paris, 1859 sq. ; and in Petrus de Vineis. 33. Petrus de Vineis (Chancellor of Frederick II.). Epistolaej Basil, 1566. Compare P. Huillard-Br^holles, Vie et correspondance de Pierre de la Vigne, Paris, 1865. 34. Eike von Repgow in the Sachsenspiegel (between 1224 and 1235), ed. Homeyer, 3rd ed. 1861. 35. German Poets of the time of the Hohenstaufen ; the passages collected by Hofler, Kaiserthum u. Papstthum, Prag, 1862, p. loSff. 36. Gregory IX. (pope 1227 — 1243). Decretals in the Corpus iuris canonici ; and Letters in Raynald, Annal. eccl., vol. xiii. 37. Innocent IV. (pope 1243 — 1254). Decretals in the Corpus iuris canonici ; and Letters in Raynaldj 1. c. 38. Alexander Halensis (d. 1245). Summa theologica ; Col. 1622. 39. S. Thomas Aquinas (d. 1274). Opera omnia; ed. Antverp. 1612 and Parm. 1852 — 72. — Summa Theologiae; ed. Migne, Paris, 1864; ed. Antv. vols. x. — xii. ; ed. Parm. vols. i. — iv. — Summa deveritate fidei contra gentiles; ed. Uccellius, Romae, 1878; ed. Antv. vol. ix.; ed. Parm. vol. v. — In quattuor libros Sententiarum magistri Petri Lombardi Comment.; ed. Antv. vols. vi. — vii.; ed. Parm. vols. VI. — vn. — Quaestiones disputatae and Quodlibetanae s. Placita; ed. Antv. vol. viii. ; ed. Parm. vols. viii. — ix. — Expositio on the Psalms; ed. Antv. vol. xiii. — Commentarius in Epistolas omnes Pauli; ed. Ant. xvi. — Commentary on the Ethics of Aristotle; ed. Antv. vol. v. ; ed. Parm. vol. xxi. — Commentary on the Politics of Aristotle ; ed. Antv. vol. v. ; ed. Parm. vol. xxi., p. 366 sq. (our citation of pages refers to this edition). — Opuscula omnia theologica et moralia, Paris, 1656; in ed. Antv. vol. xvii.; ed. Parm. vols. xv. — xvi. — In particular, Opusc. i contra errores Graecorum.— Opusc. 34, p. 534 sq. (or Opusc. 19) contra im- pugnantes religionem.— Opusc. 40, p. 843 sq. (or Opusa ai) de regimine ludaeorum ad Ducissam Brabantiae. — Opusc. 39, p. 764 sq. (in ed. Antv. Opusc. 39, f. 160™, in ed. Parm. vol. xvi., p. 224 sq.) de regimine principum ad regem Cypri; unfinished, since only lib. I. and Ub. 11. c 1—4 come from him, and the continuation is by Ptolomaeus of Lucca.— See Baumann, die List of Authorities. ixvii Staatslehre desh. Thomas v. Aquino, Leipz. 1873. Nic. Thoemes, Commentatio literaria et critica de S. Thomae Aquinatis operibus ad ecclesiasticum, politicum, socialem statum 'reipublicae Chris- tianae ' pertinentibus deque eius doctrinae fundamentis atque prae- ceptis, Berol. 1874. 40. Vincentius Bellovacensis (d. 1274 or 1264). Speculum doctrinale, lib. VII. — XI. ; ed. Duaci, 1624. 41. Schwabenspiegel (about 1275), ed. Lassberg, 1840. 42. Jordanus of Osnabriick, De praerogativa Romani imperii; written about 1 28 1, probably in 1285; ed. by Waitz in the Abhandlungen der kon. Gesellschaft der Wiss. zu Gottingen, vol. 14, p. 43 ff. 43. Aegidius Romanus Colonna (1247 — 1315). De regimine principum libri III.; written after 1280; ed. per Simon. Bevilaquam, Venet. 1498. — De potestate ecclesiastica libri tres, from the description and analysis of its contents by F. X. Kraus, Oesterr. Vierteljahrs- schrift fiir kathol. Theol., vol. i. (Wien, 1862), p. 11 ff. 44. Engelbert of Volkersdorf, Abbot of Admont (1250 — 1311). De regimine principum; written in all probability after 1290; ed. Jo. Georg. Theophil. Huffnagl, Ratisbonae, s. a. — De ortu, pro- gressu et fine Romani imperii liber; probably between 1307 and 1310; ed. Basil. 1553. 45. Ptolomaeus of Lucca. De regimine principum; written after 1298; as a continuation of Thomas Aquinas, De regimine principum. 46. Dante Alighieri (1265 — 1321). De Monarchia libri tres; written about 1300 (according to Witte 1296 — 1299, according to Wegele not until 1311 — 1313); ed. altera per Carolum Witte, Vindobonae, 1874. 47. Boniface VIII. (pope 1294 — 1303). Decretals in the Corpus iuris canonici and letters in Raynald, 1. c. vol. xiv. 48. Rudolf I. (1273 — 1291), Adolf (1292 — 1298) and Albert I. (1298 — 1308) in Monumenta Germaniae, Leges 11., pp. 382 sq., 459 sq., 466 sq. Century XIV. 49. Johannes Parisiensis (d. 1306). Tractatus de regia potestate et papali; written about 1303 ; ed. in Schard, 1. c. pp. 142 — 224 ; in Goldast, 1. c. II., p. 108 sq. 60. Disputatio inter militem et clericum super potestate praelatis ecclesiae atque principibus terrarum commissa; written about 1303, perhaps by Peter Dubois; ed. in Schard, 1. c. pp. 677—687, Goldast, 1. c. I. 13 sq. e 2 64 ixviii Political Theories of the Middle Age. 51. Cleraent V. (pope 1305 — 1314), in Corpus iur. can. and in Raynald, 1. c. vol. XV. 52. Henry VII. (1308 — 1313), in Monumenta Germaniae, Leges 11. p. 490 sq. 53. Guilelmus Durantis iunior (d. 1328). Tractatus de mode celebrandi concilii et corruptees in ecclesia reform andi s ; written between 1308 and 131 1 ; in Tractatus universi iuris, Venet. 1584, xiii. i p. 154 sq. 54. Landulfus de Colonna. De translatione imperii; written 1310 17,20- ed. Schard, 1. c. pp. 284 — 297, Goldast, 1. c. 11. 88 sq. 55. Lewis the Bavarian (1314 — 1348), in Boehmer, Regesta Imperii. 56. John XXII. (pope 1316—1334), in Corpus iur. can. and in Raynald, I. c. 57. Marsilius Patavinus of Maynardina (d. after 1342). Defensor pacis • composed between 1324 and 1326 with the help of John of Jandun; ed. s. 1. 1622; also in Goldast, 11. 154— 308.— Tractatus de translatione imperii; written in 1325 or 1326; in Schard, 1. a pp. 224—237, Goldast, II. 147—153. 58. AugustinusTriumphusdeAncona(i243-i328). Summadepotestate ecclesiastica; written after 1324 (according to Riezler, but according to Friedberg about 1320); ed. Romae, 1583. 59. Petrus Paludanus (Patriarch of Jerusalem). De causa immediata ecclesiasticae potestatis; written about 1329; from citations in Raynald, 1. c. ann. 1328, nr. 30—32 (vol. xv., p. 346 sq.) and Bellarmin, De scriptoribus ecclesiasticis, p. 271. 60. Peter Bertrand (Bishop of Autun, afterwards Cardinal). De iuris- dictione ecclesiastica et politica; written 1329; ed. Goldast, 1. c. II. 1261 — 1283. 61. Guilelmus Occam (ob. 1347). Opus nonaginta dierum; written soon after 1330; ed. Goldast, 1. c. 11. 993— 1236— Compendium errorum Papae Johannis XXIL; written 133S— 1338; ed. Goldast, 11. 957- 976.— Octo quaestiones; written 1339— 1342; ed. Goldast, 11. 314— 391— Dialogus; written in 1342 or 1343, but Pars 11. already m 1333 or 1334 ; ed. Goldast, 11. 398—957. 32. Michael de Cesena. Letters of 133 1, 1333 and undated (but probably also 1333), in Goldast, 11. 1236, 1238, i244.-0ther writings re- latmg to the Minorite Quarrel, ib. pp. 1291-1344 33. Alvarius Pelagius. De planctu ecclesiae; according to 11. art o. in fine, begun in 1330 and finishe'd in 1332 at Avignon, but according to Its last words revised a first time in 1335 at Algarbia in Portug^ and a second time m 1340 at Compostella ; ed. Lugd 1617 Documents relating to the Unions at Lahnstein and Rensein 1338 in List of Authorities. ixix Ficker, zur Gesch. des Kurvereins von Rense, Sitzungsber. der k. k. Akad. der Wiss., vol. xi. (1853), Beilagen, p. 699 £f. 65. Excerpta ex libro Nicolai Minoritae da controversia paupertatis Christi, in Boehmer, Fontes iv. 588 — 608. — Therein Articuli de iuribus imperii et praelatorum ac principum, ad quos pertinet imperatoris electio, et de iure domini Ludovici IV. imperatoris, of i338> p. 592 sq. — Tractate of 1338, p. 598 sq. — Opinions of Bonagratia of Bergamo, 1338, p. 606 sq. 66. Definition of the rights pertaining to Elect Emperors and Kings according to the laws and customs of the Empire; ann. 1338; in Ficker, 1. c. nr. 6, p. 709 ff. 67. Informatio de nuUitate processuum papae Johannis contra Ludov. Bavar., 1338, in Goldast, i. 18 — 21. 68. Lupoid of Bebenburg (d. 1363). De iure regni et imperii; written between 1338 and 1340; ed. princeps s. t. 'Lupoldus de iuribus et translatione Imperii' Arg. 1508, and ed. in Schard, 1. c. pp. 328 — 409. — Libellus de zelo catholicae fidei veterum principum German- orum ; ed. Schard, 1. c. pp. 410 — 465. — Ritmaticum querulosura et lamentosum dictamen de modernis cursibus et defectibus regni ac imperii Romanorum ; ed. Boehmer, Fontes, i. 479 sq. 69. Konradof Megenberg (circ. 1309 — 1374). Oeconomica; written 1352 — 1362 ; the dedicatory epistle and abstract of contents in Struve, Act. lit. Jenae 1706, Fasc. iv. 81 — 91. — Tractatus de translatione imperii, 1354 or 1355, and Treatise against Ockham from the same time; extracts given by Hofler, Aus Avignon, Prag, 1868, p. 26 ff. 70. Johann von Buch. Gloss on the Sachsenspiegel ; ed. used being those by Zobel, Leipz. 1525, and by Gartner, Leipz. 1732. 71. The Town-Clerk (Stadtschreiber) Johannes, in the Briinner Schoffen- buch ; second half of cent. xiv. ; ed. Rosier, die Stadtrecht v. Briinn, Prag, 1852. 72. Petrarca (1304 — 1374). Epistolae de iuribus imperii Romani; circ. 1350—7°; ed. Goldast, 11. pp. 1345 (1. 1445)— 1465. 73. Quaestio in utramque partem disputata de potestate regia et ponti- ficali ; dedicated to Charles V. [of France], written probably about 1364 — 1380, and according to Riezler perhaps by Raoul de Presles; in Goldast, 11. 95 sq. (French translation I. 39 sq.). 74. Somnium Viridarii; written in 1376 or 1377, probably by Philippe de Mazibres; in Goldast, i. 58 — 229. 75. Johannes Wycliffe (1324 — 1387). Trialogus et supplementum Trialogi ; ed. Oxon. 1869. — The twenty-four Articles condemned by the Synod of London in 1382. — Compare Lechner, Johann v. Wiclif, Leipz. 1873 (the Articles, i. p. 669 ff.). ixx Political Theories of the Middle Age, 76, Ubertus de Lampugnano. Utrum omnes Christiani subsunt Romano Imperio; lecture delivered in 1380; in Zeitschr. fur geschichtliche Rechtswissenschaft, 11. 246 — 256. 77. Henricus de Langenstein dictus de Hassia (1325— 1397). Consilium pacis de unione ac reformatione ecclesiae; written, in 1381 ; in Job. Gerson, Opera omnia, Antverp. 1706, 11. p. 809 sq. — See also O. Hartwig, Henricus de Langenstein dictus de Hassia, Marb. 1857. 78. Konrad v. Gelnhausen. Tractatus de congregando concilio tempore schismatis, in Martene, Thesaurus anecdot. 11., pp. 1200 — 1226. 79. Mathaeus de Cracovia (d. 1410). De squaloribus Romanae curiae, in Walch, Monumenta medii aevi, I. i, pp. i — 100. — Epistola Univer- sitatis Parisiensis ad Regem Francorum d. a. 1394. — Memorandum of 1396. — Resolution of the National Synod at Paris of 1398. — Speeches and writings of Simon Cramaud, Pierre Plaoul, Aegidius de Campis de Rothomago and Pierre du Mont de St Michel; as given by Hiibler, die Constanzer Reformation und die Konkordate von 1418, Leipz. 1867, p. 360 ff., also in Schwab, Joh. Gerson, Wiirzburg, 1858. — Also Consultatio de recusanda obedientia Petro de Luna, circ. 1399, in Martene, 1. c. 11. 1189 sq. — Appellatio interposita per Leodienses a papa post subtractionem obedientiae per eos sibi factam, a. 1400, ib. 1250 sq. — Letter of Simon Cramaud d. a, 1400, ib. 1230 sq. 80. Tractatus de aetatibus ecclesiae ; from the time of the Great Schism ; in Goldast, i. 30 sq. Century XV, 81. FrancTscus de Zabarellis. Tractatus de schismate j written circ 1406 ; in Schard, pp. 688 — 711. 82. Conclusiones per stadium Bononiense a, 1409, in Martene, Ampl. Collect. VIII. 894. 83. Octo conclusiones per plures doctores in Ital. part, approb., in Gerson, Op. 11. p. no sq. 84. PetrusdeAlliaco (1350— 1425). Treatises and Speeches in the matter of the Schism, in Gerson, Op. i. p. 489 sq. and 11. p. 867 sq., also Propositiones, ib. 11. p. 112 j Tractatus de ecclesiastica potestate, a. 1416, in V. d. Hardt, Cona Const, vi. 6, p. 15 sq. — See also Tschackert, Peter von Ailli, Gotha, 1877. 85 Johannes Gerson (1363— 1429). Opera omnia, Antverp. 1706.— Therein the 'Schismatica' in Tom. 11.; in particular, Protestatio List of AMthorities. ixxi super statu ecclesiae, p. 2 ; Sententia de modo habendi se tempore schismate, p. 3 j De schismate tollendo, p. 76 ; Trilogus in materia schismatis, p. 83; Tractatus de unitate ecclesiastica, p. 113; Pro- positio, p. 123; Sermones, pp. 131 and 141; De auferibilitate Papae ab ecclesia, p. 209 ; De potestate ecclesiae et origine iuris et legum (1415), p. 225J Propositio in Cone. Const, p. 271 ; Quomodo et an liceat in causis fidei a Papa appellare, p. 303. — Also some few matters in Tom. iii. (Opera moralia) and iv. (Opera exegetica et miscellanea). — See also J. B. Schwab, Johannes Gerson, Professor der Theologie und Kanzler der Universitat Paris, Wiirzburg, 1858. 86. Johannes Hus (13 73 — 1415). Determinatio de ablatione temporalium a clericis, a. 1410; in Goldast, i. 232 sq. — See also Lechner, Johann v. Wiclif, vol. 11. 87. Johannes Breviscoxa. De fide et ecclesia, Romano pontifice et con- cilio generali ; in Gerson, Op. 11. p. 805 sq. 88. Andreas of Randuf. De modis uniendi ac reformandi ecclesiam in concilio universalij written circ. 1410; in Gerson, Op. 11. 161 sq. 89. Theodoricus de Niem. De schismate; written in the reign of Rupert; ed. Basil, 1566. — Privilegia et iura imperii circa investituras episco- patuum et abbatiarum, written 1410 — 1419; in Schard, pp. 785 — 859. — De difficultate reformationis ecclesiae; in von der Hardt, 1. c. 1. 6, p. 255. — De necessitate reformationis ecclesiae, ib. i. 7, p. 277. 90. Nilus archiepiscopus Thessalonicus. De primatu Papae Romani ; written in all likelihood about 1438 (not about 1360 as is supposed by Riezler and O. Lorenz who have followed in this a mistake made by Goldast which he himself corrected in the Diss, de autor.); in Goldast, i. 30 — 39. 91. Nicolaus of Cues (1401 — 1464). Opera omnia, Basil. 1565. The treatise De concordantia catholica (to which our references are made unless the contrary is stated), written 1431 — 3 and presented to the Council of Basel, is found ib. 692 sq. and in Schard, pp. 465 — 676. — A treatise De auctoritate praesidendi in concilio generali, in Diix, Der deutsche Kardinal Nikolaus v. Kusa, Regensb. 1847, I., pp. 475 — 491. — See also Stumpf, Die polit. Ideen des Nicolaus V. Cues, Koln, 1865 ; Scharpff, Nicolaus v. Cusa als Reformator in Kirche, Reich und Philosophie, Tiib. 1871. 92. Laurentius Valla. De falso credita et ementita Constantini dona- tione; written 1439; i" Schard, pp. 734 — 780. 93. Gregory of Heimburg (d. 1472). Admonitio de iniustis usurpa- tionibus paparum Romanorum ; written about 1441 ; in Goldast, i. 557 — 563. — Controversial writings concerning the affair of Brixen, ixxii Political Theories of the Middle Age. 1460 — 1461, ib. II. 1576 — 1595. — Apologia contra detractiones et blasphemias Theodori Laelii, ib. 11. 1604 sq. — Invectiva in Nicolaum Cusanum, ib. 1622 — 1631. — See also Clemens Brock- haus, Gregory. Heimburg, Leipz. 1861. 94. Theodoricus Laelius episcopus Feltrensis. Replica pro Pio Papa II. et sede Romana; in Goldast, 11. 1595 — 1604. 95. Aeneas Sylvius Piccolomini (1405 — 1464, from 1458 Pope Pius II.). De ortu et auctoritate imperii Romani ; written in 1446 ; in Schard, pp. 314—328. — See also Voigt, Enea Silvio de' Piccolomini, 3 vols., Berlin, 1856 flf. 96. Petrus de Monte (1442—1457 Bishop of Brixen). De potestate Romani pontificis et generalis concilii s. de primatu. Tract, univ. iuris, XIII. I, p. 144 sq. 97. Johannes a Turrecremata (d. 1468). Summa de ecclesia, Venet. 1561- — De pontificis maximi conciliique auctoritate, Venet. 1563; under the title De potestate papae et concilii generalis tractatus notabilis, ed. Friedrich, Oenoponti, 1871. 98. Antonius de Rosellis (d. 1466). Monarchia s. de potestate ira- peratoris et papae; in Goldast, I. 252—556. Petrus de Andlo. De imperio Romano-Germanico ; written ini46o ; ed. Marquardus Freher, Norimb. 1657. 100. Franciscus Patricius Senensis Pontifex Cajetanus (d. 1494). De institutione reipublicae libri ix.; ed. Arg. 1595.-06 regno et regis institutione libri ix.; addressed to King Alphonso of Aragon and Calabria; ed. Arg. 1594. 101. Klagspiegel; ed. Strasb. 1527; appeared at Schwabisch-HaU near the beginning of cent, xv., according to Stintzing, Geschichte der popularen Litteratur des romisch-kanonischen Rechts in Deutsch- land, Leipz. 1867, p. 353 ff., and Geschichte der deutschen Rechtswissenschaft, Miinch. u. Leipz., i. p. 43. 102. Ulrich Tengler. Laienspiegel ; appeared in 1509; ed. Strasb. 1527. 103. Thomas de Vio Cajetanus (1469-1534)- De auctoritate papae et concihi utraque invicem comparata ; written in 1511; in his Opuscula omnia, Antv. 1612, i. i. Jacobus Almainus (d. 15 15). Expositio circa decisiones Magistri G. Occam super potestate summi Pontificis ; written in 1512; in Gerson, Op. ii., p. 1013 sq. and (as Expositio de suprema potestate ecclesiastica et laica) in Goldast, i. 588—647.-06 dominio naturali civili et ecclesiastico ; in Gerson, Op. 11., p. 961 sq.-De auctoritate Ecclesiae et Conciliorum generaUum, adv. Thomam de Vio Cajetanum; ib. 1013 sq. 99. 104 List of Authorities. ixxiii II. Legists'. 105. Glossa Ordinaria, compiled by Accursius (1182 — 1258): in the edition of the Corpus luris Civilis, Venetiis apud Juntas 1606, compared with earUer editions. [Irnerius (circ. iioo) is the founder of the school; Bulgarus, Martinus, Jacobus, Hugo are ' the four doctors.'] 106. Placentinus (d. 1192). De varietate actionum (before 1180), Mog. 1530- 107. Jacobus de Arena (last mentioned in 1296). Commentarii in uni- versum ius civile, ed. Lugd. 1541. 108. Andreas de Isernia (Neapolitan, b. circ. 1220, d. 13 16). Super usibus feudorum, ed. Lugd. 1561. 109. Oldradus de Ponte (de Laude) (first mentioned 1302, d. 1335). Consilia, ed. Francof. 1576. 110. Jacobus Buttrigarius (b. circ. 1274, d. 1348). Lectura in Digestum Vetus, ed. Romae, 1606. 111. Cinus (Guittoncino Sinibaldi) (b. 1270, d. 1336). Lectura super Codicem, ed. Francof. 1578. — Lectura super Digestum Vetus, in eadem editione. 112. Albericus de Rosciate (d. 1354). Commentarii, ed. Lugd. 1545. — Dictionarium, ed. Venet. 1573. 113. Bartolus de Sassoferrato (b. 1314, d. 1357). Commentarii — Con- silia — Quaestiones — Tractatus. All from the edition of his works, Basil. 1562. 114. Baldus de Ubaldis (1327 — 1400). Commentarii on the various parts of the Corpus Juris, ed. Venet. 1572 — 3. — Commentarius in usus feudorum, written in 1391, ed. Lugd. 1566. — Commentariolum super pace Constantiae, in eadem editione. — Consilia, ed. Venet. 1575- 115. Bartholomaeus de Saliceto (d. 1412). Commentarius super Codice ; finished in 1400; ed. Venet. 1503. 116. Christoforus de Castellione (1345 — 1425). Consilia, ed. Venet. 1560. 117. Raphael Fulgosius (1367 — 1427). Consilia posthuma, Ambergae, 1607. ' On pp. 186, 238, 351 and 416 Dr Gierke gives long lists of legists and canonists. We here select only such writers as are referred to in the chapter that is here translated. ixxiv Political Theories of the Middle Age. 118. Johannes de Imola (d. 1436). Commentarius on the Infortiatum and Digestum Novum, ed. Lugd. 1549. 119. Ludovicus de Ponte Romanus (1409 — 1439). Commentarii, ed. Francof. 1577. — Consilia, ed. Lugd. 1548. 120. Paulas de Castro, Castrensis (d. 1441). Commentarii on Digests and Code, ed. Lugd. 1585. 121. Johannes Christophorus Parcus (Portius, Porcius) (from 1434 pro- fessor at Pavia). Commentarius in Institutiones, ed. Basil 1548. 122. Tartagnus, Alexander de Imola de Tartagnis (1424 or 1423— 1477). Commentarii on the three Digests and the Code, ed. Francof. 1 6 10.— Consilia, ed. Aug. Taur. 1575 (with additions by Marcus Antonius and Natta). 123. Johannes de Platea (of Bologna, cent. xv.). Super Institutionibus, ed. Lugd. 1539.— Super tribus ultimis libris Codicis, ed. Lued' 1528. ^ • 124. Paris de Puteo (1413— 1493). Tractatus de Syndicatu, ed. FrancoC 1608 (also in Tr. U. J. vii. 127). 125. Johannes Bertachinus (d. 1497). Repertorium iuris, Lugd. 1521 126. Jason de Mayno (1435-1519)- Commentarii on the three Digests and the Code, ed. Aug. Taur. 1576.— Consilia, ed. Francof 1611 127. Paulus Picus a Monte Pico (pupil of Jason, professor at Pavia, end of cent. XV.). Opera, ed. Francof. 1575. 128. Johannes Crottus (of Casale, professor at Bologna, Pavia and Pisa, circ. 1500). Consilia, ed. Venet. 1576. Franciscus Marcus (member of the Pariement of Dauphin^). De- cisiones Delphinenses, ed. Francof. 1624. 130. Franciscus Curtius junior (d. 1533). Consilia, ed Spirae, 1604. 131. Phihppus Decius (1454-1536 or 1537). Commentarii in Digestum vetus et Codicem, ed. Lugd. 1559.— De reguUs iuris, ed. Col. 1584. — Consilia, ed. Venet. 1570. 132. Martinus de Caratis Laudensis. Lectura super feudis, ed. Basil 1564. -De fisco, Tr. U. J. xn. 2._De represaliis, ib. xii. 279. 129 133 III. Canonists. Glossa Ordinaria on the Decretum Gratiani : compiled by Johannes Teutonicus (d. about 1220): editions used Lugd. i^ia and Argent, p. Henr. Eggesteyn, 1471. ^ 131 Innocentius IV.. Sinibaldus Fliscus (d. 1254). Apparatus (Com- List of Authorities. ixxv mentaria) in libros quinque decretalium, ed, Francof. 1570: finished soon after the Council of Lyons (1245). 135. Bernardus Compostellanus iunior. Lectura on the Decretals (i 245 — 1260, unfinished), ed. Paris, 15 16. 136. Hostiensis, Henricus de Segusia Cardinalis Ostiensis (d. 1 2 7 1 ). Summa aurea super titulis decretalium, ed. Basil. 1573 ; written after 1250. 137. Glossa ordinaria on the Liber Extra, compiled by Bernhardus Parmensis de Botone (d. 1263); finished shortly before his death; ed. Lugd. 1509 and Basil. 1482. 138. Guilelmus Durantis, 'Speculator' (1237 — 1296). Speculum iudiciale; first finished in 1272, revised before 1287; ed, Basil. 1574 and Francof. 16 12. 139. Glossa ordinaria on the Liber Sextus (1304 or 1305) and the Clementines (1326) by Johannes Andreae. 140. Johannes Andreae Mugellanus (1270 — 1348). Novella in Decretales Gregorii IX.; in i. et 11. libr. ed. Venet. 161 2; super iii. Hbr. ed. Venet. 1505 ; super iv. et v. libr. ed. Venet. 1505. 141. Idem. Novella super Sexto, ed. Lugd. 1527; written between 1334 and 1342. 142. Henricus Bouhic (Bohic) (b. 1310, d. after 1350). Distinctiones in libros quinque Decretalium, Lugd. 1520; written 1348. 143. Baldus de Ubaldis (1327 — 1400). Commentarius super tribus prior- ibus libris decretalium, Lugd. 1585. 144. Petrus de Ancharano (1330 — 1416). Lectura super sexto decretalium libro, Lugd. 1543. 145. Franciscus de Zabarellis Cardinalis (1335 — 1417). Commentaria in V. libros decretalium, Venet. 1602. — Lectura super Clementinis, Venet. 1497; written between 1391 and 1410. — Consilia, Venet. 1581. 146. Antonius de Butrio (1338 — 1408). Commentaria in v, libros decre- talium, Venet. 1578. — Consilia, Lugd. 1541. 147. Dominicus de Sancto Geminiano (first half of cent. xv.). Lectura super decreto, Venet. 1504. — Lectura super libro sexto, Lugd. 1535. — Consilia et Responsa, Venet. 1581. 148. Johannes ab Imola (d. 1436). Commentarius super Clementinis, Lugd. 1551. 149. Prosdocimus de Comitibus (d. 1438). De difierentiis legum et canonum, Tr. U. J. i. 190. 150. Panormitanus, Nicholaus de Tudeschis (Abbas Siculus, Abbas modernus) (d. 1453). Commentaria, Venet. 1605 (vols. i. — vii.). — Consilia et Quaestiones, in eadem ed. vol. viii. ; the Quaestiones also in Selectae Quaestiones, Col. 1570, p. 303. ixxvi Political Theories of the Middle Age. 151. Johannes de Anania (d. 1457). Commentarius super Decretalibus and super Sexto Decretalium, Lugd. 1553. 152. Alexander Tartagnus ab Imola (1424 — 1477). Consilia, ed. Francof. 1610. 153. Cardinalis Alexandrinus, Johannes Antonius de S. Gregorio (d. 1509). Commentaria super Decreto, Venet. 1500; written between 1483 and 1493. 154. Philippus Franchus de Franchis (d. 147 1). Lectura in Sextum Decretalium, Lugd. 1537. ' 155. Dominicus Jacobatius Cardinalis (d. 1527). Tractatus de concilio, in Tr. U. J. XIII. I, pp. 190 — 398. 156. Hieronymus Zanettinus (d. 1493). Contrarietates seu diversitates inter ius civile et canonicum, in Tr. U. J. i. p. 197. 157. Benedictus Capra (d. i47o). Regulae et Tractatus, Venet. 1568.— Consilia, Lugd. 1556. 158. Ludovicus Bologninus (1447—1508). Consilia: along with those of Benedictus Capra, Lugd. 1556. 159. Felinus Sandaeus (1444— 1503). Opera, Lugd. 1540 (Lectura in decretales), 160. Philippus Decius (1454—1536 or 1537). Super DecretaUbus, Lugd. 1551- IV. Modern Books. 161. Forster, Quid de reipublicae vi ac natura medio aevo doctum sit, Vratisl. 1847. 162. Forster, Die Staatslehre des Mittelalters, AUg. Monatschr. fiir Wiss. u. Litt. 1853, pp. 832 ff. and 922 ffi 163. Friedberg, Die mittelalterlichen Lehren iiber das Verhaltniss von Kirche und Staat, Zeitschr. fiir Kirchenrecht, vol. 8, p. 69 ff. 164. Friedberg, Die Grenzen zwischen Staat und Kirche, Tiibingen, 1872. 165. Friedberg, Die mittelalterlichen Lehren uber das Verhaltniss von Staat und Kirche, Leipz. 1874. 166. Holler, Kaiserthum und Papstthum, Prag, 1862. 167. Dollinger, Die Papstfabeln des Mittelalters, Miinchen, 1863. 168. Hiibler, Die Constanzer Reformation und die Konkordate von 1418, Leipz. 1867. 169. Schulte, Die Stellung der Koncilien, Papste und Bischofe vom histonschen und kanonischen Standpunkte, 187 1. List of Authorities. ixxvii 170. Hergenrother, Katholische Kirche und christlicher Staat, Freiburg i. B. 1872. 171. S. Riezler, Die literarischen Widersacher der Papste zur Zeit Ludwigs des Baiers, Leipz. 1874. 172. F. V. Bezold, Die Lehre von der Volkssouveranetat wahrend des Mittelalters, Hist. Zeitschr. vol. 36 (1876), p. 340 ff. 173. W. Molitor, Die Dekretale Per Venerabilem von Innocenz III. und ihre Stellung im ofFentlichen Recht der Kirche, Miinster, 1876. 174. O. Lorenz, Deutschlands Geschichtsquellen im Mittelalter seit der Mitte des dreizehnten Jahrhunderts, ed. 2, Berl. 1876, 11. p. 288 ff. 175. W. V. Giesebrecht, Geschichte der deutschen Kaiserzeit, vol. iii. 176. Raumer, Geschichte der Hohenstauffen und ihrer Zeit, vol. vi. 177. Wessenberg, Die grossen Kirchenversammlungen des 15 u. 16 Jahrh., Konstanz, 1845 ff. 178. Hefele, Konciliengeschichte, vols. i. — iv. in ed. z. 179. Ficker, Forschungen zur Reichs- u. Rechtsgeschichte Italiens, Inns- bruck, 1868— 1874. INDEX TO LIST OF AUTHORITIES'. Accursius No. loj Aegidius Romanus No. 43 Aeneas Sylvius No. 95 Ailly No. 84 Alexander III No. 27 Alexander Halensis No. 38 Alexandrinus No. 153 AUiaco No. 84 Almainus No. 104 Alvarius No. 63 Anania No. 151 Ancharano No. 144 Andlo No. 99 Andreae No. 140, 141 Anselmus No. 12 Aquinas No. 39 Arena No. 107 Augustinus Triumphus No. 58 Augustodunensis No. 17 Baldus Nos. 114, 143 Bartolus No. 113 Bebenburg No. 68 Becket No. 21 Bellovacensis No. 40 Bernard, St. No. 19. Bertachinus No. 125 Bertrand No. 60 Blesensis Nos. 28, 29 Boehmer No. 23 Bologninus No. 158 Boniface VIII No. 47 Bouhic No. 142 Breviscoxa No. 87 Briinner Schoffenbuch No. 71 Buch No. 70 Bulgarus No. 105 Butrio No. 146 Buttrigarius No. no Caietanus No. 103 Cantuariensis, Thom. Na 21 Capra No. 157 Carnotensis No. 13 Castellione No. 116 Castrensis No. 120 Castro No. 120 Cesena No. 62 Chartres No. 13 Cinus No. Ill Colonna, Aegid. No. 43 Colonna, Landulf. No. 54 Comitibus No. 149 Compostellanus No. 135 Cracovia No. 79 Crassus No. 4 Crottus No. 128 Curtius No. 130 Cues No. 91 Cusa No. 91 Cusanus No. 91 Damiani No. i Dante No. 46 ' This Index may help a reader to pass from Dr Gierke's notes to the above list of Authorities. Index to List of Authorities. Ixxix Decius Nos. 131, 160 Deusdedit No. 10 Disputatio inter militem et clericum No. 50 Durantis sen. No. 138 Durantis jun. No. 53 Dux No. 91 Eike No. 34 Engelbert No. 44 Felinus No. 159 Ficker Nos. 4, 64, 179 Fleury No. 16 Floriacensis No. 16 Franchus No. 154 Frederick II No. 32 Frisingensis No. 26 Fulgosius No. 117 Gelnhausen No. 78 Gemblacensis No. 14 Geminiano No. 147 Gerhoh No. 20 Gerson Nos. 77, 85 Goffredus No. 11 Goldast No. 19 Gregory VII No. 2 Halensis No. 38 Hardt No. 84 Hartwig No. 77 Hefele No. 178 Heimburg No. 93 Hergenrother No. 170 Hofler Nos. 35, 69, 166 Honorius No. 17 Hostiensis No. 136 Hubler Nos. 79, 168 Huillard-BrdhoUes No. 32 Hus No. 86 Imola Nos. 118, 148 Innocent III No. 30 Innocent IV Nos. n, 134 Isernia No. 108 Ivo No. 13 Jacobatius No. 155 JafK Nos. 2, 24 Jason No. 126 Joh. Andreae Nos. 140, 141 Job. Parisiensis No. 49 Joh. Saresberiensis No. 22 Klagspiegel No. loi Laelius No. 94 Lampugnano No. 76 Landulfus No. 54 Langenstein No. 77 Laudensis No. 132 Lautenbach No. 6 Lechner No. 75 Lucca No. 45 Lupoldus No. 68 Mai No. 10 Manegold No. 6 Marcus No. 129 Marsilius No. 57 Martene No. 5 Martinus No. 105 Megenberg No. 69 Migne No. i Minorita No. 65 Molitor No. 173 Mont de St Michel No. 79 Monte No. 96 Naumburgensis No. 8 Nicolaus Minorita No. 65 Niem No. 89 Nilus No. 90 Ockham No. 61 Oldradus No. 109 Osnabruck No. 42 Paludanus No. 59 Panormitanus No. 150 Parcus No. 121 ixxx Political Theories of the Middle Age. Parisiensis No. 49 Patavinus No. 57 Patricius Senensis No. 100 Pelagius No. 63 Petrarca No. 72 Petrus Bertrand No. 60 Petrus Blesensis Nos. 28, 29 Petrus Crassus No. 4 Petrus Damiani No. i Petrus de AUiaco No. 84 Petrus de Monte No. 96 Petrus de Vineis No. 33 Petrus Paludanus No. 59 Picus No. 127 Pius II No. 95 Placentinus No. 106 Platea No. 123 Ponte Nos. 109, 119 Prosdocimus No. 149 Ptolomaeus No. 45 Puteo No. 124 Quaestio in utramque partem No. 73 Randuf No. 88 Raynald No. 36 Reicherspergensis No. 20 Repgow No. 34 Romanus, Aegidius No. 43 Rosciate No. 112 Rosellis No. 98 Sachsenspiegel No. 34 Saliceto No. 115 Salisbury No. 22 Sandaeus No. 159 Sarisberiensis No. 22 Schard No. 8 Schulte No. 169 Schwab Nos. 79, 85 Schwabenspiegel No. 41 Senensis No. 100 Siena No. 100 Sigebertus No. 14 Somnium Viridarii No. 74 Speculator No. 138 Stablo No. 24 Sudendorf No. 4 Sylvius, Aeneas No. 95 Tartagnus Nos. 122, IJ2 Tengler No. 102 Teutonicus No. 133 Thessalonicus No. 90 Thomas Aquinas No. 39 Thomas Cantuariensis No. 21 Torquemada No. 97 Tr. U. J. [tractatus universi iuris] No. 53 Trier No. 5. Triumphus No. 58 Turrecremata No. 97 Ubertus No. 76 Valla No. 92 Victore, Sancto No. 18 Vincentius No. 40 Vindocinensis No. 11 Vineis No. ■^■^ Viridarii Somnium No. 74 Volkersdorf No. 44 Walramus No. 8 Wenrich No. 5 Wessenberg No. 177 Wibald No. 24 Wido No. 7 Wyclif No. 75 Zabarella Nos. 81, 145 Zanettinus No. 156 POLITICAL THEORIES OF THE MIDDLE AGE. I. The Evolution of Political Theory. The development by Legists and Canonists of a The Theory of Corporations came into contact at many ofPoUtkai points with the efforts of the Medieval Spirit rationally ''"^^°'^' to comprehend Church and State in their entirety, and therefore scientifically to conceive the nature of all Human Society. For the first beginnings of this movement we may look as far back as the great Quarrel over the Right of Investiture, but not until the thirteenth century did it issue in a definite Theory of Public Law. From that time onwards the doctrines of the Publicists, doctrines which were being steadily elaborated and unfolded, became no mere doctrines of Public Law, but were also the exponents of an independent Philosophy of State and Law such as had not previously existed. And just because this was so, they introduced a quite new force into the history of legal ideas. This result was due to the co-operation of various Co-opera- sciences. Theology and Scholastic Philosophy, Political various History and practical arguments touching the questions of the day, here encountered both each other and Political Theories of the Middle Age. professional Jurisprudence in one and the same field. Their starting-points, their goals, their equipments might be different; still here as elsewhere Medieval Science preserved a high degree of unity and generality. I n the first place, though a war of opinions over the great questions of Public Law might be loudly raging, still all men shared one common concept of the Universe, the supreme premisses being regarded by medieval / minds as no discoveries to be mad e by man^ J)ut as _ the divinely revealed substra tum of all human sciencg, ~ Secondly, men readily borrowed" on all sides whatever they needed, so that there was an always increasing store of intellectual treasure amassed by co-operative labour and common to all. Diversity In this manner elements that derived from the of mate- , . , . rials. most diverse sources were fused mto a system. Holy Writ and the expositions thereof, Patristic Lore and more especially the Civitas Dei of Augustine, these furnished the medieval Doctrine of Society with its specifically Christian traits. Genuinely Germanic ideas flowed into it from the tales of medieval historians and from the popular thought which those tales had in- fluenced. The resuscitation of the Political Philosophy of the Antique World, and above all the exaltation of the Politics of Aristotle to the position of an irrefragable canon, had from the first dictated at least the scientific form of the whole doctrine. And then to all that was obtained from these various sources Jurisprudence added the enormous mass of legal matter that was enshrined in Roman and Canon Law, and, to a smaller degree, in the ordinances of the medieval Emperors, for Jurisprudence regarded what these texts had to say of Church and State, as being not merely the positive statutes of some one age, but rules of eternal validity flowing from the very nature of things. The Course of Development. Then again, in the method of handUng this wealth Diverse of material the tendencies of the different sciences supplemented each other. The deepest speculative penetration falls to the share of the theologian and philosopher; the keenest practical appreciation of newly-won ideas falls to the share of politicians with an eye on the question of the hour ; still Jurisprudence, albeit with some hesitation, yielded to the impulses that were thus given. Conversely, it was professional Jurisprudence which by its assiduously detailed work brought the aerial scheme of thought into combination with the actual public life of great and small societies, and by so doing both started a science of Positive Public Law^ and provided the philosopher and the speculative politician with a series of legal concepts serviceable for the construction of a' system. More- over, at this point the other writers adhered as closely as was possible to the Legists, Canonists, and Feudists, and by so doing began to give to their abstractions and their postulates a stable formulated shape and a more solid basis among realities. Thus, notwithstanding the diversity of its sources V°''y °^ , . the move. and its confluents, the Medieval Doctrine of State and ment. Society flowed along one single bed. Within that bed were commotions that shook the world. But all this conflict between opinions, ecclesiastical and secular, absolutistic and democratic, only accelerated the speed of a current which as a whole swept onwards in but one direction. Beneath this movement, however, there was an Medieval internal contest, which in the history of ideas was of Antique- more importance than all the external differences be- Thought. tween partizans : namely, the contest between Properly Medieval and ' Antique-Modern ' Thought. Throughout the Middle Age and even for a while ^^^^^^ 4 Political Theories of the Middle Age. longer, the outward framework of all Political Doc- trine consisted of the grandiose but narrow system of thoughts that had been reared by the Medieval Spirit, It was a system of thoughts which culminated in the f idea of a Community which God Himself had con- , stituted and which comprised All Mankind. This system may be expounded, as it is by Dante, in all its purity and all its fulness, or it may become the shadow of a shade ; but rudely to burst its bars asunder is an exploit which is but now and again attempted by some bold innovator. Antique- None the less, this Political Doctrine, even when Thought, it was endeavouring contentedly to live within the world of medieval thoughts, had from the first borne into that world the seeds of dissolution. To the cradle of Political Theory the Ancient World brought gifts : an antique concept of The State, an antique concept of Law. Of necessity these would work a work of destruction upon the medieval mode of thought. As a matter of fact the old system began internally to dissolve. The several elements that were thus set free began to combine with the antique ideas, and from these combinations new mental products issued. So much of Medieval Thought as was in this wise com- pletely fused with the Antique Tradition came down with that Tradition into the Modern World, and be- came the specifically modern factor in the scheme of Natural Law. All the more irreparable was the down- fall of the Medieval System. Advance If from the point at which we have placed our- tique"" selves we survey the Political Doctrine of the Middle Thou^t. ^%^' "^^ ^^^ within the medieval husk an 'antique- modern' kernel. Always waxing, it draws away all vital nutriment from the shell, and in the end that shell lis broken. Thus the history of the Political Theories The Course of Development. of the Middle Age is at one and the same time a history of the theoretical formulation of the System of Medieval Society and the history of the erection of that newer edifice which was built upon a foundation of Natural Law. As might be expected, we may see great differences between the different writers and manifold fluctuations. Still, if we look at the whole movement, there is a steady advance all along the line. We may say that the first forces to tread the ■ | road that leads away from the Middle Age are the champions of Papal Absolutism, though to a first glance v they seem so genuinely medieval. Then the study of Roman Law and the arguments for Imperial Abso- lutism with which it supplies the Hohenstaufen really I march in the same direction. New forces were mar- / shalled by the scholastic students of the Aristotelian Philosophy, and even Thomas of Aquino uncon-t^ sciously laboured in a work of destruction and inno- vation. A new and powerful impulse was given by the literary strife that broke forth in France and GeVmany when the fourteenth century was young: strife over the relation between Church and State, in the course whereof many of the ideas of the Reforma- tion, and even many of the ideas of the French Re- ■^ volution were proclaimed, though in scholastic garb, by such men as Marsilins of Parlna and William of "^ Ockham. Then along very various routes the writers of the Conciliar Age forwarded, whether they liked it or no, the victorious advance of the Antique-Modern forces. Finally in the fifteenth century Humanism broke with even the forms of the Middle Age and, in its desire to restore the purely classical, seemed for a while to be threatening those medieval elements with- out the retention of which the Modern World could not have been what it is. The drift towards Antiquity 6 Political Theories of the Middle Age. pure and undefiled, whether it takes with Aeneas Sylvius the turn to absolutism or with Patricius of Siena the turn to republicanism, did as a matter of fact wholly repulse for a season the Germanic notions of State and Law. Yet was the medieval tradition held by the many, and on the other hand the thoughts of the German Reformation were being prepared. Revolutionary thoughts they were, but harmonious in their innermost characteristics with the work of the Germanic Spirit. Isolated, it is true, and in the shape that he gave it fruitless, appears the effort of Nicholas of Cues. The genius of his powerful mind endeavoured to unify two ages, and, as it were, to bring to a new birth and to modern vigour the medieval system of ideas. But fundamental Germanic thoughts which lay in that system lived on, doing a mighty work both among the political ideas of the Reformation and also in the construction of the ' nature-rightly ' Doctrine of the State. Influence As to the relation between the development of poration Political Theory and that Doctrine of Corporations PoiTticai"" upon which Legists and Decretists had laboured, we Theory, g^all see that it was just this lore of Corporations which furnished Political Theory with genuinely legal elements. Not only were the Jurists themselves acquiring a Theory of Church and State which, at least in part, was obtained by a direct application of the ideas and rules of Corporation Law to the largest and highest Communities, but the Philosophers and Speculative Politicians, though they might hold that a mere corporation was unworthy of their attention, borrowed from this quarter a wealth of ideas and rules that could be employed in the scientific construction of Church and State. Conversely, Political Theory necessarily reacted Macrocosm and Microcosm. upon the Doctrine of Corporations. For one thinof, influence ,1 r , r 1 °' of Political the latter was irom the very first, and as a matter of Theory course called upon to represent the fundamental thought corpora- of the world-embracing Medieval Spirit touching the "°" ^**' highest and widest of all Communities. And, on the other hand, every advance of the ' antique-modern ' idea of The State was a preparation for the negative and destructive influence which modern modes of thought have brought to bear upon the medieval lore of corporations. Having thus indicated the main tendencies and combinations that will deserve our attention, we may now more closely examine those leading thoughts which find a theoretical formulation in the Political Doctrine of the Middle Age. II. Macrocosm and Microcosm. Political Thought when it is genuinely medieval Medierai starts from the Whole, but ascribes an intrinsic value and the to every Partial Whole down to and including the ^ Individual. If it holds out one hand to Antique | Thought when it sets the Whole before the Parts, and the other hand to the Modern Theories of Natural Law when it proclaims the intrinsic and aboriginal ^ rights of the Individual, its peculiar characteristic is/ that it sees the Universe as one articulated Whole >/ and every Being — whether a Joint-Being (Community) or a Single-Being — as both a Part and a Whole : a Part determined by the final cause of the Universe, and a Whole with a final cause of its own. | This is the origin of those theocratic and spiritual- The idea *.-0i iheo- istic traits which are manifested by the Medieval cracy. Doctrine of Society. On the one side, every ordering of a human community must appear as a component ^ 8 Political Theories of the Middle Age. part of that ordering of the world which exists because God exists, and every earthly group must appear as an organic member of that Civitas Dei, that God-State, which comprehends the heavens and the earth. Then, - on the other hand, the eternal and other-worldly aim and object of every individual man must, in a directer or an indirecter fashion, determine the aim and object of every group into which he enters. DWine ^"^ ^^ ^&r& must of necessity be connexion be- Harmony. tween the various groups, and as all of them must be connected with the divinely ordered Universe, we come 7 by the further notion of a divinely instituted Harmony which pervades the Universal Whole and every part thereof. To every Being is assigned its place in that Whole, and to every link between Beings corresponds a divine decree. But since the World is One Organism, animated by One Spirit, fashioned by One Ordinance, the self-same principles that appear in the structure of the Worid will appear once more in the structure of its every Part. Therefore every particular Being, in so far as it is a Whole, is a diminished copy of the World; it is a Microcosmus or Minor Mundus in which the Macrocosmus is mirrored. In the fullest measure this is true of every human individual ; but it holds good also of every human community and of human society in general. Thus the Theory of Human Society must accept the divinely created organization of the Universe as a prototype of the first principles which govern the construction of human communities'. Unity in Church and State. 9 III. Unity in Church and State. Now the Constitutive Principle of the Universe is '^^ P'™- , ciple of in the first place Unity. God, the absolutely One, is Unity. before and above all the World's Plurality, and is the one source and one goal of every Being. Divine Reason as an Ordinance for the Universe {lex aeterna) permeates all apparent plurality. Divine Will is ever and always active in the uniform government of the World, and is directing all that is manifold to one only end. Therefore wherever there is to be a Particular or The Unity Partial Whole with some separate aim and object kind, subordinated to the aim and object of the Universe, the Principle of Unity {principium unitatis) must once ' more hold good. Everywhere the One comes before the Many. All Manyness has its origin in Oneness^. 1 {omnis multitudo derivatur ab uno) and to Oneness it returns {ad unum reducitur). Therefore all Order consists in the subordination of Plurality to Unity {ordinatio ad unum), and never and nowhere can a purpose that is common to Many be effectual unless the One rules over the Many and directs the Many to the goal. So is it among the heavenly spheres ; so in the harmony of the heavenly bodies, which find their Unity in the primum mobile. So is it in every living organism. Here the Soul is the aboriginal principle, while Reason among the powers of the Soul and the Heart among the bodily organs are the representatives of Unity. So is it in the Whole of inanimate nature, for there we shall find no compound substance in which there is not some one element which determines the nature of the Whole. Not otherwise can it be in the Social Order of Mankind*. Here also every , [o Political Theories of the Middle Age. Plurality which has a common aim and object must in relation to that aim and object find source and norm and goal in a ruling Unity, while, on the other hand, every of those Parts which constitute the Whole, must, in so far as that Part itself is a Whole with a final cause of its own, itself appear as a self-determining Unit*. Unity is the root of All, and therefore of all social existence'. Mankind Then in the Middle Age these thoughts at once Com-^ issue in the postulate of an External, Visible Com- '"""''''• munity comprehending All Mankind. In the Universal Whole, Mankind is one Partial Whole with a final cause of its own, which is distinct from the final causes of Individuals and from those of other Communities'. , Therefore in all centuries of the Middle Age Christen- dom, which in destiny is identical with Mankind, is set before us as a single, universal Community, founded and governed by God Himself. Mankind is one ' mystical body ' ; it is one single and internally con- nected ' people ' or ' folk ' ; it is an all embracing corporation (universitas), which constitutes that Uni- versal Realm, spiritual and temporal, which may be called the Universal Church {ecclesia universalis), or, with equal propriety, the Commonwealth of the Human Race {I'espublica generis htimani). Therefore that it may attain its one purpose, it needs One Law {lex) and One Government {unicus pHncipatus)^ . Separation Then however, along with this idea of a single and State. Community comprehensive of Mankind, the severance of this Community between two organized Orders of ILife, the spiritual and the temporal, is accepted by the Middle Age as an eternal counsel of God. In century after century an unchangeable decree of Divine Law I seems to have commanded that, corresponding to the ^ doubleness of man's nature and destiny, there must be Unity in Church and State. ii two separate Orders, one of which should fulfil man's temporal and worldly destiny, while the other should make preparation here on earth for the eternal here- after. And each of these Orders necessarily appears as an externally separated Realm, dominated by its own particular Law, specially represented by a single Folk or People and governed by a single Govern- ment'. The conflict between this Duplicity and the requisite Duality of Unity becomes the starting-point for speculative dis- and state cussions of the relation between Church and State, to Unity! The Medieval Spirit steadily refuses to accept the Dualism as final, l^n some higher Unity reconciliation must be found. This was indubitable ; but over the nature of the reconciling process the great parties of y- the Middle Age fell a-fighting. The ecclesiastical party found a solution of the The High problem in the Sovereignty of the Spiritual Power. Theory: Always more plainly the Principle of Unity begins to ty°of rtil" appear as the philosophical groundwork of that theory ^^""^ ' which, from the days of Gregory VII onwards, was demanding — now with more and now with less rigour — that all political arrangements should be regarded as part and parcel of the ecclesiastical organization. The 'argumentum unitatis' becomes the key-stone of all those other arguments, biblical, historical, legal, which support the papal power over temporal affairs'. If Mankind be only one, and if there can be but one I State that comprises all Mankind, that State can be \ no other than the Church that God Himself has founded, and all temporal lordship can be valid only in so far as it is part and parcel of the Church. Therefore the Church, being the one true State, has received by a mandate from God the plenitude of all spiritual and temporal powers, they being integral parts 12 Political Theories of the Middle Age. 7 of One Might". The Head of this all-embracing State is Christ. But, as the Unity of Mankind is to be realized already in this world, His celestial kingship must have a terrestrial presentment". As Christ's Vice- Regent, the earthly Head of the Church is the one and only Head of all Mankind. The Pope is the wielder of what is in principle an Empire {principatus) over the Community of Mortals. He_isJtheir Priest and their King ; their spiritual andjemporalJlQnareh ; _ their Law-giver jandJiiEgeJn^Lcauses sup The If the papal party none the less held fast the temporal doctriue that a separation of Ecclesiastical and Tem- ^°^^'* poral Powers was commanded by God, it explained that the principle of separation was applicable merely to the mode in which those powers were to be exer- cised". The bearer of the supl^me plenitude of power in Christendom is forbidden by divine law to wield the temporal sword with his own hand. Only the worthier portion of Ecclesiastical Might is reserved for the Priesthood, while the worldly portion is committed to less worthy hands". It must be confessed therefore that God has willed the separation of the Regnum from the Sacerdotium, and therefore has willed the existence of the Secular State : the worldly magistrature is ordained of God". Still it is only by the mediation of the Church that the Temporal Power possesses a divine sanction and mandate. The State in its con- crete form is of earthly and not, like the Church, of heavenly origin. In so far as the State existed before the Church and exists outside the Church, it is the outcome of a human nature that was impaired by the Fall of Man. It was founded, under divine sufferance, by some act of violence, or else was extorted from God j for some sinful purpose. Of itself it has no power to <^. raise itself above the insufficiency of a piece of human Unity in Church and State. 13 handiwork"'. In order therefore to purge away the stain of its origin and to acquire the divine sanction as a legitimate part of that Human Society which God has willed, the State needs to be hallowed by the authority of the Church. In this sense therefore it is from the Church that the Temporal Power receives its ! true being, and it is from the Church that Kaiser and ' Kings receive their right to rule". And all along the Temporal Government when it has been constituted ; remains a subservient part of the Ecclesiastical Order. It is a mean or instrument of the single and eternal purpose of the Church. In the last resort it is an Ecclesiastical Institution". For this reason all human laws {leges) find their boundaries set and their spheres | of competence assigned to them by the law spiritual i {canonesY^. For this reason the Temporal Power is subject to and should obey the SpirituaP". For this reason the offices of Kaiser, King, and Prince are ecclesiastical offices^\ From these fundamental principles flowed with The Pope logical necessity the claims to Over-Lordship which swords, the Pope, as bearer of the sovereign Sacerdotium, urged against the Emperor as bearer of the Imperium, and also against all other independent wielders of worldly might. That the Emperor, and likewise all other Rulers, derive their offices but mediately from God, and immediately from the Church's Head, who in this matter as in other matters acts as God's Vice- Regent — this became the general theory of the Church. It was in this sense that the allegory of the Two Swords^ was expounded by the ecclesiastical party. Both Swords have been given by God to Peter and through him to the Popes, who are to retain the spiritual sword, while the temporal they deliver to others. This delivery, however, will confer, not free ownership, but [4 Political Theories of the Middle Age. the right of an ecclesiastical office-holder. As before the delivery, so afterwards, the Pope has utrumque gladium. He has both Powers habitu, though only the Spiritual Power adu. The true ownership {domi- nium) of both swords is his, and what he concedes in the temporal sword is merely some right of independent user, which is characterized as usus immediatus, or perhaps as dominium utile^. In the medium of feudal law the papal right in the Temporal Power appears as neither more nor less than a feudal lordship. The Emperor assumes the place of the highest of papal vassals, and the oath that at his coronation he swears to the Pope can be regarded as a true homagium^. In any case the Emperor and every other worldly Ruler are in duty bound to use in the service and under the direction of the Church the sword that has been en- trusted to them". It is not merely that the Pope by virtue of his spiritual sword may by spiritual means supervise, direct and correct all acts of rulership*". Much rather must we hold that, though in the general course of affairs he ought to refrain from any immediate intermeddling with temporal matters, and to respect the legitimately acquired rights of rulers^, he is none the less entitled and bound to exercise a direct control of temporalities whenever there is occasion and reason- able cause for his intervention {casualiter et ex ratio- nabili causa)"". Therefore for good cause may he withdraw and confer the Imperium from and upon peoples and individuals^ : and indeed it was by his plenitude of power that the Imperium. was withdrawn from the Greeks and bestowed upon the Germans {translatio Imperii)'^. His is it to set Kaisers and Kings over the peoples, and the right so to do he uses whenever no other mode of instituting a ruler has been established or the established mode has shown Unity in Church and State. 15 its insufficiency™. In particular, if the Emperor is chosen by the Prince-Electors, this is a practice which rests solely upon a concession which the Pope has made and might for good cause revoke ''. It is he ^ that is and remains the true Imperial Elector. There- fore to him pertains the examination and confirmation of every election ; upon him devolves the election whenever, according to the rules of Canon Law, a case of ' lapse ' occurs ; and it is by his act of unction and coronation that the Emperor Elect first acquires im- perial rights*". In case of vacancy or if the temporal Ruler neglects his duties, the immediate guardianship of the Empire falls to the Pope*". And lastly, it is for ^ him to judge and punish Emperors and Kings, to receive complaints against them, to shield the nations from their tyranny, to depose rulers who are neglectful of their duties, and to discharge their subjects from the oath of fealty^. All these claims appeared as logical consequences The Com- of a legal principle ordained by God Himself. The Mankind subsidiary arguments touching the Pope's right and loveretgn- title, arguments derived from history and positive law, Church! had no self-sufficient validity, but were regarded as mere outward attestations and examples. Conversely, no title founded on Positive Law could derogate from the Divine Law of the Church. For this reason what- ever was in the first instance said of the Emperor's subjection to the Pope could be analogically extended to every other temporal Ruler''. And thus in fact was derived immediately from the lus Divinum an ideal Constitution comprehending all Mankind, a Consti- tution which by the universal Sovereignty of the Church thoroughly satisfied the postulate of Unity above Duality. Very rarely in the Middle Age were the partizans 1 6 Political Theories of the Middle Age. Opposition of the Secular State bold enough to attempt a con- High version of this theory to the interest of the Temporal rtieo'4'^ Power, or to deduce from the Principle of Unity a Sovereignty of the State over the Church. It is true that the earlier age in which the Church was more or less completely subjected to the Empire was never wholly forgotten^. Yet was the reminiscence of it seldom used except as a purely defensive weapon. / Even Qckham will go no further than the hypothetical assertion that if really and truly there must be just one single State comprising all Mankind with just one single Head upon Earth, then this Head must be the Emperor, and the Church can be no more than a part |of his Realm''. L onely in th e Middle Age was Mar- si lius of Padua when he taught as a principle the Ico mplete absorption ot Church m StatR7~ He, like othe rs, deduced conclusion s ^rcm i-Vip rde^ of Unity: but then with him this idea assumed a thoroughly un- medieval form. Already it was transmuting itself into the ' antique-modern ' idea of an all-comprehending internal Unity of the State and was proclaiming in advance those principles of the State's Absolutenesr which would only attain maturity in a then distant future. To this we must return hereafter. The theory In general throughout the Middle Age the doctrine ordinate of the State's partizans remained content with the oldei powers, tgaching of the Church : namely, that Church and State were two Co-ordinate Powers, that the Two Swords were potestates distinctae, that Sacerdotium and Im- perium were two independent spheres instituted by God Himself. This doctrine therefore claimed for the Temporal Power an inherent authority not derived from ecclesiastical canons *'. In century after century it fought a battle for the principle that the Imperium, ~\^ like the Sacerdotium, proceeds immediately from God Unity in Church and State. 17 {imperium a Deo), and therefore depends from God y> and not from the Church (imperium non dependet ab ecclesid)*^. Now with more and now with less vigour this doctrine contested the various claims that were urged on the Church's side against the Emperor and Temporal Power*^. Still it conceded a like sovereignty and independence to the Spiritual Sword, and merely , demanded that the Ecclesiastical Power should confine itself within the limit of genuinely spiritual affairs, the Church having been instituted and ordained by God as a purely Spiritual Realm*". Nay, this theory was almost always willing frankly to admit that, when compared with the State, the Church, having the sublimer aim, might rightly claim, not only a higher — • intrinsic value, but also a loftier external rank". The writers, however, who took the State's side in Unity and the debate, they also were full of the idea of the or- coordinate ganized Oneness of all Mankind, and could see in the ^°^"^' Spiritual and Temporal Orders but two sides of the one Christian Commonwealth. So in a two-fold wise they endeavoured to reduce the contending principles to Unity. Sometimes they held that the external Unity of the Universal Realm finds an adequate presentment in that Celestial Head in which the Body of Mankind attains completion — a Head whence the two Powers flow and whither they return in con- fluence". Sometimes they developed the thought that in the terrestrial sphere an internal Unity of the two Orders will suffice: such a Unity as results from internal connexion and mutual support. The Sacer- dotium and the Imperium, each of these, taken by itself was but one vital Function of the social Body, and the fulness of Life was only attained by their •harmonious concord' and by their mutually, supple- menting co-operation in the task that is set before M. « [8 Political Theories of the Middle Age. Mankind"- Hence were drawn, not only the conclu- sion that the State must be subject to the Church in Spirituals, and the Church to the State in Temporals", but also a remarkable and further reaching theory by virtue whereof each of the two powers can and must in case of necessity (casualiter and per accidens) assume, for the weal of the whole body, functions which in themselves are not its proper functions. By such a 'law of necessity' an explanation could be given of those historical occurrences which seemed to stand in contradiction to a system which severs the Two Swords, and from such a ' law of necessity ' political consequences of a practical kind could be deduced. Since, when there is a vacancy in the office of supreme temporal Magistrate, it is for the Pope to judge even temporal matters, the translatio imperii, the decision of disputed elections to the Empire, nay, in some circumstances even the deposition of a Kaiser, might perhaps have fallen within the Pope's competence*. But the same legal principle required that in case of necessity the Temporal Head of Christendom should take the Church under his care, and either himself decide ecclesiastical controversies or else summon a General Council to heal the faults of the Church*. Unity Then when each of these two Orders is taken by Church itself we once more see the medieval Principle of and State. Unity at work and constituting that Order as a single whole. Visible From it there arises within the Church the idea of of the the divinely instituted, visible and external Unity of the Spiritual Realm. Throughout the whole Middle Age there reigned, almost without condition or qualifi- cation, the notion that the Oneness and Universality of the Church must manifest itself in a unity of law, constitution and supreme government*, and also the Unity in Church and State. 19 / notion that by rights the whole of Mankind belongs to the Ecclesiastical Society that is thus constituted"". Therefore it is quite common to see the Church conceived as a ' State.' That the Principle of Oneness demands of necessity an external Unity was but very rarely doubted''^ Very slowly was ground won by a reaction which protested, not merely against the in- creasing worldliness of the Church, but also against the whole idea of a ' Spiritual State.' It was reserved for J5i,jwU£- andL _Hus d ecisively to demand that the Church should be conceived in a more inward, less external, fashion, as the Community of the Predestin- ated, and so to prepare the way for that German Reformation which at this very point broke thoroughly away from the medieval Idea of Unity'l Similarly within the mundane sphere the Middle Unity Age deduced from the Principle of Oneness the temporal divinely ordained necessity of a one and only World- imperial- State™. Theological, historical and juristic arguments '^™' were adduced to prove that the world-wide Roman Dominion was the final member in that series of Universal Monarchies which was foreordained and foretold by God, and that, despite many appearances to the contrary, this Roman Dominion was legitimately acquired and legitimately administered even in the days of heathenry". Then this Dominion was hal- lowed and confirmed by the birth, life and death of Christ. It was transferred for a while to the Greeks by Constantine, but finally with the approval of God was conferred upon the Germans'". Therefore the Romano-German Kaiser, as immediate successor in title to the Caesars, was by divine and human law possessed of the Imperium Mundi, by virtue whereof all Peoples and Kings of the earth were subject unto him". Like the Roman Church, the Roman Realm 20 Political Theories of the Middle Age. was indestructible until the time when its downfall would usher in the Judgment Day'". Consistent be- lievers in this Imperial Idea drew the further conclusion that de iure, as well as de facto, thfs Monarchy of divine right was indestructible. Neither custom nor privilege could effect any deliverance from its sway that would have any sort of legal validity. Every alienation, every partition, every other human act which diminished this Empire, even though the act were done by the Emperor's self, was de iure null and void*®. For a long while even doubters and opponents would not directly call in question this Imperial Idea, but would only maintain the legal validity of excep- tions that were based upon privilege or prescription'*, and there were many who expressly asserted that exceptions of this kind did not impugn the idea of the Realm Universal™. Imperial Nevertheless, as a matter of fact the principle of contested, the Universal State was assailed while as yet the principle of the Universal Church was not in jeopardy. Especially in France, we hear the doctrine that the >y Oneness of all Mankind need not find expression in a / one and only State, but that on the contrary a Plurality of States best corresponds to the nature of man and of temporal power". Thus at this point also medieval theory develops modern ideas, the process of develop- ment being in harmony with the growth of National States in the world of fact. Theory of If, however, medieval thought, whenever it was poups. purely medieval, postulated the visible Unity of Man- Jiit^"^' kind in Church and Empire, it regarded this Unity as prevailing only up to those limits within which Unity is demanded by the Oneness of the aim or object of Mankind. Therefore the Unity was neither absolute nor exclusive, but appeared as the vaulted dome of an structure. Unity in Church and State. 21 organically articulated structure of human society. In Church and Empire the Total Body is a manifold and graduated system of Partial Bodies, each of which, though itself a Whole, necessarily demands connexion with the larger Whole®". It has a final cause of its own, and consists of Parts which it procreates and dominates, and which in their turn are Wholes ™. Be- tween the highest Universality or 'All-Community' and the absolute Unity of the individual man, we find a series of intermediating units, in each of which ^ lesser and lower units are comprised and combined. Medieval theory endeavoured to establish a definite scheme descriptive of this articulation, and the gradu- ated hierarchy of the Church served as a model for a parallel system of temporal groups. When it comes to particulars, there will be differences between different schemes ; but it is common to see five organic groups placed above the individual and the family : namely village, city, province, nation or kingdom, empire : but sometimes several of these grades will be regarded as one". But as time goes on we see that just this federal- Federal- r 1 f ■ 1 TTTi 1 J istic and istic construction of the Social Whole was more and central- more exposed to attacks which proceeded from adencies? centralizing tendency. This we may see happening first in the ecclesiastical and then in the temporal sphere. The ' antique-modern ' concept of the State- Unit as an absolute and exclusive concentration of all group-life gradually took shape inside the medieval doctrine, and then, at first unconsciously but afterwards consciously, began to burst in pieces the edifice of medieval thought. Hereafter we shall return to this process of disintegration; for the moment we will continue to pursue the leading ideas of the medieval publicists. 22 Political Theories of the Middle Age. IV. The Idea of Organization. Society as Medieval Thousfht proceeded from the idea of a Organism. ^ o i single Whole. Therefore an organic construction of Human Society was as familiar to it as a mechanical and atomistic construction was originally alien. Under the influence of biblical allegories and the models set by Greek and Roman writers, the comparison of Mankind at large and every smaller group to an animate body was universally adopted and pressed. This led at an early time to some anthropomorphic conceits and fallacies which do not rise above the level of pictorial presentment'', but also to some fruitful thinking which had a future before it". Mankind j^ ^^ j^j-st place. Mankind in its Totality was aS one ■*■ J Organism, conceived as an Organism. According to the allegory \ that was found in the profound words of the Aposde — an allegory which dominated all spheres of thought — Mankind constituted a Mystical Body, whereof the Head was Christ"'. It was just from this principle that the theorists of the ecclesiastical party deduced the proposition that upon earth the Vicar of Christ represents the one and only Head of this Mystical Body, for, were the Emperor an additional Head, we should have before us a two-headed monster, an animal bleeps'^. Starting from the same pictorial concept, the theorists of the imperial party inferred the necessity of a Temporal Head of Christendom^, since there must needs be a separate Head for each of those two Organisms which together constitute the one Body'™. The ultimate Unity of this Body, they argued, was preserved by the existence of its Heavenly Head, for, though it be true that the body mystical, like the body natural, cannot end in two heads, still there is exacdy The Idea of Organization. 23 this difference between the two cases, namely, that in the mystical body under its one Supreme Head there may be parts which themselves are complete bodies, each with a head of its own'^. Moreover, from of old, behind the conception of The Mankind as Organism, lay the desire that State and Body. Church should complete each other and unite with w each other into a one and only life. At this point ecclesiastical theorists could make profit of the old comparison which likens the Realm to the body and the Priesthood to the soul. A basis might thus be easily acquired for all their assertions touching the subjection of State to Church '^ Their opponents sometimes tried to substitute one picture for another", but sometimes were content with resisting inferences. The latter course was taken, for example, b y Nicholas of_Cues when he drew his magnificent portrait of Or- ganized Mankind. For him the Ecclesia is the Corpus Mysticum. Its Spirit is God and His Sacramental Dispensation. Its Soul is the Priesthood, and All the Faithful are its Body. But the Ghostly Life and the Corporal are, according to Nicholas, separately consti- tuted and organized under the Unity of the Spirit, so that there are two Orders of Life with co-ordinate and equal rights. But as each Order is merely a side of the great Organism, they must unite in harmonious concord, and must permeate each other throughout the whole and in every part. As the soul, despite its unity, operates in every member as well as in the total body {est tota in toto et in qualibet parte), and has the body for its necessary correlate, so there should be between the Spiritual and Temporal Hierarchies an inseverable connexion and an unbroken interaction which must display itself in every part and also throughout the whole. To every temporal member of 24 Political Theories of the Middle Age. this Body of Mankind corresponds some spiritual office which represents the Soul in this member. [*Thus the Papacy will be Soul in the brain; the Patriarchate will be Soul in the ears and eyes; the Archiepiscopate, Soul in the arms, the Episcopate, Soul in the fingers, the Curacy, Soul in the feet, while Kaiser, Kings and Dukes, Markgrafs, Grafs, 'Rectores' and the simple laity are the corresponding members of the ' corporal hierarchy '*.'] Bodies Like Mankind as a whole, so, not only the Univer- poiitic sal Church and the Universal Empire, but also every Particular Church and every Particular State, and indeed every permanent human group is compared to a natural body {corpus naturale et organicum). It is thought of and spoken of as a Mystical Body. Contrasting it with a Body Natural, Engelbert of Volkersdorf [1250 — 131 1] already uses the term 'Body Moral and Politic".' Anthropo- At a Still early time some men, anticipating modern errors, spun out this comparison into superficial and insipid detail. John of Salisbury made the first at- y tempt to find some member of the natural body which would correspond to each portion of the State''. He professedly relied upon an otherwise unknown Epistle to Trajan, falsely attributed to Plutarch, but remarked that he had taken thence not his phrases but only the general idea". Later writers followed him, but with many variations in minor matters ". The most elabo- rate comparison comes from Nicholas of Cues, who for this purpose brought into play all the medical know- ledge of his time". Deduc- Still even in the Middle Age there were not th "idea™f Wanting endeavours to employ the analogy of the MiiUcf'' Animated Body in a less superficial manner, and in such wise that the idea of Organization would be more • In the original this passage stands in a footnote. — Transl. The Idea of Organization. 25 or less liberated from its anthropomorphic trappings. Already John of Salisbury deduced thence the propo- > sitions — indisputable in themselves — that a well ordered Constitution consists in the proper apportionment of functions to members and in the apt condition, strength and composition of each and every member ; — that all members must in their functions supplement and sup- port each other, never losing sight of the weal of the others, and feeling pain in the harm that is done to another; — that the true unitas of the Body of the State rests on the just cohaerentia of the members among themselves and with their head™. Thomas Aquinas, Alvarius Pelagius and many others applied the doctrine in its traditional and mystical vestments to the struc- ture and unity of the Church°\ Ptolomaeus of Lucca pursued the thought that the life of the State is based upon a harmony analogous to that harmony of organic forces (vires organicae) which obtains in the Body Natural, and that in the one case as in the other it is Reason, which, being the ruler of all inferior forces, brings them into correlation and perfects their unity"". Aegidius Colonna, who constantly employs the picture of the Body Natural, leads off with the following statement: — 'For as we see that the body of an animal consists of connected and co-ordinated mem- bers, so every realm and every group {congregaiio) consists of divers persons connected and co-ordinated for some one end.' Consequently he distinguishes the 'commutative justice' which regulates the relations between the members and furthers their equipoise, their reparation and their mutual influence, from the ' distributive justice,' which proceeding outwards from some one point, such as is the heart in the body, distributes and communicates in due proportion vital force and movement to the several members'". Engel- 26 Political Theories of the Middle Age. bert of Volkersdorf based his whole exposition of the external and internal goods of the well-ordered State upon the supposition of a thorough-going analogy between State and Individual ; the Individual as Part and the State as Whole are governed by like laws and benefited by like virtues and qualities'*. In an original y and spirited fashion Marsilius of Padua, who founded his doctrine of the State upon the proposition ' civitas est velut animata seu animalis natura quaedam,' carried out the comparison of a well-ordered State to an ' animal bene dispositum ' : only in the case of the animal the constitutive principle is mere natural force, while in the case of the State it is the force of human reason, and therefore the life of the organism is governed in the one case by the Law of Nature and in the other by the Law of Reason. So he compared even in detail the Reason which fashions the State with the Nature which shapes organisms. In both instances a Plurality of proportionately adjusted Parts is ordered into a Whole in such a way that they communicate to each other and to the Whole the results of their operations (componitur ex quibusdam proportionatis partibus invicem ordinatis suaque opera sibi mutuo communicantibus et ad totum). When the union is at its best, when it is optima dispositio, the consequence in the Body Natural is health, and in the State it is tranquillitas. And, as in a healthy body every part is perfectly fulfilling its own proper functions (perfecte facere operationes convenientes naturae suae), so the tranquillitas of the State results in the perfect performance of all functions by those parts of the State to which, in accordance with Reason and constitutional' allotment, such functions are respectively appropriate (unaquaeque suarum partium facere perfecte opera- tiones convenientes sibi secundum rationem et suam The Idea of Organization. 27 institutionem) *". Oc kham , who in many contexts treated the State as an organism, deduced, in a manner that was his own, the principle that in case of need one organ can supply the place of another, and so the State may in some cases exercise ecclesiastical and the Church temporal functions'*. Manifold em- ployment was found for this analogy between State and Body Natural by Dante, John of Paris, Gerson, d'Ailly, Peter of Andlau and other writers of the fourteenth and fifteenth centuries. This mode of thought, however, attained its most splendid develop- ment in Nicholas of Cusa's system of Cosmic Harmony. He endeavours to present to our eyes a harmonious equipoise between, on the one hand, the separate vital spheres of all the particular social organisms — be they large or small — and, on the other hand, the higher and wider spheres of combined activity proper to those superior organisms which the inferior engender by their coalition. Then from the fundamental idea of the Social Meas of ^' Immediately or mediately He is the lender of all power, using as His tools the Electors or other con- stituents of the Ruler. Immediately from God derives-' the office of His ecclesiastical Vicar™. The like, so said imperialists, is true of the Kaiser who is God's temporal Vicar"", while their opponents here intro- duced the mediating action of the Church, but just for that reason expressly declared that the imperial office and all other lordships were loans from God'™. And so too, not only the sovereign right of the independent ruler, but every magisterial function may be mediately traced to Him, for all powers that are sub-demised by superior rulers can in the last resort be regarded as emanations from the divine Government of the World '^ But since, as already said, every Partial Whole Divine must be like unto the Universal Whole, the Monarchical Monarchs. Constitution of ecclesiastical and political groups needed no further proof. Almost with one voice, the medieval publicists declared a monarchical to be the best form of v Constitution. They thought that they found, not only in the Universe at large, but throughout animate and inanimate Nature, a monarchical order, and thence they drew the conclusion that this order is the best also for Church and State. Attempts were made to strengthen this conclusion by historical and practical arguments ; but in the main it rests on philosophical reasoning as to the essence of all human Communities. In this context all arguments descend from the prin- ciple that the essence of the Social Organism lies in 32 Political Theories of the Middle Age. Unity, that this Unity must be represented in a Governing Part, and that this object can be best attained if that Governing Part be in itself a Unit (^per se unum) and consequently a single individual '*. Dante gave yet deeper import and sharper form to this thought when he argued that the unifying principle of Bodies Politic is Will, and that, for the purpose of presenting a Unity of Wills (unitas in voluntatibus) the governing and regulating Will of some one man {voluntas una et regulatrix) is plainly the aptest mean"«. Monarchy From this prcferability of Monarchy it followed and State, that in the Church, whose constitution was founded directly by God, Monarchical Government existed iure divino, for God could will for His Church none but the best of constitutions"'. In like fashion the doctrine which taught that the Empire also was willed by God led to the assertion of a divine institution of J the Kaiser's universal Monarchy "". Similarly in every Body which is a Member of the Church or Empire, and consequently in every human group, a monarchical appeared to the Middle Age as the normal form of government "'. The current legal doctrine of corpora- tions was wont either tacitly to assume that every corporation would have, — or even expressly to assert that it must have, — a monarchical head. Com- But here once more a germ of disintegration was forms of introduced into Medieval Theory by the references mrat™" that it made to Antiquity. Those who in their proof of the excellence of Monarchy appealed to Aristotle would also borrow from him the doctrine of Republican Constitutions, their forms, conditions, advantages'". But the divine right of Monarchy was threatened so soon as comparisons of this kind were instituted. In 4 truth we begin often to hear the opinion that no one The Idea of Monarchy. 33 form of government is more divine than another, that the advantages of Monarchy are relative, not absolute, and that there may be times and circumstances in which Republican Constitutions would deserve prefer- ence"'. In particular, whenever the Kaiser's imperium mundi is disputed, an attack is made upon the founda- tion of the medieval ideal of Monarchy, and utterance may be given even to the opinion that the State which comprehends all Mankind may perchance be conceived y- as an Aristocracy: an Aristocracy of Sovereigns"*. Even in the ecclesiastical region the divinity and necessity of Monarchy did not escape all doubts'". And then in the books of the humanists we often encounter an outspoken preference for antique, repub- lican forms"". Already in the fourteenth century there were decisive assertions that the argumentum unitatis gives no unconditional judgment for Monarchy, since the unitas principatus is possible and necessary in a Republic"'. In this context it became usual to repre- sent the ruling Assembly of a Republic as a composite Man, and, in the antique manner, it could be con- trasted with the mass of the ruled "°, so that the Mon- archical State and the Republican could be brought under one and the same rubric. So again, as regards the Monarch's position in the The State there was a mixture of and a struggle between position. medieval and antique-modern thought. The genuinely medieval lore saw in every Lordship a personal office derived from God. Despite all refer- ences to the Antique, what we have here is plainly the Germanic idea of Lordship, but that idea had received a new profundity from Christianity. So there was, on the one hand, a tendency to exalt Apotheosis the person of the Ruler. In his own proper person Monarch. he was thought of as the wielder of an authority that M. 3 34 Political Theories of the Middle Age. came to him from without and from above. He was set over and against that body whereof the leadership had been entrusted to him. He had a sphere of powers which was all his own. He was raised above and beyond the Community"'. The Universal Whole being taken as type, the relation of Monarch to State v' was compared with that of God to World. Nay, even a quasi-divinity could be ascribed to him, as to the Vice-Gerent of God"". The lengths that the Pope's supporters could go in this direction are well known "^'i and their opponents lagged not behind when Kaiser and Kings were to be extolled™. Mon^chr None the less, however, the thought that Lordship is Office found emphatic utterance. The relation- ship between Monarch and Community was steadily conceived as a relationship which involved reciprocal Rights and Duties. Both Monarch and Community were 'subjects' of political rights and duties, and it was only in the union of the two that the Organic Whole consisted. Moreover, in the Community all the individuals stood in legal relationships to the Monarch : relationships which properly deserved to be called legal and which were of a bilateral kind. Lordship therefore was never mere right ; primarily it was duty ; it was a divine, but for that very reason an all the more onerous, calling ; it was a public office ; a service rendered to the whole body'^. Rulers are instituted for the sake of Peoples, not Peoples for the sake of Rulers'". Therefore the power of a Ruler is, not absolute, but limited by appointed bounds. His task is to further the common weal, peace and justice, the utmost freedom for alP**. In every breach of these duties and every transgression of the bounds that they set, legitimate Lordship degenerates into Tyranny"". Therefore the doctrine of the uncon- The Idea of Monarchy. 35 ditioned duty of ob edience wa s wholly foreign to the Middle Age . Far rathe r e very duty of obedience wa s conditioned by the rightfuln ess of the command . Tha t every ingmSual must obey Gq d^ rather than "any earthly superior ap peared as an absolutely indisputable truth^'^. If, however, already at an early time, some writers went no further in limiting the obedience due from subjects than this point — a point to which Holy Scripture itself would carry them — and, in opposition to the claims of the Tyrant, allowed only the right and duty of a martyr's ' passive resistance ^'",' still the purely medieval^ doctrine went much further. For one thing, it taught that ever y command whic h ex- ceed'ed^Hie limits of tlie Ruler's authority was^ for bis subjects a~mere~ n ullity and oblig ed none Jo ^obedi-^ ence^. And then again, it proclaimed the right of resista nce, and eve n arme d resistance, against th e com - pulsory enforcement of any unrighteous and tyrannical iheasur &^suc h enforcernent' being Tegarded' ^^"arilLCt " ^tbare^ violencgi. Nay more, it taught (though sonie men with an enlightened sense of law might always denfthis) that "tyrannicide is justifiable or at least Reusable"". But alongside of this medieval idea of the Ruler's The idea of Office, there appeared already in the twelfth century ^°^^^^^ the germ of a doctrine of Sovereignty which in its monarchical form exalts the one and only Ruler to an absolute plenitude of power. The content of this plenitude needed no explanation, its substance was inalienable, impartible and proof against prescription, and all subordinate power was a mere delegation from it. However, during the Middle Age the idea of Monarchical SovereientyTemained, eveii^lorTtsb oldest champions, bound up with the idea of Office. Nor was this"alT7^for its ~2^k2LX'ivic€^^soSK'%i<[^'Sa^ a growing 36 Political Theories of the Middle ylge. opposition, which, always setting a stronger accent on the rights of the Community, finally issued in the doctrine of Popular Sovereignty. Sorereign- It was within the Church that the idea of Mon- Pope. * archical Omnicompetence first began to appear. It appeared in the shape of ^ plenitudo potestatis attributed to the Pope"\ And yet just at this point even the extremest theories were unable utterly to abolish the notion of an Office instituted for the service of the Whole Body or to free the supreme power from every limitation'^. Moreover, in antagonism to this explica- tion of ecclesiastical Monarchy, there set in a swelling movement which not only denied to the Pope any power in temporal affairs, but would allow him, even in spiritual affairs, no more than a potestas limitata, and, in so doing, laid emphatic stress on the official character of Monarchy'^l Gradually also the doctrines of Conditioned Obedience, of a right of resistance against Tyranny, of a right of revolution conferred by necessity were imported into the domain of ecclesias- tical polity'". Sovereign- In the temporal sphere also the idea of Monarchy Emperon tended to assume an absolute form when in the days of the Hohenstaufen the Jurists began to claim for the Kaiser the plenitudo potestatis of a Roman Caesar, and soon the complete power of an Emperor was I treated as the very type of all Monarchy. Still in the Middle Age absolutistic theory invariably recognized that the Monarchy which it extolled to Sovereignty was subject to duties and limitations'^, and (what is more important) there steadily survived an opposite doctrine which, holding fast the notion that Monarchy is Office, would concede to the Emperor and other princes only a potestas timitata and a right conditioned by the fulfilment of duty"'. r„ The Idea of Popular Sovereignty. 37 The element of Limitation which was thus imma- Limitation nent in the medieval idea of Monarchy began to receive arciiy. theoretical development in the doctrine of the rights of the Community. To this we now must turn. Here- after we shall have to observe that the Middle Age set legal boundaries to State- Power of every sort, and it is matter of course that the Monarch is restricted within these, even if all the Powers of the State are united in his person. VI. The Idea of Popular Sovereignty. It is a distinctive trait of medieval doctrine that Develop- within every human group it decisively recognizes an Se^idea of aboriginal and active Right of the group taken as soverdgn- Whole. As to the quality and extent of this Right, 'y- there was strife among parties. For all that, however, we may also see plainly enough the contrast between the once prevalent and strictly medieval conception and that antique-modern manner of thought which was steadily developing itself. Clearly in the first instance what lies before us is the Germanic idea of a V Fellowship (die germanische Genossensckafisidee). Just as in the actual life of this age, within and without the groups constituted by lord and men, there might be found what we may call ' fellowshiply' grouping, so also, along with the Germanic idea of Lordship, the Germanic idea of Fellowship forces its way into the domain of learned theory. But antique elements were at work in this quarter also. In part their introduction was due to the Romano-Canonical doctrine of Corpo- rations, whence the publicists were wont to borrow, and in part to the influence of the Political Law and Political Philosophy of the ancient world. Gradually 38 Political Theories of the Middle Age. they transmuted the medieval lore of the Right of Communities until it bore the form of the modern doctrine of Popular Sovereignty. As, however, even in the Middle Age the thought of Popular Sovereignty was connected in manifold wise with the thought of the Ruler's Sovereignty, there was here a foundation on which the most diverse constitutional systems of an abstract kind could be erected : systems which might range from an Absolutism grounded on the alienation of power by the people, through Constitutional Mon- archy, to Popular Sovereignty of the Republican sort. Popular J It ^as in the province of Temporal Power that sovereign- _ '■ ^ '■ ty in the the Right of the Community first assumed a doctrinal form. The will An ancient and generally entertained opinion people and regarded the Will of the People as the Source of of Nature. Temporal Power. A friendly meeting took place between this traditional opinion and that Patristic Doctrine of the State of Nature which the Church was propagating. That doctrine taught that at one time under the Law of God and the Law of Nature com- munity of goods, liberty and equality prevailed among mankind. It followed that Lordship made its first ap- pearance as a consequence of the Fall of Man"". It followed also that the authority of Rulers was grounded on human ordinance. Then, during the Strife over the Investitures, the Church could draw from these premisses the conclusion that this humanly instituted Temporal Power must be subject to that Priesthood of which God Himself was the direct and immediate Founder. The defenders of the State were content to resist this ecclesiastical reasoning without deserting the old ground. In contrast to theories which would insist more or less emphatically on the usurpatory and illegitimate origin of Temporal Lordship, there was The Idea of Popular Sovereignty. 39 developed a doctrine which taught that the State had a rightful beginning in a Contract of Subjection to which the People was party'"". Many reminiscences of events in the history of Germanic Law came to the help of this theory, as also the contractual form which agreements between Princes and Estates had given to many of those rights and duties which fell within the sphere of Public Law. Still it was also supposed that a successful appeal could be made both to Holy Writ, which told (IL Reg., v. 3) of a contract made at Hebron between David and the People of Israel, and also to a principle, proclaimed by the Jurists, which told that, according to the ius gentium, every free People may set a Superior over itself"". Then, on the other hand, efforts were made to demonstrate that the human origin thus discovered for the State was not incompatible with the divine origin and divine right of Monarchy, since the People was but an instrument in the hands of God"°, and indeed received from His influence the spiritual power of engendering the Ruler's Office'". The victory of this manner of thinking was largely Contro- due to the decisive fact that just in relation to the very a^L^^"^ highest of all earthly Powers, the Jurists could find in ''^"'" the Corpus Juris a text which seemed expressly to indicate the Will of the People as the source of Ruler- ship. Ever since the days of the Glossators [the twelfth century] the universally accepted doctrine was that an act of alienation performed by the People in the Lex Regia was lor Positive Law the basis of the modern, as well as of the ancient, Empire"^ For this cause it was all the easier to generalize Voluntary this truth concerning the highest of all temporal Com- the source munities, until it appeared as a principle grounded in powfr. Divine and Natural Law. Indeed that the legal title 40 Political Theories of the Middle Age. \ to all Rulership lies in the voluntary and contractual submission of the Ruled could therefore be propounded as a philosophic axiom'*". True, that concrete cases might demand the admission that the Power of the State had its origin or extension in violent conquest or successful usurpation. Still in such cases, so it was said, an ex post facto legitimation by the express or tacit consent of the People was indispensable if the Ruler was to have a good title to Rulership. It was in this wise that men sought to explain the existence de iure of the Roman Empire, notwithstanding the violence which had been employed in its making, for they could say that the requisite subiectio voluntaria could be found in the tacit consent of the Nations'". William of Ockham and Antonius Rosellus go even as far as an express constitution of this World-Monarchy by the vote of the majority of the Nations, and they refer to the doctrine of Corporations to prove that in such a case the vote of the majority is conclusive, since, on the one hand, the whole of Mankind, if regard be had to that original community of goods which is prescribed by the Law of Nature, may be treated as a single college and corporation (unum collegium et corpus), and, on the other hand, the establishment of the Universal Monarchy was, in the words of Ockham, an act of necessity, or else in the words of Rosellus, an act which was don&pro bono cotnmuni^^. Reversion If then the Imperium proceeded from the People, tothT" the inference might be drawn that it would escheat or *°P^" revert to the People whenever no rightful Emperor existed. The Church, it is true, avoided this conclu- sion by the supposition that, since the advent of Christ, the rights of the People had passed to Him and from Him to Peter and Peter's successors. On the other hand, the opponents of papal claims made manifold The Idea of Popular Sovereignty. 41 use of the idea of Escheat or Reversion. The older Jurists were indeed so much entangled in the network of the ancient texts that in their eyes the ' subject ' of those rights which they ascribed to the populus Roma- nus in relation to the Imperium was the populatibn of the town of Rome as it existed in their own day. About the middle of the twelfth century the followers of Arnold of Brescia made a serious attempt to claim for the city a right to bestow the vacated Empire"^. Leopold von Babenberg was the first forcibly to protest against this identification of the Roman townsfolk with the sovereign /ci^«/2< J Romanus. The Roman burghers, he says, have nowadays no more right than has qui- cunque alius populus Romano imperio subiechis; and when rights of sovereignty in the Empire are in question, the X.trm. populus Romanus must be understood to mean the whole People that is subject to the Roman Impermm^" . A first application of this idea of the Escheat to the The trans- People of a forfeited or otherwise vacant Rulership the Em- was made when the opponents of the Popes had to ^"^^' explain the so-called translatio imperii: that is, the transfer of the Empire from the Greeks to the Germans. The Greek Emperor, so it was said, for- feited his right, and thereupon the Roman people once more acquired power to dispose of the Empire. There- fore the consensus populi, which is mentioned on the occasion of Charles the Great's coronation, was the true act of transfer, and the Pope merely declared and executed the Will of the People"'. Leopold von Babenberg, however, refuses to recognize this power of the Roman citizens, who at that time, so he says, neither possessed the Lordship of the World nor repre- sented the People of the World. So at this point he has recourse to the authority of the Pope, who by virtue of necessity — necessity in fact, not necessity in 42 Political Theories of the Middle Age. law — had to occupy the vacant seat of the highest of temporal judges'*". Guardian- In Hke manner many writers claimed for the People vacant^*' a guardianship over the Empire or the State, pending ^■"P'"- a vacancy of the throne'=°. Election of In particular, however, from this same way of " ^'' thinking was deduced the right of every People to / choose a new Head in a case of necessity : provided that no mode of appointment by a superior and no strict right of succession had been established. For all power was originally based upon Choice, and Divine and Natural Law declared that, as a matter of principle, it was for the Whole Body of the ruled to institute its Head'*^. True, that by a grant of Lordship to a whole family, or, it may be, by other means, an Hereditary Monarchy might be validly created'"'. None the less, the Elective Principle was preferable, being in fuller accord with Divine and Natural Law"^ Therefore it is that the Elective Principle prevails in the Empire, which needs must have the best of constitutions, and in the Empire this principle has always been observed, albeit under different forms'". The People may itself exercise the right of Election, or may delegate that right to others. To such an act of delegation the opponents of the papal claims were wont to trace the rights of the princely Electors of Germany"", while the Pope, so they said, had acted in this matter as one of the People, or, at the most, as the People's mandatory'". Also it was argued that, as the electing Princes per- formed the election as representatives of the whole People of the Realm, their act had all the effect of an election directly made by the People, and, without any co-operation on the part of the Pope, immediately con- ferred upon the Elect the full rights of an Emperor'". Then as to the rights that the Community could The Idea of Popular Sovereignty. 43 assert against its Ruler when once he had been legiti- Relation of mately instituted, there were wide differences of opinion, peopie. The conflict of theories appears already in all its sharp- ness so soon as the Glossators have begun to controvert each other over that translatio imperii irova. populus to princeps, which was mentioned in the classical text. Some of them declared that there had been a definitive alienation, whereby the People renounced its power for good and all, and that therefore the People, when once subjected to the Emperor, had no legislative power and could never resume what it had alienated'™. Others saw the translatio as a mere concessio, whereby an office and a usus (right of user) were conveyed, while the substance of the Imperium still remained in the Roman People. Thence they argued that the People is above the Emperor {^populus maior imperatore), can at the present day make laws, and is entided to resume the imperial power"'. The controversy that was thus begun within the field of Roman law, extended itself, until in a more general fashion the relation between Prince and People was brought into debate. Out of the debate there issued diametrically opposite systems. For those who adopted the first of these explana- The ^ ^^ tions of the translatio [that, namely, which told of ' an Ruler's out and out conveyance '] it was easy to erect a system Sovereign. of Absolute Monarchy upon the original Sovereignty of the People. In this sense even the Hohenstaufen could acknowledge the derivation of Lordship from the Popular Will"", and in fact many lawyers were at pains to deduce from that Abdication of the People which was implied in the Institution of a Ruler, a Right of the Monarch which should be as absolute as they could make it. .pj^^ Still even the advocates of ' Ruler 's-Sovereignty,' sovereign when once they had grounded this upon a Contract of tiie People. 44 Political Theories of the Middle Age. Subjection, were unable to avoid the recognition of a right against the Ruler which still perdured in the Body of the People. Even they were compelled to regard the legal relationship between Ruler and Ruled as being in all respects a contractual relationship between the Body of the People — which Body could be treated as a corporation {universitas) — and its Head, so that the People had a strict right corresponding to the duty incumbent upon the Sovereign. Furthermore, throughout the Middle Age even the partizans of Monarchy were wont to concede to the Community an active right of participation in the life of the State. Political Institutions being what they everywhere were, some such concession was almost unavoidable. There was unanimity in the doctrine that the consent of the Whole Community was requisite for the validation of any acts of the Ruler which were prejudicial to the rights of the Whole, and among such acts were reckoned submission to another lord, alienation or partition of the lordship, and indeed any renunciation of the essential rights of a lord"\ It was just from this uncontested principle that Leopold von Babenberg concluded that any act done by an Emperor which could be deemed to imply the recognition of the Pope's claim to examine and confirm imperial elections, or which could be deemed to have effected any sort of subjection of the Empire to the Church, was powerless to alienate the rights of the Empire and its Princes and Peoples without their concurrence'®'. Also men ex- plained that, though as matter of pure law this was not necessary, still a general custom required that the Monarch should of his own free will bind himself not to make laws or do other important acts of rulership without the consent of the Whole Body or its repre- sentatives "^. Not unfrequently the opinion was The Idea of Popular Sovereignty. (45 j expressed that even the right of deposing the Ruler in a case of necessity could be conceded to the People without any surrender of the maxim ' Princeps maior populo"^: Then there was a mediating tendency which sdueht '^^^ r o J o system ot to combine the idea of the Ruler's Sovereignty with Divided that of the People's Sovereignty. It co-ordinated ty. Ruler and Community and ascribed the supreme power to both of them in union. Those who occupied this position rejected Pure Monarchy and held that Limited Kingship or a mixture of Monarchy, Aristocracy and Democracy was the best of Constitutions'®*. On the other hand, the second of the two expla- The nations proposed by the Glossators [for the classical Popular text touching the Lex Regia] — namely the doctrine ^°^"^^^ that the People granted to the Monarch merely 'the use' of supreme power — issued, when it was con- sistently developed, in the system of pure Popular Sovereignty: a Sovereignty that remained in the People despite the institution of a Monarch. True, that even the advocates of this system held fast the thought — and the idea of a Contract with the Ruler favoured it — that the relation between People and Ruler was a bilateral legal relationship, which conferred upon the Ruler an independent right of Lordship, of which he could not be deprived so long as he was true to his pact. However, no matter what the form of government, the People was always the true Sovereign, and this was expressly stated by the maxim ' Populus maior principe.' Hence was generally drawn the inference that the Community still retained a legislative power over the Prince and a permanent control over the exercise of the rights of Rulership'"". But, in particular, the further inference was drawn that, if thg, ^ Ituler "'neglected his duties, the People might sit-in 46 Political Theories of the Middle Age. judgment upon him and depose him by right^and doom'*'. Just this last consequence was very generally drawn, and a peculiar importance was attributed to it. Here might be found an explanation of those cases in which the Pope had, or might seem to have, deposed Emperors and Kings and absolved Nations from the duty of subjection. Such cases might be regarded as legal precedents without any acknowledgment of papal power. The Pope's part in them had been not ' consti- tutive' but merely 'declaratory.' The authority had in all cases proceeded from the Folk or its representatives'**. Monarchy When the matter was regarded from this point of public. view, there could be no deep-set difference between a Monarch and a Republican Magistrate. This, it is true, was not always consciously per- ceived. We can hardly, for instance, assert that Leopold of Babenberg's mode of thought is republican. Yet he expressly teaches that the People of the Empire is viator ipso principe, can make laws, especially if there be no Kaiser or if the Kaiser neglect his duty, and can for sufficient cause transfer the Empire from one Folk to another or depose the Emperor. He also teaches that every particular People has just the same rights against its King'^. vj Republic- Decisively republican, on the other hand, is the * MarSiius. System of Marsilius of Padua. With all the consist- ency of democratic Radicalism it erects an abstract scheme dividing power between the universitas civium and the pars principans : a scheme which remains the same, whatever be the form of government. With him the ' Legislator ' must be the Sovereign ; but the People is always and necessarily the ' Legislator,' by the People being meant the Whole Body or a majority of those citizens who are entitled to vote. This inalien- able right is to be exercised either in a primary The Idea of Popular Sovereignty. 47 assembly of the People or by its elected representatives. Therefore the Will of the People is the efificient cause of the State. By legislation it gives an articulate form to the State, distributes offices, and binds the various parts into a whole. In the first place it erects the office of Ruler for the discharge of such business as the universa communitas cannot itself undertake. But more : the matter, as well as the form, of the Ruler's office proceeds from this Sovereign Legislator. The wielder of Government is to be appointed, corrected, deposed by the Legislator ad commune conferens. The Ruler himself is only a part {^pars principalis) of the Whole and always remains inferior to the Whole. By authority granted to him by the Legislator i^per aucto- ritatem a legislatore sibi concessani) he is the State's secondary and, as it were, instrumental or executive part {secundaria quasi instrumentalis seu executiva pars). Therefore in all things he is bound by the laws, and finally, since the incorporate body {universitas) is to act by his agency, his government will be at its best when it conforms most closely to the Will of the Whole (iuxta subditorum suorum voluntatem et con- sensum ''"). An essentially different system was developed by Cusanus Nicolas of. Cues in his Catholic Concordance; but lar Sove- '''^ none the less decisively was it a system of Popular ^ ' ^' Sovereignty. In his eyes, all earthly power proceeded, like man himself, primarily from God {principaliter a Deo); but a God-inspired Will of the Community was the organ of this divine manifestation. It is just in the voluntary consent of the Governed that a Government displays its divine origin : tunc divina censetur, quando per concordantiam, conimunem, a subiectis exorttur. Therefore all iurisdictio and administratio are based upon electio and upon a freely-willed transfer of power 48 Political Theories of the Middle Age. made by the Community or its majority or representa- tives. There is no rightful and holy species dominandi that is not founded per viam voluntariae subiectionis et consensus in praesidentium praelationes concordantiales. Only a Ruler who has been thus appointed is, as bearer of the Common Will, a public and ' common ' Person {ut sic constitutus, quasi in se omnium voluntatem gestans in principando, publica et communis persona ac pater singulorum vocetur), and only by recognizing himself to be the creature of the Whole does he be- come the father of its several members {dum se quasi omnium, collective subiectorum. sibi creaturam cognoscat, singulorum. pater existat). The function of making laws is by its very nature necessarily reserved for the Community, since all the obligatory force of laws proceeds from the express or silent consensus of those who are to be bound. Therefore the Ruler also is bound by the laws. He only receives iurisdictio and administratio within the scope of his mandate. Even in his jurisdiction and administration he is subject to constant supervision, and, in case he transgresses the limits of his power, he may be judged and deposed by the People. And all this is imprescriptible and inalienable Right bestowed by the law of God and Nature'^ Popular In similar fashion throughout the fifteenth century fte'prin-° i^^ ^ the theoretical arguments by which men strove Popular *° defend the rights of ' the Estates ' against the grow- Sovereign- j^g might of Monarchy, frequent recourse was had to the People's Sovereignty as to a first principle '", until y that principle, assuming a popular form, penetrated more and more deeply the masses of the folk, and at length took flesh and blood in the revolutions which were accomplished or projected during the Age of the Reformation. The Idea of Popular Sovereignty. 49 2. Meanwhile thoughts similar to those which had Popular been developed in relation to the State had exercised tyTn'thf a decisive influence within the Church. More and ^''"'^'='^' more distinctly and sharply men were conceiving the ^ Church as ' a Polity,' and it was natural therefore that in the construction of this Polity they should employ the scheme of categories which had in the first instance been applied to the temporal State. Indeed in the end the Church was regarded as charged with the mission of realizing the ideal of a perfect political Constitution. Thus, besides the transmutation of the specifically ecclesiastical ideals, we may see, in this quarter also, the well-marked evolution of a ' nature-rightly ' Doctrine of the State. A definition which declared the Church to be Right of the ccclc' ' the Congregation of the Faithful ' was not to be eradi- siasticai cated, and therefore the doctrine of absolute monarchy, mMity. even when at its zenith, was powerless utterly to eliminate the idea of a right vested in the ecclesiastical Community taken as a Whole. However loud might be the tone in which men asserted that the Pope stood above the rest of the Church, had no ' Superior,' and therefore could judge all and be judged of none {sedes apostolica omnes iudicat et a nemine iudicaiur) : that the Senate of Cardinals, which was always more com- pletely supplanting the Assembly of Bishops, had acquired all its powers merely from the Pope and not from the Church : that even a General Council stood below the Pope, obtained from him authority to assemble and decide, and could neither bind him nor confer authority upon him "^ : none the less, there were two points at which a breach of these principles could not be avoided or could with difficulty be excused as a merely apparent breach. For one thing, the election of a Pope was always recalling the idea that when the 50 Political Theories of the Middle Age. see was vacant the power of the Pope reverted to the Community, and that therefore the Cardinals, as repre- sentatives of the Community, chose a new Monarch "*. Secondly, the doctrine, hardly doubted in the Middle Age, that in matters of faith only the Church is infallible, and that the Pope can err and be deposed for heresy "°, led to the opinion expressed by many canonists that in this exceptional case the Pope is sub- jected to the judgment of the Whole Church {iudicaiur a tola ecclesia, condemnatur a concilio generali, iudi- catur a subditis, ab inferioribus accusari et condemnari potesty". It makes no practical difference if, in order to conceal this breach with the principle of Absolute Monarchy, men invent the fiction that an heretical Pope, being spiritually dead, has ipso facto ceased to be Pope, and that the General Council has merely to declare this accomplished fact in the name of the Church, of which it has become the sole representa- tive"'. Supre- If then in this manner a certain Supremacy of macyofthe _, ., _ .,,..,„ , . Council. Council over Pope was still incidentally recognized by the existing Law of Church, a theoretical explanation and justification of this Supremacy would soon be forth- coming. The doctrine that as a general rule the Pope is above the Universal Church, but in matters of faith is subject to it and to the Council that represents it, had hardly ever died out'™. But if the divine character of the Pope's right to rule was compatible with his subjection, even at a single point, to the Church, then it appeared possible that, without abandonment of the old and general principle of Papal Supremacy, other points might be found at which, by way of exception, a right of the Whole Body might be made good against j its Head. As a matter of fact, there soon were some »who taught that the Conciliar Jurisdiction over the The Idea of Popular Sovereignty. 51 Pope extended to cases of notorious crime, of schism m-^ Peter, and that the separation which is commanded by divine law poralities. affects only the Administration, not the Substance. The various shades of opinion differ only as to the extent of the right of user committed to the temporal ruler and of the right reserved to the Pope, and, in particular, as to the definition of the cases in which the Pope, notwithstanding the right committed to the secular magistrate, may directly interfere in temporal affairs. — Therefore it is a mistake to represent the great Popes as proclaiming, and the cominon opinion of the later Middle Age as accepting, only that sort of 'indirect power in temporalities' (in Bellarmine's sense of these terms) which was claimed for the Apostolic See by later theorists. This mistake has been made by Hergenrother, op. cit. 421 ff., Molitor, op. cit. p. 166 ff. and others. The words of Innocent IV. on which Molitor has laid special weight, say merely that as a general rule the spiritual sword is not to meddle with the wielding of the temporal, and it is only to this normal separation in the use of the swords that Innocent's words 'directe, secus indirecte' (c. 13, X. 2, i) refer. The statements to the effect that the Pope, by virtue of his spiritual power, 'per consequens' rules over temporal affairs, because and in so far as 'temporalia ordinantur ad spiritualia tanquam ad finem,' make no surrender of the fundamental thought of an Universal State in which the plenitude of all power, worldly as ■well as spiritual, is in principle committed to the Pope. Indeed these same popes and canonists, as Molitor (p. 91 ff.) admits, ex- pressly assert the axiom that the Pope has both swords and commits one of them to other hands merely for use. With this axiom the doctrine that would allow the Pope only a potestas indirecta is irre- concilable. For this reason even Torquemada, despite his tendency towards moderation in the statement of papal rights (Summa 11. c. ii3ff.), cannot be reckoned among the advocates of this doctrine of 'indirect power,' since in plain words he claims for the Pope utrumque gladium, and in radice the temporal power (c. 114). As a hint of the doctrine of cent. xvi. we might rather choose a passage in which Gerson ascribes to the Church in worldly affairs 'dominium quoddam directivum, regulativum et ordinativum' (De pot. ecc. c. 12; Op. II. 248). Inferiority I4' See Joh. Saresb. IV. c. 3: the Church has both swords: of Tem- 'sed gladio sanguinis... utitur per manum principis, cui coercendorum poral ,. ..,..,.. . . Power. corporum contulit potestatem, spirituahum sibi in pontificibus aucto- ritate reservata: est ergo princeps sacerdotii quidem minister et qui Notes. iQK^ sacrorum officiorum illam partem exercet, quae sacerdotii manibus videtur indigna,' Aegid. Rom. i. c, 9; August. Triumph, i. q. i, a- 4. q- 43> a. 2; Alvar. Pelag. i. a. 13 and 37. 15. In some form or another, as might be expected, all advo- The cates of the ecclesiastical power maintain, not only the separation of ^°^t'* the two powers, but the divine institution of the worldly Magistrature: ordained for this was a revealed truth [Rom. xiii. i ; Matth. xxii. 21]. So even °^ ^°^' Gregor. VII. lib. 2, ep. 31, lib. 3, ep. 7, lib. 7, ep. 21, 23, 25. Innoc. III. 1. 7, ep. 212 (vol. 215, p. 527); Reg. sup. neg. Imp. ep. 2 and 79. Joh. Saresb. Polycr. iv. c. i, p. 208 — 209 and vi. c. 25, p. 391 — 395. Thom. Aquin. in libr. 11. Sent. dist. 44, ad. 4 (utraque deducitur a potestate divina). Ptol. Luc. iii. c. 1 — 8. Alv. Pel. i. a. 8, 41 C — K, 56 B. Host. Summa iv. 17. Panorm. on c. 13, X. 2, i. 16. Resuming the teaching of Augustine, Gregory VII. is the Sinful first to declare that the temporal power is the work of sin and the the' State, devil. See lib. 8, ep. 21, ann. 1080, p. 456 — 7: 'Quis nesciat reges et duces ab iis habuisse principium, qui Deum ignorantes, superbia, rapinis, perfidia, homicidiis, postremo universis sceleribus, mundi principe diabolo videlicet agitante, super pares, scilicet homines, dominari caeca cupiditate et intolerabili praesumtione affectaverunt? And again: 'itane dignitas a saecularibus — etiam Deum ignoranti. bus — inventa, non subicietur ei dignitati, quam omnipotentis Dei providentia ad honorem suum invenit mundoque misericorditer tribuit?' See also lib. 4, ep. 2, ann. 1076, p. 243: 'illam quidem (scilicet, regiam dignitatem) superbia humana repperit, banc (episco- palem) divina pietas instituit; ilia vanam gloriam incessanter captat, haec ad coelestem vitam semper aspirat.' Cardinal Deusdedit (ob. 1099), Contra invasores etc. lib. iii. sect. 5 et 6 § 12 (in Mai vii. p. 107) argues in like fashion: 'Nee mirum, sacerdotalem auctori- tatem, quam Deus ipse per se ipsum constituit, in huiusmodi causis regiam praecellere potestatem, quam sibi humana praefecit adin- ventio eo quidem permittente, non tamen volente': then the example of the Jews is cited. John of Salisbury, Polycrat. viii. c. 17 — 18, 20, says of all regna 'iniquitas per se aut praesumpsit aut extorsit a Deo' J the latter was the case of the Jews according to i Reg. viiL, since 'populus a Deo quem contempserat sibi regem extorsit.' — Hugh of Fleury (Prol. i. c. i, 4, 12, 11. p. 66 — 68), who himself deduces an immediately divine origin for the royal power from ' Non est potestas nisi a Deo,' describes as a wide-spread error the doctrine which would give to that power a human, and therefore sinful, origin. Innocent III., Reg. sup. neg. Imp. ep. 18, argues for the indestructibility of the Priesthood and the frailty of the no Political Theories of the Middle Age. Realm, since the one was instituted by divine ordinance and the other (i Reg. viii.) 'extortum ad petitionem humanam.' Compare August. Triumph, ii. q. 33, a. i. Also Alvar. Pelag. i. a. 59 g (regnum terrenum, sicut ipsa terrena creatura sibi constituit tanquam ultimum finem, ...est malum et diabolicum et opponitur regno coe- lesti) and 64 D — E (sordida regni temporalis initia). — Gerson, Op. iv. 648 : the efficient cause of dominatio and of coerciiivum dominium was sin. — Petr. Andl. I. c. i: 'fuit itaque solum natura corrupta regimen necessarium regale'; but for the Deluge, instead of owner- ship and lordship, there would have continued to be, as there will be in another world, liberty, equaUty and community of goods under the direct government of God. See also Frederick II. in Petr. de Vin. ep. V. c. i. [In an earlier part of his book, D. G. R. iii. 125, 126, Dr Gierke has stated the doctrine of the sinful origin of the State that is found in Augustine's De civitate Dei.] Ordination 17- Already Honorius Augustodunus, Summa gloria, c 4, in Church ''^ Migne, vol. 172, pp. 1263—5, declares that, since soul is worthier than body, and priesthood than realm, the realm iure ordinaturhy the priesthood j as the soul vivifies the body, so the priesthood constituens ordinat the realm : ' igitur quia sacerdotium iure regnum constituet iure regnum sacerdotio subiacebit.' — So again, Hugo a S. Victore, De sacram. lib. 11. pars 2, c. 4 : the spiritual power is worthier than the temporal, ' nam spiritualis potestas terrenam potestatem et insti- tuere habet, ut sit, et iudicare habet, si bona non fuerit ; ipsa vero a Deo primum instituta est, et cum deviat, a solo Deo iudicari potest, sicut scriptum est: Spiritualis diiudicat omnia et ipse a nemine iudicatur': the spiritual is prior in time as well as in worth: thus in the Old Dispensation the priesthood was first instituted by God, and afterwards the royal power was ordained by the priesthood at God's command ; so now in the Church the sacerdotal dignity consecrates the royal power, both sanctifying it by blessing and forming it by institution. — So in the same words Alexander Halensis, Summa Theolog., P. IV. q. x., memb. 5, art. 2. Then Aegid. Rom. De pot. eccl. I. c. 4, and Boniface VIII. in Unam Sanctam: 'nam veritate testante spiritualis potestas terrenam potestatem instituere habet et iudicare, si bona non fuerit.' Compare also Joh. Saresb., above Note 14, and Thomas of Canterbury, who, in the passage cited in Note 10, proceeds to say : *et quia certum est reges potestatem suam accipere ab Ecclesia, non ipsam ab illis, sed a Christo.' Vincent. Bellovac. lib. vii. c. 32.— A thorough statement by Alvar. Pelag. I. a. 36, 37 (regalis potestas est per sacerdotalem ordinata), 56 b, 59 F— G (the spiritual is efficient and final cause of the temporal Notes. 1 1 1 power, and only in this way has the, in itself sinful, terrene realm a share in the sanctity of the celestial). August. Triumph, i. q. i, a. i and 3, q. 2, a. 7, 11. q. 33, a. i and 2 (the imperium tyrannicum is older than the priesthood, but the imp. polUicum, rectum et iustum is established by the Popes for the defence and service of the Church). — Hostiensis, upon c. 8, X. 3, 34, nr. 26, 27. — Panormitanus, upon c. 13, X. 2, I. — Konrad v. Megenberg, in Hofler, Aus Avignon, p. 24 ff. — A relationship of this sort between the two powers is already implied in the allegorical use of Sun and Moon (e.g. in Gerhoh v. Reichersberg, praef c. 3), which becomes official from the time of Innocent III. onwards : c. 6, X. i, 33, also lib. i, ep. 104, vol. 214, p. 377, and Reg. s. neg. Imp, ep. 2, 32 and 179 j for the moon borrows her light from the sun (ep. 104 cit.). The yet commoner comparison with Soul and Body effects the same pur- pose, for the soul was regarded as the formative principle of the body. See Honorius Augustod. as above, and Ptol. Luc. De reg. princ. in. c. 10 (sicut ergo corpus per animam habet esse, virtutem et opera- tionem...ita et temp, iurisdict. principum per spiritualem Petri et eius successorum). 18. The thought that in the last resort the State is an Ecclesi- The State astical Institution is already being expressed when, on the one hand, s^slca'r the two powers have assigned to them respectively the ghostly domain Institu- and the corporeal, and, on the other hand, corporeal purposes are declared to be mere means for ghostly purposes. See Gregor. VII., lib. 8, ep. 21; Innoc. III., Respons. in consist, in Reg. sup. neg. Imp. ep. 18, p. ioi2fr.; c 6, X. i, 33. Thom. Aquin., De reg. princ. I. c. 14 — 5 : the priests have the care of the ultimate end; temporal kings have merely the care of antecedent ends : ' ei ad quem finis ultimi cura pertinet, subdi debent illi ad quos pertinet antecedentium finium, et eius imperio dirigi.' See also Thom. Aq. in libr. 11. Sent. dist. 44 in fine, and Summa Theol. 11. 2, q. 60, a. 6 ad. 3. Vincent. Bellov. lib. vii. 3 and 32, Aegid. Rom., De pot. eccl. II. c. 5 : ' potestas regia est per pot. eccl. et a pot. eccl. constituta et ordinata in opus et obsequium ecclesiasticae potestatis.' Aug. Triumph. I. q. i, a. 8: 'temporalia et corporalia...ad spiritualia ordinantur tanquam instrumenta et organa.' Alv. Pel. i. a. 37 P and R, a. 40 and 56. Durandus a S. Porciano, De origine iuris- dictionis, qu. 3 : ' temporalia quae ordinantur ad spiritualia tanquam ad finem.' Panorm. c. 13, X. 2, i. 19. To this effect already Deusdedit, Contra invasores, lib. iii. The sphere sect. 5 et 6 § 13, p. 108. Petri Exceptiones, i. c. 2, in Savigny, °^ ^^"P" Gesch. des r. R., 11. 322. Dictum Gratiani upon c. 6, Dist. 10. defined by 112 Political Theories of the Middle Age. Spiritual Petr. Blesensis jun. Specul. c. i6. Vincent. Bellovac. lib. vii. & 33. Law. Aug. Triumph, i. q. i, a. 3, and 11. q. 44, a. i — 8. Alv. Pelag. I. a. 44. Ockham, Octo qu. m. c. 9. Subjection 20. See Gregor. VII., lib. i, ep. 63 ; lib. 4, ep. 2, ep. 23, ep. 24; "^ral™ ^^^* ^' ^P- ^^ (especially p. 464). Cardinal Deusdedit, Contra Power. invasores, lib. ill. per totum. Honorius Augustod., Summa gloria, p. 1265 : 'iure regnum sacerdotio subiacebit' (above Note 17). Joh. Saresb. v. c. 2, p. 252. Thorn. Cantuar., epist. 177 — 184, p. 648 flf. Ivo of Chartres, ep. 106, Henrico Anglorum Regi, p. 125 : 'regnum terrenum coelesti regno, quod Ecclesiae commissum est, subditum esse semper cogitatis ; sicut enim sensus animalis subditus debet esse rationi, ita potestas terrena subdita esse debet ecclesiastico regimini ; et quantum valet corpus nisi regatur ab anima, tantum valet terrena potestas nisi informetur et regatur ecclesiastica disciplina; et sicut pacatum est regnum corporis cum iam non resistit caro spiritui, sic in pace possidetur regnum mundi, cum iam resistere non molitur regno Dei ': You (King Henry) are not dominus, but servus servorum Dei; be their protector, non possessor. Comp. ep. 60, p. 70 ff. If Ivo here and elsewhere (ep. 214, p. 217 ff., and ep. 238, p. 245) expressly states that the ecclesia can only flourish if Priesthood and Realm be united, while every discord between the two powers must rend the church, and if he exhorts the Pope (ep. 238) to do his part in the production of unity, — with a saving for the majesty of the apostolic see, — still the legal relation of Realm to Priesthood is, in Ivo's eyes, a complete subjection. — To the same effect Alex. Halensis, in. q. 40, m. 2. Rolandus (Alex. III.), Summa, p. 5, D. 10. Innocent III., in c. 6, X. i, 33. Thom. Aquin. De reg. princ i. c. 14 (Romano pontifici omnes reges populi Christ, oportet esse subditos, sicut ipsi domino Jesu Christo); Opusc. contra impugiL relig. 11 c. 4, concl. I ; Summa Theol. 11. i, q. 60, a. 6, ad. 3 (potestas saecularis subditur spirituali, sicut corpus animae) ; in lib. 11. Sent. d. 44; Quodl. 12, q. 13, a. 19, ad. 2. Aegid. Rom. De pot. eccl. i. c. 7 (two swords, like soul and body, quorum unus alteri debet esse subiectus); 11. c. 4, 10 and 12. Boniface VIII., in Unam Sanctam : Oportet autem gladium sub gladio esse et temporalem auctoritatem spirituali subiici potestati. August. Triumph, i. q. i, a. i and 3, II- q- 36, 38, 44, a. I (Papa est medius inter Deum et populum Christianum;...medius inter Deum et imperatoremj...a quo impera- tori respublica commissa). Alv. Pel. i. a. 13, 37 q — r, 56, 59. And. Isern. I. Feud. 29, pr. nr. 2. Barthol. Soc. in. cons. 99, nr. 18. Cardin. Alex. c. 3, D. 10. The Commentary on c 6, X. i, 33. Comp. also Hofler, Kaiserthum, 57 ff., 80 ff., 137 ff. — Comparisons Notes. 113 with gold and lead, heaven and earth, sun and moon, soul and body, frequently recur, and the last of these, if taken in earnest, must make for an unconditional subjection of the State, as in the above-cited words of Ivo. 21. See John of Salisbury in Note 14 and Thomas of Canterbury Temporal in Note 10. Summa Parisiensis (above Note 12) : imperator vicarius ^"^^''^^ eius. Ptol. Luc. iii. c. 17: imperium ad exequendum regimen of Church fidelium secundum mandatum pontificis ordinatur, ut merito dici "ope- possint ipsorum executores et cooperatores Dei ad gubernandum populum Christianum. Aegid. Rom. Da pot. eccl. c. 5. Hostiensis upon c. 8, X. 3, 34, nr. 26 — 7. August. Triumph, i. q. i, a. 8 (princes are quasi ministri et stipendiarii ipsius papae et ipsius ecclesiae, they receive an office and are remunerated de thesauro ipsius ecclesiae) ; q. 44 and 45 ; 11. q. 35, a. i, and 38, a. 2 — 4 (the Emperor is minister papae); I. q. 22, a. 3 (the Emperor is likened to a pro- consul). Alv. Pel. I. a. 40 : as the Church, which is Cosmopolis, can give (by baptism) and take away the right of citizenship, so she distributes offices among her citizens ; sacerdotal consecration and unction first give temporal lordship over God's holy people, and these priestly acts must be regarded as approval and confirmation ; a. 56 B and p; also a. 13; a. 40 k (sicut anima utitur corpore ut instrumento,...sic papa... utitur officio imperatoris ut instrumento) ; a. 52 — 54 (all worldly and ghostly offices are 'gradus in ecclesia'). The Clerk in Somn. Virid. 11. c. 163. Comp. in Joh. Par. prooem. the confutation of the statement that praelati et principes are only tutores, procuratores and dispensatores of the Pope's verum dominium temporalium, 22. Apparently GofiTredus abbas Vindocinensis (Migne, vol. 157, The High p. 220) is the first allegorically to explain the two swords mentioned £ [ • . in Evang. Lucae, c. 22, v. 38, as being material and spiritual swords, of the Two which are to be used in defence of the Church ; but he only uses this Swords, allegory to support a demand for an amicable union between the two powers. Gerhoh Reichersp. (Migne, vol. 194, p. m) goes no further. Bernard of Clairvaux (ep. 256, ann. 1146, in Migne, vol. 182, p. 463) seems the first to explain the allegory in the manner that was afterwards adopted by the Church's champions: Petri uterque est, alter suo nutu, alter sua manu : see also De consider. IV. c. 3, in Migne, vol. 186, p. 776. Then already with John of Salisbury, Polycrat. iv. c. 3, the Prince receives one sword from the hand of the Church ; the Church has that sword (habet et ipsum), but uses it ' per principis manum.' So S. Anselm, Comm. in Matth. c. 26. Among the Popes, Innoc. III., Gregor. IX., Innoc. IV., and M. 8 114 Political Theories of the Middle Age. Emperors and Tem- poral Rulers as Pope's Vassals. Bonif. VIII. (Unam sanctam, also speech in the Roman synod, in Hefele, KonciUengesch., vi. § 689) raised this theory to the rank of an official doctrine. It was conceded by some of the Emperors, such as Otto IV., Frederick II., Albert (1302 and 1303); see Hofler, pp. 86, 134. Thenceforward it was a self-evident axiom for the Canonists, and Prosdocimus de Comitibus, nr. 55, can reckon the two theories of the Two Swords as ' a difference between the leges and the canones' Comp. Glossa Ord. on c. i, Dist. 22. v. coelestis: argumentum quod papa habet utrumque gladium, soil. spir. et temp. (The text that is being glossed, from Petrus Damianus, Opusc. iv. admits of various interpretations : — beato aeternae vitae clavigero terreni simul et coelestis imperii iura commisit.) Quotation from Alanus in Lup. Beb. c. 9, p. 368. Gloss. Ord. on c. 13, X. i, 2: verum execu- tionem gladii temporalis imperatoribus et regibus commisit ecclesia; quaedam enim possumus aliis committere quae nobis non possumus retinere.' Commentaries on c. 34, X. i, 6, c. i, X. 1, 7, c. 13, X. 2, I, c. 10, X. 2, 2 by Innocentius, Zabarella, Ant. Butrigarius, Felinus and Decius. Thus e.g. Panormitanus holds that the imperium is •non immediate a Deo, sed per debitam et subalternatam emana- tionem a vicario Christi Jesu, apud quem sunt iura coelestis et terreni imperii': in this sense are to be understood the words 'non est potestas nisi a Deo'; but we may also apply them to mean that according to the will of God one Sword belongs to temporal rulers •respectu exercitii.' See further Aegid. Rom. De pot. eccl. I. c. 7 — 9. Schwabensp. c. i. Aug. Triumph. I. q. i, a. i, and 11. q. 36, a. I — 4. Alv. Pelag. i. a. 13, 37 s (dominus legitimus...utilis) and z, 40 K, 59 D (the Pope is always primum movens, even when the Prince is proximum movens), 11. a. 57 ; Konr. Megenb. in Hofier, aus Avignon, p. 24 ff. Petrus a Monte, in Tr. U. J. xiii. i, f. ^52 ff. Petrus de Andlo, 11. c. 9. Turrecremata, Summa de eccl. iiic. 114. Naturally a few legists take the same view, e.g. Bartolus, 1. t, § i. Dig. 48, 17, and Paul. Cast. 1. 8, Dig. i, 3, nr. 6; and some feudists, e.g. Andr. de Isern. 11. Feud. 5 5. nr. 87. All the arguments /r(? and con are collected by Ockham, who distinguishes with exactitude various nice shades of the doctrine 'Imperium a Papa': see Octo qu. I. c, 2, 18 — 19 and on the other side c. 6 — 17 ; also see 11. c. I — 4, 12, IS, and on the other side c. 6 — 14; viii. c. i; Dial. iii. tr. 2, 1. I, c. 18 — 25. 23. Comp. e.g. Innoc. IV. upon c. 10, X. 2, 2, nr. i ; Thom. Aquin. Quodl. 12, q. 13, a. 19, ad 2: Reges sunt vassalli ecclesiae. Clement V. in Clem. un. de iureiurando, 2, 9, and the commentaries thereon. Aug. Triumph, i. q. i, a. i; 11. q. 38, a. 4; Alv. Pel. i. Notes. 1 1 5 a. 13 B, a. 40, a. 57 ; Konr. Megenb., in Hofller, aus Avignon, p. 24ff.; Petr. Andl. 11. c. 2 ; Panorm. c. 13, X. 2, i. 24. According to S. Bernard, De consider, iv. c. 3, the temporal The sword is to be wielded ' ad nutum sacerdotis et ad iussum im- Temporal peratoris.' Gregory IX. (Raynald, ann. 1233, nr. 1) repeats this at the but omits the last half of the phrase. Aegid. Rom., De pot. eccl. i. IJisposal c. 8 — 9, says that the Pope has both swords, ' sed decet Ecclesiam Church, habere materialem gladium non ad usum sed ad nutum.' See also Notes 20 and 21. 25. Innocent III. is the first sharply to distinguish between Direct use (1) the normal use that is made of the spiritual sword when the acts r^ h of temporal rulers are subjected to ecclesiastical jurisdiction, and of the (2) the exceptional cases in which the Pope directly uses the temporal J^™^'^*' sword. See in particular c. 13, X. 2, i (lib. 7, ep. 42, ann. 1204) on the one side, and on the other c. 13, X. 4, 17. So also Innocent IV.: compare the letter of 1245 in Hefele, v. looi: nee curabimus de cetero gladio uti materiali, sed tantum spirituali contra Fridericum. Encyclica of 1246: spiritualiter de temporalibus iudicare. Innoc. Comm. upon c. 13, X. 2, i. — Hostiensis, Summa, 4, 17 : sicut contra et super et praeter naturalem et humanam rationem Filius Dei incar- natus et natus est, sic iurisdictio spiritualis, quam Ecclesiae reliquit, contra et super et praeter naturam iurisdictionis trahit ad se princi- palem iurisdictionem temporalem, si id, quod de iurisdictione spirituali est, in ea incidit. Petrus Paludanus, De causa immediata eccl. pot, a. 4: Papa est superior in spiritualibus et per consequens in tempora- libus, quantum necesse est pro bono spirituali. — Johan. Andr. c. 13, X. 4, 17: temporalia per quandam consequentiam. Turrecremata, II. c. 1 13 ff. — On the other hand, in the argumentation of Gregory VII. lib. 4, ep. 2, and lib. 8, ep. 21, the right that he claims of deposing the Kaiser is thoroughly fused with a right to excommunicate the Kaiser. Similarly, those later writers, who will hardly allow any independence to the temporal sword, do not clearly distinguish between the ordinary use of spiritual power in the correction of Rulers and an extraordinary use of temporal power by the Pope. See e.g. Joh. Saresb. Polycr. iv. c. i — 4 j Aegid. Rom. De pot. eccl. i. c. 2 — 4, II. c. 4 and esp. in. c. 4 — 8 ; August. Triumph, i. q. i, a. i (institui, regulari et ordinari si bona sit, condemnari et iudicari si bona non sit); Alv. Pel. i. a. 37, 56, 58; Cler. in Somn. Virid. 11. c. i8, 22, 24, 26, 28, 32, 69, 139. 26. So Innocent III. in c. 13, X. 4, 17 : there should be no The invasion into ius alknum ; what is Caesar's should be given to f^^^^^ Caesar. And to the same effect what is said of the separation of respect the 8—2 ii6 Political Theories of the Middle Age. Rights of Rulers. Extra- ordinary Use of Temporal Power by the Church. Transla- tion of the Empire by the Pope. Translatio Imperii. Papal Appoint- ment of Kaisers and Kings. the swords and their duty of mutual aid : Reg. sup. neg. Imp. ep. 2, vol. 216, p. 997, and ep. 179, p. 1162, also lib. 7, ep. 54 and 79, vol. 215, p. 339 and 361, lib. 10, ep. 141, p. 1235, lib. 11, ep. 28, p. 1358. Innocent IV. Comment on 13, X. 4, 17: nam temporalia et spiritualia diversa sunt, et diversos iudices habent, nee unus iudex habet se intromittere de pertinentibus ad aliuni, licet se ad invicem iuvare debeant. — Hostiensis, Summa, 4, 17: iurisdictiones distinctae; ...nee debet se intromittere de subditis Imperatoris, nisi forte in casibus. — Gloss. Ord. upon c. 13, X. 4, 17; and upon c. 13, X. 2, i: non ergo de temporali iurisdictione debet intromittere se Papa nisi in subsidium. Ant. Butr. on c. 13, X. 4, 17; Joh. Andr. on c. 13, X. 2, i; Panorm. on c. 13, X. 2, i; Turrecremata, 11. c. 113. 27. S. Bernard, De consider, i. c. -6: ubi necessitas exigit... incidenter... causa quidem urgente. — Innocent III. in c. 13, X. 4, 17: the power may be used casualiter if causae multum arduae require it. (As to casualiter and the variant camaliter, see Molitor, p. 61 fif.) — Gloss. Ord. 1. c: in subsidium. Host, upon c. 13, X. 2, i; Thom. Aquin. Sum. Theol. n. 2, q. 60, a. 6, ad. 3 ; Joh. Andr. c. 13, X. 2, i; Ant. Butr. c. 13, X. 4, 17: non regulariter; Panorm. 1. c. : in a case of necessity, if there are ardua negotia. 28. Gregory VII. lib. 8, ep. 21, ann. 1080, p. 464: quapropter quos sancta Ecclesia sua sponte ad regimen vel imperium deliberato consilio advocat, (iis) non pro transitoria gloria sed pro multorum salute, humiliter obediant. — S. Bernard, ep. 236; Landulf Col. De transl. Imp., c. 8; Ptol. Luc. in. c. 10; Aug. Triumph. 11. q. 37, a. 5: regnorum omnium translatio auctoritate papae facta fuit vel alicuius qui ipsum figurabat: e.g. Samuel, Daniel and so forth. Also q. 46, a. 3 : est Dei vice omnium regnorum provisor. — Konrad v. Megenburg, in Hofler, aus Avignon, p. 24 f. : the transfer should be made in accordance with divine law, not arbitrarily. — Panorm. c. 13, X. 2, i: hinc est quod imperium transferre potest de certo genere personarum ad aliud genus. — Turrecremata, 11. c. 115; Ockham, Octo qu. iv. c. 4, and VIII. c. 3; Dial. in. tr. 2, 1. i, c. 20. 29. Innocent III. in c. 34, X. i, 6, and all the Commentaries upon this canon. Ptol. Luc. iii. c. 18; Land. Col. c. 3 — 8; Aug. Triumph. 11. q. 37, a. i — 4. Alv. Pel. i. a. 13 F and 41; Andr. Isern. prooem. Feud. nr. 37; Petr. Andl. i. c. 13 — 15, n. c. 3; cf. Ockham, Octo qu. iv. c. 5. 30. See above Notes 17 and 21, and below Note 34. Already Gregory VII. claims this right, as appears from c 3, C. 15, q. 6, a passage from a letter of his (ann. 1080) to Bishop Hermann of Metz: Alius item Romanus Pontifex, Zacharias scilicet, regem Notes. 117 Francorum non tam pro suis iniquitatibus, quam pro eo, quod tantae potestati erat inutilis, a regno deposuit, et Pipinum, Karoli impera- toris patrem, in eius loco substituit, omnesque Francigenas a iuramento fidelitatis, quod illi fecerant, absolvit. In the two letters of 1077, lib. 4, ep. 23 and 24, p. 275 ff., he claims to decide a disputed succession to the throne, and charges all men to obey him whom he confirms in regia dignitate. 31. As to the supposed institution of the Prince-Electors by The Pope Gregory V. and his right to institute them, see Land. Col. c. 9; Cem^n Ptol. Luc. III. c. 10 and 19; Aug. Triumph. 11. q. 35 ; Alv. Pelag. i. Electors. a. 13 F, 21, 27 z and Dd, 40 e— f, 45 ; Zabarell. c. 34 § verum, X. I, 6, nr. 8. Ptolemy of Lucca, Augustinus Triumphus, and Alvarius argue that the Church may at any time for good and reasonable cause change the mode of election, give the right of election to another nation, or itself exercise the right, institute an hereditary empire etc. Augustinus and Alvarius say straight out that the Pope elects the Emperor by the agency of the Prince-Electors (per eos), for a principal may choose instruments and ministers as he pleases. 32. Honorius Augustod. p. 1264; Imperator Romanus debet db ThePope'* Apostolico eligi consensu principum et acclamatione plebis, in caput gi"/" "^* populi constitui, a Papa consecrari et coronari. Innoc. III. in c. 34, of an X. I, 6. Innoc. IV. Compost., Joh. And., Zabar., Panorm., Ant. '^"P"°'^- Butr., Felin., Decius on this canon. Aug. Triumph. 11. q. 38 — 41. Alv. Pel. I. a. 13, 40, 43, 57 ; Petr. de Andlo, 11. c. 2, 4—7; Marcus, I. q. 938; Turrecrem. 11. c. 115. 33. Innoc. IV. upon c. 10, X. 2, 2, nr. i — 2, and c. 7, X. i. The 10, nr. 3: the Pope appoints a curator for a king incompetent to rule. S°P*'?. ^ " ,, „, , ., Guardian- Durant. Spec. I. i de legato § 6, nr. 15 and 17. Andr. Isern. 11. ship of the Feud. 55, nr. 87. Alv. Pel i. a. 13 f, 37 s, 56 n. Petr. Andl. n. ™'=*°' c. 10 (but it is otherwise under the Golden Bull). Hier. Zanetinus, diff. nr. loi. Turrecrem. 11. c. 115. This principle was practically applied by Clement V. See also Ficker, Forschungen, 11. 458 ff. 34. Gregory VII. endeavoured, not only practically to use these The powers, but also theoretically to deduce them from the superiority of P°pe's the spiritual power, since the bearer of the keys can be judged by depose none and himself must judge the temporal rulers : Nescitis quia ^"I^J^ angelos iudicabimus ? quanto magis saecularia ! He appealed to the Subjects deeds of his predecessors, more particularly Gregory I. and Zacharias. J^"™ *^ See lib. i, ep. 55*, p. 175, lib. 4, ep. 2 and 24, lib. 8, ep. 21 ; c. 3, Fealty. C. 15, q. 6 (above Note 30), c. 4 eod. He is followed in this by Gregory IX., Innocent IV., John XXII., Nicholas V, Comp. ii8 Political Theories of the Middle Age. Dictum Gratiani P. ii. C. 15, q. 6. Joh. Saresb. Polycrat. iv. c. 3, p. 213: dignitatem principis conferre et auferre, and v. c. 6. Landulf. Col. c. 4. Thom. Aq. Summa Theol. 11. 2, q. 10, a. 10, and q. 12, a. 2. Innoc. IV. on c. 27, X. 2, 27, nr. 6. Aegid. Rom. De pot. eccl. I. c. 2 — 5. Host. c. 8, X. 3, 34, nr. 26 — 27. Dur. Spec. 1. c. nr. 17. Aug. Triumph, i. q. i, a. i and 3 ; q. 6; q. 26, a. 4; q. 46, a. i; II. q. 40, a. I — 4; q. 45, a. 3; q. 46, a. i — 2. Alv. Pel. i. a. 13 b, 21, 37 R, 40 F (eccl. Rom. cuius est regna transferre et reges de sua sede deponere) ; 56 e (duty of protecting nations against the tyranny of kings) ; 11. a. 29 and 30. Zabar. c. 34 § verum, X. i, 6, nr. 7. Panorm. eod. c. nr. 7 — 9, and c. 13, X. 4, 17 (deponit causis exigentibus). Phil. Dec. c. i, X. 2, 19, nr. 8. Some legists took this side: Bartol., 1. 11, C. i, 14, nr. 4; Baldus, ead. 1. nr. 6. ThePope's 35- See e.g. Aug. Triumph. 11. q. 45 and 46; the Clerk in Somn. RuTers°™ Virid. II. c. 76 fF., 92 ff., 163.— It is true that some special claims other than could be made against the Kaiser (see e.g. Alv. Pelag. i. a. 42 g and the Em- ^^ ^^ ^^ because he was an elected prince, and because there was 'specialis coniunctio inter imperatorem et papam'; and the im- perialist partizans point out that their adversaries would set the Emperor below other Monarchs (see e.g. Ockham, Dial. in. tr. 2, 1. r, c. 20). Still in the main Frederick II. was quite right when in his famous letter he laid stress on the solidarity of the interests of all temporal rulers who were equally threatened by the Pope. See Petr. de Vin. ep. i. c. 2, 3, 34. Remin- 36- For Abp. Reinald of Koln in 1162 (Watterich, Pont. Rom. of tr^^ vitae II. 530 and 533) there was still life in the thought that the Subjection Church of Rome is the Empire's church, and the Pope is a bishop of of Church the Empire. Then in cent. xiv. it begins to be common for the to Realm. . ,..,,. , opponents of ecclesiastical claims to appeal to history and to speak of the position held by the church under the old Roman Emperors, the Frankish Emperors, the Ottos and Henry III. 37. Ockham, Octo q. in. c. 3 and 8, Dial. iii. tr. 2, 1. r, c. i, and 1. 3, c. 17 and 22. Comp. also Anton. Rosell. i. c. 61 — 63. Church 38. This had previously been the teaching of the Church herself. are co'.^'* Henry IV. (ann. 1076 in M. G. L. 11. p. 48) is the first to oppose it ordinate, to the growing ecclesiastical claims. Pet. Crassus, p. 28 ff., fully develops it : God instituted two laws, two peoples, two powers among Mankind. So Wenrich, p. 214 ff. ; Wido, De scismate, lib. 11.; Walram Naumb., De unitate eccL, lib. i. ; Sigebert episc adv. Paschalem, ann. 1103; Tractatus de investitura, ann. 1109. Appeals to it are made by Frederick I. (e.g. ann. 1152 in Jaffd Mon. Corb. p. 500 and ann. 1157, M. G. Leg. 11. p. 105; comp. ep. Wibaldi, Notes. 119 ann. 1152, in Jaffd, 1. c. p. 502), Frederick II. (e.g. Pet. de Vin. ep. I. c. I, 9, 31, V. c. i) and later Emperors. It is adopted by most of the Legists ; they follow in this the glosses, especially that on Auth. coll. I. 6, prooem. v. conferens generi. Many of the older Canonists held the same opinion, connecting it with the words of Gelasius and Nicholas I. which appeared in the Decretum as c. 8, D. 10, c. 6, D. 96, c. 10, D. ead. Among them are Stephanas (above Note 8) ■ and Huguccio (as to whom see Lup. Beb. c. 9, and against him Aug. Triumph. 11. q. 36, a. 4). So also some of the older Theologians, such as Peter Damiani (Opusc. iv. in Migne, vol. 145, p. 71 — 72 and 86 — 87, lib. 4, ep. 9 ad Firm. ep. and lib. 7, ep. 3 ad Henr. Reg. p. 121) and Gerhoh of Reichersberg (Syntagma, 180 — 3). Then it is defended by Hugo Floriac. (i. c. 12, p. 43 ff., and 11. p. 46 if., and 65); Otto Frising. ; Eberh. Bamberg, (ob. 1172, see Hofler, Kaiser- thum, p. 61); Eike v. Repgow in the Sachsenspiegel, I. a. i; Johann V. Buch, Gloss, on Sachsensp. i. a. i, and iii. a. 57, § i ; Vridank, p. 152, V. 12 — 19, and other German poets. — Then Dante (Mon. m. c. 16) endeavoured to give it a deeper philosophical foundation. To biblical, historical and legal, he added physical and metaphysical arguments, for he endeavoured to show that to the double nature and double end of man there must correspond a duplex directivum ordained by God. Comp. also Joh. Paris, c. 4 — 10: potestates distinctae et una in aliam non reducitur. Lup. Bebenb. c. 10: pot. distinctae et divisae. Quaestio in utramque part. p. 96 — 102. Ockham, Octo qu. I. c. i, 3 — 5 and 20 (where a distinction is drawn between two opinions, viz. that the two powers cannot be united, and that, though they could be united, an ordinance of God forbids their union); Dial. iii. tr. 2, 1. 2, c. i — 4. Dispu^ int. mil. et cler. pp. 667 — 682. Miles in Somn. Virid. I. c. i — 16 and 39 ff., 11. c. 116: Deus duas iurisdictiones distinxit, duos populos, duas vitas, duo genera mihtum. Petr. de Aliac. in Gerson, Op. i. 678. Gerson, iv. 650. Randuf, De mod. un. c. 15. Theod. a Niem, De schism, iii. c. 7 j Priv. et iura imp. p. 785. Nic. Cus. in. c. i — 2, 5, 31, 41. Aen. Sylv. c. 7. Greg. Heimb. Admon. i. p. 557 — 563. Ant. Ros. i. c. 20 — 38 and 41 : Deus duos constituit vicarios. Almain, Expos. on Qu. I. c. 6 — 7, declares the second of the two opinions discussed by Ockham to be the true one. ^9. Pet. Crassus, p. 28 ff. Sachsensp. i. a. 3, § 3. Joh. Paris. Temporal „„ 1 -Law IS not c. 18, p. 195. Ockham, Octo qu. I. c. 15 and iii. & 2. bomn. dependent Virid. I. c. 70 ff. and 103 ff. Franc. Curt. sen. Cons. 43, nr. 4. on the 40. See esp. Pet. Crassus, p. 26: divinitus datum. Wenrich in Martene, i. p. 220. Emp. Frederick I. ann, 1157 and 1159, in I 20 Political Theories of the Middle Age. Imperium M. G. L. pp. 105, 118 : a solo Deo itnperium. Cinus upon 1. i, non de- ^ 2—3, and Auth. cassa on 1. 12, C. i, 3, nr. 2 : Imp. et pendet ab ' ' *" ■ t-. t-> -o ecclesia. Papa aeque principaliter sunt constituti a Deo. Damasus, isroc. m. III. br. 19. Dante, Mon. lib. iii. throughout. Quaestio in utr. part, a. I, 2, 3, 5- Joh. Paris, c. 5 : et ambae oriuntur ab una suprema potestate, scil. divina, immediate; c. 10, 15 — 22. Marsil. Pat. Def. pac. II. c. 27. Declarations at Lahnstein and Rense, in Ficker, zur Gesch. des Kurv. v. R. p. 699 ff. Miles in Somn. Vir. i. c. 57—69. 74 — 78, 88 — 102, 146 — 163. Disput. int. mil. et cler. p. 677. Baldus, 1. I, C. 1, I, nr. i — 12; sup. pace Const, v. 'hoc quod non,' nr. 8 — 13. Joh. ab Imola, 1. i. Dig. de V. O. nr. 22 — 27. Joh. And. Nov. s. c. 13, X. 4, 17. Theod. a Niem., De schism, in. c. 7; Priv. aut iur. imp. p. 785. Nic. Cus., Cone. cath. in. c. 3 and 5. Ant. Ros. I. c. II, 20 — 38, 47 — 49 and 56. Declarations of Frederick I. (Hofler, p. 64 ff.) and Frederick II. (in Pet. de Vin. ep. I. c. I, p. 93 ; c. 9, p. 122 ; c. II, p. 126 ; c. 25 ; in. c. 4, p. 68 ; v, c. i). Passages from the poets in Hofler, p. 105 — 7. For intermediate opinions, which he rejects, see Joh. Paris, c. 11 j also Lup. Bebenb. c. 9. Ockham elaborately discusses the many possible shades of the doctrine Imperium a Deo : Octo qu. n. c. i, 3, 5 ; iv. c. 8 — 9 ; VIII. c. 5; Dial. III. tr. 2, 1. i, c. 25 — 28. Imperial- 41. A feudal relationship between Emperor and Pope is unani- Papal mously denied : the Kaiser only swears to defend : Lup. Bebenb. Claims. c. 9, p. 368 — 70, and c. 13, p. 391 — 4; Ockham, Octo qu. 11. c. 11 ; VIII. c. 1 and 5 ; Dial. in. tr. 2, 1. i, c. 21 ; the definition of rights in Ficker, Kurverein, p. 710; Ant. Ros. I. c. 9, 47, 71. On the other hand, but few men flatly deny the power of the Pope to act as supreme judge over the Emperor or allow only purely spiritual censures ratione peccati: among the few are Frederick II. (Petri de Vin. ep. I. c. 3) and Marsilius. Others admit that there is such a power to be used in extraordinary cases, or explain the acts of jurisdiction which the Popes have really performed as the outcome of voluntary submission. Of this more below. There is much hesita- tion over the Translatio Imperii [from Greeks to Germans] and its legal justification: also over the part played by the Pope in the Election of an Emperor. Marsilius (11. 26) denies to the Pope any right of examining the election. Usually some right of deciding, for certain ecclesiastical purposes, who is de facto Emperor is allowed to the Pope. See e.g. Lup. Bebenb. c. 10, p. 370 — 4; Ockham, Octo qu. II. c. 10; Dial. in. tr. 2, 1. i, c. 21 ; Ant. Ros. I. c. 48. Lupoid v. Bebenburg (c. 12) goes further, and concedes a power to solve doubts in cases of double election, since the law of God gives the Notes. 1 2 1 Pope power to decide dubia iuris, and the law of necessity gives him power to decide dubia fadi. He even maintains (c. ii, 13 and 16) that the coronation is no bare ceremony, for, though the Election gives the Elect imperial power over the lands held by Charles the Great before the Translatio Imperii, it is the coronation which makes him Emperor of the rest of the world. This opinion (see against it Ockham, Oct. q. iv. c. i — 3 and 7) failed to obtain supporters. At any rate after the Kurverein [meeting and declaration of the Electors] at Rense, the imperialist party held that the unction and coronation were mere solemnities, which played no greater part in the case of the elected emperor than that which they played in the case of an hereditary king ; they in no way attested a papal overlord- ship. Comp. Joh. Paris, c. 19; Articuli of 1338 in Bohmer, Pontes IV. p. 594, a. 2 ; Documents in Ficker, Kurverein von Rense, pp. 699 ff. esp. p. 710, a. 4; Marsil. Pat. 11. c. 26 and De transl. imp. c. 12; Ockham, Octo qu. 11. c. lo; v. c. i — 10; vi. c. i — 2; VII. c. I — 2 ; VIII. c. I ff. ; and Dial. iii. tr. 2, 1. 1, c. 21 ; Somn. Virid. I. c. 166—9; Joh. de Anan. c. 6, X. i, 6, nr. 7. (At a later time the Church Party had recourse to the supposition of a prwi- legium bestowing on the Emperor Elect the ius administrandi ante coronationem.) Ecclesiastical claims to a guardianship of the Empire were disputed by Marsilius and Ockham; but the latter admitted that they might perhaps be founded upon an audoritas proceeding from the Empire itself: Octo qu. 11. c. 14 ; and Dial. iii. tr. 2, L i, c. 22. 42. The principle that Christ's kingdom is not of this world was The interpreted in numberless ways by the anti-clerical opposition. The ^ purely'' commonest exposition comes to this, that ex iure divino the Church Spiritual has no worldly iurisdidio, and as regards property can only demand ^* '°' so much as is necessary for her support and divine service ; but that she is capable of acquiring by title of Positive Law (ex concessione et perraissione principum) a wider field of lordship and ownership, and also may in case of necessity exercise worldly rights. Comp. Joh. de Paris, prooem. and c. 13 — 14. Ockham, Octo q. i. c. 6, ad. 2, 7 — g, 10, II. c. 6, iii. c. i — 2, viii. c. 5 ; Dial. I. 6, c. 3, iii. tr. I, 1. I, c. 9, 13, 15, 1. 2, c. 2 and 29, tr. 2, 1. i, c. 19 and 24. Michael Cesena, ep. d. a. 1333 (Goldast, 11. 1238 ff.). Quaest. in utramque, a. 3. Disput. p. 677 ff. Somn. Virid. i. c. i — 16, 11. c. i ff. and 303 ; Petr. de Aliac, i. 667 and 674 ff. ; Greg. Heimb. a. 1433 (Gold. I. 560 ff. and 11. 1604 ff.); Ant. Ros. c. 20 — 38 and 50. These principles in themselves remained unaffected by the ever renewed complaints of the growing worldliness of the Church (e.g. 1 22 Political Theories of the Middle Age. Imperial- ists con- cede Su- perior Dignity of the Church. The Celestial Head gives sufficient Unity to the two Powers. Church and State in co- operation. Dante, ii. c. 12 — 13), and by the dispute among the Franciscans touching Evangelical Poverty. Still hardly ever were there wanting extremer opinions which flatly denied the Church's competence to wield worldly power or to hold any — or any unnecessary — property. This is the case of Marsilius, who therefore (but in this he stands nearly alone) denies to the Church any ' coactive jurisdiction,' and therefore any coercion of consciences, even in purely spiritual matters. See also Wyclif, Supplem. Trialogi, p. 407 ff., and art. 17; Hus, Determ. de abl. temporal, a clericis. 43. Comp. Sachsensp. I. a. 1. Dante, in. c. 16 in fine : despite the separation, the Kaiser should do reverence to the Pope as a first-born son to a father : mortalis ilia felicitas quodammodo ad immortalem felicitatem ordinatur. Joh. de Paris, c. 15 and 18. Ockham, Octo qu. I. c. 3 and 14. Somn. Virid. I. c. 83 — 84. Baldus, 1. II, C. I, 14, nr. 4, andprooem. Dig. nr. 17 — 19: the Pope superior to the Emperor, non simpliciter, but in qidbusdam. Similarly Joh. de An. c. 6, X. I, 33, nr. 6. Comp. Heinrich v. Langenstein, in Hartwig, I. p. 52, n. I. Ant. Ros. i. c. 63. In this sense it was possible to accept the comparison with Soul and Body : better still, that with Sun and Moon, both of which were created by God, each having its own powers and duties, though the orb of day was the higher. 44. Thus already Hugo Floriac. I. c. 2, and 11. pp. 46, 65. Dante, in. c. 12 : true it is that Emperor and Pope must ad unum reduci; but while, if we consider them as homines, the measure will be that of the ' optimus homo, qui est men sura omnium et idea,' if we consider them as office-holders, ipse Deus is the communis unitas which is super-posed above their relationes and differentialia. Joh. Paris, c. 18 — 19 : una est ecclesia, unus populus, unum corpus mysticum; but the unity rests in Christ, and under Him the Priesthood and Realm are two distinct offices: as distinct as the offices of teacher and physician when held by one man. Quaest. in utramque p. 103, ad. 4 — 5. Ockham, Octo qu. i. c. i and 18 ; DiaL HI. tr. I, 1. 2, c. I and 30. Miles in Somn. Virid. I. c. 38, 46, 48, 102, II. c. 102, 305 — 312. Anton. Ros. i. c. 42. 45. It need hardly be said that even the Popes and their supporters often teach that amicable relations between Priesthood and Realm are a necessary condition for the weal of Christendom. Thus Gregory VII. with great emphasis: lib. i, ep. 19, ann. 1073, p. 302. Ivo of Chartres (above. Note 20). S. Bernard, ep. 244, p. 440 ff. ; De consid. 11. c. 8. Innocent III. (above, Note 26). Innocent IV. (above. Note 26). But what is peculiar to the opponents of Church-Sovereignty is the doctrine that in this world Notes. 1 23 the Unity of the two powers goes no further than the establishment of these good relations. Thus already Hugo Floriac. prol. i. c. 3, 12, II. p. 46, 50 : God instituted, hallowed and connected the two powers, by which in this present life the Holy Church is ruled and governed, and He desired their inward harmony : they are the two eyes of the corpus ecclesiae, the two lights in tota mundi fabrica, two pillars, two wings. See also Const. Frider. 11. ann. 1220, § 7 in M. G. L. II. p. 236. Sachsensp. i, a. i, with the gloss to this art. and to ill. art. 57. Also Declaration of the Princes of the Empire, ann. 1274, in Raynald, ann. nr. 11 : et ii duo gladii in domo domini constituti, intirnae dilectionis foedere copulati, exsurgant in reformationem universi populi Christiani. Likewise Rudolf I. ; see also citations in Hofler, p. 121 fF. Eng. Volk. De ortu, c. 22. Joh. Paris, c. 14. Definition of Rights in Ficker, op. cit. p. 710, art. 4, ann. 1338. Quaest. in utramque partem, p. 105, ad. 11. Ockham, Octo q. i. c. 3 and 14. Miles in Somn. Virid. I. c. 49 — 54. Ant. Ros. iii. c. 15 — 18. Johannes in Introduction to the Briinner Schoffenbuch. But the idea of 'harmonious concordance' between two powers which are two vital functions of the one mystical body attains its most splendid/ form in the hands of Nicholas of Cues: especially, iii. c. i, 12 and 14. ' 46. Hugh of Fleury teaches on the one hand that the bishops Supe- are subject to the royal power, • non natura, sed ordine, ut universitas p?"'''i°? regni ad unum redigatur principium,' even as Christ is subject to the Spirituals Father (i. c. 3, and 11. p. 58 and 65), and, on the other hand, that |"^.°? kings are subject to the spiritual power (i. c. 7, p. 30 ff., c. 9 — 10, Tem- II. pp. 53—5, 59—60). He blames Gregory VII. (11. p. 58), and P""^^^' even concedes the royal appointment of bishops, subject however to the approval of the ecclesiastical power and to spiritual investiture (i. c. 5, and 11. p. 57). Joh. Par. c. 14. Qu. in utr. a. 4. Ock. Oct. qu. III. c. 3, 8 and Dial. in. tr. 2, 1. x, c. 24. Som. Vir. 11. c. 112, 114, 124. Theod. a Niem, Priv. p. 785. Nic. Cus. in. c. i, 4. Ant. Ros. I. 47, 48, 56, 63, 64, III. c. 16, 21 and the summary in 56 : the monarchia divina and monarchia temporalis are co- ordinated by God; each is subject to the other in that other's province; and 'mixed' affairs should be treated by 'mixed' councils. As to particulars: — the subjection of Emperor and Princes to the Church ratione fidei et peccati is conceded (see Host, de accus. nr. 7 and see the admission in the Sachsenspiegel, in. a. 54, § 3 and 57, § I, that the Kaiser is within the 'rightful' ban of the Church); also princes are in duty bound to lend to the Church the aid of the lay arm (Dictum Gratiani before Dist. 97 and after c. 28, C. 23, q. 8; Const, of 1220, § 7, M. G. L. 11. 236; Sachsensp. i. a. i; Gerson, 1 24 Political Theories of the Middle Age. IV. 606 and 619); but, on the other hand, a temporal jurisdiction over the priesthood in temporal causes is asserted (Ockham, Octo qu. III. c. 2 ; and Dial. I. 6, c. i — 65, 91 — 100, in. tr. 2, I. 3, c. 16 — 23 ; Ant. Ros. I. c. 29, 30, 53, 63 ; Gloss on Sachsensp. i. a. i). Occasional 47- Joh. Paris, c. 14 and 18 (per accidens). Lup. Bebenb. inter- ^ j^, p. 379, 385, 386 (necessitas facti aut iuris). Ockham, Octo Pope in qu. I. c. II, II. c. 4, 7 — 9, 12, 14, III. c. 2, IV. c. 3, VIII. c. s, and Traiporal pjj^j_ jjj_ tj_ j^ j_ j^ ^ j5 jjjJ j_ ^^ ^ ^ (casualiter in defectum iudicis). Somn. Virid. I. c. 150 — 151, 164 — 165, 11. c. 4 — 12, 136. Ant. Ros. III. c. 22. Gloss on Sachsensp. I. a. i, in. a. 52 and 57. Klagspiegel, 119. Occasional 48. Petrus Crassus, pp. 27 and 31 (right to summon a Council); l."''^'^' p p. 48 (right to sit in judgment on a Pope). Hugo Floriac. 11. Kaiser in pp. 57 — 9 (appointment of Popes and decision of ecclesiastical Spiritual disputes). Nilus arch. Thessal. De primatu, 1. 11. p. 38. Joh. Paris. c. 14. Mich, de Caes. ep. Gold. 11. pp. 1244 — 1261. Petrarca, ep. XV. ib. 1365. Ockham, Octo q. i. c. 12, 17, 11. c. 7, in. c. 8, iv. c. 6; Dial. III. tr. 2, 1. 2, c. 2 — 15, 1. 3, c. 2 and 4. Randuf, De mod. un. c. 15 and 20. Nic. Cus. iii. c. 15 and 40 (the Emperor may himself undertake ecclesiastical reforms). Zabar. c. 6, X. i, 6, nr. 15, and De schism, p. 689 ff. Greg. Heimb. in Gold. I. 561 — 563. Ant. Ros. I. c. 48, II. c. 24, 25, III. c. 3. Decius, Cons. 151, nr. 13. — Even the papalists concede certain rights which they explain as flowing from the Emperor's advocatia over the Church (Gloss on c. 34, X. I, 6, V. carebii) : thus the right to call a Council is conceded by Aug. Triumph, i. q. 3, a. 2, and q. 5, a. 6, by Petrus a Monte, II. nr. 5, and others, but contested by Alv. Pel. i. a. 22. The papalists help themselves over historical instances of the exercise of imperial rights (especially in the matter of papal elections) by referring such instances to concessions which the Church has revoked: e.g. Landulf. Col. De transl. Imp. c. 6 ; Aug. Triumph, i. q. 2, a. 7 j Alv. Pel. I. a. I, and 37 Bb and cc. Unity 49- See esp. Thom. Aquin. Summa cont. gent. iv. 76 (sicut est within the una ecclesia, ita oportet esse unum populum Christianum, with one caput and one regimen) ; Lect. 2 ad Ephes. iv. (the ecclesia as civitas etc.); Coram, ad Ps. 45. Alv. Pel. i. a. 7, 13, 24 — 8, 36 — 8 and esp. 63. ■Plje 50. For this reason the power of the Church and of its earthly Church Head comprises, though to a disputable extent, all the infidels in the Infidels, world, nay, it covers all past and future Mankind and so reaches into heaven and hell. See Thom. Aquin. Sum. Theol. 11. 2, q. 10 — 12, and III. q. iS, a. i — 3 ; Host, upon c, 8, X. 3, 34 ; Aegid. Rom. De Notes. 125 pot. eccl. II. c. 7; Aug. Triumph, i. q. 18, 23 — 4 and 29 — 35 ; Alv. Pel. I. a. 13 A, 37 F — N, 40, 57 ; Somn. Virid. 11. 35 ; Ant. Ros. IV c. I. 51. In the eyes of the papalists this is self-evident. Gloss on The c. 3, X. I, 41, V. minoris: ecclesia fungitur iure imperii. Hostiensis, ^ state '^ Summa de r. i. i. nr. 4: ecclesia respublica est, quia ius publicum Polity or consistit in sacris et in sacerdotibus. Thorn. Aquin. as above in ^gJ^Ju"" Note 49. Alvarius Pelagius, i. a. 61 — 3, goes furthest: the Church is a regnum, and indeed the one universal, holy and complete Realm ; and to it the whole of the ' Aristotelic-Thomistic ' theory of the State is applied. — But even the Opposition disputes only the worldly nature of the Church, and does not deny to it the character oidLpolitia with magistrature and coercive power ; see above Note 42. Gerson and other writers of the same group declare that the Church is a cotnmunitas, respublica, politia iuris, to which everyone must belong; see e.g. Gerson, Op. iii. p. 27 ; Randuf, De modis uniendi, c. 2 (ib. II. p. 163): ecclesia Christi est inter omnes respublicas aut societates recte ordinatas a Christo superior. — The treatment of heresy as crimen laesae maiestatis (Innoc. III. and Gerson, III. pp. 33, 63) and all coercion of conscience have their roots here. 52. Ockham, Octo qu. I. c. i and 30, and iii. c. 2 and 8; Dial. The III. tr. 2, 1. I, c. 3 and 8, 1. 3, c. 17. See also Gerson, Trilogus, Op. "f g^^"^ II. p. 88, for some similar opinions that were expressed in his day. — temal Marsilius denies to the Church coercive power even in spirituals, and ^n" bted this implies the negation of the necessity of External Unity. Gregory of Heimburg, i. p. 557 ff. goes near to this. 52 a. See Lechner, Joh. v. Wiclif, i. p. 541, and 11. p. 233. The 53. See above all Dante, Mon. i. Also Engelb. Volk., De ortu, ^^nTebed c. 14, 15, 17 — 18; De reg. princ. vii. c. 32. Ockham, Dial. iii. byWyclif tr. 2, 1. I, c. I. Petrarca, ep. vii. (et in terra et in coelo optima ^"^' , . . .... .I, Univer- semper fuit unitas principatus) and ep. viii. p. 1355. Ant. Ros. sality I. c. ■; — 7. Aen. Sylv. c. 4, 10, 12. of "if ,, . . , - . . ^ . . _. . Empire. 54. Following m the steps of Augustme, De civit. Dei, v. c. 15, ij^cM. theorists elaborately prove that the Romans subdued the world de macy iure, though at times they were guilty of violence. The chief ^q„,|^ argument consists in the many miraculous ' judgments ' in which Empire. God manifested his choice of the Romans, on account of their political virtues, to be the wielders of that qfficium imperii for which they were the aptum organum. Thereby He legitimated their wars and victories. Also it is opined that in all their conquests they unselfishly kept * the common good ' before their eyes, and that this end justified the means. Comp. esp. Dante, 11. c. i — 1 1 ; Engelb. 126 Political Theories of the Middle Age. Volk. De ortu, 15, 18; Petrarca, ep. vii. p. 1355; Baldus, 1. i, C. I, I ; Aen. Sylv. c. 3—5 ; Petr. de Andlo, i. c. 4—10 ; Ant. Ros. V. c. I — 2, 15 — 24; and so also ecclesiastical writers (e.g. Ptol. Luc. in. c. 4—6 ; Alv. Pel. i. a. 42) even though they do not allow that this imperium was verum. Then the lawyers add references to the Corpus luris (esp. 1. 9, D. 14, 2), to the legitimacy of the titles (testamenta and bella iusta) by which dominion was acquired, and to the retroactive validation by voluntary subjection. Comp. Engelb. Volk. c. 11; Ockham, Dial. in. tr. 2, 1. 1, c. 27 and 1. 2, c. 5 : consensus maioris partis mundi : a corrupt intent does not prevent acquisition of rights. Ant. Ros. v. c. 1 — 30 : an elaborate demon- stration of the legitimacy of the Empire according to ius divinum, naturale, gentium et civile. Transfer 55. Comp. Jord. Osnab. c. I, p. 43 ff. and c. 8. Dante, Mon. ?f *? II. c. 12 — •?. Eng. Volk. c. II and 20. Ockham, Octo qu. 11. c. s, Empire. o s > 1 j. IV. c. 3, VIII. c. 3 and Dial. in. tr. 2, 1. 2, c. 5. Aen. Sylv. c. 6 — 8 : general utility required, Nature invented, God granted, His Son hallowed, the consent of men confirmed, the Roman empire. Ant. Ros. v. c. 18 and 29. — ^The strictly ecclesiastical doctrine differed a little from this: — Christ Himself took over the Empire, allowing Augustus to govern as His Vicar ; He then substituted for Himself Peter and Peter's successors, and the subsequent emperors were their vicars; and finally He caused Constantine to recognize this relation- ship by the so-called Donation; Ptol. Luc. in. c. 13 — 18; Petr. de Andlo, I. c. II and 13; comp. Ockham, Octo qu. 11. c. 15. — Men are unanimous that the existing Reich is identical with that of the Caesars; Petr. Crassus, p. 26; Dante, 1. c. ; Ockham, Octo q. II. c. 5, IV. c. 3, 5, 7, VIII. c. 3, Dial. III. tr. 2, 1. i, c. 25 and 27. Only Lupoid v. Bebenburg brings into play the rights that Karl the Great had before he was crowned Emperor; and against this Ockham, Octo qu. iv. 3, protests. — Also men are unanimous that the present Greek Emperor is no longer a true Emperor, since he is no longer united to the true Church : Joh. Gal. in appar. Tancr. upon Comp. in. in Schulte, Abhand. [Vienna Acad.] vol. 66, p. 131; Gloss upon c. 34, X. i, 6, v. transtulit in Germanos; Bartolus, 1. 24, Dig. de capt. 49, 15 ; Ubertus de Lampugnano, op. cit. ; Joh. de Platea, 1. un. Cod. ii, 20; Tengler, Laiensp. 56. Universal 56. S. Bemh. ep. ad Lothar. in Gold. p. 66 ; ad Conr. ib. p. 67. oAhe' ^"^ Frising. Gesta, I. c. 23, Chron. vii. c. 34. Land. Col. De Empire, transl. c. 10: super omnes reges et nationes est dominus mundi. Gl. on 11. Feud. 53 pr. Pet. de Vin. ep. I. c. i, 2; vi. c 30. Alv. Pel. I. a. 37 and 57; n. a. 29. Lup. Bebenb. c. 11, 13, 16. Ockham, Notes. 127 Octo q. IV. c. s and viii. c. 3. Gloss on Sachsensp. iii. a. 57. Baldus, 1. I, Cod. i, i, nr. i ff. and 11. Feud. 53 pr. Theod. a Niem. p. 785. Randuf, De mod. un. c. 5 and 14 (p. 167 and 180), Alex. Tart. 1. 26, Dig. 36, i, nr. 2. Aen. Sylv. c. 10. Pet. de Andlo 11. c. 2. Tengler, I^aiensp. 56. The Empire comprises de iure even the infidels; Joh. Gal. and Gloss on c. 34, X. i, 6; Eng. Volk. c. 18 (for even they are bound to us iure naturali vel gentiuni); Ockham, Dial. III. tr. 2, 1. 2, c. 5; Ant. Ros. i. c. 56. — The content of the imperial rights is variously defined. Lupoid of Bebenburg, & 15, distinguished imperial and mediatized lands : in the latter the Emperor has immediate jurisdiction only over the rulers and a mediate jurisdiction over the subjects in case of default of justice, or the like. Ockham, Octo qu. iv. c. 3, 8, 9, viii. c. 4: the Emperor is a Superior with right to decide matters that the king cannot decide, and with power to perform certain 'reserved' acts; also (v. c. 6) with power to make new kings in provinces that have none. Aeneas Sylvius still asserts a true feudal lordship over all princes and peoples ; they all have their temporalities from the Kaiser and owe him obedience (c. 10); he has a right of 'correction,' may issue commands pro salute communi, impose taxes, demand auxiliary troops, right of transit, provisions (c. 14); he may decide disputes among sovereigns. Petr. de Andlo (11. c. 8): legislation, protective lordship, taxation, suzerain power. Nich. of Cues (ill. c. 6 — 7) pares down the imperium mundi until it is a general care for the common weal of Christianity especially in matters of faith. 57. Jordan. Osnabr. c. i, p. 43 ff. and c. 10, p. 90. Engelb. The Volk. c 20 — ^4. Aug. Triumph. 11. p. 42. Baldus sup. pace Const, p""?""^ '^ v. imp. clem. nr. 8. Joh. de Platea, 1. 2, C. 1 1, 9, nr. 2. Aen. Sylv. tible de c. 8. Ant. Ros. i. c. 67. Petr. de Andlo, 11. c. 20. f"'^"- 58. The most important employment of this principle is the The invaUdation of the Donation of Constantine. Dante in. c. 10 j^^Ji^'i^uc! (scissa esset tunica inconsutilis : superius dominium, cuius unitas tible de divisionem non patitur); Quaestio in utramque p. 106, ad. 14; Ant. ''""' Ros. I. c. 64 — 6, 70. See below, Note 283. But the principle is also turned against kings and republics. Lup. Bebenb. c. ii and 15: true, that by privilege or prescription hereditary kingships may be founded and kings may acquire imperial rights in their realms and so far as concerns {quoad) their subjects; but this is only prescription quoad quid, and the Kaiser's suzerainty is always reserved. Ockham, Octo q. III. c. 7, IV. c. 3 — 5, viii. 3 — 4; Dial. iii. tr. 2, 1. i, c. 18, 1. 2, c. 5 — 9, 23. Alv. Pel. II. a. 29. Baldus, 1. i. Cod. i. i, nr. 13—22 and II. Feud. 53 pr. Alex. Tart. 1. 26, Dig. 36, i, nr. 4. Aen. [28 Political Theories of the Middle Age. Exemp- tion from the Em- pire by Privilege or Pre- scription. Exemp- tions would not destroy theoretical Univer- sality. Necessity of an Universal Realm denied. Wider and narrower Groups. Sylvius, c. II — 13 : it would be against the ius naturae, the common weal, the command of Christ. Petr. de Andl. 11. c. 8 : both swords are equally indivisible. Bertach. v. imperium. 59. Land. Col. De transl. c. 10. Quaestio in utramque p. 98, 102, art. 5, 106, ad. 14. Andr. de Is. prooem. Feud. nr. 29 — 35. Nicol. Neap. 1. 6, § i, Dig. 27, i,nr. 2. Hier. Zanetinus, Diff. nr. 102. 60. Comp. Eng. Volk. c. 18. Baldus, 11. Feud. 53 pr.: the Empire would still remain universale, for universale and integrum are not all one. Comp. prooem. Dig. nr. 22 — 35. Nic. Cus. Cone. iii. c. I, 6, 7 : it is 'imperium mundi a maiori parte mundi,' and because the imperial rights still remain, at least so far as concerns the protec- tion of the Christian faith. 61. John of Paris, c. 3 : whereas in the Church unity is required by divine law, the faithful laity, moved by a natural instinct, which is of God, should live in different States j this difference is justified by the differences between soul and body, word and hand, unity of church-property and division of lay folk's property, unity of faith and diversity of laws ; also appeal is made to Augustine ; comp. c. 16, 22, p. 210 — 2. To the same effect, but with a 'perhaps,' Gerson, II. 238. Disputatio, p. 686 — 7. Somn. Virid. i.e. 36: only within each particular realm need there be unity. — So Marsilius, though he leaves the question open, remarks that the unity of the world does not prove the necessity of an unicus principatus, since a pluralitas can constitute a unity (Def. Pac. i. c. 17; in Transl. Imp. c. 12 he omits Landulf's mention of the imperium mundi). — On the other side, see Eng. Volk. c. 16 and 18 j Ant. Ros. 11. c. 4 and 7. And, in particular, Ockham, Dial. m. tr. 2, 1. i, c. i — 10. Of the five possible views that Ockham mentions he seems to prefer the fifth, viz. that, according to circumstances, sometimes unity, sometimes severance will be desirable. Comp. 1. 2, c. 6 — 9. 62. See Aegid. Rom. De reg. princ. 11. i, c. 2. Engelb. Volk. De ortu, c. 15, 17, 18: as the example of Universal Nature shows a building-up towards Unity, so the ordo totius communitatis publicae shows an ever-recurring 'subalternation' until a single point is reached: above every common weal stands a commoner: every lower end is means to a higher end : the sum total of this-worldly ends is means to an other-wordly end : the 'felicity' of every narrower depends on that of some wider community, and thus in the last resort on the felicity of the Empire. Dante, i. c. 3 and 5. See also Aug. Triumph, i. q. i, a. 6. As to the structure of the Chuch, see Gierke, D. G. R. vol. in. § 8. 63. [The difficulty of finding an exact equivalent for the Notes. 129 German Zweck has hampered the translator. Our author means that in the medieval scheme each Partial Whole, e.g. a village commune, has a Sonderzweck, an aim, object, purpose or end peculiar to it, and distinct from the Zweck of any larger whole, e.g. the kingdom.] Dante (i. c. 3 and 5), in particular, makes this plain. For him, every composite Being (plura ordinata ad unum) has its Sonderzweck which makes it a unit. This is the case with the homo singularis, the communitas domestica, the vicus, the civitas, the regnum. No one, however, more beautifully expresses the idea of an organic articula- tion in unity and a relative independence of members in a ' harmonious concord' of the whole body than does Nicholas of Cues, e.g. 11. c. 27 — 28. Comp. also Ant. Ros. I. c. 6. 64. See Aegid. Col. 11. i, c. 2 and Dante 1. c. (they throw The provincia and regnum into one); Ockham, Dial. in. tr. i, 1. 2, c. 3 — 5. I^fticuia- [Elsewhere, D. G. R. iii. 356, Dr Gierke has stated the doctrine of tion of the legists. They incline towards a triple gradation of local jj'°™'""'"' universitates, (i) vicus, villa, castrum, oppidum, (2) civitas, a city- territory, such as may be found in Italy, (3) provincia or regnum?\ — Thom. Aquin. De rag. princ. i. c. i, distinguishes familia, civitas, provincia {regnum). Engelb. Volk. in one of his writings (De reg. prin. II. c. 2 — 3) stops at the civitas, which also embraces the regnum; in another (De ortu, c. 7 and 12) he says that Aristotle distinguished five communities (domus, vicus, civitas, provincia, regnum, to which imperium must be added,) while Augustine made only three {domus, urbs, orbis). — Aug. Triumph. 1. c, makes five communitates in the mystical body of the Church: the vicus with a parson, the civitas with a bishop, provincia with archbishop, regnum with patriarch, communitas iotius orbis with pope. — Ant. Ros. I. c. 6, distinguishes as standing above the individual and the house- hold, five ' corpora my stica universitatum ' : (i) communitas unius vici, castri, oppidi, \raAsx parochus and magister; (2) civifatis under bishop and defensor; (3) provinciae under archbishop and praeses; (4) regni under primas and rex; (5) universi orbis under Pope and Kaiser. 65. This rich development of thought has been overlooked by van Krieken, Die sog. organische Staatstheorie, pp. 26 — 39; also Held, Staat u. Gesellschaft, p. 575 is incorrect. 66. In what follows we shall only pay heed to those sides of the ' The _ Organic Comparison [i.e. the comparison of the body politic to the q^, body natural] which become of importance in legal theory. We parison.' may, however, notice in passing its connexion with some of the pictorial concepts of ecclesiastical law (e.g. the spiritual marriage of the prelate with his church, the family relationship of a daughter- id. 9 130 Political Theories of the Middle Age. church to a mother-church) and with some poetical allegories : as e.g. the statue of Nebuchadnezzar's dream (cf. Gerson, iv. 662) or the installation of the Empire (Lup. Beb. ritmat. querul. in Boehmer, Pontes, I, 479). The application to the Church of 'the Six Ages' (Gold. I. p. 25 flf. c. 3 — 7) and the remarks as to the Ages and Faults of the Empire in Eng. Volk. De ortu et fine, c. 21 and 23, show the same tendency. Tlie 67. See e.g. B. Gregor. in c. i, Dist. 89. ConciL Paris, ann. 829 Bo'dy and (^bove, Note 7). Jonas of Orl&ns (above, Note 7). Gregory VII. the Pope (above, Note 45). Ivo of Chartres (above. Note 20). S. Bern. Ep. Head. °^ ^^4^ (above, Note 7). Gerhoh of Reichersp. (above. Note 7). Thom. Aquin. (above, Note 7). Ptol. Luc. De reg. princ. in. c. 10 (above, Note 12). Gl. on c. 14, X. 5, 31, v. unum corpus. Innoc c. 4, X. 2, r2, nr. 3. Alv. Pel. I. a. 13. Joh. Andr. c 4, X. i, 6, nr. 13. Domin. Gem. c. 17 in Sexto i, 6, nr. 4 — 16. Bicephal- ^8. Alv. Pel. i. a. 13 F and a. 37 R — Q. Soran. Virid. n. c. 6 ff. ism would Ockham, Dial. in. tr. i, 1. 2, c. i. Aug. Triumph, i. q. 5, a. i and be mon- , ^ . . ,. .... strous. q- 191 a- 2 : the Pope is ' caput universalis ecclesiae.-.et capitis est influere vitam omnibus membris.' Elsewhere (i. q. i, a. i and 6) he makes the Pope the vitalizing heart, and then (i. q. 19, a. 2) says that he is not contradicting himself, since in metaphorical discourse comparisons may be varied so as to bring out various likenesses. Johannes Andreae, Nov. s. c. 13, X. 4, 17. Card. Alex. D. 15, and c. 3, D. 21. Ludov. Rom. Cons. 345, nr. 3 flf. Petrus a Monte, De prim. pap. i. nr. 16 (Tr. U. J. xiii. i, p. 144). Need for a 69. Engelb. Volk. De ortu, a 15, 17, 18. Petrarca, Ep. vii. . H^ad°"^^' the orbis universus, being a magnum corpus, can only have unum caput temporale, for, if an animal biceps would be a monster, how much more a many-headed beast. Similarly in Ep. viii. Nic. Cus. III. c. I and 41. Ant. Ros. i. c. 67. Petr. de Andlo, 11, c. 2, 70. The Knight in Somn. Virid. 11. c. 305 — 12. Possibility l^- Lup. Bebenb. c. 15, pp. 399, 401 : not duo capita in solidum, head^d^ but a caput mediatum below a caput immediatum, like kings below the ness. Emperor, and bishops below an archbishop. Quaestio in utramque partem, p. 103. Ockham, Dial. iii. tr. i, 1. 2, c i and 30 : quamvis corpus naturale esset monstruosum si haberet duo capita. ..tamen corpus mysticum potest habere plura capita spiritualia, quorum unum sit sub alio : so priests and king, whose head is God. The 72" [Elsewhere, D. G. R. in. 112, our author has traced this Priesthood comparison far back to the Apostolic Constitutions, Chrysostom, the Body Gregory of Nazianzus and Isidore of Pelusium.] Ivo of Chartres, Politic. Ep. 106 (above, Note 20). Joh. Saresb. v. c 2, 3—5. Alex. HaL Notes. 131 III. q. 4O1 m. 2. Hugo de S. Vict. De sacram. 1. 11. p. 2, c. 4. Honor. Augustod. Summa gloria de praecel. sacerd. in Migne, vol. 172. Innocent III, in c. 6, X. i, 33 j Reg. sup. neg. imp. Ep. 18. Thorn. Aquin. Summa, 11, 2, q. 60, art, 6, ad 3 (potestas saecularis subditur spirituali, sicut corpus animae). Ptol. Luc ni. c. 10. Alv, Pel, I. a, 37 R, Cler. in Somn. Virid. i. c. 37, 43, 45, 47, loi. 73. The knight in Somn. Virid, (i, c, 38, 44, 46, 48, 102, The n. 102) asserts that Christ alone is the Soul, while the spiritual and ^ion^f'" temporal powers are the two principal members, head and heart, Soul by equally directed by the Soul, but endowed with separate powers and hood ques- activities. — On the other hand, Marsilius sees the priesthood as no tioned. more than one among many members. 74. Nic. Cus. I. c. I — 6, III. c. 1, 10, 41. [The main part of The this note has been taken into our text. Cusanus proceeds to show Catholic ,,,,., . . Concord- the parallelism between spiritual and temporal assemblies : e.g. ance of between the Cardinals and the Prince-Electors.l Nicholas -* V. Cues. 75. Joh. Saresb. v. c, 2 : est respublica corpus quoddam, quod jhe Body divini muneris beneficio animatur et summae aequitatis agitur nutu Mystical^ et regitur quodam moderamine rationis. Vincent Bellovac, Spec. poUtic. doctr. VII. c. 8 : to the like effect : de corpore reipublicae mystico. Hugo Floriac. i. c. 2 : corpus regni : also c. i, 3, 4. Thom. Aquin. De reg, princ, i. c. i, 12 — 14; Summa Theol, 11. i, q, 81, a. i : in civilibus omnes homines qui sunt unius communitatis reputantur quasi unum corpus et tota communitas quasi unus homo, Ptol. Luc, II. c, 7 : quodlibet regnum sive civitas sive castrum sive quodcunque aUud collegium assimilatur humano corpori ; iv, c, 23. Eng. Volk. De reg. princ. iii, c. 16 : civitas vel regnum est quasi quoddam unum corpus animatum; c 19: corpus naturale; corpus morale et politicum. Mars. Pat, i. c, 15. Ockham, Octo q, viii. c. 5, p. 385 ; Dial, III, tr, i, 1. 2, c. 1; tr. 2, 1, i, c, i. Gerson, iv. 598, 600, 601. Zabar, c. 4, X. 3, 10, nr, 2 — 3 : ad similitudinem corporis humani. Aen, Sylv. c. 18 : mysticum reipublicae corpus. Ant. Ros. i, c. 6 : five-fold corpus mysticum (above. Note 64), Martinus Laudens. De repress. (Tr, U. J, xii, 279) nr, 5 and 6 : universitas est corpus mysticum quod continet partes suas, i.e, singulos de universitate. Bertach. v. capitulum, f. 150, nr. 4. 76. Joh. Saresb. v. c. i ff. The servants of Religion are the Anthropo- Soul of the Body and therefore have principatum totim corporis, the ^"Jiits prince is the head, the senate the heart, the court the sides, officers and judges are the eyes, ears and tongue, the executive officials are the unarmed and the army is the armed hand, the financial depart- ment is belly and intestines, landfolk, handicraftsmen and the like 9—2 132 Political Theories of the Middle Age. are the feet, so that the State exceeds the centipede numerositaU pedum; the protection of the folk is the shoeing; the distress of these feet is the State's gout (vi. c. 20). Thebe- 77. Joh. Saresb. V. c. i. Compare Wyttenbach, Plutarchi f "°h"fp °/ Moraha, Oxonii 1795, I. p. Ixviii ff. ; Schaarschmidt, Joh. Sares- morphism. beriensis, Leipzig 1862, p. 123. — The incitement to comparison of particular pieces of the State with particular members of the human body is due in part to the words of St Paul (see asp. in c. i, Dist. 89, the application of the idea of membra in corpore to the divers officia of the Church, where the Apostle is vouched) ; and is also due to a continuous tradition of the pictorial phrases of classical writers. This may be seen already in Lex Wisigoth. 11. i, § 4 ; also in the ancient Introduction to the Institutes in Fitting, Juristische Schriften des friiheren Mittelalters (Halle 1876), p. 148, § 20: Princeps quasi primum caput... illustres quasi ocuIi...spectabiles manus...clarissimi thorax.. .pedanei pedes: and so in the Church. Anthropo- 78. Thus Vincent. Bellovac. Spec, doct, vii. c. 8 — 14; close ™n't^'*'^'d 3g''^si"S"'^ ^'th J°^° oif Salisbury. Ptol. Luc. 11. c. 7, iv. c. 1 1 and 25 ; vouching the Policraticus. Engelb. Volk. De reg. princ. in. c. 16: the rulers are the soul, the citizens the various limbs: 'cui deputatur a natura unumquodque simile membrum in corpore.' Aen. Sylv. c. 18. — Marsilius is freer from these vagaries, notwith- standing the use that he makes of his knowledge of medicine. ^],g 79. Nic. Cus. I. c. 10, 14 — 17, and in. c. 41. In the 'Spiritual Anthropo- Life,' which in its totality represents the soul, Christ Himself is the aiid^tote- single heart, whence in the guise of arteries the canones branch in Medicine every direction, so that even the Pope does not stand above them sanus." ^"' roust fill himself with them. In the ' Corporal Life ' the offices from the Kaiser's downwards are the several limbs, the kges are the nerves, and the kges imperiales are the brain, so that by them the head, that is, the Emperor, must be bound. The patria is the skeleton and the flesh is represented by changing and perishing homines. The health of the State consists in the harmony of the four temperaments. Diseases of the body politic should be treated by the Emperor in accordance with the counsel of books and of experienced state-physicians. He should himself test the medicine by taste, smell and sight that it may suit time and place, and then bring it to the teeth (privy council), stomach (grand council) and liver (judicial tribunal) for digestion and distribution. If preservative measures fail, then in the last resort he must proceed to amputation, but this will be cum dolore compassionis. 80. Joh. Saresb. vi. c. 20 — 5. Notes. 133 81. Thom. Aquin. Summa Theol. in. q. 8 : a demonstration Some that ' tota ecclesia dicitur unum corpus mysticum per similitudinem ofphom ad naturale corpus humanum': Christ the head, all rational creatures Aquinas, the members of this body. Aquinas remarks, however, that this is similitude, not identity. As points of difference he notices that past and future men are members of the mystical body, and that parts of it are in their turn independent bodies, so that there may be divers heads and heads of heads (caput capitis) corresponding to its mani- fold articulation. Then the various Conditions of Grace are pictured as internal degrees of membership (art. 3). Then he explains Original Sin by saying that all born of Adam may be considered ut unus homo, and also tanquam multa membra unites corporis, but that the act of one member of the natural body, e.g. the hand, ' non est voluntarius voluntate ipsius manus, sed voluntate animae quae primo movet membrum'; Summa Theol. i. q. 81, a. i. With the same idea of the Body Mystical he connects the doctrine of the seven sacraments ; whereof two operate for the spiritual and bodily main- tenance and increase of the Whole, and five for the placing of Individuals in the way of grace : Summa Theol. in. q. 65 ff. ; Summa cont. gentil. iv. q. 58 ff. ; Lect. 2 ad Rom. 12. Also the differences of ecclesiastical office and calling he deduces from the necessary existence of divers members in the one body with the one soul; Lect. 2 ad Rom. 12 ; Lect. 3 ad i. Corinth. 12. Comp. Alv. Pel. I. a. 63. Also Catechism. Rom. P. 11. c. 7, q. 6. 82. Ptol. Luc. IV. c. 23 : therefore Augustine compares the State Harmonjr to a melodious song, while Aristotle likens it to a naturale e^porcel^""' organicum corpus. 83. Aegid. Rom. De reg. princ. i. 2, c. 12; comp. i. i, c. 13 ; Co-ordina- III. I, c. 5 and 8 ; in. 2, c. 34 ; in. 3, c i and c. 23 (wars the Limbs, medicine of human society). 84. Eng. Volk. De reg. princ. c. 16. In c. 18 — 31 the Goods of parallelism is displayed in the matter of the five internal bona q'^^^ <,£ (sanitas, pulchritudo, magnitudo, robur, potentia agonistica regni) Indi- and the six external bona (nobilitas, amicitia, divitiae, honorabilitas, potentia, bona fortuna regni). 85. Mars. Pat. I. c. 2, and for the details c. 15. Comp. c. 8, 17, and II. c. 24. 86. Ockham, Octo qu. i. c. 11, and viii. c. 5, p. 385- Thus, ^^"p'^^'Jf^g e g. the lame try to walk with their hands and those who are handless Power must take to biting : sic in corpore mystico at in coUegio seu univer- ^"^"^ sitate, uno deficiente, alius, si habet potestatem, supplet defectum eius. Comp. Dial. iii. tr. 2, 1. 3, c. 2 and 4, where the common and 134 Political Theories of the Middle Age. specific functions of clergy and laity as divers members of the Church are distinguished, and at the same time it is remarked that in the mystical body there is a much greater call than there is in the natural body for one member to discharge in cases of necessity the functions assigned to another by positive law. The Idea 87. Joh. Saresb.; see above, Note 75. Thorn. Aq. De reg. ber^hip." P"nc. I. c. 12; Summa Theol. 11. 2, q. 58, a. 5, in. q. 8, a. i . and above, Note 81. Aegid. Rom.; above Note 83. Eng. Volk. in. c. 16. Alv, Pel. I. a. 63 : ecclesia est...unum totum ex multis partibus constitutum et sicut unum corpus ex multis membris compactum : in details he follows the learning of S. Thomas. Baldus, prooem. Feud, nr. 32 : imperium est in similitudine corporis humani, a quo, si abscinderetur auricula, non esset corpus perfectum sed monstruosum. Nic. Cus.; above, Note 79. Aen. Sylv. c. 18. Ant Ros. i. c 67 and 69. Likeness 88. Comp. the definition of ordo (obtained from Aug. De and Un- ^j^ -Qtx, 1. 19, c. 13) in Hug. Floriac. i. c. i and 12, p. 45 and Ptol, among Luc. IV. 9 : parium et disparium rerum sua cuique loca tribuens Members, dispositio. Then Thom. Aq. (Summa Theol. i. q. 96, a. 3) starting from this, concludes that, even had there been no Fall of Man, inequality among men would have developed itself ' ex natura absque defectu naturae'; for 'quae a Deo sunt, ordinata sunt' and 'ordo autem maxime videtur in disparitate consistere.' See also Summa adversus gentiles, in. c. 81. — Then all Estates, groups, professional gilds and the like appear as partes civitatis to writers who rely on Aristotle : especially to Marsihus (11. c. 5), who distinguishes three partes vel officia civitatis (in a strict sense), namely, the military, priestly and judicial orders, and three partes vel officia civitatis (in a wider sense) namely, agriculture, handicraft and trade. A similar idea is applied to the Church; e.g. by Aquinas : see above Note 81. Alv. Pel. I. a. 63 G : the triple distinction in the Church (despite its unity) according to status, officia et gradus is likened to the triple distinction among carnal members according to their natures, their tasks and their beauties. See also Randuf, De mod. un. c. 2 (membra inaequaliter composita), 7 and 1 7. Mediate 89. Alv. Pel. I. a. 36 c : there are indivisible members, whose Articula- parts would not be members ; e.g. in the Church the faithful man : tion. ... and there are divisible members, whose parts in their turn are mem- bers, as e.g. the 'particular churches' and ecclesiastical colleges. Antonius de Butrio, c. 4, X. i, 6, nr. 14 — 5 : membra de membro. Marsil. Patav. n. 24 : in the regimen civile, as well as in the regimen ecclesiasticum, the analogy of the animal requires a manifold and Notes. 135 graduated articulation ; otherwise there would be monstrosity ; finger must be directly joined, not to head but to hand ; then hand to arm, arm to shoulder, shoulder to neck, neck to head. Nic. Cus. 11. c. 27. [Elsewhere, D. G. R. in. 251, our author gives other illus- trations from Innocent IV., Johannes Andreae and others.] 90. Already S. Bernard (De consid. in. p. 82) exhorts the Pope Papal to pay regard to the potestates mediocres et inferiores ; otherwise he ^s'j^°and will be putting the thumb above the hand and alongside the arm and the so will create a monster : ' tale est si in Christi corpore membra ^rtfcula aliter locas quam disposuit ipse.' Marsilius (11. c. 24) employs the tion of the same picture when complaining that the Popes have impaired the Church, form of Christ's mystical body by disturbing its organic articulation, while that body's substance is impaired by the corruption of the clergy. The champions of the conciliar party have recourse to the same analogy for proof that the mystical body will perish if all power be concentrated in its highest member. See Randuf, c. 17 (183); Greg. Heimb. De pot. eccl. 11. p. 1615 ff. 91. Ptol. Luc. II. 26, where, besides the organization of the Organiza- natural body, that of the heavenly spheres is adduced. Marsil. Pat. j °" ^?^ I. c. 2 and 5 : see above, p. 26. Also Thom. Aquin. Summa cont. pendence. gentil. III. c. 76 — 83. Alv. Pelag. i. a. 63 c {ordinatio). Eng. Volk. III. c. 21 : in ordinatione debita et proportione ad invicem...partium. Nicol. Cus. III. c. I : omnia quae a Deo sunt, ordinata necessario sunt. Petr. de Andlo, i. c. 3. 92. Joh. Saresb. 1. c. Thom. Aq. Summa Theol. i. q. 81, a. i; The Lect. 2 ad Rom. 12: in corpore humano quaedam sunt actiones ^^^^°^ ■^ ^ Function, quae solum prmcipalibus membns conveniunt, et quaedam etiam soli capiti; sed in ecclesia vicem capitis tenet papa et vicem principalium membrorum praelati maiores ut episcopi ; ergo etc. — Ptol. Luc. 11. c. 23 : debet. ..quilibet in suo gradu debitam habere dispositionem et operationem. Marsil. Pat i. c. 2 (above, p. 26) and c. 8 : upon the formation and separation of the parts of the State, there must follow the allotment and regulation of their officia, ' ad instar naturae animalis.' Alv. Pel. I. a. 63 G : diversi actus. Ockham j above. Note 86. 93. The difference between an organ and a mere limb is sug- The Idea gested by Eng. Volk. iii. c. 16 : pars civitatis a.nd pars regni. Comp. ° '^^*"' also MarsiL Patav. i. c 5 ; above, Note 88. 94. Thom. Aq. Summa Theol. i. q. 96, a, 4 : quandoque The multa ordinantur ad unum, semper invenitur unum ut principale et paitr"'"^ dirigens ; Summa cont. gentil. iv. q. 76. Ptol. Luc. iv. c. 23 : there must be a summum movens controlling all movements of the limbs ; 136 Political Theories of the Middle Age. with this is compatible 'in qualibet parte corporis operatio propria primis motibus correspondens et in alterutrum subministrans.' Similarly Dante. Comp. Aegid. Col. iii. 2, c. 34 : the king as soul of the body. Marsil. Pat. I. c. 17: in the State, as in the animal bene compositum, there must be a primum principium et movens; otherwise the organism must needs ' aut in contraria ferri aut omni- modo quiescere ' : — this is the pars principans. Joh. Par. c. i : quemadmodum corpus hominis et cuiuslibet animalis deflueret, nisi esset aliqua vis regitiva communis in corpora ad omnium mem- brorum commune bonum intendens, so every multitude of men needs a unifying and governing force. In closely similar words, Petr. de Andlo, I. & 3, who then adds that among the summi moventes there must be unus supremus (the Kaiser), in relation to whom the mem- bers that are moved by the other moventes are membra de membro. 95. See above, Notes 67 ff. Connexion 96. This argument is often adduced on the papal side to show Rightful ^^'^ ^^ Church cannot exist without the Pope, and that no one who Head. is not connected with the Pope can belong to the Church. Comp. e.g. Alv. Pel. I. a. 7, 13, 24, 28, 36, 38; Card. Alex. D. 15 summa. Need for 97. It is urged that there may be unity although there are many Head * rulers; that 'Ca& principatus as an institution is distinguishable from its denied. occupant for the time being ; that the mystical body may be headless for a time : in particular the Church, which always retains its celestial Head. Thus, Ockham, Dial. I. 5, c. 13 and 24, maintains the possi- bility of the continued existence of the Church after severance from the ecclesia Romana; for, he expressly says, though the similitude between the mystical body of Christ and the natural body of man holds good at many points, still there are points at which it fails. To the same effect Petr. Alliac. in Gerson, Opera, i. 692 and 11. 112; Gerson, De aufer. pap. 11. 209 ff.; Randuf, De mod. un. c 2, ib. 163; Nic. Cus. I. c. 14 and 17. The State 98. Comp. Thom. Aq. Comment, ad Polit. p. 366 (ratio.. .con- Humi'n"^ stituens civitatem). He teaches that the constitution of the Church Reason, is the work of God (Summa adv. gentil. iv. c 76), but regards the creation of the State as a task for the kingly office, which here imitates the creation of the World by God and of the Body by the Soul (De reg. princ. i. c. 13). Ptol. Luc. iv. c. 23. Aegid. Rom. De reg. princ. iii. i, c. i, and in. 2, c. 32. Eng. Volk. De Ortu, c. I (ratio imitata naturam). Aen. Sylv. c. i, 2, 4. — More of this below in Note 303. MarsHius 99. Mars. Pat. I. c. 15. In the natural organism Nature, the causa movens, first makes the heart which is the first and indispensable Notes. 137 portion, and bestows on it heat as its proper force, whereby the Origin heart then, as the proper organ for this purpose, constitutes, sepa-l^'J"^ rates, diiferentiates and connects all the other parts, and afterwards maintains, protects and repairs them. On the other hand, the creative principle of the State is the rational ' anima universitatis vel eius valentioris partis.' This, following the model set by Nature, generates a pars prima, perfectior et nobilior, answering to the heart, and being the Princeship {principatus). On this the said anima bestows an active power, analogous to vital heat, namely, the auctoritas iudicandi, praecipiendi et exequendi. Thus the Princeship is empowered and authorized to institute the other parts of the State. But, just as the heart can only work in the form and power that Nature has given to it, so the Princeship has received in the Law (/(?*•) a regulator of its proceedings. In accordance with the measure set by the Law, the Princeship must establish the different parts of the State, equip them with their officia, reward and punish them, conserve them, promote their co-operation, and prevent disturbance among them. Even when the State's life is started, the Ruling power, like the heart, can never stand still for an instant without peril. 100. Thom. Aq. Summa Theol. 11. i, q. 91, a. i : tota com- The munitas universi gubernatur ratione divina ; and therefore the ipsa R'^°* , ratio gubernationis rerum, which exists in God sicut in principe universitatis, has the nature of a lex, and indeed of a lex aeterna. Comp. ib. I. q. 103 (although according to a. 6 'Deus gubernat quaedam mediantibus aliis') and 11. i, q. 93, a. 3; Summa cont gentil. III. q. 76 — 7. Dante, i. c. 7, and in. c. i6. And see above, Notes 7, 8, II, 44, 67, 71. loi. See above, Note 15. John of Salisbury (Policr. iv. c. i, Divine pp. 208 — 9, and VI. c. 25, pp. 391 — 5) is especially earnest in the 2"^"a°e maintenance of the divine origin of temporal power. Ptol. Luc. (ill. c. I — 8) gives elaborate proof of the proposition 'Omne dominium est a Deo': it is so ratione entis (for the ens primum is the principium) ; and it is so ratione finis (for all the purposes of government must culminate in God, who is ultimus finis). Even dominium tyrannicum is of God, who suifers it to exist as a method of chastisement, but Himself will not leave tyrants unpunished. Then Alv. Pel. (i. a. 8 and 41 c — k) repeats this, but expressly says that it does not disprove the sinful origin of the State. He (i. a. 56 b) distinguishes : materialiter et inchoative the temporal power proceeds from natural instinct and therefore from God : perfecte et formaliter it derives its esse from the spiritual power ' quae a Deo speciali modo derivatur.' 138 Political Theories of the Middle Age. Imme- loz- See above, Notes 38, 40, 44, and, as to the Roman diately Empire, Notes 53—55. Divine \j*j tj*j Origin of 1 03. Alv. Pel. I. a. 12, 13 u and x, 18. Aug. Triumph, l q. i, the State, a. I ; a. 5 : the papal power comes from God specialius than any as Chris^^s o'l^fif power, God being immediately active in election, government Vicar. and protection; still He does not immediately generate each par- ticular pope (as He generated Adam, Eve and Christ), but this happens mediante homine, as in the generation of other men ; but the electoral college only has the designatio personae, for auctoritas et officium, being quid formale in papain, come from Christ (q. 4, a. 3) Petr. de Andlo, i. c. 2. The 104. See above, Note 40. The doctrine of the Karolingian S"chrUt's ^'™^ makes the Emperor vicarius Dei. Then during the Strife over Vicar. the Investitures this is for the first time attacked ; and then defended, e.g. by P. Crassus, p. 44, by Wenrich (Martene, Thes. Nov. Anecd. I. p. 220), and by the Kaisers and writers of the Hohenstaufen age. Comp. Dante, iii. c. 16: solus eligit Deus, solus ipse con- firmat; the Electors are merely denuntiatores divinae provideniiae (though sometimes, being blinded by cupidity, they fail to perceive the will of God) J sic ergo patet quod auctoritas temporalis mon- archiae sine ullo medio in ipsum de fonte universalis auctoritatis descendit; qui quidem fons in arce suae simplicitatis unitus in multiplices alveos inHuit ex abundantia bonitatis. Bartol. prooem. D. nr. 14: Deus. ..causa efficiens. Ant. Ros. i. c. 47 — 8 and 56: the Electors, the Pope (in so far as he acts at all) and the Folk, are only organa Dei; so the Empire is immediate a Deo. Gerson, IV. p. 586. — Comp. Ockham, Octo q. 11. c. i — 5, and iv. c. 8 — g, and Dial. iii. tr. 2, 1. i, c, 18 ff., where three shades of this doctrine are distinguished, for we may suppose (i) a direct gift by God, or (2) a gift minis terio creaturae, i.e. by the agency of the Electors (whose action may be likened to that of the priest in baptism, or that of a patron in the transfer of an office), or (3) a difference between the purely human heathen Empire and the modern Empire legitimated by Christ. Mediation 105. Joh. Saresb. V. c 6 : mediante sacerdotio. Aug. Triumph. ofthe . _ ^ / ,- » Church '• I- ^' ^- I' "• q- 3S> a. I, q. 36, a. 4 (mediante papa), q. 45, a. i. theTtate "^^^^ ^^^' '' ^' ^' ° ^"'^ ^^' ^^' ^^' ^^ ^ ^* Deo... mediante in- and God. stitutione humana). Petr. de Andlo, 11. c. g : imperium a Deo... per subalternam emanationem. So in the Quaestio in utramque (a. 5) and the Somnium Virid. (i. c. 88, 180 — i) the only dispute is whether kings are immediately or but mediately ministri Dei. See above. Note 22. Notes. 139 106, See Dante, 1. c. Pet. de Andlo, i. c. 2 : regimen mundi a Delega- summo rerum principe Deo eiusque divina dependet voluntate ; He God of all institutes the pope as Vicar ; from the pope proceeds the imperialis Human auctoritas ; and from it again 'cetera regna, ducatus, principatus et dominia mundi subalterna quadam emanatione defluxerunt.' Also II. c. 9. Tengler, Laienspiegel, p. 14, 17, 56. 107, Thom. Aq. De reg. princ. I. c. 2 : manifestum est quod Monarchy -. , , and Unity. unitatem magis etiicere potest quod est per se unum quam plures ; and c s; Summa Theol. 11. i, q. 105, a. i; 11. 2, q. 10, a. 11 j Summa cont. gentil. iv. 76 : optimum autem regimen multitudinis est ut regatur per unum ; quod patet ex fine regiminis, qui est pax : pax enim et unitas subditorum est finis regentis; unitatis autem congruentior causa est unus quam multi j Comm. ad Polit. p. 489 and 507 ; Aegid. Rom, De reg. princ. iii. 2, c. 3 ; Dante, i. c. 5 — 9 and the practical arguments in c. 10 — 14; Job. Paris, c. i; Alv. Pel. i. a. 40 D and 62 c; Ockham, Octo qu. iii. c. i and 3 ; Dial. in. tr. i, I. 2, c. r, 6, 8, 9 — 11; Somn. Virid. i. c. 187; Gerson, iv. 585 (ad totius gubernationis exemplum, quae fit per unum Deum supremum); Nicol. Cus. III. praef. ; Laelius in Gold. 11. p. 1595 ff.; Anton. Ros. II. c. 5 — 7 ; Petrus de Andlo, i. c. 8 ; Patric. Sen, De regno, i. i and 13, p. 59 (unitas per imitationem ficta). With some divergence and greater independence, Eng. Volk. i, c. 11 — 12: now-a-days only a monarchy is able to unite wide territories and great masses of men. 108. Dante, i. c. 15. Similarly Pet. de Andlo, i. c. 3 : social Singleness order depends on a sub-et-super-ordination of wills, as natural order Monarchy, upon a sub-et-super-ordination of natural forces. 109. Thom. Aq. Summa cont. gentil. iv. q. 76 : the regimen The ecchsiae, being of divine institution, must be optime ordinatum, and ^on'^jchy. therefore must be such ut unus toti ecclesiae praesit. Alv, Pel. i. a. 40 D and 54. Joh. Par. c. 2. Ockham, Dial, in. tr. i, 1. 2, c. i, 3 — II, 18 — 19, 29; also I. S, c. 20 — 21. Somn. Virid. 11. c. 168 — 179. Ant. Ros. II. c. I — 7. no. Above all, Dante, lib. i,; in c, 6, it is argued that the Divine ordo totalis must be preferable to any ordo partialis. Eng. Volk. De J,1?jg^'°" ortu, c. 14 — 15. Ockham, Octo q. in. c, i and 3; Dial. iii. tr. 2, poral 1. I, c. I and 9, Aen, Sylv. c. 8. Ant. Ros. 11. c. 6. Petr. de Andlo, Monarchy. I. c. 8. III. Above, Note 107. Thom. Aq. 1. c. ; it is so in tvexy populus Monarchy unius ecclesiae. Compare his statements (in lib. iv. Sent. d. 1 7, q. 3, ^^i Form a. 3, sol. 5, ad 5) as to the relation of pope, bishop, and parson as of Govem- the God-willed monarchical heads ' super eandem plebem immediate I40 Political Theories of the Middle Age. publics. Com- parison of Forms of Govem- Kient. An Aris- tocratic World- State. Necessity of Mon- archy in the Church doubted. constituti.' Dante, i. c. 6. Petr. de Andlo, i. c. 8. In particular, Ant. Ros. II. c. 6 (above, Note 64) as to the monarchical structure of the five corpora mystica. References 112. Thorn. Aq. De reg. princ, I. c. 4. Eug. Volk. De reg, princ. I. c. 12 — 16. Petr. de Andlo, i. c. 8. Ant. Ros. 11. c. 4 (on the other hand, c. 7, pp. 314 — 9). 113. Ptol. Luc. II. c. 8, and iv. c. 8, goes so far as to hold that in the status integer of human nature the regimen politicum would be preferable; and even in the corrupt state of human nature the dispositio gentis may decide ; thus e.g. the courage of the Italian race leaves no choice but republic or tyranny. Eng. Volk, i. c. 16. Ockham, Octo q. ill. c. 3 and 7 (variances in accord with congruentia temporum) ; also Dial. iii. tr. 2, 1. i, c. 5, 114. Ockham, Octoq. in. c. 3, 6, 8, and Dial. in. tr. 2, 1. i, c. I, 4, 9, 13: it is possible that the form of government best suited to a part may not be the same as that best suited to the whole. 115. Ockham, Dial. in. tr. i, 1. 2, c. 2, 12 — 4, 16 — 7, 25, 30. Even with an aristocratic constitution, unity is possible : pluralitas pontificum non scindit unitatem ecclesiae : what is good for a pars and parvum may not be always good for a totum and magnum. The divine institution of the primacy is expressly disputed by Marsilius, II. c. 15 — 22, III. concl. 32 and 41, and, among the Conciliar pamphleteers, by Randuf (De mod. un. eccl. c. 5) and others, who are opposed by d'Ailly, Gerson, and Breviscoxa (Gers. Op. i. p. 662, II. p. 88, and i. p. 872). 116. Patricius of Sienna in one place (De inst. reip. i. i) ex- pressly declares for a Republic; elsewhere (De regno i. i) he gives a preference to Monarchy, but would pay heed to differences between various nations. 117. Mars. Pat. i. c. 17 and iii. concl. 11 (even for composite States). Ockham, Dial. in. tr. 2, 1. 3, c. 17 and 22. 118. Aegid. Rom. in. 2, c. 3: plures homines principantes quasi constituunt unum hominem multorum oculorum et multarum manuum : but the good Monarch might become such a collective man by the association of wise councillors ; and at any rate he is more unus than the Many can be 'in quantum tenent locum unius. — Mars. Pat. i. c. 17: 'quoad oflBcium principatus' the //a«j must form a unit, so that every act of government appears as ' una actio ex communi decreto atque consensu eorum aut valentioris partis secundum statutas leges in his.'— So Ockham, Dial. in. tr. 2, 1. 3, c. 17, with the addition that 'plures gerunt vicem unius et locum unius tenent.'— Patric. Sen. De inst. reip. i. i and in. 3 : the ruling Preference of the Re- publican Form. ' Unitas princi- patus' in a Republic. Repub- lican Assembly as a Collective Man. Notes. 141 assembly constitutes 'quasi unum hominem ' or • quasi unum corpus ' with manifold members and faculties j i. 5 : • multitudo universa potestatem habet collecta in unum ubi de republica sit agendum, dimissi autem singuli rem suam agunt.' 119. Thus Dante, Mon. 1. c. 6, sees in the Ruler 'aliquod unum The quod non est pars.' So again Torquemada seeks to refute the whole ^ove and Conciliar Theory by asserting that the very idea of a Monarch neces- outside sarily places him above the Community, like God above the world Group, and the shepherd above the sheep : Summa de pot. pap. c. 26, 48, 83, 84; De cone. c. 29, 30, 44. 120. Joh. Saresb. Policr. iv. c. i: est...princeps potestas The publica et in terris quaedam divinae maiestatis imago; v. c. 25, ^""g^^jJl^ p. 391 — 5- Thom. Aq. De reg. i. c. 12 — 14: the erection of the State, Divinity, being like unto God's creation of the world, and the government of the State, being like unto God's government of the world, are the affairs of the Ruler. 121. Gl. on c. 17 in Sexto i, 6, v. homini: in hac parte non est Apotheo- homo sed Dei vicarius. Gl. on prooem. CI. v. papa : nee Deus nee p^ °g "^' homo. Petr. Blesensis, ep. 141. Aug. Triumph, i. q. 6, a. i — 3 (identity of the Pope's sentence with God's, and therefore no appeal from the one to the other); q. 8, a. 1 — 3, q. 9, q. 18. Alv. Pel. i. a. 13 (non homo simpliciter, sed Deus, i.e. Dei vicarius), 37 y (Deus quodammodo, quia vicarius), 12 (unum est consistorium et tribunal Christi et Papae in terris). Bald, on 1. ult. C. 7, 50. Ludov. Rom. cons. 345, nr. 6 — 8. ZenzeUnus on c. 4, Extrav. Joh. XXII. nr. 14. Bertach. v. papa. 122. Already under the Hohenstaufen a formal apotheosis of the Apotheo- Emperor may be often found. See, e.g. Pet. de Vin. Ep. 11. c. 7, Emperor, and III. c. 44. Bald. i. cons. 228, nr. 7 : imperator est dominus totius mundi et Deus in terra; cons. 373, nr. 2 ; princeps est Deus in terris. Joh. de Platea, 1. 2, C. 1 1, 9, nr. i : sicut Deus adoratur in coelis, ita princeps adoratur in terris ; but only improprie. Theod. a Niem, p. 786 : to the Emperor is due 'devotio tanquam praesenti et corporali Deo.' Aen. Sylv. c. 23 : dominus mundi, Dei vicem ia temporalibus gerens. Jason, 11. cons. 177, nr. 11 : princeps mundi et corporalis mundi Deus. 123. Thus already in the Councils of Paris and Worms of 829 Kingship (M. G. L. I. p. 346 if.) we find an exposition of the doctrine that the '^ O^^e. kingship is a ' ministerium a Deo commissum,' that the Bex is so called a recte agendo, that, ceasing to rule well, he becomes a tyrant Similarly in Concil. Aquisgran. 11. ann. 836 and Concil. Mogunt ann. 888, c. 2 in Mansi xiv. p. 671 and xvm. 62; c£ 142 Political Theories of the Middle Age. Princes exist for the Common Weal. Purpose of the Ruler. Decline towards Tyranny. Hefele iv. p. 91 and 546. Hincmar, Op. i. 693. Manegold v, Lautenbach, I.e., expressly uses the phrase vocabulutn officii. John of Salisbury, iv. c. i — 3 and 5, says ' minister populi ' and ' publicae utilitatis minister.' Hugh of Fleury, I. c. 4, 6, 7, ' ministerium, officium regis.' Thom. Aq. De reg. prin. i. c. 14. Alv. Pel. i. a. 62, i. Ptol. Luc. II. 5 — 16. Dante, i. c. 12: princes are 'respectu viae domini, respectu termini ministri aliorum,' and in this respect the Emperor is ' minister omnium.' Eng. Volk. tr. 11. — vii. Gerson, iv. p. 597. Ant. Ros. I. c. 64: officium publicum; like a tutor. Pet de Andl. i. c. 3, 11. c. 16 — 18. 124. In particular, Joh. Saresb. iv. c. i — 3, and 5. Thom. Aquin. De reg. lud. q. 6 : Principes terrarum sunt a Deo instituti, non quidem ut propria lucra quaerant, sed ut communem utilitatem procurent; Comm. ad Polit. p. 586. Ptol. Luc, iii. c. 11: regnum non est propter regem, sed rex propter regnum. Eng. Volk. De reg. princ. V. c. 9 : sicut tutela pupillorum, ita et procuratio reipublicae Inventa est ad utilitatem eorum qui commissi sunt, et non eorum qui commissionem susceperunt; 11. c. 18, iv. c. 33 — 4. Dante, i. c. 12: non enim cives propter consules nee gens propter regem, sed a con- verso consules propter cives et rex propter gentem. Ockham, Octo q. III. c. 4, and i. c. 6. Paris de Puteo, De synd. p. 40, nr. 21. Petrus de Andlo, i. c. 3. 125. Councils of Paris and Worms, an. 829: to rule the Folk with righteousness and equity, to preserve peace and unity. Petr. Bles. Epist. 184, p. 476 : ut recte definiant et deeidant examine quod ad eos pervenerit quaestionum. Dante, Mon. i. c. 12. Thom. Aq. Comm. ad Polit., p. 592, 595 ff. Eng. Volk. i. c. 10. Gerson, in. p. 1474. Ockham, Octo q. in. c. 5, declares a plenitudo potestatis incompatible with the best Form of Government, which should promote the liberty and exclude the slavery of the subjects; and (viii. c. 4) he opines that the Kaiser has smaller rights than other princes just because it behoves the Empire to have the best of constitutions. 126. Councils of Paris and Worms, an. 829. Council of Mainz, an. 888, e. 2. Nicolaus L Epist. 4 ad Advent. Metens.: si iure principantur ; alioquin potius tyranni credendi sunt quam reges habendl Petr. Bles. L c.: Principatus nomen amittere promeretur qui a iusto iudicii declinat tramite. Hugo Flor. i. c. 7 — 8. Joh. Sar VIII. c. 17 — 24. Thom. Aq. De reg. princ. i. c. 3 — 11. Ptol. Luc. III. c. II. Vine. Bellov. vii. c. 8. Eng. Volk. i. c. 6 and 18. Alv. Pel. I. a. 62 D — H. Ockham, Dial. in. tr. i, 1. 2, c. 6 flf. ; Octo q. in. c. 14. Gerson, l.c. Paris de Puteo, L c pp. 8 — 51. Notes. 143 • 127. This principle was never doubted. See e.g. Pet. Bles. ep. God 131, p. 388. Thorn. Aq. Summa Theol. 11. i, q. 96, a. 4 (quia ad hoc Man is to" ordo potestatis divinitus concessus se non extendit) and 11. 2, q. 104, be obeyed. a. 5. To the same effect the 'Summists' [i.e. the compilers of Summae Confessorum, manuals for the use of confessors], e.g. Joh. Friburgensis, Sum. Conf. lib. 2, tit. 5, q. 204. 128. Thus Hugh of Fleury, who therefore prescribes that tyrants Passive be tolerated and prayed for, but that commands which contravene ^^^ ' the law of God be disobeyed, and that punishment and death be borne in the martyr's spirit; i. c. 4, p. 17 — 22, c. 7, p. 31, c. 12, p. 44, II. p. 66. — Baldus also on I. 5, Dig. i, i, nr. 6 — 7, declares against any invasion into the rights of Rulers. 129. Hug. de S. Victore, Quaest. in epist. Paul. q. 300 (Migne, Nullity of vol. 17s, p. 505): Rages et principes, quibus obediendum est in^^^j^j^at omnibus quae ad potestatem pertinent. Thom. Aq. Sum. Theol. are ultra II. 2, q. 104, a. 5 : only in special circumstances or for the avoidance Jjatuentis. of scandal and danger, need a Christian obey the command of an usurper or even the unrighteous command of the legitimate ruler. So also Vincent Bellov. x. c 87 and Joh. Friburg 1. c. (Note 127). Ockham, Dial. in. tr, 2, 1. 2, c. 20: all men owe to the Emperor immediate but conditional obedience : to wit, ' in Ileitis ' and ' in his quae spectant ad regimen populi temporalis,' so that, e.g. a pro- hibition of vidne-drinking would not be binding. And compare c. 26 and 28. Nic Cus. iii. c. 5. Decius, Cons. 72, nr, 2 : superior! non est obediendum quando egreditur fines sui officii. 130. Already Manegold of Lautenbach (see Sitzungsber. d. bair. Active Akad. an. 1868, 11. 325) teaches that the king who has become a and'Ty?*^' tyrant should be expelled like an unfaithful shepherd. Similar rannicide. revolutionary doctrines were frequently maintained by the papalistic party against the wielders of State-power. John of Salisbury emphatically recommends the slaughter of a tyrant 'qui violenta dominatione populum oppremit,' for a tyranny is nothing else than an abuse of power granted by God to man. He vouches biblical and classical examples, and rejects only the use of poison, breach of trust, and breach of oath. See Poller, in. c. 15, iv. c. i, vi. c. 24—8, VIII. c. 17 — 20. Thomas of Aquino is against tyrannicide, but in favour of an active resistance against a regimen tyrannicum, for such a regimen is non iustum, and to abolish it is no seditio, unless indeed the measures that are taken be such that they will do more harm than would be done by tolerating the tyranny: Sum. Theol. 11. 2, q. 42, a. 2, ad 3, q. 69, a. 4 ; De reg. princ. i. c. 6 ; Comm. ad Polit. p. 553. To the same effect, Aegid. Rom. De reg. princ. i. c 6. 144 Political Theories of the Middle Age. The Pope' Plenitude of Power. Limits to Papal Sove- reignty. There is an elaborated doctrine of active resistance in Ockham, Dial. III. tr. 2, 1. 2, c. 26 and 28 (it is ius gentium). Somn. Virid. I. & 141. Henr. de Langenstein, Cons, pads, c. 15. Gerson, iv. 600 and 624. Decius, Cons. 690, nr. 13. Bened. Capra, Reg. 10, nr. 42 : the execution of a tyrannical measure is an act of violence which may be violently resisted. Henricus de Pyro, Inst. I. 2, § i : iudici et ministris principum licet resistere de facto quando ipsi sine iure procedunt. — As to the thesis in which Jean Petit on 8 March, 1408 defended tyrannicide (Gerson, Op. v. pp. 15 — 42), the opposition of Gerson (Op. iv. 657 — 80) and the qualified condemnation of the thesis by the Council of Constance (sess. xv. of 6 July, 1415), see Schwab, Gerson, pp. 609 — 46. Wyclif (art. damn. 15 and 17) and Hus (art. 30) held that a Ruler who is in mortal sin is no true ruler. ! 131. The first to elaborate in idea and in phrase a 'plenitudo ecclesiasticae potestatis' vested by God in the Pope, whence all other ecclesiastical power has flowed and in which all other ecclesi- astical power is still comprised, was Innocent III., although substantially the same doctrine had been taught by Gregory VII., lib. I., ep. 55% ann. 1075. For Innocent III. see c. 13, X. 4, 17; c. 23, X. 5, 33; lib. I, ep. 127, p. 116, lib. 7, ep. i and 405, pp. 279 and 405, lib. 9, ep. 82, 83 and 130, pp. 898, 901 and 947. Compare Innocent IV. on c. i, X. 1,7; c. 10, X. 2, 2 ; c. 19, X. 2, 27, nr. 6. Durantis, Spec. i. i de legato § 6, nr. i — 58. Thom. Aquin. lib. 4, Sent. d. 20, q. 4, a. 3, ad 3, quaestiunc. 4, sol. 3 : Papa habet plenitudinem potestatis pontificalis quasi rex in regno, episcopi vero assumuntur in partem soUicitudinis quasi iudices singulis civitatibus praepositi. See also lib. 2, dist. et quest ult. ; Summa Theol. 11. 2, q. I, a. 10 J Opusc. cont. error. Graec. 11. c. 34 and 38. Aegid. Rom. De pot. eccl. iii. c. 9 — 12: tanta potestatis plenitudo, quod eius posse est sine pondere, numero et mensura. Petr. Palud. in Raynald, a. 1328, nr. 30. The doctrine reaches the utmost exalta- tion in Augustinus Triumphus, i. q. i, 8, 10 — 34, 11. q. 48 — 75, but goes yet further in Alvarius Pelagius, i. a. 5 — 7, 11 — 12, 52 — 58: potestas sine numero, pondere et mensura; it is exceptionless, all-embracing, the basis of all power, sovereign, boundless and always immediate. Durantis, De modo eccl. cone. P. iii. Turrecre- mata, Summa de eccl. 11. c. 54, 65. Petrus a Monte, De primatu, f. 144 ff. 132. ' Lex divina et lex naturalis, articuli fidei et sacramen ta novae legis' were always recognized as limits. See Alex. III. in c. 4, X. 5, 19 and Innocent III. in c. 13, X. 2, 13. Joh. Sar. Ep. 198, p. 218. Thom. Aq. Summa Theol. 11. i, q. 97, a. 4, ad 3 j Quodlib. iv. a. 13. Notes. 145 Aug. Triumph, i. q. 22, a. i ; Alv. Pel. i. a. 7 and 46. Comp. Ockham, Dial. in. tr. 1, 1. i, c. i, and tr. 2, 1. i, c. 23. 133. Ockham makes an elaborate attack on the doctrine which Limited teaches that, at any rate in spiritual affairs, the Pope has a plenitude ^Jonarchy of power in the sight of God and man. This (he argues) would be Pope, incompatible with 'evangelical Hberty' for it would establish an 'intolerable servitude.' In all, or at any rate all normal, cases the Pope's power is potestas limitata. Ockham, Octo q. i. c. 6, in. c. 4 — 5, Dial. III. tr. i, 1. i, c. 2 — 15, tr. 2, 1. x, c. 23. Compare Joh. Paris, c. 3 and 6; Marsil. Patav. 11. c. 22 — 30; Somn. Virid. I. c. 156 — 161 ; Randuf, De mod. un. c. 5, 10, 23, 28; Greg. Heimb. II. p. 1604. 134. Ockham, Octo q. i. c. 15 and in. c. 9 : obedience is due Condi- only ' in his quae necessaria sunt congregationi fidelium, salvis q^"^- iuribus et libertatibus aliorum ' ; if the Pope transcends his sphere of due to the competence, every one, be he prelate, emperor, king, prince or La^^'of^^^ simple layman, is entitled and bound to resist, regard being had to Necessity, time, place and opportunity. — During the Great Schism the doctrine of a right of resistance and rejection given by Necessity became always commoner. See Matth. de Cracovia, Pierre du Mont de St Michel and other Galileans in Hubler, pp. 366, 370 — 2, 377; also ib. p. 121, note 8 ; also ib. 373 ; Gerson, Trilogus, n. p. 83 ff. ; Theod. a Niem, De schism, in. c. 20 (resistance, as against a bestid) \ Randuf, De mod. un. c. 9 — 10; Ant. Ros. n. c. 23, 27 — 30, in. c. 4—6. Nicholas of Cues (Op. n. pp. 825—9) held to this doctrine even after he had fallen away from the Conciliar party. 135. See the following sections. 136. Ockham refutes at large the opinion that the lex divina «;«/ Limited naturalis is the only limit to imperial power: on the contrary, in"^"'^ ^ 'limitata est imperatoris potestas, ut quoad liberos sibi subiectos et Empire, res eorum solummodo ilia potest quae prosunt ad communem utilitatem.' Dial. in. tr. 2, 1. 2, c. 26—8: in relation to persons, c 20; in relation to things, c. 21 — 5. Gerson, iv. pp. 598, 601. Nic. Cus. III. c. 5. See above, Notes 126 — 30, 1^7. See above. Note 16. Placentinus de var. actionum, i. 4. The State of !Ns.turc Summa Rolandi, C. 23, q. 7, p. 96. Addition to the Gloss on § 5, Inst 2, I, v. publicus [which addition teaches that communia are those things which by virtue of the ius naturak primaevum still remain in their original condition as common to all]. Joh. Nider, Tract, de Contr. (Tr. U. J. vi. p. 279), tr. v. K. Summenhard, De contr. tr. i, q. 8 — 11 [a German jurist, ob. 1502]. — But Aquinas, Summa Theol. i. q. 96, a. 4 and Ptolemy of Lucca, De reg. pr. in. M. >" 146 Political Theories of the Middle Age. Begin- nings of the Original Contract. Right of a People to choose a Superior. The People as instru- ments of God. God and the People as the Source of Power. c. 9, and IV. c. 2 — 3, teach that dominium politicum would have come into existence even in the State of Innocence, though not dominium servile. [Elsewhere (D. G. R. iii. 125) our author has spoken of the patristic doctrine that lordship and property are consequences of the Fall. He there refers to various works of Augustine and sends us for other patristic utterances to Hergenrother, Katholische Kirche und christlicher Staat, Freib. 1872, p. 461. J 138. Already in the course of the Investiture Quarrel, Manegold of Lautenbach (above, Note 130) asked : Nonne clarum est, merito ilium a concessa dignitate cadere, populum ab eius dominio liberum existere, cum pactum pro quo constitutus est constat ilium prius irrupisse? On the anti-papal side the only answer was that the People's Will when once uttered became a necessitas, and that therefore the grant of lordship was irrevocable. See the pronounce- ment of the Anti-Gregorian cardinals in Sudendorf, Registr. 11. p. 41. Engelbert of Volkersdorf is the first to declare in a general way that all regna et principatus originated in a pactum subiectionis which satisfied a natural want and instinct : De ortu, c. 2. Marsil. Pat. I. c. 8, 12, 15. Ockham, Dial. in. tr. 2, 1. 2, c. 24: the ius humanum which introduced lordship and ownership in place of the community of goods existent under divine and natural law, was a ius populi xa.A was tiansferred by the populus to the Emperor, along with the imperium. Nic. Cus. in. c. 4. Aen. Sylv. c. 2. 139. Eng. Volk., De ortu, c. 10. Lup. Bebenb. c. 5 and 15. Ockham, Octo q. 11. c. 4—5, v. c. 6, viii. c. 3. Baldus, 1. 5, Dig. I, I, nr. 5 and 8; 1. 2, Cod. 6, 3, nr. 3. Paul. Castr. 1. 5, Dig. i, i, lect. I, nr. 5, and lect. 2, nr, 17 — 18. 140. Joh. Paris, c. 11 and 16: populo faciente et Deo in- spirante. Mars. Pat. i. c. 9 : where men institute a king, God is causa remota. Ockham, Dial. iii. tr. 2, 1. i, c. 27 : imperium a Deo, et tamen per homines, scil. Romanos. Ant. Ros. i. c. 56 : imperium immediate a Deo, per medium tamen populi Romani, qui tanquam Dei minister et instrumentum eius iurisdictionem omnem in ipsum transtulit. — Somewhat divergently Almain, De auct. eccl. c. i (Gers. Op. II. pp. 978 and 1014) : God gives the power to the communilas in order that this power may be transferred to the Ruler. 141. Nicol. Cus. II. 19, HI. praef. and c. 4, argues that all power in Church and State comes both from God and from Man, for the voluntary subjection of men gives the material power and God grants the spiritual force. Is it not divine, and not merely human, when an assembled multitude decides as though it were one heart and one soul (11. c. 5 and 15) ? Notes. 147 142. [The famous text in question is 1. i, Dig. i, 4 and Inst. The Lex I, 2, 6 : Quod principi placuit legis habet vigorem : utpote cum lege ^^S"*- regia, quae de imperio eius lata est, populus ei et in eum onine suum imperium et potestatem conferat] Gloss on 1. 9, Dig. 1,3; 1. i, Dig. I, 4; 1. un. Dig. I, II J 1. 2, Cod. 8, 53; 1. 11, Cod. i, 17 v. solus imperator; and on i. Feud. 26. Jac. Aren. Inst, de act. nr. 5, p. 277. Cinus, 1. 4, Cod. 2, 54. Baldus, 1. i, Cod. i, i, nr. 1—12. Innoc. c. 1, X. I, 7, nr. I — 2 : papa habet imperium a Deo, imperator a populo. Dante, m. c. 13 — 4. Lup. Bebenb. c. 5, p. 355 : olim tenuit monarchiam imperii populus urbis Romanae ; postea transtulit in ipsum imperatorem. Ockham, Octo q. 11, c. 4 — 5 ; Dial. in. tr. 2, 1. I, c. 27 — 28. Aen. Sylv. c. 8. Ant. Ros. 1, c. 32 and 36. 143. Thus Engelbert, Marsilius, Ockham and ^neas Sylvius, Voluntary as in Note 138. In particular, Nic. Cus. 11. c. 12 : the binding force Subjection of all laws rests upon ' concordantia subiectionalis eorum qui Ground of ligantur'; 11. c. 13: all power flows from the free ' subiectio ^°'''^^^'P" inferiorum ' ; iii. c. 4 : it arises ' per viam voluntarie subiectionis et consensus'; 11. c. 8 and 10. 144. See above. Note 54. 145. Ockham, Dial. in. tr. 2, 1. i, c. 27, vouching Gloss on c. 6, X. I, 2. Ant. Ros. V. c. 2 (true even for the Babylonian empire : with voucher of Dig. 3, 4, Innocentius and Bartolus). 146. See the letter of the Senatus Populusque Romanus to King Rights Conrad in Jaff^, Monum. Corbeiens. p. 332 (also Otto Fris. Gesta°^** Frid. I. c. 28): the Kaiser has the 'imperium a Deo,' but ' vigore of Rome senatus et populi Romani ' : he ought to dwell ' in urba quae caput ^J*"™ ^^. mundi est.' Also Otto Fris. 1. c. n. c. 21; letter of Wezel, ann. vacant. 1 152, in Jaffe, 1. c. p. 542 : set cum imperium et omnis reipublicae dignitas sit Romanorum et dum imperator sit Romanorum non Romani imperatoris,...quae lex, quae ratio senatum populumque prohibet creare imperatorem? — Even the Hohenstaufen, however decisively they may assert their divine right as against such claims as these (cf. ep. an. 1152 in Jaffd, 1. c. p. 449, and Otto Fris. in. c. 16, and IV. c. 3), treat Rome as the capital town of the Empire and the Roman townsfolk as in a special sense the imperial folk (cf. Petr. de Vineis, ep. i. c. 7, in. c i, 18, 72). 147. Lup. Bebenb. c. 12 and 17. Similarly Ockham, Dial. in. The tr. 2, 1. I, c. 30: 'imperium Rom.' and 'dominium temporalium... j^o^g\°j principalissime spectat ad totam communitatem universalium morta- the Roman lium.' See also Dante, in. c. 16. ^^°P'=- 148. Joh. Paris, c. 16 : acclamante populo, cuius est se subicere The cui vult sine alterius praeiudicio. Marsil. Pat. Def. pac. 11. c. 30 : the ^^^P'*'* 10 — 2 [48 Political Theories of the Middle Age. Part in the Pope acted, if at all, as the delegate of the legislator Romanus [i.e. Transla- jj^o^^n people]. See also the changes made by Marsilius in EmpL. ^ Landulfs De transl. imp. c. 8, 9, 10, 12. Ockham, Octo q. 11. c. 9, IV. c. 5 and 8 : auctoritate populi Romani, with the Pope as a part or mandatory or counsellor; Dial. in. tr. 2, 1. i, c. 20 : the Pope acted auctoritate et vice Romanorum...transferentibus consensit. Theod. a Niem, pp. 788 — 792. Aen. Sylv. c. 9: concurrente summi pontificis consensu. The 149. Lup. Bebenb. c. 12, p. 385; comp. c i — 4 and 8. Ockham, Roman jjj^j j,j^ jj. g, 1. i, c. 29 — 30, raises other doubts. Could the then ind the fopulus Romanus surrender the imperium to the prejudice of the Transla- p^p^lus sequensl Could the whole universitas mortalium make the txa-nsitx invitis Romanist To the last question the answer is Yes, if there were culpa on the part of the Romans, or other reasonable cause. Right of 150. Lup. Bebenb. c. 5. Ockham, Octo q. 11. c. 14, and Dial. the People jjj_ ^^ ^^ i_ j^ c. 22 : only by authorization of the Romani or the Vacancy Electors can the Pope claim any right in this matter. Ant. Ros. r. °f*? c. 64: the populus Romanus demises the imperial power as an offidum publicum; on the Kaiser's death this reverts to Xh& populus. The Right 151. See the citations in Note 138. Mars. Pat. i. c. 9 and 15. to choose iM-p. Bebenb. c. 5: secundum ius gentium... quilibet populus potest sibi regem eligere; c. 15: election or appointment by the Kaiser is, according to the common law, the only title whereby 2, principatus or regnum can be acquired. Ockham, Dial. in. tr. 2, 1. 3, c. 5 — 6 : if once a departure has been made from the Omnia communia of pure Natural law, we have as a principle of the now modified Natural Law ' quod omnes quibus est praeficiendus aliquis habeant ius eligendi praeficiendum, nisi cedant iuri suo vel superior eis ordinet contra- rium.' Nic. Cus. in. c. 4 : populus Romanus habet potestatem eligendi inperatorem per ipsum ius divinum et naturale ; for, accord- ing to God's very own will, all lordship, and in particular that of Kings and Kaisers, arises ' per viam voluntariae subiectionis et con- sensus.' Ant Ros. I. c. 69. Consen- 152. Mars. Pat. i. c. 9. Eng. Volk. De ortu, c 10. Lup. of H?re?™ Bebenb. c. 15, p. 398. Ockham, Octo q. v. c. 6. K. Summenhard, ditary De contr. tr. I. q. 11: an hereditary kingship arises if those who first Kmgship. consented gave consent /w se et suis, an elective kingship if they only consented pro se, so that ' eo sublato, libere possunt se alteri sub- mittere quem elegerint.' Custom, ordinance proceeding from a higher power, and conquest are mentioned as other titles to hereditary rule. 153. Thorn. Aq. Comm. ad Polit. pp. 495 and 501. Aegid. Col. Notes. 149 in. 2, c. 5. Mars. Pat. i. c. i6. Bart. De reg. civ. nr. 23. Nic. SH*^''^^. Cus. III. praef. See also Miles in Somn. Virid. i. c. 187. is prefer- 154. Otto Fris. Gesta, 11. c. i. Lup. Bebenb. c. 5. Ockham, ^b'«- Octo q. IV. c. S and 9, viii. c. 3. Baldus, 1. 5, Dig. i. i, nr. 11—15. Empire Nic. Cus. III. 0. 4. According to Lupoid, the exerdtus, which Elective, 'repraesentabat totum populum Romanorum imperio subiectum,' used to make the election ; afterwards it was made by the People itself; then by the Emperor who chose a successor ; finally by the Prince Electors. 155. Mars. Pat. 11. 26 (concessio populi is the basis) and iii. Theory concl. 9 and 10. Lup. Bebenb. c. 5 and 12: when the Karolings prin^e had died out, the princes and nobles of the Franks, Alamans, Bava- Electors, rians and Saxons 'who represented the whole Folk of Germany' made the choice ; then Otto III. ' by the express or at any rate the tacit consent ' of the princes and people established the Kurfursten (Prince Electors) ; and this was legitimate, for by the ius gentium every universitas may choose a king, and, in accordance with a general custom, may also confer upon him imperial rights, and more- over may delegate for ever to committees the right to make equally valid elections. Ockham, Octo q. viii. c. 3. Nic. Cus. in. c. 4 : the Electors were instituted in the time of Henry IL by the common consent of all the Germans and of all others who were subject to the Empire, and therefore ' radicalem vim habent ab ipso omnium con- sensu qui sibi naturali iure imperatorem constituere poterant.' Ant Ros. I. c. 48 : the ' collegium universale fidelium, et sic populus Romanus,' instituted the Electors. 156. Ockham, Dial. ni. tr. 2, 1. 1, c 30 : what the People has The Pope defado conveyed to the Pope is knowable only by one who has seen p^p^j^ all the papal charters, registers and authentic documents; but in Delegate, principle the People might have transferred to the Pope power to constitute the Electoral College or even directly to make the election. Nic. Cus. III. c. 4 holds that it was merely as a subject of the Empire (for in temporals the Church is subject) that the Pope gave his consent, whereas the virtue {vigor) of the act flowed not ' ex suo sed ex communi omnium et ipsius et aliorum consensu.' — On the other hand, according to Lupoid v. Bebenburg, c. 12, an authoriza- tion by the Church was requisite in order that the choice made by the Prince Electors might give a claim to imperial coronation and to imperial rights outside the realm of Charles the Great. 157. Mars. Pat. 11. c. 26. Ockham, Octo q. viii. c. i — 8, and Election, IV. c. 8—9; Dial. III. tr. 2, 1. 2, c. 29. Nic. Cus. iii. c. 4-— So also {["f;^^""- Bebenburg, c. 5 — 6, but once more with an exception of imperial confers the 150 Political Theories of the Middle Age. Imperial rights beyond the limits of the ' immediate ' Reich. Ockham justly '^ '^' urges that Bebenburg's own argument requires that the Electing Princes should represent the World-Folk, and not merely the folk of Charles the Great's lands. LexRegia: 158. Accursius in Gl. upon 1. 9, Dig. i, 3, v. non ambigitur, vocable decides in favour of this view, while the Gl. upon 1. 11, Cod. i, 14, Convey- v. solus imperator mentions it but does not decide. So also Gl. upon ance. j_ pg^(J_ 26, v. an imperatorem (imperator maior populo). Hostiensis, De const. Bartolus, 1. 11, Cod. r, 14, nr. 3 — 4: omnis potestas est abdicata ab eis. Baldus, 1. 8, Dig. i, 3, nr. 5 — 11, says that the /(?/>«- lus Romanus cannot depose the Emperor and is not imperatori similis; the translatio was an alienatio pleno iure; otherwise the Kaiser would be, not dominus, but commissarius populi. So Baldus in I. Feud. 26, nr. 15 and 11. Feud. 53 § i (princeps maior populo); 1. 8, Dig. i, 14, nr. I — 3, and 1. 1 1, eod. nr. 6 : the populus can no longer make laws. Angel. Aret. § 6, i. I, 2, nr. 5—6. Joh. de Platea, Inst, i, 2, nr. 51. Marcus, Dec. i. q. 187. LexRegia: 159. See the counter opinions in the Glosses cited in the last cableDele- "°'^^- ^'- "'^ '• ^> ^^S- ^^ ^- I^- ^- Hi^ora \ the protectio of the res gation. communes omnium is ascribed to the Roman people : Baldus substi- tutes Caesaris for pop. Rom. Also Cinus, 1. 1 2, Cod. i, 14 : but he confesses that at the present day statutes made by the Roman people would find little observance outside the walls of Rome. Ockham, Octo q. IV. c. 8. Christof. Parcus § 6, Inst, i, 2, nr. 4 (with elaborate proof). Zabar. c. 34 § verum, X. i, 6, nr. 8. Paul. Castr. 1. 8, Dig. I) 3, nr. 4 — 6, and 1. i, Dig. i, 4, nr. 4: he holds that there was a concessio of the usus, not a translatio of the substantia, but since Christ's advent the Church has taken the place of the People. Absolute 160. See e.g. the speech of the Abp of Milan to Frederick I. in Ott. Monarchy ^ , ^ and the ins. IV. c. 4, and the letter of Frederick II. in Pet. de Vin. ep. v. c. 135. p^o'°e*^ 161. Oldradus and, following him, Baldus, Prooem. Feud. nr. Nullity of 32. and II. Feud. 26 § 4 in generali, nr. 34. Pious a Monte Pico, Monarch's I. Feud. 7, nr. 7. Decius, Cons. 564, nr. 9 — 10. Franc. Curt. jun. they tend ^°°^- ^74. nr. 17.— Therefore to support the Donation of Constan- to impair tine, an approval by Senate and People was supposed. Baldus, menuf"^^' Prooem. Dig. nr. 44—45. and 11. Feud. 26 § 4, nr. 3 ; Aug. Trium- Rights. phus, II. q. 43> a- 3 ; Ant. Rosellus, i. c. 69 ; Curtius, 1. c. nr. 18. ^fAas ^^^' ^"P- ^^'^^'^^- •=• ^'P- 367. andc. i2,p. 381, butesp. c. 14, subjecting PP- 395 — 7 = since these concessions and confessions were made without J^^^mpire the consent of the Prince Electors and the People of the realm and Church, empire, the said Princes and other representatives of the People can contradict them, and this contradiction is to be received; so the Notes. 151 subdiii may always raise objection if a dominus would subject himself and his land to another dominus ; for according to the ius gentium, civile et canonicum whatever would prejudice a community ' debet ab omnibus approbari.' Similarly, Ockham, Dial. iii. tr. 2, 1. i, c. 30 : a division or diminution of the Empire would be valid ' non absque consensu expresso vel tacito totius universitatis mortalium.' 163. Seethe Commentaries on 1. 8, Cod. i, 14; also Baldus, II. Feud. 26 § I, nr. 13. 164. See e.g. Pet. de Vin. ep. i. c. 3, p. 105. Lup. Bebenb. The Right c. 17, p. 406 — 7 : even were rex maior fopulo, the people must have *« depose a right to depose him in a case of necessity ; ' necessitas enim a case of legem non habet.' Ockham, Octo q. 11. c. 7, vi. c. 2, in. c. 3 ; the Necessity. Kaiser, albeit ius a pofulo habet, stands above the People, the King above the Realm, the General of an Order above all the friars : still in case of necessity the community may depose him. Anton. Ros. HI. c. 16 : although the Kaiser stands as caput above the Assembly of the Reich and is judge in his own cause, an exception must be admitted if he is accused before that Assembly as 'tyrannus et scandalizans universale bonum imperii saecularis.' Comp. ib. a 21 and 22, and above, Note 130. — On the other hand, already in the time of Henry IV. the Anti-Gregorian cardinals opine that, though the people can make a king, the will of the people, when once it is uttered, becomes a necessitas : see Sudendorf, Registr. 11. 41. So also Baldus (Note 158); but comp. his Cons. v. c. 325 — 6. 165. Thomas of Aquino attributes sovereignty sometimes to The Mixed the People, sometimes to the Prince, regard being had to the different ^°^f^ constitutions of different States. Summa Theol. 11. i, q. 90, a. 3 : ordinare aliquid in bonum commune est vel totius multitudinis vel alicuius gerentis vicem totius multitudinis; et ideo condere legem vel pertinet ad totam multitudinem, vel pertinet ad personam publi- cam, quae totius multitudinis curam habet. So also, q. 97, a. 3. In this matter later writers follow him : e.g. Joh. Friburg. 11. t. 5, q. 209, and K. Summenhard, q. 1 1 : potestas politica exists ' duplici modo, uno modo in uno rege, alio in una communitate.' But as to the best constitution, Aquinas declares in favour of the mixed constitution which (so it is imagined) prevailed among the Jews. Summa Theol. II I, q. 95, a. 4, and q. 105, a. i : 'Unde optima ordinatio princi- pum est in aliqua civitate vel regno in quo unus praeficitur secundum virtutem qui omnibus praesit ; et sub ipso sunt aliqui participantes secundum virtutem; et tamen talis principatus ad omnes pertinet, turn quia ex omnibus eligi possunt, tum quia etiam ab omnibus eliguntur: talis enim est omnis politia bene commixta ex regno in 152 Political Theories of the Middle Age. quantum unus praeest, ex aristocratia in quantum multi principantur secundum virtutem, et ex democratia, id est, potestate populi, in quantum ex popularibus possunt eligi principes et ad populum pertinet electio principum.' In all cases he demands that Monarchy be subjected to limitations so that it may not degenerate into Tyranny : De reg. princ. i. c. 6. John of Paris, c. 20, p. 202, prefers to a pure Monarchy one mixed with Aristocracy and Democracy. So d'Ailly, De pot. eccl. 11. c. i, and Gerson, De pot. eccl. cons. 13. Eng. of Volkersdorf also (i. c. 14 — 16) portrays the advantages of mixed constitutions. Jason, 1. 5, Cod. i, 2, lect. 2, nr. 10 — 13, declares it to be a general maxim in Church and State, that, if there be ardua negotia concerned, the Head is bound to obtain the consent of a conciliar assembly. Almain, Comm. ad Occam, q. i, c. 5 and IS, holds it to be compatible with the nature of a Monarchy that in State and Church respectively the congregatio nobilium or the Council is entitled to impose limits on the regal or papal power and to judge and depose the king or, as the case may be, the pope ; but then it is true that he elsewhere (Tract, de auct eccl. c. i, Gerson, Op. 11. p. 977 ff.) declares that the Prince is above all individuals, but not above the community. John Mair, Disput a. 1518 (Gerson, 11. p. 1131 ff.) supposes two highest powers, that of the folk being the more unUmited. 166. See above. Note 159. Lup. Bebenb. c. 12 and 17. Ockham, Octo q. iv. 8. Justice to 167. Mars. Pat. I. c. 15 and 18; 11. c. 26 and 30. Lup. upon°the bebenb. c. 17, p. 406. Ockham, Octo q. 11. c. 8 (correctio impera- Ruler. toris spectat ad Romanos). Miles in Somn. Virid. i. 141 : if a King imposes unjust taxes, denies justice, fails to defend the country, or otherwise neglects his duty, the People may depose him and choose another Ruler, and so the People of a part of the realm, if this part only has suffered neglect, may appoint a separate Ruler. Joh. Wiclif, art. 17: populares possunt ad suum arbitrium dominos delinquentes corrigere. Nicol. Cus. in. c. 4.— Already in the course of the Investiture Quarrel, Manegold of Lautenbach deduced the right of deposition in case of breach of contract by the Ruler. Innoc. c. I, X. i, 10, nr. i — 2 concedes a right of deposition only in the case of elective kings. Itio^or' ^^^' ^^P^*=^^lly ii* relation to the deposition of the last Merovings Kings. ^"^^ tlie exaltation of Pipin, it is asserted at length that ' non deposuit papa, sed deponendum consuluit et depositioni consensit,' 'non substituit sed substituendum consuluit et substituentibus consensit,' •a iuramento absolvit, i.e., absolutos declaravit'; and reference is Notes. 1 53 made to Huguccio and Glos. ord. on c. alius, C. 15, q. 6. Joh. Paris. c. 15. Mars. Pat. De transl. c. 6. Lup. Bebenb. c. 12, pp. 386 — 9: the Pope merely declared a dubium iuris, the Franks deposed and instituted. Ockham, Octo q. ii. c. 8 ; viii. c. i and 5 \ Dial. in. tr. 2, 1. I, c 18: so too Innocents III. and IV. acted auctoritate Roman- orum, unless indeed their doings were usurpatory. Somn. Virid. I. c. 72 — 73. Quaestio in utramque p. 106, ad 15 — 16. Nic. Cus. in. c. 4 : the Pope acted as a member of the universitas. 169. Lup. Bebenb. c. 12, p. 385, and c. 17, p. 406. 170. Marsil. Pat. i. c. 7 — 8, 12 — 13, 15, 18, 11. c. 30, iii. concl. 6. 171. Nicol. Cus. III. c. 4 and 41, and 11. c. 12 — 13. The pro- The posals made by Cusanus for the reformation of the Empire are S"^"!^*^/* °' connected with these theories, and in a very remarkable fashion blend of Cues. the forms of the medieval Land-Peace-Associations with the ideas of Nature Right, in. c. 25 — 40. The Emperor continues to be the monarchical Head of the Empire and is to take the initiative (c. 32). A very complicated method is proposed for his election (c. 36 — 37). The power of making laws for the Empire is wielded by an annually assembled Imperial Diet {Reichstag) which consists of Prince-Electors, Judges, Councillors and Deputies of Towns, and represents the whole People (c. 35). Then below this stand annual Provincial Assemblies of the three Estates (Clergy, Nobles and People) which regulate the special affairs of the provinces, and depute standing committees (provincial courts) with a strong executive power (c. 33). Further and detailed reforms of the imperial army (c. 39), of the finance and justice of the Empire, of the laws concerning the Land Peace (c. 34), of ecclesiastical privileges (c. 40) and so forth are proposed. As in the Empire, so generally in all territories the kings and princes are to have by their sides an aristocratic consilium guoti- dianum and an electing, legislating and deciding consilium generale (c. 12). — Analogous reforms in the Church are proposed; 11. c. 22 — 33. 172. See in particular the transactions of the French Estates of Popular 1484, and on them Bezold, Hist. Zeitschr. vol. 36 (1876) 361 ff., and ^°\Xiy in Baudrillart, Bodin et son temps, p. 10 j the remarks of Philippe de France. Comynes in Baudrillart, p. 1 1 flf. ; the doctrine of Jacob. Almain, Expos, ad Occam, q. i. c. 5 and 15; Tract, de auctor. eccl. c. i (Gerson, Op. ii. p. 977 ff.); De dominio natural! etc. (ib. 964). 173. See the passages from the Canonists collected by v. Schulte, Pf-pal Die Stellung der Koncilien, p. 253 ff. Thom. Aq. Opusc. cont. err. General" Graec. 11. c. 32—38. Innoc. c. 23, X. de V. S. nr. 3. Dur. Spec. Councils. I. I de leg. § 5, nr. 10. Aegid. Rom. De pot. eccl. i. c. 2. Aug. Triumph, i. q. 6, a. 6. Alv. Pel. i. a, 6 (printed in Hubler, Konst. [54 Political Theories of the Middle Age. Ref. p. 361) and 17. Brief of Pius II. and Reply of Laelius in Gold. II. p. 1591 and 1595. Turrecremata, Summa de eccl. 11. c. 54 and 65; III. c. 28, 32, 44, 47, SI, 55. Petrus de Monte in Tr. U. J. XIII. I, p. 144 ff- Papal 174- If Aug. Triumphus, I. q. 3, a. 7—9, says that the electing Elections : college is not mains papa, since it is merely God's instrument for the Mntative designatio personae, makes the election papae audoritate, and can Character confer no authority upon the pope, still in default of the college he Cardinals, attributes the right of election to the Concilium Generale, and con- nects this attribution with the doctrine that, during the vacancy of the see, the collegium universalis ecclesiae represents the Church, may assemble of its own motion or at the emperor's call, and, to this extent, possesses a 'potential superiority {maioritas potentialis)' yihich maybe contrasted with the 'actual superiority {maioritas actualis)' of the pope. See i. q. 3, a. 2, q. 4, a. i — 8, q. 6, a. 6. However, during the vacancy the properly monarchical power, so far as its substance is concerned, lives on merely in Christ, and, so far as its use is concerned, lies dormant, for the Cardinals — here a departure from older theory — can at the most exercise the papal jurisdiction 'in minimis et quibusdam.' See also Alv. Pel. i. a. 20, Gl. on CI. 2 de el. I, 3, v. non consonam; Hinschius, Kirchenrecht, § 39. 175. See V. Schulte, Die Stellung der Koncilien, pp. 192 — 4 and p. 253 ff. Deposition 176. See c. 13, C. 2, q. 7, and c 6, D. 40; also in v. Schulte, ^^\- 1 op. cit., the opinions of Gratian, Rufinus, Stephanus Tomacensis, Pope. Simon de Bisignano, Joh. Faventinus, Summa Coloniensis, Summa Parisiensis, Summa Lipsiensis, Huguccio, Bern. Papiensis, Joh. Teu- tonicus, Archidiaconus, Turrecremata, Goffr. Tranensis, Hostiensis, Joh. Andreae, Joh. de Imola, Joh. de Anania. Moreover, Gl. ord. on c. 9, C. 24, q. I, V. novitatibus ; Innoc. IV. on c. 23, X. de verb. sig. 5, 40, nr. 2 — 3 ; Host, de accus. nr. 7 ; Joh. de Anan. c. 29, X. 3, 5, nr. 9 ff.; Petrus a Monte, f. 148 ff. The 177. This is suggested already by Joh.Teutonicus (1. c. nr. 310, heretical p_ 265), and is urged in particular by Aug. Triumphus, i. q. 5. a. i, deposed 2, 6 and q. 6, a. 6 (see also q. i, a. i, 3, q. 5, a. 3 — 4, q. 7, a. 1—4, ipso facto. q_ g^ jj_ q g g^j^^j jj_ ^^ — ^g^^ g^jj^j Alvarius Pelagius, i. a. 4 — 6 and 34, II. a. 10. Also by the Clerk in the Somnium Virid. 11. c 161 Ockham discusses the matter at length: Octo q. iii. c. 8, viii. c. 5 — 6, Dial. I. 6, c. 66 — 82. In Matters 178. Already Huguccio (v. Schulte, p. 261) is of opinion that of Faith tjjg heretical pope is ' minor quolibet catholico.' See the statement the Pope ^ is below of this view in Ockham, Dial. i. 5, c. 27, and I. 6, c. 12 — 13, 57, 64: Notes. 155 in matters of faith the Council is 'mains papa' because it 'tenet the vicem ecclesiae universalis.' Michael de Cesena, ep. a. 133 1 ^°""=''- (Goldast, II. p. 1237): in his quae ad fidem catholicam pertinent papa subest concilio. Henr. de Langenstein, Cons. pac. a. 1381, c. 13 and 15 in Gerson, 11. p. 824, 832. 179. Thus already Huguccio and others; for crimina noforia "Deposition comp. Ockham, Octo q. i. c. 17, 11. c. 7, in. c. 8, viii. c. 5— Sj^^h^^. Dial. I. 6, c. 86. Letter of the University of Paris, an. 1394 matical or (Schwab, pp. 131— 2, Hubler, p. 362); for schism, Matth. de pope°°"' Cracovia (Hiibler, p. 366 — 7). Pierre Plaoul, a. 1398 (Schwab, p. 147). Zabar., De schism, p. 697. 180. See above, Note 134. Henr. de Langenstein, L c, c. 15. Rejection Simon Cramaud, Pierre Plaoul and other Galileans in Schwab, 146 flf. °^ cafe°of and Hiibler, 368 ff. Opinion of the University of Bologna in 1409, Necessity. in Martene, Ampl. Coll. viii. 894. A practical application of this doctrine in the French Subtraction of Obedience (Schwab, p. 146 fif.) and Declaration of Neutrality (ib. 2 1 1). 181. Joh. Paris, c. 6, pp. 155 — 8, c. 14, p. 182, c. 21, p. 208, c 25, p. 215 — 224. 182. Mars. Pat. 11. c. 15 — 22, and in. concl. 32 and 41. All Marsilius other powers wielded by the popes have been usurped. The Council °"^ °^^ has authority, not only in matter of faith (11. c. 18, 20, in. c. i and Council. 2), but also in matters of excommunication, punishment, legislation, raising tithes, licensing schools, canonization, establishment of festivals etc. (ii. c. 7, 21, in. c. 5, 34 — 6). 183. See in Ockham, Dial. i. c. 5, c. 14 — 19, and in. tr. i, 1. 4, Divine the opinion that the papacy rests upon human ordinance; in. tr. i, 1. 2, ^'^p' °*^j c. 2, 12 — 14, 16 — 17 and 25, the reasons which can be urged against Primacy there being any single, human, monarchical head of the Church; in. <:°"'«sted. tr. I, 1. I, c. I, the question how wide a power God has committed to the Pope. See also the references to such opinions in Petr. AUiac. (Gerson, Op. i. p. 662 ff.), Gerson (ib. 11. p. 88, where it is said to be a common opinion that the pope is not iure divino Head of the Church) and Joh. Breviscoxa, Tract, de fide (ib. i. p. 808, esp. 878 ff.). The divinity of the primacy is decisively disputed by Nilus, arch. Thessalon., De primatu (Gold. i. pp. 30 — 39), Randuf, De mod. un., Wyclif, Hus, and so forth. — The auctoritas condliorum is often mentioned by the older canonists as one of the forces which had constituted the primacy: e.g. Huguccio, 1. c. p. 266. So d'Ailly (Gers. Op. 11. p. 905) seems to favour the middle opinion : licet principaliter Rom. eccl. principatum habuerit a Domino, tamen secun- dario a conciho. In the same spirit, Gerson (11. p. 239 ff.) distin- 156 Political Theories of the Middle Age. guishes those powers of the papacy that were divinely bestowed from those that have been acquired under human law. Abolition 184. Ockham, Dial. iii. tr. i, 1. 2, c. 20 — 27, treats the questions of Papal Tyhether the Community of the Faithful possesses and might ex- suggested, pediently use a power of changing the regal form of ecclesiastical government into an aristocratical, and vice versa. Also (c. 28) from the principle of autonomy (quaelibet ecclesia et quilibet populus Christi- anus propria autoritate ius proprium statuere pro sua utilitate potest) he deduces the right of every people to give itself a separate eccle- siastical head, in case the Pope be heretical, the papal see be long vacant, or access to Rome be impossible. 185. Ockham, Dial. in. tr. 2, 1. 3, c. 4 — 13. And then to the like effect Henr. de Langenstein, Cons. pac. c. 14 and 15. 186. Ockham, Octo q. i. c. 15, in. c. 9; Dial. in. tr. i, 1. i, c. 1 (where the fifth of the suggested opinions seems to be his own). The 187. Ockham, Octo q. i. c. 17, in. c. 8; Dial. i. 5, c. 27; i. 6, SayTudge <=■ ^2— 13, 57. 64, 69—72, 86. See Nilus, as in Note 183. Anony- the Pope, mus De aetat. eccl. c. 6, p. 28 : nemo primam sedem iudicare debet, sed hoc pertinet ad dominam et reginam sponsam Christi, cuius servus et dispensator est papa, quam universales sjmodi repraesentant. Somn. Virid. i. c 161. Henr. de Langenstein, Cons, pac c. 15. Right 188. Ockham, Dial. i. 6, c. 84: this is but one instance of the rh*^h general right of every autonomous populus, of every communitas, of assemble every corpus, to assemble itself, or to constitute an assembly of and to deputies : potest aliquos eligere qui vicem gerant totius communi- a Council, tatis aut corporis absque alterius autoritate. So the Universal Church, when the holy see is vacant, might per se convenire were her size small enough, and, as it is, may assemble 'per aliquos electos a diversis partibus ecclesiae.' The impulse to such an assemblage may come from the temporal powers or from all the laity, in case the organs which in the first instance are entitled to give it, the prelates and divines, make default. Comp. Langenstein, 1. c. c. 15 : Conrad de Gelnhausen, Tr. de cong. concil. (Martene, Thesaur. 11. p. 1200). Theory 189. Zabarella, De schism, p. 703, and upon c. 6, X. i, 6, nr. of the 16: id quod dicitur quod papa habet plenitudinem potestatis, debet Conciliar ..... , .... _ . Party. intelligi non solus sed tanquam caput universitatis : ita quod ipsa potestas est in ipsa universitate tanquam in fundamento, sed in ipso tanquam ministro, per quem haec potestas explicatur, Petr. Alliac de pot. eccl. (Gerson, Op. n. p. 949 ff.) : the plenitude of ecclesias- tical power is 'in papa tanquam in subiecto ipsam recipiente et ministerialiter exercente,...in universali ecclesia tanquam in obiecto ipsam causaliter et finaliter continente,...in general! concilio tanquam Notes. 157 in exemplo ipsam repraesentante et regulariter dirigente.' For Gerson see the next note. Theod. a Niem, De schismate. Randuf, De mod. un. especially c. 2, goes furthest : the Universal Church has the power of the keys from God, the Roman Church has the exercise thereof only in so far as this has been conceded to her by the Universal Church. 190. See last Note. The whereabouts of ecclesiastical power Gerson's is more thoroughly discussed by Gerson than by others : Gers, 11. '^^^°^"l- 225 fr.; Gold. II. 1384 flf. This power bestowed by Christ's mandate must in all its elements be regarded from three points of view (c. 6). • In se formaliter et absolute' (i.e. regarded abstractedly and according to its simple essence) it is unchangeably and indestructibly in the Church, thereby being meant the complete system of all essential oflSces, among which offices the primacy is only one, so that it is a part within the whole (c. 7), ' Respective et quodammodo materia- liter' (i.e. regard being had to the 'subject' in which this power resides) it is in the office-holders for the time being and to this extent also in the Pope, but, if need be, can be changed or taken away (c. 8). ' Quoad exercitium et usum ' it is, in a yet more changeable and more limited fashion, allotted among the various organs accord- ing to the Church's constitution (c. 9). In the first of these three senses the power comes directly from Christ ; in the second and third senses ' mediante homine.' — ^Then as to the division of power among ecclesiastical organs, the ' plenitudo ' is both in the Pope and the 'ecclesia synodaliter congregata.' It is in the latter more aboriginally and more fully in four respects (ratione indeviabilitatis, extensionis, regulationis, generalis extensionis). Indeed it is in the Pope ' forma- liter et monarchice' ; but it is in the Church as in its final cause (in ecclesia ut in fine) and as in its ordaining, regulating and supple- menting wielder (ordinative, regulative et suppletive). It therefore is exercised by the Pope, while the Council ' usum et applicationem regulat,' and 'mortuo vel eiecto papa supplet' (c. 10 — 11 ; also ^Con- cordia quod plenitudo eccl. pot. sit in summo pontifice et in ecclesia,' Op. II. p. 259 and Goldast, 11. p. 1405). In its latitudo, on the other hand, the ecclesiastical power is bestowed on all offices and therefore m the highest degree on the Pope, but belongs to him only in so far as respect is paid to the subordinate but independent power of other offices and to the all-embracing power of the Council. (Hiibler's account of Gerson's trichotomy (p. 385 if.) is not quite accurate.) 191. Zabarella, De schism, pp. 703, 709, and c. 6, X. i, 6, nr. Practical 15—20 : 'ipsa universitas totius ecclesiae ' is to cooperate in arduous ^^^^^ matters, to decide on good or bad administration, to accuse, to Council. 158 Political Theories of the Middle Age. Power of the Council to assemble. Power of the Council during a Vacancy of the Holy See. The Cardinals are Repre- sentatives of the Whole Church. An inde- pendent position assigned to the Cardinals. Mixed Govern- ment in the Church. depose, and can never validly alienate these rights to the Pope, Gerson, De auferibilitate papae (Op. 11. p. 209 and Gold. 11. p. 141 1) cons. 10 and 12 — 19, De unitate eccl. (Op. 11. 113), De pot. eccl. c. II (comp. also Op. 11. p. 275): the Church or the General Council representing the Church can repress abuses of power, can direct and moderate; can depose the Pope 'auctoritative, iudicialiter et iuridice,' not merely 'conciliative aut dictative vel denuntiative'; nay, can imprison him and put him to death: Aristotle teaches that every coinmunitas libera has a like inalienable right against its princeps. See also Randuf, c. 5 and 9 ; Pierre du Mont de St Michel in Hiibler, p. 380, and the doings at Constance, ib. loi — 2 and 262. 192. Petr. Alliac. Propos. util. (Gerson, Op. 11. p. 112): a right of the Council to assemble of its own accord is deduced both from the power given by Christ and (after Ockham's fashion) from the natural right of every corpus civile seu civilis communitas vel politia rite ordinata to assemble itself for the preservation of its unity. (Somewhat otherwise at an earlier date, ib. i. pp. 661 — 2.) Randuf, c. 3 (p. 164). Less unconditionally, Gerson, Propos. (Op. 11. p. 123), De un. eccl. (ib. 113), De aufer. pap. (c. 11, ib. 211) and De pot. eccl. (ib. 249). Zabarella, De schism, pp. 689 — 694, attributes the right of summons to the Cardinals, and, failing them, to the Emperor 'loco ipsorum populorum,' since he represents the whole Christian people, 'cum in eum translata sit iurisdictio et potestas universi orbis ' : in the last resort, however, the Council may assemble itself according to the rules of Corporation Law. 193. Gerson, De pot. eccl. c. 11. Zabar. De schism, pp. 688 — 9: with application to the case of a schism, for then the holy see is quasi vacans. Domin. Gem. Cons. 65, nr. 7. 194. Octo conclusiones per plures doctores in Italiae part, approb. ann. 1409 (Gers. Op. 11. p. no): veri cardinales in electione papae vices gerunt universalis ecclesiae Christianae. Zabarella, c. 6, X. I, 6, nr. 9, and Panorm. eod. c. nr. 15. According to Gerson (Op. II. pp. 123, 293) the Council might institute another mode of election : according to Randuf (c. 9) it might itself elect. 195. Octo concl. 1. c. Gerson, De pot. eccl. c. 7 and 11. Petr. Alliac. De pot. eccl. 11. c. 1. Hiibler, p. 74, and the Reform Decrees, ib. 129 and 218. 196. Gerson, De pot. eccl. c. 13 : the organization of ecclesi- astical power should share in the harmony and 'pulchra ordinis varietas' oiiura, leges, iurisdictiones and dominia : therefore its politia must be compounded of the three good polities of Aristotle : the three degenerate forms also are possible in the Church. Pet. AUiaa Notes. 1 59 De pot. eccl. ii. c. i (ii. p. 946) : the Church must have the best of constitutions, and therefore ' regimen regium, non purum, sed mixtum cum aristocratia et democratia.' 197. Zabar. De schism, pp. 703, 709. Octo concl. 1. c. : The delegated nature of all other powers. Pierre du Mont de St Michel, abOTTthe ann. 1406, in Hiibler, p. 380. Gerson, De unit. eccl. (11. p. 113); Pope- Tract, quomodo et an liceat etc. (ib. 303 and Gold. 11. 1515); De pot. eccl, 7 and 11 : the Pope is only a membrum of the corpus ealesiae, and is as little above the Church as a part is above the whole ; much rather, if the General Council represents the Universal Church suflSciently and entirely, then of necessity it must include the papal power, whether there be a Pope, or whether he has died a natural or a civil death; but it will also include the power of the cardinals, bishops and priests. Randuf will allow to the Pope not a whit more power 'than is conceded to him by the Universal Church,' and only a power which is 'quasi instrumentalis et operativa seu execu- tiva ' (c. 2) ; the concilium is thoroughly ' supra papam,' and to it he owes obedience (c. 9) ; the Sovereignty of the Council is inalienable and all Canon Law to the contrary is invalid (c. 17; comp. c. 23). Add the famous decree of Session V. of the Synod of Constance, and Gerson, 11. p. 275 thereon. 198. Gerson, De pot. eccl. : the ' congregatio totius universi- Gerson on talis hominum ' could, it is true, establish the Empire, but could not, ^^^ without Christ, have laid the foundation of the Church (c. 9) ; the of the Church is a system of offices, including the papacy, which were "P^y* instituted by Christ and are indestructible (c. 7 and 9) ; the papacy, though as a function it is subject to alteration and may be temporarily dispensed with (c. 8), is as an institution indestructible (c. 1 1). Comp, De auferib. pap. c. 8 and 20, where this is made the distinctive difference between the constitution of the Church and civil con- stitutions. See also Op. 11. pp. 130, 146, 529 — 30, and iv. p. 694, 199. See Randuf, 1. c, c. 5. 200. In the Concordantia Catholica. See also his De auctor. praes. in Diix, i. p. 475 ff. 201. Gregory of Heimburg in his polemical writings touching Popular the strife about the bishopric of Brixen : as to which see Brockhaus, .^' Gregor v. Heimburg, pp. 149 — 259. [For this quarrel the English in the reader should refer to Creighton, Papacy, iii. 237 : Nicholas of Cusa Church, and Gregory of Heimburg were concerned in it and Aeneas Sylvius was the then Pope, Pius II.] According to Heimburg the Council and only the Council represents the eternal, constant, infallible Church, realizes the Church's unity in a democratic form, and is i6o Political Theories of the Middle Age. greater than the monarchical Head (Gold. ii. 1604 ff., 1615 ff., 1626 fif.). Immediately from Christ it has power over the Pope in matters of faith, unity and reform, and is his superior. From the Pope lies an appeal to the Council, as in Rome an appeal lay from Senate to People (ib. 1583, 1589, 1591, 1595, 1627); and a papal prohibition of such an appeal is invalid (ib. 1591 and 1628). If no Council be sitting, the appeal is to a future Council, since once in every ten years the authority of the Church scattered throughout the world — an authority which lies dormant during the intervals — should become visible (ib. 1580 — 91). — Compare Almain, Expos, ad octo q. I. c. IS, and Tract, de auctor. eccl. et cona gen. (Gers. Op. 11. p. 977 ffi) : the Church is a Limited Monarchy, in which the Council ratione indeviabilitatis stands above the Pope, sits in judgment on him, receives appeals from him, restrains him by laws, can depose him, and so forth. — Aeneas Sylvius, Comment, de gestis Basil, concilii libr. II. : the comparison to the relationship between King and People is consistently pursued. Canonists 202. Comp. Ludov. Rom., Panormitanus (e.g. upon c 2, X. i. Council. ^' "''• ^ • potestas ecclesiastica est in papa et in tota ecclesia, in papa ut in capite, in ecclesia ut in corpore ; c. 3, eod. nr. 2 —4 ; c. 6, eod. nr. 15 ; c. 17, X. r, 33, nr. 2), Decius (e.g. c. 4, X. i, 6, nr. i — 22; c. 5, eod. nr. 3; Cons. 151), Henr. de Bouhic (e.g. c 6, X. i, 6), Marcus (e.g. Dec. i. q. 935), and so forth. The 203. The Pope stands as Monarch {caput) above the Council : Anfodiis ^'^'- ^° ^°°'^ ^® ^^ prescribes anything against the Faith or the weal of de Rosel- the Church ■ or beyond his official competence, the Council stands above him, judges him, and receives appeals from him (11. c. 13 — 22, and III. c. 16 — 17). Although therefore he normally has the pleni- tude of power and his opinion has precedence over that of 'the whole body mystical,' still the judgment of the whole Council takes precedence ' in a matter of faith, or schism, or where the good of the universal Church is in question' (iii. c. 26 — 27), even if this good be but some secondary good; for example, if there be question as to the appointment of officers. When there is no pope or there are more popes than one or the pope is heretical, then the Council has all power (11. c. 24). The election of popes belongs to the Church universal which has committed it to the cardinals (i. c. 48). Nor- mally it is for the Pope to summon and authorize the Council (ill. c. I and 3) : but he is bound to summon it for every arduous affair of the whole Church or if he himself is to be called to judgment (ib. c. 2). If he makes default, then the Cardinals, the Emperor, or indeed any clerk or layman may call a Council, which then con- Notes. i6i stitutes itself of its own authority (ii. c. 4 and 24, ni. c. 3). Against a pope who has been condemned or who impedes or dissolves a Council which might depose him, there is a general right of resist- ance and renunciation (11. c. 23, 26 — 30, in. c. 4—6). To deal with •mixed' affairs 'mixed' councils, to which the Church should submit, are to be summoned by the joint action of .the spiritual and temporal powers (hi. c. 15 — 18 and 21 — 22). 204. Turrecremata, De pot. pap. c. 38. So also Nicholas of Popular Cues (Op. 825—9) in his later days: for Plurality is evolved out of ty°dentd!" Unity, and the Body out of the Head. — After as well as before the reaction in favour of the Papacy, the papalists admit the superiority of the Council in ' a cause of faith or of schism ' (confentio de papatu and causa contra papam), but regard this as an exception. See, e.g., Card. Alexandr. c. 3, D. 21, c. i, D, 23, summa, and c. i, D. 15; Domin. Jacobatius Card. De consiliis, esp. iv. a. 7, nr. 29 — 31 and vi. a. 3, nr. 41 and 58 — 60, comp. with vi. a. 3, nr. 61 ; also Petrus de Monte and Turrecremata, in Schulte, Geschichte, 11. p. 319 and 327. 205. As to the part assigned to delegates of Princes, Towns and Lay Universities, see Hiibler, p. 119, note 3, 120, note ■; ; Voiet, Enea ^^P'^." o ' scntEttivcs Sylvio, I. p. 102 ff. Gerson, De pot. eccl. (11. p. 250), allows the in the laity only consultative voices. Even Nic. Cus. would allow them a Councils, real voice only under certain conditions, but lets all parishioners take part in the parochial synods, and the laity are to cooperate in the election of parsons and bishops (11. c. 16, in. c. 8 — 24). 206. Gerson, Propos. coram Anglicis, ann. 1409 (Op. 11. pp. 128 The — 130), De aufer. pap. (ib. 209 ff.), De pot. eccl. c. 7 and 9, Sermo in Ch".«:h an Op. II. p. 436 ff. So also Petr. AUiac. (ib. i. p. 666 ff. and 690) and rather Nic, Cus. (i. c, 7 — 10 and 11. c. 19) regard the Priesthood as the Jj"*" * essential and distinctive mark of the Church. As to Heinrich v. ship. Langenstein, see his biography by O. Hartwig, i. pp. 56 — 57. [Dr Gierke here contrasts an idea of the Church which is anstaltlich with one which is genossenschaftlich. Some learning of a technically legal kind is implied by the employment of these words, and it cannot be briefly explained in English. But we shall not go far wrong if we contrast the idea of the Church as ' a corporation aggregate,' congre- gatio fidelium, with that of the Church as a system (Jnbegriff) of personified offices, or (as we say in England) of 'corporations sole.'] 207. So e.g. in Randuf, De mod. un. in Gerson, Op. 11. p. 161 ff. 208. Ockham, Dial. i. 5, c. i — 35. So almost verbatim Petr. Fallibility AUiac. (Gers. Op. i. p. 661 ff.) who, however, does not draw infer- °^ ^^^'^5' M. II 1 62 Political Theories of the Middle Age. Part of the Church. The Laity and the Election df Popes. The Emperor's part in Papal Elections, The Temporal Magistrate as Repre- sentative of the Laity. The Objectifi- cation of Office or Dignity. The Prelate as Repre- sentative of his Church. Is the Pope the Church? ences as to the active participation of the laity in the constitution of the Church. Comp. Randuf, c. 3. 209. Ockham, Dial. in. tr. 2, 1. 3, c. 4 — 15 : refuting opinions which would attribute this right only to the Canons, or the Clergy, or the Emperor. 210. Ockham, 1. c, c. 5, 7, 12 (vice omnium eligeret) : not as Emperor (c. 2, 3, 13), nor by the authority of the Pope (c. 5, 7). Comp. Octo q. IV. c. 6; also in. c. 8, and i. c. 17. 211. See e.g. Ockham, Octo q. in. c. 8, Dial, i, 6, c. 85, 91 — 100. — So too Wyclif and Hus, rejecting the severance of Clergy and Laity, end by placing the ecclesiastical power in the hands of the State. See Lechner, Johan v. Wiclif, i. p. 566 ff. and 597 ff. 212. [Dr Gierke here refers to other parts of his work in which he has given copious illustrations of this matter. The office or dignity can be 'objectified,' i.e. conceived as a 'thing' in which rights exist, and which remains the same while men successively hold it; and then again it can be 'subjectified' and conceived as a person (or substitute for a person) capable of owning things. In the present note he cites from Baldus 'dignitas...vice personae fungitur,' and refers to a legal opinion touching a mitre which the deposed John XXIII. was detaining from Martin V. and which was said to belong to the (subjectified) Apostolic See.] 213. [Our author here refers to his treatment of this subject in other parts of his book. It was generally agreed that, although the Prelate was very often entitled solely to exercise those rights which legal texts ascribed to his eccksia, still he was not the ecclesia. Divers analogies were sought. He acts 'sicut maritus in causa uxoris'; or again, he is the tutor and the ecclesia is his pupillus. They all imply that, beside the Prelate, there is some other person con- cerned. Then practical inferences were drawn : e.g., a Prelate may not be judge in causa propria \ but it is otherwise in causa ecclesiae suae.\ 214. Only in this sense 'papa ipse ecclesia' (e.g. Huguccio, 1. c, p. 263), • papa est sedes apostohca ' (Dur. Spec. i. i de leg. § 5, nn i), 'ecclesia intelligitur facere quod facit papa' (Joh. And. Nov. s. c. I in Sexto, 2, 12, nr. i). Comp. Domin. Gem. Cons. 93, nr. 12; Cardin. Alex, in summa D. 15 (what the head does, the body does); Jacobat, De cone. iv. a. 7, nr. 29—31, vi. a. 3, nr. 41 and sSfiF,: the present Pope alone represents the whole church and is thus ecclesia corporalis : such also is the case of a Bishop in those matters in which the counsel, but not the consent, of the Chapter is requisite. 215. Ockham, Dial. i. 5, c. 25: only within certain limits is Notes. 163 the Pope 'persona publica totius communitatis gerens vicem et Is the curam.' Zabar. c. 6, X. 1, 6, nr. 16 : non solus sed tanquam caput ^°P^^* universitatis. Gerson, Da aufer. c. 8 — 20, Da pot. eccl. c. 7. Nic. sentation Cus. I. c. 14—17, II. c. 27 ff. Ant. Eos. 11. c. 20—24, in. c. 16—17. church 216. Baldus, Rubr. C. 10, i, nr. 12, 13, 18: princeps leprae- unlimited' sentat ilium populum et ilia populus imperium etiam mortuo Repre- principe ; but ' princeps est imperium, est fiscus,' because only in him of the does the Empire live, will and act. Cons. iii. c. 159, nr. 5 : 'ipsa Empire respublica rapraesentata ' can be bound by the acts of the Emperor. Emperor. Also Ockham, in Note 210 above, and Zabarella in Note 192. 217. Already Joh. Saresb. iv. c. 3: the king 'garit fideliter Repre- ministerium,' if he ' suae conditionis memor, universitatis subiect- tentative ' ' Character orum se personam gerere recordatur'; compare c. 5. Thom. Aquin. of King- Summa Theol. II. i, q. 90, ad 3 : Ordinare autem aliquid in bonum P" commune est vel totius multitudinis vel alicuius gerentis vicem totius multitudinis : et ideo condere legem vel pertinet ad totam multitudinem vel pertinet ad personam publicam quae totius multitudinis curam habet. So again ib. 97, a. 3. Mars. Pat. Def. pac. i. 15 : when the rulers (j/rtndpantes) act within tha sphere constitutionally assigned to tham (secundum communitatis determinationem legalem), their act is that of the whole community (hoc facientibus his, id facit communitas universa). Baldus, Consil. 159, nr. 5 and especially I Feud. 14, pr. nr. i : 'The city of Bologna belongs to the Church!" exclaims Baldus, ' Much rather to the Bolognesa ! For the Church has no authority there, save as {tanquam) the Republic, of which Republic it bears the name and image. Even so tha city of Siena belongs to the Kaiser, but more to the Sienese : for republic, fisc, and prince are all one ; tha respublica est sicut vivacitas sensuum ; the fisG is the stomach, purse and fastness of the republic ; therefore the Emperor would be quasi tyrannus if ha did not behave himself as tha Republic, and such are many other kings who seek their own profit : for he is a robber, apraedo, who seeks his own profit and not the profit of the owner.' [Dr Gierke gives this interesting passage in Latin.] See also nr. 2 : the office of ruler (dignitas) is inalienable, being ' totius universitatis decus.' Barth. Salic. 1. 4, C. 2, 54 : the civitas as such can demand a restitutio in integrum, even if tha Ruler who acted in its name profited by the transaction : and, despite the translatio, this holds good of tha respublica imperii. Jason, 1. c, nr. 8. Nic. Cus., above in Note 171. 2x8. Baldus, Cons. in. c. 159, nr. 5 : loco duarum parsonarum The rex fungitur; i. c. 271, nr. 4: bona propria... non tanquam rex, sed '^°^^'' tanquam homo et animal rationabile. Alex. Tart. 1. 25 § i, Dig. 29, Person- ii_2 ality. [64 Political Theories of the Middle Age. 2, nr. 4: fiscalis res et Caesaris res est eadem, quia omnia iura fiscalia transferuntur in eum tanquam imperatorem non tanquam Titium : but with the ' patrimonium Caesaris ' it is otherwise, for this he has ' tanquam Titius.' Marcus, Dec. I. q. 338, nr. i — 7. [Refer- ence is made by Dr Gierke to other parts of his book where the dual personality of bishops and the like is discussed : a bishop, it was said, had two persons; one 'in quantum est episcopus'; the other ' in quantum est Petrus vel Martinus.'] King's 219- See last note. Also Ockham, Octo q. 11. c. 2: what the Property^ Kaiser had before he was Kaiser. or afterwards acquired 'perse et Property, non dignitati,' is his private property. On the other hand, the 'bona et iura imperii ' exist ' propter bonum commune subditorum et non propter bonum proprium principatus.' Of these last he can dispose 'non nisi propter bonum commune seu utilitatem omnium subdit- orum,' and if he do otherwise he is bound to make restitution like anyone else who misapplies goods that have been entrusted to him. Acts of 220. Baldus, Cons. i. 271, 326, 327; iii. c. 159, 371. The '*'* ^"""^^ question is whether and in what case a Prince, elective or hereditary, of the is bound by the acts of his predecessor, and Baldus always acutely *"*"• reduces this to the question in what cases the State, or the Fisc, is bound by the acts of its highest organ. When it comes to particu- lars, he applies the ordinary rules of Corporation Law touching the liability of corporations for the contracts and torts of their governors; but in the case of Kings and more especially of hereditary Kings he supposes an unusually wide power of representation. A king is no mere 'legitimus administrator,' but stands 'loco domini' (nam regnum magis assimilatur dominio quam simplici regimini); and in particular his power to bind by contract extends to unusual as well as to usual affairs. In the same sense, Jason, Cons. iii. c. 10, distinguishes the Ruler's 'pacta personalia,' and 'pacta realia nomine suae gentis inita' (c. 8), extends the principle to judicial acts (nr. 10), appeals to ecclesiastical analogies (nr. 15 — 19), and then declares that the successor is bound as successor ' si princeps faciat ea quae sunt de natura vel consuetudine sui officii' (nr. 21), or if the conven- tion was made 'in utilitatem status' (nr. 14). Comp. Bologninus, Cons. 6. On the other hand Picas a Monte Pico, i. Feud. 3, nr. i — 3, and I. Feud. 7, nr. t — 17, once more throws the whole question into confusion. 221. Nic. Cus., above in Notes 171 and 209; Gerson, De pot eccl. c. 10, and Concordia, p. 259. Duties 2 22. See, e.g. Eng. Volk. De reg. princ. iv. c. 21 — 29; alongside towards jjjg duties arising between individuals as men, as fellow countrymen, Notes. 165 as fellow burgesses, as kinsmen, as members of social groups, stand Indivi- their duties to the Whole which arise out of 'ilia coniunctio qua ^Ifj^g^*"^ unusquisque privatus universitati sive reipublicae tanquam membrum the Com- corpori et tanquam pars toti consociatur.' Comp. vii. c. 8 — 12 as to """""y- the different ' status personae.' 223. Mars. Pat. 1. c. 12: the ;>(?/«/«j- is sovereign j the / sentative congreg. cone. temp, schism, an. 1391 (in Martene 11. p. 1200; : character concilium generale est multarum vel plurium personarum rite con- of the .... J- ^ , Council, vocatarum repraesentantium vel gerentium vicem diversorura statuum, [68 Political Theories of the Middle Age. The * Council a mere Repre- sentative. Election and Repre' sentation. Election of Lay Repre- sentatives. Repre- sentation in Tem- poral Assem- blies. ordinum et personarum totius Christianitatis venire aut mittere volentium aut potentium ad tractandum de bono communi uni- versalis ecclesiae in unum locum communem congregatio. Gerson, De aufer. c. lo; De pot. eccl. c. 7 ff. Nic. Cus. De auctor. praes. (in Dux, I. p. 475 ff.) : the Pope is the remotest, the General Council the directest and surest representative of the Universal Church. Decius, c. 4, X. i, 6, nr. 21. 233. See Ockham, Dial. i. 5, c. 25 — 28 : even the representative Council is only pars ecclesiae; it stands below the 'comraunitas fidelium si posset convenire ' ; is summoned by human agency and can be dissolved ; and it can err, so that resistance to, appeal from, and accusation against it are not inconceivable. Similarly at some points, Petr. AUiac. in Gers. Op. i. p. 688 ff., and again at the Synod of Constance (Sess. I. in Mansi, xxvii. p. 547). — So Breviscoxa (Gers. Op. i. p. 898) speaks with hesitation about the Council's infallibility. — On the other hand, Gerson and Cusanus (11. c. 15 — 16) maintain its infallibility, its representation of the Church being absorptive. 234. Nic. Cus. I. c. 15 and 11. c. 18: it is on the ground of election that ' praesidentes figurant suam subiectam ecclesiam ' and that Councils of such prelates represent the larger circles of the Church ; and so on up to a representation of the Church Universal. Ant. Butr. c. 17, X. i, 33, nr. 27 — 28 : at the Provincial Councils the Prelates and ' Rectores ' do not appear as individuals, but ' quilibet praelatus vel rector tenet vicem universitatis.' Zabar. c ult., X. 3, 10, nr. I — 3. Panorm. c. 17, X. i, 33, nr. 2 : in the General Council ' praelati totius orbis conveniunt et faciunt unum corpus, repraesent- antes ecclesiam universalem ' ; so the praelati et maiores of the province represent their universiiates, and so in their Provincial Assembly they represent the universiiates ecclesiarum of the province ; and again 'in una dioecesi.. .praelati et capitula repraesentant totum clerum ' ; and so also is it in the constitution of Universities. 235. Ockham, Dial. i. 6, c. 84 (above, Note 209) : he appeals to the general right of every people, every commune, every corpus, to assemble, not only in proper person but also ' per aliquos electos a diversis partibus,' for every body 'potest aliquos eligere qui vicem gerant totius communitatis aut corporis.' 236. See above. Notes 161 — 3, 168, 172. MarsiL Pat i. c. 1 2 — 13 : vicem et auctoritatem universitatis civium repraesentant. Nic. Cus. III. c. 12 and 25. Men thought that certain texts in the Corpus Juris assigned a similar position to the Roman Senate. [Our author is referring in particular to certain words of Pomponius (1. 2, § 9, Notes. 169 Dig. I, 2) which, he says, exercised a marked influence on Political Theory ; deinde quia difficile plebs convenire coepit, populus certe multo difficilius in tanta turba hominum, necessitas ipsa curam reipublicae ad senatum deduxit. He here remarks that already in the Brachylogus — a manual of Roman law which he is inclined to ascribe to Orleans and the twelfth century — these words of Pomponius are supposed to record a formal transfer of power by the populus to the senate.] 237. See the formulation of the general principle in Ockharn (above. Note 235) and Mars. Pat. 1. c. 238. Nic. Cus. III. c. 12 and 25 : elected governors are to The represent communities j assemblies of such governors are to repre- sgntatiVe sent the lands and provinces ; and an universale concilium imperiale Parlia- is to represent the £eich : in this council ' praesides provinciarum ^^" ^"^ suas provincias repraesentantes ac etiam universitatum magnarum Nicholas rectores ac magistri ' and also men of senatorial rank are to meet ; they will compose the ' corpus imperiale cuius caput est Caesar, et dum simul conveniunt in uno compendia repraesentativo, totum im- perium collectum est! 239. Mars. Pat. I. c. 12 — 13; he says in c. 12: sive id fecerit The ,. . . ^ . 1 .• • Radical- universitas praedicta civium aut ems pars valentior per se ipsam -^^^ ^^ immediate, sive id alicui vel aliquibus commiserit faciendum, qui Marsilius. legislator simpliciter non sunt nee esse possunt, sed solum ad aliquid et quandoque ac secundum primi legislatoris auctoritatem. 240. Lup. Bebenb. c. 5, p. 352 — 3 and c. 6, p. 357 — 8: the The Prince Prince Electors make the election ' repraesentantes in hoc omnes ^'^g°"g. principes et populum Germaniae, Italiae et aliarum provinciarum et sentatives. terrarum regni et imperii, quasi vice omnium eligendo.' Were it not for their institution, the ' universitas ipsa ' would have to make the choice ; but, as it is, the Electors choose ' vice et auctoritate univer- sitatis.' When therefore they have made the choice, ' proinde est ac si tota universitas principum et populi...fecisset' ; to prove which voucher is made of 1. 6 § i, Dig. 3, 4, and c. ult. in Sexto deprae- bendis. See also the participation of the Electors in the deposition of an Emperor, c. 1 2, p. 386 — 7, and in the alienation of rights of sovereignty, c. 14, p. 396. — Comp. Ockham, Octo q. viii. c. 3: 'repraesentantes universitatem.' Zabar. c. 34 § vemm X. i, 6, nr. 8, Nic. Cus. in. c. 4 : * qui vice omnium eligerent.' Gregor. Heimb. m Gold. I. p. 561. Ant. Ros. i. c. 48. 241. See above. Notes 174 and 194. Ockham, Dial. i. 5, c. 6 The and 8. Nic. Cus. i. c. 14, i7. "• c- H (repraesentant) ; Ant. Ros. ^"^^"f^' I. c. 48 : ab universal! ecclesia, quam cardinales et electores in hoc sentatives. lyo Political Theories of the Middle Age. ipsam totam repraesentant— Nic. Cus. n.c. 14— iS desires therefore to extend to the Cardinals the elective principle, which is in his eyes the only conceivable foundation for a mandate in political affairs. The Cardinals ought to be elected provincial deputies forming an Estate and constituting in some sort the aristocratic Upper House of a parliamentarily organized Spiritual Polity. Corpora- 242. Hostiensis, Johannes Andreae (a 34, X. i, 6, nr. 25) and tion Law ^^j^^^.^ opined that the Prince Electors made the choice as indivi- Imperial duals, «ut singuli.' Lup. Bebenb. c. 6, pp. 356—8, andc. 12, pp. 379 Elections. _g^^ argues that much rather they are representatives of an univer- sitas, and must themselves meet 'tanquam collegium seu universitas' and make the choice communiter. Therefore he would here apply the principle of the 'ius gentium, civile et canonicum' which teaches that an election made by an absolute majority is 'electio iuris inter- pretatione concors ' and exactly equivalent to an unanimous election. So too Zabarella (c. 34 § verum, X. i, 6, nr. 8) who cites Leopold : in all respects the same procedure should be observed as 'in aliis actibus universitatum' : thus, e.g., the requirement of the presence of two-thirds of the members, the preclusion of those who do not attend, and so forth. Comp. also Cons. 154, nr. 6. Fehnus, c. 6, X. I, 2, nr. 29. Bertach. Rep. v. maior pars, nr. 27. Petrus de Andlo, II. c. I — 4, treats the Election of an Emperor at great length, and in detail subjects it to Roman and canonical rules for the election of prelates which are stated by Johannes Andreae, Antonius de Butrio, Johannes de Anania, Baldus and Panormitanus. Thus it is in the matter of summons and presidency, form of scrutiny, decision with absolute majority, accessio, self-election ; so also in the matter of the demand for and grant of examination and approbation on the part of the Pope, and the devolution or lapse of the election to the Pope ; and so again as to the requirement of an actus commu- nis, the right of objection of unus contemptus, the privation of scienter eligentes indignum. For he opines that 'these Electors have suc- ceeded to the place of the Roman People, who ut universitas elected an Emperor, and so the Electors must be conceived to act in the Corpora- game right [i.e. ut universitasX since a surrogate savours of the tion Law . , . , , • , and Papal nature of him whose surrogate he is. Elections. g^j. See Innoc, Host., Ant. Butr., Zabar., Panorm., Dec. on uJversal c. 6, X. I, 6 ; Aug. Triumph, i. q. 3 ; Alv. Pel. i. a. i; Ludov. Rom. Church Cons. 498, nr. i — 22 (applying the whole of the law about decu- Particular ^^°^^)> Ant. Ros. II. c. 8 — lo; Bertach. v. gesta a maiori parte. Churches 244. [Dr Gierke here refers to other parts of his work where he MratkJns. ^^^ *^**^' ^''^ ''^^ Canonists' conception of every church as a corpus.'\ Notes. 1 7 1 24?. Baldus s. pac. Const, v. imp. clem. nr. 4 : the Emperor, The ,,,..,. , . . . Empire Baldus explains, is speaking ' de ista magna universitate, quae omnes or State fideles imperii in se complectitur tam praesentis aetatis quam succes- ^^ a Cor ■ 1 T. T^ -1 r poration. sivae posteritatis. Prooem. Feud. nr. 32 : non potest rex facere deteriorem conditionem universitatis, i.e. regni. Ruhr. C. 10, i, nr. 11: Respublica as an 'Object' means publica res, as a 'Subject' ipsa universitas gentium quae rempublicam facit. Zabar. c. 13, X. 5, 31, nr. I — 7 brings in the learning of Corporations, defines corpus or collegium as 'collectio corporum rationabilium constituens unum corpus repraesentativura,' distinguishes 'collegia surgentia naturaliter,' which so soon as they have come into being are also ' necessaria,' and * collegia mere voluntaria' ; in the former class he reckons com- munes, provinces and realms, and therefore brings in at this point the learning of the six Aristotelian forms of government, and the doctrine of the World-Monarchies and their relation to the Church. 246. Baldus, Cons. in. c. 159. Comp. ib. c. 371, and i. c. 326 Perpetuity — 327 and c. 271 (respublica et fiscus sunt quid aeternum et per- 3(^fg_ petuum quantum ad essentiam, licet disponens saepe mutetur). Comp. also Jason, Cons. in. c. 10, where in nr, 14 we already meet the phrase ' conventio facta in utilitatem Status.' 247. Baldus, Rubr. C. 10, 1, nr. 15 — 16. 248. See above, Notes 212 and 218 — 20J also 190 and 206. 249. See above, Notes 213 — 7. 250. See above. Note 118. 251. See above. Notes 221 — 231. 252. Expressly d'Ailly, Gerson (De pot. eccl. c. 10) and Mere Col- Nicholas of Cues (11. 34) vest all the rights of the Church in the '^'^'^5*'" 'omnes collective sumpti.' But also Marsilius, Randuf and others Concept leave no room for doubt that for them the Church, considered as the church. Congregation of the Faithful, is coincident with the sum of indi- viduals. And if Ockham in one passage (Octo q. i. c. 11) names as the receiver of the divine mandate the ' persona communitatis fide- lium,' still his whole system, as set forth above, and most unambigu- ously his discussion of the whereabouts of the Church's infallibility, prove that he is not thinking of a single personality which comes to light in organization, but of a personified collective unit. See above, Notes 188 and 208. 253. Turrecrem. De pot. pap. c. 7 1 — 72: where the power of the The keys is ascribed to 'the Church,' this means in truth that she has it '^'^'^^ in some of her members and the whole of it only in her head. ' Subject ' 254. See in particular Nic. Cus. as above in Note 171, also iii. "f^'^^'^' c 4 (vice omnium), 12 and 25; Mars. Pat. i. c. 12 — 13; Lup. pgopig ^ 172 Political Theories of the Middle Age. Collective Bebenb. c. 5—6 ; Ockham, Dial. i. 6, c. 84 ; Patric. Sen. De inst. ^°''' reip. I. I, s (multitudo universa potestatem habet coUecta in unum,..., dimissi autem singuli rem suam agunt). 255. See above, Notes 215 — 8, 228, 230, 232 — 42. The Law 256. That there was a Law of Nature was not doubted, nor that and'di"^ it flowed from a source superior to the human lawgiver and so was Essence absolutely binding upon him. Such was the case whatever solution of Law. jjjjgjjj. ijg found for that deep -reaching question of scholastic contro- versy which asks whether the essence of Law is Will or Reason. In any case God Himself appeared as being the ultimate cause of Natural Law. This was so, if, with Ockham, Gerson and d'Ailly, men saw in Natural Law a Command proceeding from the Will of God, which Command therefore was righteous and binding. It was so, if, with Hugh de St Victor, Gabriel Biel and Almain, they placed the constitutive moment of the Law of Nature in the Being of God, but discovered dictates of Eternal Reason declaring what is right, which dictates were unalterable even by God himself. Lastly, it was so, if, with Aquinas and his followers, they (on the one hand) derived the content of the Law of Nature from the Reason that is immanent in the Being of God and is directly determined by that Natura Rerum which is comprised in God Himself, but (on the other hand) traced the binding force of this Law to God's Will. Aquinas (Summa Theol. 11. i, q. 90 — 92), when he has discussed the nature, kinds and operations of a Lex in general, and has defined it (q. 90, a. 4) as ' quaedam rationis ordinatio ad bonum commune, et ab eo, qui curam communitatis habet, promulgata,' proceeds to put at the head of his Philosophy of Law the idea of Lex Aeterna. And this, he says, as being 'ipsa ratio gubernationis rerum in Deo sicut in Principe universitatis existens,' and ' summa ratio in Deo existens,' is Identical with the Being of God {non aliud a Deo), but at the same time is a true Lex, absolutely binding, and the source of every other Lex (omnis lex a lege aeterna derivatur); 1. c. q. 91, a. i, q. 93, a. i — 6. Immediately from this he derives the Lex Naturalis which is grounded in the participation by Man, as a reasonable being, in the moral order of the world (participatio legis aeternae in rational! creatura) and is perceived by the light of Natural Reason (lumen rationis naturalis) entrusted to us by God (q. 91, a, 2, q. 94). It is a lex promulgata, for 'Deus eam mentibus horainum inseruit naturaliter cognoscendam ' (q. 90, a. 4); it exists in actu and not merely in habituif^. 94, a. i); it is in its principles a true, everywhere identical, unalterable and indestructible rule for all actions (q. 94, a. 3 — 6). [Dr Gierke here cites a note in his tract on Johannes Althusius Notes. 173 (p. 73) in which he has dealt with the same matter and from which we take the following sentences, though they reach beyond the Middle Age.] The older view, which is more especially that of the Realists, explained the Lex Naturalis as an intellectual act independent of Will — as a mere lex indicativa, in which God was not lawgiver but a teacher working by means of Reason — in short, as the dictate of Reason as to what is right, grounded in the Being of God but unalterable even by him. (To this effect already Hugo de S. Victore Saxo, in the days of Calixtus II. and Henry V., Opera omnia, Mog. 1617, III. p. 385, de sacramentis i. p. 6, c. 6 — 7; later Gabriel Biel, Almain and others.) The opposite opinion, proceeding from pure Nominalism, saw in the Law of Nature a mere divine Command, which was right and binding merely because God was the law-giver. So Ockham, Gerson, d'Ailly. The prevailing opinion was of a mediating kind, though it inclined to the principle of Realism. It regarded the substance of Natural Law as a judgment touching what was right, a judgment necessarily flowing from the Divine Being and unalterably determined by that Nature of Things which is comprised in God ; howbeit, the binding force of this Law, but only its binding force, was traced to God's Will. Thus Aquinas, Caietanus, Soto, Suarez. In like fashions was decided the question. What is the constitutive element of Law [or Right] in general? Most of the Schoolmen therefore held that what makes Law to be Law is 'iudicium rationis quod sit aliquid iustum.' So with even greater sharpness Soto, De iustitia et iure, Venet. 1602 (first in 1556), i. q. i, a. I, and Molina, Tract, v. disp. 46, §§ 10 — 12. Compare also Bolognetus (1534 — 85), De lege, iure et aequitate, Tr. U. J. i. 289 fF. c. 3 ; Gregorius de Valentia, Commentarii theologici, Ingoldst. 1592, II. disp. I, q. I, punct. 2. The opposite party taught that Law becomes Law merely through the Will that this or that shall pass for Law and be binding; or they laid all the stress on a Command {imperium) given to subjects. Others, again, declared that intellectus and voluntas were equally essential. Only Suarez, who reviews at length all the older opinions, distinguished at this point between Positive Law and Natural Law, and in the case of the former sees the legislative Will (not however the law-giver's command) as the constitutive, while Reason is only a normative, moment (i. c. 4 — 5 and in. c. 20). In the later Philosophy of Law the derivation of all Law from Will and the explanation of both Natural and Positive Law as mere Command was well-nigh universal. Only Leibnitz (1646— 1 7 16), who in so many directions went deeper than his 1 74 Political Theories of the Middle Age. contemporaries, and who, perhaps for this reason, so often turned his eyes backwards towards medieval ways of thought, disputed this ' Will-Theory ' with powerful words directed against Pufendorf and Cocceji. He denied the essentialness of the idea of Compulsion in the idea of Law, and argued that Recht was prior to Geseiz. ' Das Recht is nicht Recht weil Gott es gewoUt hat, sondern weil Gott gerecht ist.' See Opera, ed. Dutens, Genev. 1768, iv. 3, pp. 275—83, also p. 270 ff. § 7 fif. and § 13. [In another note Dr Gierke (Joh. Althusius, p. 74) cites the following passage from the German, Gabriel Biel (ob. 1495). In his CoUectorium Sententiarum, Tubing. 1501, lib. 11. dist. 35, q. un., art. I, he says : Nam si per impossibile Deus non esset, qui est ratio divina, aut ratio ilia divina esset errans, adhuc si quis ageret contra rectam rationem angelicam vel humanam aut aliam aliquam si qua esset, peccaret. Et si nulla penitus esset recta ratio, adhuc si quis ageret contra id quod agendum dictaret ratio recta si aliqua esset, peccaret. ' Already ' Dr Gierke adds, ' medieval Schoolmen had hazarded the saying, usually referred to Grotius, that there would be a Law of Nature, discoverable by human reason and absolutely binding, even if there were no God, or the Deity were unreasonable or unrighteous.'] Nullity 257. Thom. Aquin. Sum. Theol. 11. i, q. 91, art. 2, q. 94, a. i — 6, clir^^ q- 97. a. 1 (the whole people bound); 11. 2, q. 57, a. 2. Aegid. veiling the Rom. De reg. princ. iii. 2, c. 29 : the rex stands below the lex Nature. naturalis. Vincent. Bellovac. vii. c. 41 ff. and X. c. 87 : ipso iure non valent leges quia nulla lex potest valere contra Deum. Joh. Friburg. 11. t. 5, q. 204 — 6, t. 7, q. 43 ('leges permittentes usuras ' are null). Ockham, Dial. iii. tr. r, 1. 2, c. 6, and tr. 2, 1. 2, c. 26 — 8 (as to Kaiser and Pope), ib. c. 29 (as to the universitas popult), and tr. 2, 1. I, c. 30 (even an unanimous decision of the universitas mortalium could not wholly abolish the Roman Empire). Baldus, I. Feud. I § 3, nr. 2 (potentius est ius naturale quam principatus), and 1. I, Cod. I, I, nr. 24 fF. (therefore Kaiser and Pope could not, e.g., make usury lawful). Gloss on the Sachsensp. i. a. 25 and 55. Bened. Capra, Regula 10, nr. 20 — 43 and 53 (as \.o princeps, papa, imperator, populus seu universitas with iurisdidio and imperium). Feliims Sand. c. 7, X. i, 2, nr. 19 — 25 (as to Pope) and nr. 26 flf. (as to imperator, princeps, populus liber). Petr. AUiac. in Gers. Op. i. p. 6s2ff. Nic. Cus. III. c. 5. Ant Ros. IV. c 2 — 14. As to the Pope, see above. Note 132, and as to the Council, see Gerson in Note 198. Revealed 258. So in particular Thom. Aquin. Sum. Theol. 11. i, q. 91, Law and ^^j j — ^ and 4 — 5 ; he thereafter (q. 98 — 105) treats at length of Notes. 1 75 the lex vetus, and (q. io6 ff.) of the lex nova. Comp. Aegid. Rom. Natural De reg. princ. iii. 2, c. 24 — 9 {lex naturalis) and c. 30 {lex divind). ^^'"' Gerson, iv. p. 652 — 4. See also the passages cited in the last Note, in which the force of the lex divina is placed on a level with that of the lex naturalis, this principle being applied, e.g., when statutes that permit usury are pronounced void. 259. See e.g. Thom. Aquin. 1. c. q. 95, a. 2 and 4 : the lex Nature of humana carries into detail the principia legis naturalis, partly as ius q^^^^ gentium by way of mere conclusiones, partly as ius civile by way of deter minationes. See also ib. 11. 2, q. 57, a. 3. Aegid. Rom. in. c. 2, c. 25 and c. 29 : si dicitur legem aliquam positivam esse supra principantem, hoc non est ut positiva, sed ut in ea reservatur virtus iuris naturalis. Lup. Bebenb. c. 15, p. 401. Ockham, Dial. in. tr, 2, L 2, c. 28 ; ths ius gentium, in accordance with which the highest power is subject to the common weal, ' non est imperatorum vel regum per institutionem, sed solum per approbationem et observa- tionem.' Baldus, I. Feud, i § 3, nr. 2. Hieronymus de Tortis, Con- silium for Florence, nr. 25 : Papa et imperator non sunt supra ius gentium; therefore (nr. 20 — 32) a papal sentence, if not preceded by citation, is null. 260. Thus Thom, Aquin. I. c. q. 94, a. 4 — 6, distinguishes the Principles prima principia of the lex naturalis, which are everywhere identical, gecondary immutable, ineradicable, and the praecepta secundaria of the same Rules of lex which are mutable and, in consequence of the depravity of jj^jy^g, human reason, 'in aliquo' destructible. Generally it is said that the ius naturale is immutable and can never be abrogated {tolli) by the ius civile ; but that derogation from it ' quoad quid ' is possible, and that 'ex causa' additions to and detractions from it can be made. See Lup. Bebenb. c. 15, p. 401. Ockham, Dial. in. tr. 2, 1. 2, c. 24. Gloss on Sachsensp. i. a. 55. Anton. Resell, iv. c. 7: the 'ius naturale divinum' is wholly unalterable; on the other hand, the 'ius naturale homini commune cum animalibus' cannot indeed be abrogated by the law-giver, but can ' ex causa ' be interpreted and confined. — This limitation was unavoidable, for, according to general opinion, the very existence of lordship and ownership implied a breach of the pure Law of Nature, and even Thomas Aquinas, Sum. Theol. n. 2, q. 66, a. 2, was of opinion that ' proprietas possessi- onum non est contra ius naturale, sed iuri naturali superadditur per adinventionem rationis humanae.' Compare i. q. 96, a. i — 4 ; and K. Summenhard, Tr. i. q. 8 — 11, who speaks at length. 261. Anton. Ros. iv. c. 2 — 6 says that, though John de Lignano Positive denies this, the legists are all agreed that though the ius divinum notis&t :76 Political Theories of the Middle Age. Gentium. the Law cannot be abrogated {tolli) it can be distinguished, limited and of God. restrained in proper cases, and that additions can be made to it j but this holds good only of such ius divinum as is not de necessitate. Comp. Ockham, Dial. ill. tr. 2, 1. 2, c. 24. Such limitations become all the more necessary when men are beginning to regard Positive Canon Law as ius divinum. Primeval 262. Very usual is a distinction between the 'ius gentium Secondary primaevum ' which has existed ever since men were in their original Ius condition and the 'ius gentium secundarium' which is of later growth. According to Anton. Rosell. iv. c 7, the law-giver can not abrogate, though he may interpret, the former, while the latter he may abrogate ' ex causa.' Mutability 263. Thom. Aquin. Sum. Theol. n. I, q. 90, a. 2 and 3, q. 91, of Positive ^^ ^^ q^ ^^^ ^^ 2^ q^ 96, a, 5 : but he maintains that a law has a vis directiva for the legislator who made it. Also q. 97, a. i — 4. Aegid. Rom. De reg. princ. ill. 2, c. 24, 26 — 28, 31 : already we see here a comparison between law and language; like language, the lex positiva varies according to 'consuetudo, tempus, patria et mores illius gentis,' Mars. Pat. i. c. 12 — 13 : a quite modern definition of a law as the expressly declared will of a sovereign community. Patria Sen. De inst. reip. i. 5. The 264. Thom. Aquin. 1. c. q. 90, a. 3, q. 97, a. 3 ; also Comm. ad PosWve" ^oli*^- P- 477. 491. 499. 518. Aeg. Rom. in. 2, c. 29 : 'positiva lex Law. est infra principantem sicut lex naturalis est supra' ; the Prince stands in the middle between Natural Law and Positive ; the latter receives its audoritas from him and he must adapt it to the particular case. Ptol. Luc. II. c. 8, III. c. 8 and IV. c. i : the essential difference between the princifatus regalis and the principatus politicus lies in this, that the latter is a responsible government according to the laws, while in the former the lex is ' in pectore regentis,' wherefore he can at any time produce as law from this living fount whatever seems expedient to him. Engelb. Volk. i. c. 10 — 11: the rex as lex animata ; and such a lex, since it can suit itself to the concrete case, is better than a lex inanimata. Joh. Saresb. iv. c 2. Ockham, Dial. III. tr. i, 1. 2, c. 6. Petr. de Andlo, i. c. 8. Potestas 265. As to the Pope, see Boniface VIII. in c r in Sexto i, 2 s futa^ (qui iura omnia in scrinio pectoris censetur habere); Aug. Triumph. I. q. 22, a. I ; Alv. Pel. i. a. 58; Laelius in Gold. 11. p. 1595 ff.; Aen. Sylv. a. 1457 (Voigt, II. p. 240 ff.); Nic. Cus. after his change of opinion (Op. 825 ff.). Then as to the Emperor, see the doctrine of all civilians ; the theories of the Hohenstaufen ; Frederick I. in Otto Fris. III. 16 and iv. 4; Wezel, 1. c; Ep. Freder. II. in ann. Notes. 177 1244 and 1245 in Huillard, Hist. dipl. Frid. 11. vol. vi. pp. 217, 258, and Pet. de Vin. Ep. 11. c. 8 (quamquam enim Serenitati nostrae... subiaceat omne quod volumus etc.); iii. c. 9, v. c. i ff.; Hofler, p. 70 ff. ; Ficker, 11. pp. 495, 539 fF., 554 ff.; Gloss on Sachsensp. i, a. I, III. a. 52 — 54, 64, Lehnrecht, a. 4; the summary in Ockham, Dial. III. tr. 2, 1. 2, c. 26 and tr. i, 1. 2, c. 6; Aen. Sylv. praef. and c. 19 — 21 ; Petr. de Andlo, 11. c. 8 (but how does this agree with the doctrine, 11. c 10, that the Emperor can be tried by the Palsgrave?). 266. Comp. Thorn. Aq., Ptol. Luc, Engelb. Volk., Ockham, Only in a Petr. de Andlo, as above in Note 264. Aegid. Rom. iii. 2, c. 2 : it j^Xe is so in the Italian towns, where despite the existence of a Lord Ruler {dominus) or Podesta {potestas), ' totus populus magis dominatur,' Law! since the People makes statutes 'quae non licet dominum transgredi.' Pat Sen. De inst. reip. i. 5 (lex tantum dominatur) and in. i (the Magistrates rule over the People and the Laws over the Magistrates). 267. See above Notes 159, 166, 169—71, 186 — 7, 200. Most The Ruler decisively Mars. Patav. i. c. 7—". M— iS and 18; with him the |^^^|'^'™>^''g 'legislator' is in all cases the People, and the 'principans' is bound by Laws, the 'forma sibi tradita a legislatore.' Nicol. Cus. 11. c. 9 — 10 and 20, in. praef. and c. 41 : all the binding force of the laws rests on the will of the whole community; the Pope is bound by the 'canones,' the Emperor by the ' leges imperiales,' and, the laws are to allow for governmental and judicial acts a no wider field of activity than is absolutely necessary. Gregor. Heimb. 11. p. 1604 ff. Comp. Ockham, Dial. iii. tr. i, 1. 2, c. 6 : he remarks that perhaps in the whole world there is no instance of a regal form of government in the sense of a lordship unrestrained by laws, and that such a form would not deserve approbation except in the case, never found in practice, of an absolutely virtuous ruler. With this Aquinas agrees in so far that he prefers a monarchy limited by law. — Naturally those who advocated the supremacy of the laws appealed at this point to the 'lex digna.' In that text their opponents saw no more than that a purely voluntary observance of the laws on the part of the Princeps was promised by him as a praiseworthy practice. [This famous text (1. 4, Cod. I, 14) runs thus : Digna vox maiestate regnantis legibus aUigatum se principem profiteri.] 268. In particular Mars. Pat. i. C. 11, 14, iS and 18 and Nic. J^^^^^ Cus. develop modern thoughts at this point. It is to be observed, sta^^idee.- however, that all the writers mentioned in Note 266 suppose that in a Republic there will be a separation of legislative from executive power, such as they do not allow in a Monarchy, and thereby they make this separation the distinguishing trait of a Republic. [The M. " Domain. 1 78 Political Theories of the Middle Age. translator of these pages believes that in German controversy the common contrast to the Rechtsstaat has been the Beamtenstaat. Perhaps the nearest English equivalent for the former term would be the Reign of Law. But not all theorists would allow that the Reign of Law exists in England where the State or Crown cannot be made to answer in Court for its wrongful acts.] Popular 269. In relation to the Assembly of the People, this comes out Assem- rs\os\. plainly in the doctrine of Marsilius. In relation to the General blies above ^ ■' the Laws. Council of the Church the freedom from the restraints of Positive (canon) Law comes out in the doctrine of Epieikia which finds its clearest expression in Henr. de Langenstein, Cons. pac. c. 15, Randuf, De mod. un. c. 5 (Gerson, Op. 11. p. 166) and in particular Gerson, De unit. eccl. (ib. p. 115, also p. 241 and 276). Omnia 270. See the statement and refutation of this doctrine in Georg rsseTn'telU- Meyer, Das Recht der Expropriation, Leipz. 1868, p. 86 £F. guntur. 271. See Accursius in Gl. on 1. 3, Cod. 7, 37, v. omnia principis Eminent and 1. 2, Dig. de rer. div. v. littora (the Princeps has iurisdktio vel protectio not proprietas). Jac. Aren. Dig. prooem. nr. i — 7. And. Is. II. Feud. 40, nr. 27 — 29. Bart. Const, i. Dig. pr. nr. 3; 1. 4, Dig. 50, 9, nr. 12; 1. 6, Dig. 50, 12: throughout a distinction is maintained between 'dominium mundi ratione iurisdictionis et gubernationis' and • dominium ratione proprietatis.' Baldus, 1. 2, Dig. de rer. div., Const. I. Dig. pr, nr. 10 — 11 : a double 'dominium' in 'singulae res,' but 'diversa ratione': ius publicum Caesaris, privatum privatarum perso- narum. Baldus, 11. Feud. 51, pr. nr. i — 4: territorial lordship and ownership distinguished in the case of a city that has been given away or has subjected itself. See also Alv. Pel. 11. a. 15 (administratia contrasted with dominium) and a. 57 and 63 (Christ had no dominium particulare, but he had dominium generale). Ockham, Dial. iii. tr. 2, 1. 2, c. 21 — 25, discusses all opinions at some length. He rejects both that which asserts and that which denies that the Emperor is •dominus omnium temporahum,' and teaches the mediating doctrine of a ' dominium quodammodo ' vested in him by conveyance from the People. This is evidently the ' dominium eminens ' of later times, for, on the one hand, it is a ' dominium,' though ' minus pingue,' and yet is compatible with the ownership of the ' res privatorum' by private individuals and with the ownership of the 'res nullius' by the 'totum genus humanum.' Somn. Virid. 11. c. 23 — 30 and 366: 'dominium universale ' of Emperor and Pope contrasted with ' dominium appro- priatius et specialius ' of individuals. Ant. Ros. i. c. 70. Petr. de Andlo, II. c. 8. Almain, Expos, ad q. i. c. 6, and 11. c. 2. Decius, Cons. 538, nr. 8 — 1 1 : in the case of every City, as well as in the case of the Emperor, we must distinguish Murisdictio et imperium' Notes. 1 79 over the ' districtus et territorium,' which is a ' superioritas coerci- tionis,' from 'proprietas et dominium ' j for 'proprietas et imperium nulla societate coniunguntur.' 272. See the work of Georg Meyer, as above in Note 270. The Right [Dr Gierke remarks that his own notes on this subject, which had priation? already appeared in his tract on Althusius, are supplemental to the learning collected by Meyer.] 273. Accursius in Gl. on 1. 3, Dig. 1, 14, v. multo magis and NoExpro- other passages in G. Meyer p. 88; Gloss. 'Ord. on c. i, D. 22, v. ^"^0°° iniustitiam; Jac. Arena, Dig. prooem. nr. i — 7; And. Isern. 11. Just Feud. 40, nr. 27 — 29; Host. Summa de rescript, nr. 11 ff.j Oldradus, absolute Cons. 224 and 257; Bart. 1. 4, Dig. 50, 9, 1. 6, Dig. 50, 12, 1. 6, Rule of Cod. I, 22 and Const. I. Dig. pr. nr. 4 — 6 (neither rescribendo nor yet legem condendo); Raphael Fulgosius, Cons. 6, nr. 46 — 47, Cons. 21, nr. 12 and 28; PauL Castr. 1. 23, Dig. 41, 2, 1. 6, Cod. i, 22, Const 1. c. 229; Jason, 1. 3, Dig. 1, 14, nr. 24 — 34 and Const, in. c. 86, nr. 14; Anton. Butr. c. 6, X. i, 2, nr. 20 — 22 ; Panorm. eod. c. nr. 6; Bologninus, Cons. 58; Alex. Tart. Cons. 11. a 190 (esp. nr. 13) and c. 226, nr. 18; Franc. Curtius sen. Cons. 20, 49, 50, 60; Christof. de Castellione, Cons. 8, nr. 16 — 18; Joh. Crottus, Cons. II. c. 156, nr. 28 — 44; Ant. Ros. iv. c. 8 and 10. Ockham, Dial. III. tr. 2, 1. 2, c. 23 — 5 mentions as an outcome of the 'domi- nium quodammodo' which he allows to the Emperor, a right to quash or appropriate to himself or transfer private ownership, and to forbid the occupation of 'res nuUius' ; but such acts as these are not to be done 'ad libitum ' but only ' ex causa et pro communi utilitate' in so far as general utility is to be preferred to 'privata utilitas.' And at the same time it is Ockham who most emphatically teaches (ib. c. 27) that this is not merely a limit set to the power of the Monarch but a limit set to the power of the State itself; for, accord- ing to him, the limitation of imperial rights by the rights of individuals rests upon the fact that the Populus, which transferred its power to the Princess, had itself no unbounded power, but (in accordance with c. 6, X. I, 2) was entitled to invade the sphere of private rights by the resolutions of a majority only at the call of necessity (de necessitate). 274. To this effect, despite a strong tendency towards abso- NoExpro- lutism, Jacob. Buttrig. 1. 2, Cod. i, 19; Alber. Rose. Const, i. Dig. v. wi'thout omnis, nr. sff. ; 1. 15, Dig. 6, i; 1. 2, Cod. i, 19; Baldus, Const, i. Just Dig. pr. nr. 11; 1. 7, Cod, i, 19; 1. 6, Cod. i, 22; 1. 3, Cod. 7, 37. a good For some intermediate opinions see Felinus Sandaeus c. 7, X. i, 2, ^neral nr. 26 — 45 ; Decius eod. c. nr. 19 — 24 and Cons. 191, 198, 269, nr. 4—5, 271, nr. 3, 352, nr. i, 357, nr. 3, 361, nr. 7, 250, nr. 5—6, 588, 12 — 2 i8o Political Theories of the Middle Age. 606, nr. 8, 699, nr. 8; Riminald. Cons. I. c. 73. Ludov. Rom. Cons. 310 (a just cause necessary in case of a 'lex specialis' but not in case of a 'lex universalis'); Bened. Capra, Reg. 10, nr. 30 ff. Compen- 275. As to the fluctuations of the Glossa Ordinaria, see Meyer, sation for Qp_ j,jj_ p gj— 94. Decidedly in favour of compensation are Baldus, priated. 1. 2, Cod. 7, 13; Decius, 1. 11, Dig. de Reg. lur. and Cons. 520 (recompensatio) ; Jason, 1. 3, Dig. i, 14 and Cons. iii. c. 92, nr. ri (si causa cessat debet res ilia restitui si potest) ; Paul. Castr. 1. 5 § 1 1, Dig. 39, I, nr. 4, 1. 10, Cod. i, 2, nr. 3; Lud. Rom. Cons. 310, nr. 4; Bertach. Rep. v. civitas, nr. 88 and 96 ; Fel. Sand. c. 6, X. i, 2, nr. 2 and c. 7, eod. nr. 28 — 29. Aeneas Sylvius, c. 18 (if practicable, 'ex publico compensandum est'); Crottus, Cons. 11. c. 156, nr. 27 (princeps propter favorem publicum si auferat dominium alicui, debet pretium solvere) nr. 28 — 29 (expropriatory acts of towns), nr. 31 (the Pope). — On the other side, Alber. Rose. 1. 14 § i, Dig. 8. 6. No Com- 276. Decius, Cons. 520: a law may take away rights 'genera- in case of 'iter' even 'sine compensatione privatorum'; on the other hand, if the General \^-^ ^pgg fj^jg ' particulariter alicui subdito' then it must be 'cum Expro- priatory recompensatione.' J ason, 1. 3, Dig. i, 14, nr. 44 ; Paris de Puteo, ^"- De synd. p. 41, nr. 24 and Ant. Ros. iv. c. 8 and 10. No Com- 277. So, e.g., Aen. Sylv. c. 17 — 18 : in case 'reipublicae neces- Fn a Case'of ^''^^ id expostulat,' though 'aliquibus fortasse durum videbitur et Necessity, absurdum.' Propria- 278. Thus already the Glos. Oid. on 1. 2, Cod. i, 19, and 1. 6 proM^ed "^'Cod. I, 22; also Hostiensis, Jac. de Arena, Oldradus, Fulgosius, from the Iserna, Bartolus, Paul. Castrensis, Jason, Ockham, as in Note 273 ; tium. ^" ^^^°' '^"' ^'* l^ss protection for property, Rosciate, Baldus, Decius and Bened. Capra, as in Note 274. See also Joh. Paris, c. 7, where private ownership is placed outside the sphere of the Public Power, temporal and spiritual, by the more specific argument that such owner- ship originates in the labour of an individual and thus is a right that arises without any relation to the connexion between men or to the existence of a society with a common head (commune caput). Paris de Puteo, De synd. p. 41, nr. 22 — 24; Somn. Virid. i. c. 156—161 ; Bertach. v. plenitudo potestatis; Pet. de Andlo, 11. c. 8; Gerson, iv. p. 598; Ant. Ros. IV. c. 8 and 10 (the source of private property is ius gentium, but ius gentium secundarium, and so it is destructible). — When the objection was raised that it was only Property as an institution that existed ex iure gentium, and that this was not infringed if particular owners were robbed, the reply was that the distinctio dominorum and the permanent establishment of certain modes of acquisition were attributable to the ius gentium. Notes. i8i 279. Baldus I. Feud. 7 (God subjected the laws, but not con- Sacred- tracts, to the Emperor); Ludov. Rom. Cons. 352, nr. 15— 25 J contracts Christof. Castell. Cons. 8, nr. 25 ; Jason, Cons. i. c. i and c. 56, 11. c. made by 223, nr. 16 ff. and 226 ; Decius, Cons. 184 nr. 2, 286 nr. 5, 292 nr. 8, ' ^ '*'*' 404 nr. 8 (for 'Deus ipse ex promissione obligatur'), 528 nr. 6, 689 nr. 7 — 27. But, once more, ' ex iusta causa ' breach of contract is permissible: Jason, Cons. i. c. i, nr. 12 and 29 ff., 11. 226, nr. 43, 1. 3 Dig. I, 14, nr. 34; Bened. Capra, Reg. 10, nr. 43 ff.; Ant. Ros. IV. c. 14. Therefore the old moot question, whether a city can revoke the freedom from taxation which it has promised to a settler, is generally answered in the negative, on the ground that such an act would be a breach of contract ; but exceptions are allowed ' ex causa,' e.g., when there is the punishment of a delict, or if the city's existence is at stake; Jason, Cons. i. c. i, nr. 21 — 30; Ant. Ros. iv. c. 15. 280. Thus the Gloss. Ord. on 1. 2 Cod. i, 19 and 1. i Cod. i, ^'8^'' 22 holds that private rights are suspended if the ius civile comes into on Positive collision with them, and that they are abolished by a simple rescript, Law are at if the intent to abolish them be clearly expressed ; but many, it is of the added, hold that in the case last mentioned the rescript to be effectual State. must contain the clause ' non obstante lege.' Then the last of these opinions is developed by Hostiensis, Paulus Castrensis, Jason and others. Bartolus allows that private rights arising ex iure civili can be abolished ' without cause,' but only by legislation, and not (unless the damage be inconsiderable) by way of rescript. On the other hand, Baldus, Decius and others hold that such rights can be with- drawn unconditionally and in every form. Innocent IV., Alb. Ros- ciate and others think that the State cannot take away the right of ownership (dominium ipsum), but can make it illusory by taking away the rights of action which flow merely from Positive Law. Anton. Ros. iii. c. 14 and Bened. Capra, Reg. 10, nr. 43 — 52 discuss at length the withdrawal of ' iura mere positiva.' 281. Jason, Cons. i. c. 1, nr. 20, c. 56, nr. 1, 2, 7, 8, 21, 11. Revoca- c. 226, nr. 43 — 49 : 'privileges' granted gratuitously may be revoked <"p"i°i. 'sine causa'; those granted for value 'ex causa.' Felinus Sand. c. 7 leges.' X. I. 2, nr.' 48-=— 52 : for the princeps can 'ius auferre, cuius ipse fuit causa ut acquireretur.' Bened. Capra, 1. c, excepts the case of 'non subiecti.' Aen. Sylv. c. 1 5 : privileges may be revoked if they be reipublicae damnosa. — In the Disput. inter mil. et cler. p. 686, and the Somnium Viridarii i. c. 33—34 the knight already applies this doctrine in such wise that the State 'pro ardua necessitate reipublicae vel utiUtate manifesta' can withdraw all ecclesiastical privileges, since every privilege must be deemed to comprise a clause to the effect that it is not to impair the ' salus publica.' I 82 Political Theories of the Middle Age. Nullity of the 282. See above Notes 2, 87, 125 — 30; Dante, Mon. I. c. 3 ; Ockham, Dial. in. tr. 2, I. 2, c. 28. 283. Already in the Gloss, on Auth. Coll. i. tit. 6, prooem. v. conferens, there is a suggestion of the arguments which the legists 'Donation ■' ' °° , ,.,it-...- r<-. of Con- afterwards developed by way of proof that the Donation 01 Constan- stantine.' jj^jg ^^g ^qJ^j^ because the imperial power is inalienable and no ' expropriatio territorii, dignitatis vel iurisdictionis ' is possible. For full discussions of this matter, see Bartol. on prooem. Dig. nr. 13 — 14 and Baldus eod. nr. 36—57, and prooem. Feud. nr. 32 — 33. Com- pare Dante, Mon. in. c. 10 : 'nemini licet ea facere per ofBcium sibi deputatum quae sunt contra illud officium'j the Emperor cannot destroy the Empire, which exists before he exists, and whence he draws his imperial rights (ab eo recipiat esse quod est) ; the seamless garment would be rent ; in every grant or infeudation by the Emperor there is a reservation of ' superius illud dominium cuius unitas divisio- nem non patitur.' Lup. Beb. c. 13, p. 391 — 3. Quaestio in utram- que, p. 106, ad 14. Ockham, Octo q. I. c. 12, iii. c. 9, viii. c. i. Dial. III. tr. 2, 1. I, c. 27. Gloss on Sachsensp. iii. a. 63. Damasus, Broc. M. III. br. 19. Greg. Heimb. i, p. 560. Anton. Ros. i. a 64 — 70 ('officium publicum' J 'imperium indivisibile et inalienabile' ; 'corpus mysticum'; 'ecclesia non capax' ; 'populus Romanus liber, non in commercio'). — These arguments are not attacked by the other party. The defenders of the Donation are for making an exceptional case of it. The gift was really made to God and there- fore was not subject to the ordinary restrictions. So Bartolus, 1. c, whose chief reason, however, is that he is teaching in the papal territory : so also Baldus and others. In particular, however, the papal party develop the doctrine that the Pope was already ' verus dominus iure divino,' and that therefore the donation bore the character of a ' restitutio.' So Innocent IV., Ptol. Luc. in. c. 16 ; Alv. Pel I. a. 13 E, 43 D — E, 24 s, 56 m, 59 h, ii. a. 29; Aug. Triumph, i. q. i, a. i, 11. q. 36, a. 3, 38, a. i, 43, a. 1—3 ; comp. And. Isern. i. Feud, i, nr. 10 and Petr. de Andlo i. c. 11, and 11. c. 9. — The opinion that the whole donation was a fable had never quite died out in the days before the forgery was exposed by Nic. Cusanus (ni. c. 2) and Laur. Valla (ann. 1439 in Schard, p. 734 — 80). This is shewn by the bold words of Wezel, ann. 1152, in Jaff(^, Mon. Corb. p. 542, and the mention of this opinion by Lup. Bebenb. c. 13. 284. See above, Note 58. In particular Lupoid von Bebenburg (c. 15, pp. 398 — 401) in this context sharply formulates the general proposition that the 'imperium,' since it is 'ob publicum usum Inalien- ability of Public Power. Notes. 183 assignatum,' stands 'extra commercium' like any other 'res in publico usu.' 285. Among the jurists and publicists we may see an always Nullity more definite apprehension of the rule that every contract which "e^jjing (g purports to sacrifice an essential right of the State is void, and that diminish • • • . . the State's no title can give protection against that claim to submission which po^gf_ flows from the very idea of State-Power. (Compare the passages cited in Note 283.) Therefore contracts made by the Princeps are not binding on his successor if thereby ' monarchia regni et honor coronae diminui possit,' or 'magna diminutio iurisdictionis ' would ensue, or ' regalia status ' would be abandoned. See Bart. 1. 3, § 2, Dig. 43, 23, nr. 5; Bald. i. Cons. 271, nr. 3; Joh. Paris, c. 22; Somn. Virid. 11. c. 293; Picus a Monte Pico, i. Feud. 7, nr. 10 j Jason, Cons. iii. c. 10, nr. 6 — 9, 16, 24 — 25 ; Crottus, Cons. 11. c. 223, nr. II and 21 — 22; Bertach. v. successor in regno. So a contract by a city purporting to exempt a man from taxation might be valid if entered into with a new settler, but would be invalid if made with one who was 'civis iam subditus': Bart. 1. 2, Dig. 50, 6, nr. 2 and 6 ; to the contrary, Gal. Marg. c. 30, nr. 1 1 and Dur. Spec. IV. 3, de cens. § 2, nr. 12. 286. See Notes 283 — 5. Dante, iii. c. 7 : Emperor or Pope, Inalien- like God, is powerless in one point, namely, 'quod sibi similem soverejg,,. creare non potest: auctoritas principalis non est principis nisi ad ty- usum, quia nullus princeps seipsum autorizare potest.' Aen. Sylv. c. II — 12. 287. Most definitely Nicol. Cus. (above, Note 171)5 but also An inde- ,, t, ,■ \ J ,x . J structible Mars. Pat. i. c. 12 (in the words *nec esse possunt ). As regards Sove- the Church, see above. Notes 189 and 200. According to Ockham, reignty . , , of the Dial. III. tr. I, 1. I, c. 29, there were some who held that a people, renunciation of the lordship of the world by the ' Populus Romanus ' was impossible and would not bind the ' populus sequens ' ; but this opinion is refuted, reference being made to the merely 'positive' character of the Romans' right to preeminence, and also to the doctrine about the binding force of resolutions passed by a cor- poration. 288. Bart. Ruhr. C. 10, i, nr. 3 — 5 and 9 — 10. The idea of Essential the Fiscus includes only ' quicquid ad commodum pecuniarium gf f^e imperii pertinet : alia vero, quae ad iurisdictionem et honores im- State and peru pertinent et non commodum pecuniarium et bursale, contmentur acquired nomine reipublicae et non fisci.' Baldus, 11. Feud. 5 1, pr. nr. 4 : a Right? of ,,,,,.,, ,..,.. the Fisc. city which subjects itself to lordship thereby conveys the mrisdtctto over the town mills, for this the city had possessed ' sicut ipsa 1 84 Political Theories of the Middle Age. civitas,' but it does not convey the ownership of the mills, for this it had 'iure privato.' Compare Bald. Ruhr. C. lo, nr. ir, Cons. I. c. 271, nr. 2, but especially 1. i, Cod. 4, 39, nr. 4, and above all 1. s, Cod. 7, 53, nr. 13: a distinction between 'res universitatis in commercio ' and ' extra commercium ' : in things of the latter class — and to this class belong all public rights — ' tenuta capi non potest ' [a tenure cannot be created] ; therefore, e.g., the right to impose a tax ' cum sit publicum auctoritate et utilitate et sit meri imperii ' is inalienable, and can never 'private concedi vel in tenutam dari'; only the commoditas [profit] of this right can be sold, given, let to farm, in such wise that the 'civitas ipsa' will still 'impose' the tax, though the buyer or lessee ' exacts ' it ; also the city can appoint for itself a capttaneus or conservator, who, as its proctor, will impose taxes and exercise other rights of ownership; 'et sub hoc colore perdunt civitates suas libertates, quae de decreto vendi non possunt.' See further the separation of the sovereign rights and fiscal rights of the Empire in Ockham, Dial. iii. tr. 2, 1. 2, c. 23 : also the dis- tinction between the commodum pecuniarium, which is involved in the idea of the fiscus, and the regalia which are involved in the idea of the respublica, in Vocab. luris, v. fiscus, in Paul. Castr. 1. 4, Cod. 2, 54, Marcus, Dec. i. q. 338, nr. 8 — 10 and 17, Martinus Laudensis, De fisco, q. 141. Gradual 289. See the passages cited above in Notes 284, 285 and 288. — apprehen- ^ certain, but a very distant, influence was exercised at this point by sion of the . . •' ' . v 1 Distinc- the distmctions drawn by the Philosophers between the various sorts tion be- Qf iustitia. So, in particular, the Thomistic distinction between tween lus / Publicum (i) the iustitia particularis, which is (a) commutative, regulating the Prfvatum relationships of man to man, or {p) distributive, dividing among individuals what is common, and (2) the iustitia generalis s. legalis, which limits the rights of individuals in accordance with the demands of the bonum commune. See Thom. Aquin. Sum. Theol. 11. 2, q. 58 ff. ; also n. i, q. 105, a. 2. Also Aegid. Rom. above, Note 83. Nullity 290- So, to some extent, all the writers mentioned in Note 257. of the And so in connexion with attacks on vested rights made without reign's i^tsta causa, all the authors named in Note 273 : see especially Gloss. uiey cL ^'^^ °° '• *' ^^'^^ '' ^9 and 1. 6, Cod. i, 22, Host. 1, c., Jacob. flict with Aren. 1. c. (for the Emperor, if he orders anything contrary to law, Law"^*^ ' *1"^^' '^°" ^^'^'' "' imperator '), Raphael Fulgosius 1. c. (the opinion that the Emperor, though he does unright, does a valid act, would practically subject everything to arbitrary power). Comp. Bened. Capra, Reg. 10, nr. 35—42. — Then Bartolus draws, and others Notes. 185 accept, the distinction between invasions of right (1) legem con- dendo, (2) iudicando, (3) rescribendo, and he is inclined to allow greater force to an act of legislation than to acts of other kinds ; still it is just he who expressly declares that in conflict with Natural Right, strictly so-called, even laws are void. — See also above, Note 259 in fine. 291. See above. Notes 129 — 130 and 134. 292. This is the core of the doctrine that the lack of a iusta Tribunals causa for any invasion of vested rights by the Sovereign can be SS^'S^^ supplied by the deliberateness {ex certa sciential) with which he Acts of the exercises his plenitudo potestatis : deliberateness which can be mani- ^°J'*'^^'?" fasted by such a clause as ' lege non obstante.' This doctrine, which liberately. first appears in a rough form in Durantis, Speculum, i. tit. interd. leg. et sedi Apost. reserv. nr. 89 (cf. G. Meyer, op. cit. p. loi), is attacked by the jurists cited in our Note 273 (though Jason in Cons. 11. c. 233, c. 236, n. 12 — 13 and iv. c. 107, nr. 4, makes large concessions) and is defended, though to a varying degree, by the jurists mentioned in our Note 274. See in particular Alber. Rose. 1. c. where prac- tically all difference between Positive and Natural Right disappears and the same formal omnipotence is claimed both for rescripts and for acts of legislation. Baldus, 1. c. ; Felin. Sand. 1. c. nr. 60 — 66 (despite nr. 45 — 52); Riminald. Cons. i. c. 73; Capra, Reg. 10, nr. 48 — 52, 56 — 59; Decius, c. 7, X. i, 2, nr. 27 — 28, Cons. 198, nr. 7, 269, nr. 4 — 5, 271, nr. 3, 640, nr. 6 — 7, and esp. 588, nr. i — 14; also Aen. Sylv. c. 16 — 17. — The rejection of the right of active resistance is a logical consequence; see above. Note 127. 293. This is made externally visible by the treatment as two dif- Natural ferent subjects of (i) the ' lex naturalis et divina,' which is binding on reduced"to rulers as on others, but like all other ' leges ' is concerned with the level 'actus exteriores,' and (2) that Instruction for the Virtuous Prince, in EtMcsf the development of which medieval publicists expend much of their pains. 294. Already John of Salisbury, iv. c. i, 2 and 4, speaks of a Coercive '/<« iustitiae,' to which the Ruler remains subject, since the 'aequitas directive et iustitia,' of which the ' lex ' is the ' interpres,' should govern his Force of will. Then in Aquinas there comes to the front the formula that the * ' Prince, in so far as the rules of law have no ' vis coactiva ' against him, is still bound by them 'quantum ad vim directivam'; comp. Sura. Theol. 11. i, q. 96, a. 5, also q. 93, a. 3. With Thomas himself it is only the ' lex humana ' which is reduced to the exercise of a merely directive force over the Prince ; in this province unrighteous laws (e.g. those which proceed 'ultra sibi commissam potestatem,' [86 Political Theories of the Middle Age. which impose unjust taxes and unjust divisions of burdens, or which are 'contra commune bonum') have formally the force of laws, though they are not binding 'in foro conscientiae': comp. ib. q. 90, a. 2, and q. 96, a. 1—4. Similarly Joh. Friburg. c. II. t. 5, q. 204. On the other hand, those who unconditionally maintain the formal sovereignty of the legislator and in so doing refuse even to Natural Law any ' coactive force ' against him, are unanimous in allowing to it at least a ' directive force.' See also Ptol. Luc. De reg. princ. iv. c. I. Ockham, Dial. ill. tr. 2, 1. 2, c. 28. Gerson, iv. p. 593 ff. esp. 601. Legal 295. See above, Notes 127—8. The limit to the duty of Limit to obedience is steadily represented as a matter for Jurisprudence, and of Obe- is deduced from the nature of lex or ius.