2
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone.
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone.
Thomas Carlyle
, VI.
22 (p.
503): "Quod exuit, atque ipso iure, sive ipso facto,
itaque scribo, Rempublicam posse eum Rex esse desinit. "
occidere, qui in ipsam hostiliter agat, * Id. id. , HI. 16 (p. 211).
VOL. VI. 2 F
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? 450
THE LATER SIXTEENTH CENTUKY. [PAST IV.
in general terms, though with special reference to France
and Scotland, he was aware that these were not recognised
in all countries, and he seems to be perplexed about the
German Empire and Poland. 1
That Barclay's judgment with regard to the absolute
authority of the prince continued to be held by him is evident
from another treatise, published in 1609, a year after his
death. This was the work entitled 'De Potestate Papae,'
which was concerned mainly with the refutation of the con-
tention of those Eoman Catholic writers who maintained
that the Pope could, for sufficient reasons, depose kings.
We are not here concerned with this question, but it is worth
while to observe that Barclay repeated his judgment that the
king was subject to God only, to no human or temporal
punishment, and that, as the Jurists had said, he was " legibus
solutus. " 2 He admits indeed that the form of government
in any commonwealth was a matter to be determined by
human law, and even the decision who was to be prince; but
when this had once been settled, obedience to him, in all
things not contrary to the commands of God, was required
by natural and Divine ordinance. 3
Finally, there were two writers in England, by profession
Civilians and Professors of Eoman Law, whose work we might
have discussed in Part ILT. of this volume; but although
they were Civilians, their work was primarily related to
constitutional conditions in England. The first of these,
1 Id. id. , IV. 13.
? Id. , 'De Potestate Papae,' XII.
(p. 94): "Nam inprimis quid ei
magis contrarium, quam quod tota
antiquitas Christiana semper consuit,
Reges solo Deo minores esse, solum
Deum iudicem habere, nullis legibus
hominum subiici, nullisque poenis
temporaliter plocti vel coerceri posse,
ac proinde quod iuris doctores dixerunt,
'Princeps legibus solutus est. '" Cf.
id. id. , XXXI. (p. 249).
? Id. id. , XXVII. (p. 211): "Nam
licet de iure humano sit, ut hac aut
ilia rcipublicae forma utamur, vel
hunc aut alium Principem habeamus:
tamen ut eum quem semel accepimus
revereamus, eique in omnibus quse Dei
mandatis non repugnant, submisse
pareamus, non humanae solum, sed
naturalis et divinae ordinationis; idque
neminem arbitror negaturum, 'qui
potestati resistit, Dei ordinationi re-
sistit. ' Inde fit, ut quod initio arbitrii
et voluntatis erat, id, post datam de
subiectione fidem, statim in obsequii
necessitate convertatur. "
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 451
Albericus Gentilis, is justly famous for his work on the Law
of War, in which he, at least in some measure, anticipated
the great work of Grotius. He had been Professor of Civil
Law in Perugia, but, adopting the Eeformed opinions, he fled
from Italy and finally found a refuge in England, and was
made Professor of Civil Law in Oxford. 1 In 1605 he
published a short work, 'Eegales Disputationes Tres,' in
which he discussed the source and nature of the authority
of the king, with special reference to England.
Supreme princes, Albericus says in the first of these 'Dis-
putationes,' have no superior, but are above all men; they
are absolutely supreme, for they recognise no authority over
them except God, neither man nor law. The prince is " legibus
solutus," and " quodcunque placet principi " is law. This is
not a barbarous rule, but that of the Eoman Law, the most
excellent of all the system of law of men. 2 Again, a little
later, the prince is God on earth, and his authority is greater
than that which formerly belonged to the father over his son,
or to the master over his slave 3; and in another place ho
even seems to suggest that the authority of the law of the
prince is simply that of his will, without any reference to
reason. *
Albericus admits indeed that this was not true of all forms
1 For a careful account of Albericus,
cf. Professor T. E. Holland's edition of
his work, ' Do Jure Belli,' 1878.
3' Albericus Gentilis, 'Regales Dis-
putationes Tres' (ed. London, 1605),
'Disputatio Prima ' (p. 8): "Supremi
sunt (principes) quibus nullus est
superior, sed ipse supra omnes. . . .
Atque in his haesitare non oportet.
lllic haesitetur, dum quaeritur, isti
supremi quales sunt. In qua quaestione
bonam profecto operam, et bene longam
navavit Bodinus.
Illo est nine absolute supromus,
qui nihil supra se, nisi Deum agnoscit:
neo euiquam reddere rationem, nisi
Deo ha bet. . . . Et hoc igitur supremi.
tatia est ut nihil supra se umquam
ceroat principatum, neque hominem,
neque legem. Ergo ot absoluta haec
potestas ost, et absque limitibus. 'Prin -
ceps logibus solutus est,' erit lex, et
eadem, quod lex est quodeumquo placet
principi. Et haec lex non barbara, sod
Romana est: id est praestantissima in
legibus hominum. "
>> Id. id. id. (p. 11): "Princeps est
Deus in terris, eius potestas maior est,
quam quae olim fuit pair is in filium,
domini in servum. "
4 Id. id. id. (p. 24): "? Quod prin-
cipi plaouit' inquit lex. Suffioit pro
ratione voluntas inquit Angelus. Et
verba ilia (inquit Bodinus) reecrip-
torum, placitorum, 'Ita nobis placet. '
apponuntur ita, ut ostendat principis a
se pendere vim, non a ratione. "
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? 452
[part IV.
THE LATER SIXTEENTH CENTURY.
of monarchy. There were some in which authority rested
upon certain agreements, and the subjects had reserved to
themselves their own laws and privileges; he refers to Alciatus,
and cites as examples of such conditions the imperial cities of
Germany, some of the papal states in Italy, the provinces of
"Lower Germany" (meaning, no doubt, the Netherlands),
which had for so many years been defending their liberties,
and the long and successful resistance of the Swiss to the
Austrians. "1
Albericus, however, contends that the English monarchy
had not this character, but that in England the king had an
absolute authority subject to no control by the public law.
He refers to the important distinction made by Baldus between
the ordinary and the extraordinary powers of the prince,
and he identifies the latter with that which was meant in
England by the Prerogative. The first is bound by the laws;
the second is so absolute that the prince could take away a
man's lawful right without any cause. 2
1 Id. id. id. (p. 14): "Generaliter
\ fro ad potestatem hanc principis,
quam absolutam contendimus, adden-
dum est, hoc ita a nobis proponi, his
qui simpliciter et plenarie subditi
sunt; non autem qui venissent in
deditionem certis foederibus, ut quia
reservassent sibi suas leges et privilegia.
Nam isti quantum ad plenitudinem
potestatis, non dicuntur subditi, quod
post alios declarat Alciatus.
Et de his non subditis tradit
exemplum in civitatibus Germaniae
imperialibus, et in parte maiore ponti-
ficiae Italicae ditionis. Nos notare
exemplum in provinciis Germaniae
inferioris libenter solemus, quae iam
annos plusimos pugnant pro libertate
contra illam plenitudinem potestatis.
Pro qua libertate adversus eandem
dominationem, et adversus eandem
domum Austriacam pugnarunt Helvetii
diu ac feliciter. "
Cf. for Alciatus, p. 299 of this
volume.
? Id. id. id. (p. 10): "In aliis
regibus est princeps noster quem
logibus solutum sudimus. Quod est
potestatis solutae, vel (ut loquimur)
absolutae. Atque absoluta potestas
est plenitudo potestatis. Est arbitrii
plenitudo, nulli vel necessitate, vel
iuris publici regulis subiecta. Quod
ex Baldo acoeptum dicunt alii. Est
potestas extraordinaria et libera. Est
ilia quam in Anglia significamus nomine
(ut ego quidem existimo) regiae I'rero-
gativae.
Atque sic interpretes iuris com-
muniter scribunt, ease in principe
potestatem duplicem, ordinariam ad-
strictam logibus, et alteram extra-
ordinariam, legibus absolutam. Atque
absolutam denniunt, secundum quam
potest ille tollere ius alienum, etiam
magnum, etiam sine causa. "
Cf. id. id. id. (p. 25).
Cf. for the conception of an extra-
? ? ordinary as well as an ordinary author-
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY.
453
It is true that in another place he seems to admit that he
might concede that the prince could not, even in his "pleni-
tudo potestatis," take away his subjects' property without just
cause; but he seems to mean that this was not of much im-
portance, for the absolute prince himself determines what is a
just cause. 1
He was indeed aware that it had been argued that no
people could be found so senseless as to confer such an absolute
authority upon the prince; but this contention was, he says,
false, and he appeals to Aristotle, and also to Bodin, who had
shown that such absolute kingdoms existed even to-day in
Asia, Africa, and Europe, and he refers to that learned prince
(meaning presumably James I. ) who had maintained that
the Hebrew monarchy had been of this kind. 2
Albericus admits, however, like Bodin and the Civilians,
that all princes were subject to the Divine Law, the Law of
Nature, and the Law of Nations, and, like Bodin and many
Civilians, that he was bound by his contracts. 3
In the third of these ' Eegales Disputationes,' " De Vi Civium
in Eegem semper iniusta," he does not add much of import-
ance; he condemns all violence offered to the prince by his
subjects; but he again makes the important reservation that
1 Id. id. id. (p. 27): "Etiam illud Bodinum peritissimum, qui hodieque
dare possum aliis et doctori mi Thobio dominatus in Asia, Africa, Europa
Nonio, Principem nec de plenitudine ostondit, sicut dominorum in servos,
potestatis posse privare subditos dom- Doctus Princops contendit, et talem
inio rerum suarum, sine iusta causa, fuisse regem Ebraeorum, de quo
quiquid de aliis doctori bus an tea audit scilicet ilia, 'Haeo est ratio
posui. Sed sio dicimus, de hao tamen ipsa regis, qui regnabit supra vos:
causarum institia censere, id esse Filios vestros accipiet, Ac. ,' in primo
arbitrii Principis absoluti. In quo sit Samuelis. "
differentia cum Principe alteri, cui * Id. id. id. (p. 17): "Princeps,
arbitrii non est, iudicare de causis, in quit Baldus, supra ius, scilicet
at ex legibus iudicare habet. " civile, infra ius, scilicet naturale et
* Id. id. id (p. 18): "Profertur gentium. Non supra divinum ius, ut
tertium (argumentum), quod non re- idem scribit hie, et Bartolus et Angelus.
periatur usquam populum adeo amens, Ligatur Princeps et lege contractus,
qui tantam umquam dotulerit prin- ut hie idem et Jason. "
eipi potestatem. Imo populus posuerit (p. 30): "Tertius casus in actu, qui
aliquas principilus leges, quem ultra eis fit inter principem et privatum, ut in
progredi non liceret. Quod itidem est contrrotu, ut Princeps solutus non est
argumentum falsum, ut contra osten- hisce legibus. "
sum de Aristotele est. Cui adde
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? 454
[PABT IV.
THE LATER SIXTEENTH CENTURY.
this does not apply to the cases when the prince was subject to
a judge or a guardian, as was alleged to be the case in France
and the Netherlands. 1 It is worth noticing that Albericus
was aware of the arguments which had been drawn from the
feudal laws in favour of the right to resistance, but he repudi-
ated this on the ground that the nature of feudal authority
was wholly different from that of a king: it was of the nature
of a contract.
2
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone. 3
Albericus does not add much to the general theory of the
absolute monarchy and its Divine authority, but he is oi some
interest as asserting that whatever might be the case in other
countries, the English monarchy possessed in its Prerogative
an extraordinary authority subject to no laws or limitations
except those of the Divine and natural law, and of contract.
The other work of this same time is that of James Co well,
Professor of Civil Law in Cambridge, 'The Interpreter,'
published in 1607.
He had indeed in an earlier work, 'Institutiones Juris
Anglicani,' published in 1605, set out constitutional concep-
tions similar to those of St Germans and Sir Thomas Smith.
He distinguished in this work two elements in the laws of
1 Id. id. , III. , "De Vi Civium in
Regom" (p. 99): "Vim omnem
civium iniustum semper in Principem
esse defendimus (this does not apply
to a prince like the Doge of Venice,
who should rather be called a magis-
trate). Sed neque de illo Principe
lociuimur, qui iudicem aliquem ha bet,
nut custodem. Quemadmodum sub
oustode faciunt quidam Regem Galli-
arum, et plurimi Belgae Principem
suum,"
? Id. id. id. (p. Ill): "Sextum
(argument in defence of the right of
resistance) . . . quod sicut potest feu-
datarius vi obsistere violento domino,
imo etiam proditori obsistere potest:
ita et subditus possit obsistere simili
domino suo. Hoc enim argumentum
tanto est infirmius, quanto ius feudi
ligat vasallum minus. Feudum non
dat domino imperium in vasaellum,
est enim quidam contractus, quo quia
alteri obligatur, non autem imperium
concoditur . . . Alia subditorum, alia
vassalorum iura. "
>> Id. id. id. (p. 101): "Cui respon-
demus ad enunciatum, quod imo
Principi amplius debemus quam
patri. . . . Est iuris divini potestas
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii.
itaque scribo, Rempublicam posse eum Rex esse desinit. "
occidere, qui in ipsam hostiliter agat, * Id. id. , HI. 16 (p. 211).
VOL. VI. 2 F
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? 450
THE LATER SIXTEENTH CENTUKY. [PAST IV.
in general terms, though with special reference to France
and Scotland, he was aware that these were not recognised
in all countries, and he seems to be perplexed about the
German Empire and Poland. 1
That Barclay's judgment with regard to the absolute
authority of the prince continued to be held by him is evident
from another treatise, published in 1609, a year after his
death. This was the work entitled 'De Potestate Papae,'
which was concerned mainly with the refutation of the con-
tention of those Eoman Catholic writers who maintained
that the Pope could, for sufficient reasons, depose kings.
We are not here concerned with this question, but it is worth
while to observe that Barclay repeated his judgment that the
king was subject to God only, to no human or temporal
punishment, and that, as the Jurists had said, he was " legibus
solutus. " 2 He admits indeed that the form of government
in any commonwealth was a matter to be determined by
human law, and even the decision who was to be prince; but
when this had once been settled, obedience to him, in all
things not contrary to the commands of God, was required
by natural and Divine ordinance. 3
Finally, there were two writers in England, by profession
Civilians and Professors of Eoman Law, whose work we might
have discussed in Part ILT. of this volume; but although
they were Civilians, their work was primarily related to
constitutional conditions in England. The first of these,
1 Id. id. , IV. 13.
? Id. , 'De Potestate Papae,' XII.
(p. 94): "Nam inprimis quid ei
magis contrarium, quam quod tota
antiquitas Christiana semper consuit,
Reges solo Deo minores esse, solum
Deum iudicem habere, nullis legibus
hominum subiici, nullisque poenis
temporaliter plocti vel coerceri posse,
ac proinde quod iuris doctores dixerunt,
'Princeps legibus solutus est. '" Cf.
id. id. , XXXI. (p. 249).
? Id. id. , XXVII. (p. 211): "Nam
licet de iure humano sit, ut hac aut
ilia rcipublicae forma utamur, vel
hunc aut alium Principem habeamus:
tamen ut eum quem semel accepimus
revereamus, eique in omnibus quse Dei
mandatis non repugnant, submisse
pareamus, non humanae solum, sed
naturalis et divinae ordinationis; idque
neminem arbitror negaturum, 'qui
potestati resistit, Dei ordinationi re-
sistit. ' Inde fit, ut quod initio arbitrii
et voluntatis erat, id, post datam de
subiectione fidem, statim in obsequii
necessitate convertatur. "
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 451
Albericus Gentilis, is justly famous for his work on the Law
of War, in which he, at least in some measure, anticipated
the great work of Grotius. He had been Professor of Civil
Law in Perugia, but, adopting the Eeformed opinions, he fled
from Italy and finally found a refuge in England, and was
made Professor of Civil Law in Oxford. 1 In 1605 he
published a short work, 'Eegales Disputationes Tres,' in
which he discussed the source and nature of the authority
of the king, with special reference to England.
Supreme princes, Albericus says in the first of these 'Dis-
putationes,' have no superior, but are above all men; they
are absolutely supreme, for they recognise no authority over
them except God, neither man nor law. The prince is " legibus
solutus," and " quodcunque placet principi " is law. This is
not a barbarous rule, but that of the Eoman Law, the most
excellent of all the system of law of men. 2 Again, a little
later, the prince is God on earth, and his authority is greater
than that which formerly belonged to the father over his son,
or to the master over his slave 3; and in another place ho
even seems to suggest that the authority of the law of the
prince is simply that of his will, without any reference to
reason. *
Albericus admits indeed that this was not true of all forms
1 For a careful account of Albericus,
cf. Professor T. E. Holland's edition of
his work, ' Do Jure Belli,' 1878.
3' Albericus Gentilis, 'Regales Dis-
putationes Tres' (ed. London, 1605),
'Disputatio Prima ' (p. 8): "Supremi
sunt (principes) quibus nullus est
superior, sed ipse supra omnes. . . .
Atque in his haesitare non oportet.
lllic haesitetur, dum quaeritur, isti
supremi quales sunt. In qua quaestione
bonam profecto operam, et bene longam
navavit Bodinus.
Illo est nine absolute supromus,
qui nihil supra se, nisi Deum agnoscit:
neo euiquam reddere rationem, nisi
Deo ha bet. . . . Et hoc igitur supremi.
tatia est ut nihil supra se umquam
ceroat principatum, neque hominem,
neque legem. Ergo ot absoluta haec
potestas ost, et absque limitibus. 'Prin -
ceps logibus solutus est,' erit lex, et
eadem, quod lex est quodeumquo placet
principi. Et haec lex non barbara, sod
Romana est: id est praestantissima in
legibus hominum. "
>> Id. id. id. (p. 11): "Princeps est
Deus in terris, eius potestas maior est,
quam quae olim fuit pair is in filium,
domini in servum. "
4 Id. id. id. (p. 24): "? Quod prin-
cipi plaouit' inquit lex. Suffioit pro
ratione voluntas inquit Angelus. Et
verba ilia (inquit Bodinus) reecrip-
torum, placitorum, 'Ita nobis placet. '
apponuntur ita, ut ostendat principis a
se pendere vim, non a ratione. "
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? 452
[part IV.
THE LATER SIXTEENTH CENTURY.
of monarchy. There were some in which authority rested
upon certain agreements, and the subjects had reserved to
themselves their own laws and privileges; he refers to Alciatus,
and cites as examples of such conditions the imperial cities of
Germany, some of the papal states in Italy, the provinces of
"Lower Germany" (meaning, no doubt, the Netherlands),
which had for so many years been defending their liberties,
and the long and successful resistance of the Swiss to the
Austrians. "1
Albericus, however, contends that the English monarchy
had not this character, but that in England the king had an
absolute authority subject to no control by the public law.
He refers to the important distinction made by Baldus between
the ordinary and the extraordinary powers of the prince,
and he identifies the latter with that which was meant in
England by the Prerogative. The first is bound by the laws;
the second is so absolute that the prince could take away a
man's lawful right without any cause. 2
1 Id. id. id. (p. 14): "Generaliter
\ fro ad potestatem hanc principis,
quam absolutam contendimus, adden-
dum est, hoc ita a nobis proponi, his
qui simpliciter et plenarie subditi
sunt; non autem qui venissent in
deditionem certis foederibus, ut quia
reservassent sibi suas leges et privilegia.
Nam isti quantum ad plenitudinem
potestatis, non dicuntur subditi, quod
post alios declarat Alciatus.
Et de his non subditis tradit
exemplum in civitatibus Germaniae
imperialibus, et in parte maiore ponti-
ficiae Italicae ditionis. Nos notare
exemplum in provinciis Germaniae
inferioris libenter solemus, quae iam
annos plusimos pugnant pro libertate
contra illam plenitudinem potestatis.
Pro qua libertate adversus eandem
dominationem, et adversus eandem
domum Austriacam pugnarunt Helvetii
diu ac feliciter. "
Cf. for Alciatus, p. 299 of this
volume.
? Id. id. id. (p. 10): "In aliis
regibus est princeps noster quem
logibus solutum sudimus. Quod est
potestatis solutae, vel (ut loquimur)
absolutae. Atque absoluta potestas
est plenitudo potestatis. Est arbitrii
plenitudo, nulli vel necessitate, vel
iuris publici regulis subiecta. Quod
ex Baldo acoeptum dicunt alii. Est
potestas extraordinaria et libera. Est
ilia quam in Anglia significamus nomine
(ut ego quidem existimo) regiae I'rero-
gativae.
Atque sic interpretes iuris com-
muniter scribunt, ease in principe
potestatem duplicem, ordinariam ad-
strictam logibus, et alteram extra-
ordinariam, legibus absolutam. Atque
absolutam denniunt, secundum quam
potest ille tollere ius alienum, etiam
magnum, etiam sine causa. "
Cf. id. id. id. (p. 25).
Cf. for the conception of an extra-
? ? ordinary as well as an ordinary author-
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY.
453
It is true that in another place he seems to admit that he
might concede that the prince could not, even in his "pleni-
tudo potestatis," take away his subjects' property without just
cause; but he seems to mean that this was not of much im-
portance, for the absolute prince himself determines what is a
just cause. 1
He was indeed aware that it had been argued that no
people could be found so senseless as to confer such an absolute
authority upon the prince; but this contention was, he says,
false, and he appeals to Aristotle, and also to Bodin, who had
shown that such absolute kingdoms existed even to-day in
Asia, Africa, and Europe, and he refers to that learned prince
(meaning presumably James I. ) who had maintained that
the Hebrew monarchy had been of this kind. 2
Albericus admits, however, like Bodin and the Civilians,
that all princes were subject to the Divine Law, the Law of
Nature, and the Law of Nations, and, like Bodin and many
Civilians, that he was bound by his contracts. 3
In the third of these ' Eegales Disputationes,' " De Vi Civium
in Eegem semper iniusta," he does not add much of import-
ance; he condemns all violence offered to the prince by his
subjects; but he again makes the important reservation that
1 Id. id. id. (p. 27): "Etiam illud Bodinum peritissimum, qui hodieque
dare possum aliis et doctori mi Thobio dominatus in Asia, Africa, Europa
Nonio, Principem nec de plenitudine ostondit, sicut dominorum in servos,
potestatis posse privare subditos dom- Doctus Princops contendit, et talem
inio rerum suarum, sine iusta causa, fuisse regem Ebraeorum, de quo
quiquid de aliis doctori bus an tea audit scilicet ilia, 'Haeo est ratio
posui. Sed sio dicimus, de hao tamen ipsa regis, qui regnabit supra vos:
causarum institia censere, id esse Filios vestros accipiet, Ac. ,' in primo
arbitrii Principis absoluti. In quo sit Samuelis. "
differentia cum Principe alteri, cui * Id. id. id. (p. 17): "Princeps,
arbitrii non est, iudicare de causis, in quit Baldus, supra ius, scilicet
at ex legibus iudicare habet. " civile, infra ius, scilicet naturale et
* Id. id. id (p. 18): "Profertur gentium. Non supra divinum ius, ut
tertium (argumentum), quod non re- idem scribit hie, et Bartolus et Angelus.
periatur usquam populum adeo amens, Ligatur Princeps et lege contractus,
qui tantam umquam dotulerit prin- ut hie idem et Jason. "
eipi potestatem. Imo populus posuerit (p. 30): "Tertius casus in actu, qui
aliquas principilus leges, quem ultra eis fit inter principem et privatum, ut in
progredi non liceret. Quod itidem est contrrotu, ut Princeps solutus non est
argumentum falsum, ut contra osten- hisce legibus. "
sum de Aristotele est. Cui adde
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? 454
[PABT IV.
THE LATER SIXTEENTH CENTURY.
this does not apply to the cases when the prince was subject to
a judge or a guardian, as was alleged to be the case in France
and the Netherlands. 1 It is worth noticing that Albericus
was aware of the arguments which had been drawn from the
feudal laws in favour of the right to resistance, but he repudi-
ated this on the ground that the nature of feudal authority
was wholly different from that of a king: it was of the nature
of a contract.
2
The authority of the prince is greater than that even of a
father: and it belongs to the Divine law, the natural law of
nations, and was not established by men alone. 3
Albericus does not add much to the general theory of the
absolute monarchy and its Divine authority, but he is oi some
interest as asserting that whatever might be the case in other
countries, the English monarchy possessed in its Prerogative
an extraordinary authority subject to no laws or limitations
except those of the Divine and natural law, and of contract.
The other work of this same time is that of James Co well,
Professor of Civil Law in Cambridge, 'The Interpreter,'
published in 1607.
He had indeed in an earlier work, 'Institutiones Juris
Anglicani,' published in 1605, set out constitutional concep-
tions similar to those of St Germans and Sir Thomas Smith.
He distinguished in this work two elements in the laws of
1 Id. id. , III. , "De Vi Civium in
Regom" (p. 99): "Vim omnem
civium iniustum semper in Principem
esse defendimus (this does not apply
to a prince like the Doge of Venice,
who should rather be called a magis-
trate). Sed neque de illo Principe
lociuimur, qui iudicem aliquem ha bet,
nut custodem. Quemadmodum sub
oustode faciunt quidam Regem Galli-
arum, et plurimi Belgae Principem
suum,"
? Id. id. id. (p. Ill): "Sextum
(argument in defence of the right of
resistance) . . . quod sicut potest feu-
datarius vi obsistere violento domino,
imo etiam proditori obsistere potest:
ita et subditus possit obsistere simili
domino suo. Hoc enim argumentum
tanto est infirmius, quanto ius feudi
ligat vasallum minus. Feudum non
dat domino imperium in vasaellum,
est enim quidam contractus, quo quia
alteri obligatur, non autem imperium
concoditur . . . Alia subditorum, alia
vassalorum iura. "
>> Id. id. id. (p. 101): "Cui respon-
demus ad enunciatum, quod imo
Principi amplius debemus quam
patri. . . . Est iuris divini potestas
Principis: non a solis hominibus
constitute. Est iuris naturalis gen-
tium. "
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 456
England, the ' Consuetudines Veteres ' and the ' Statuta '; the
first are approved " communi sponsione," and by the oath of
the king; while the second were sanctioned by the common
counsel of the kingdom. They do not arise from the will of
the king alone, but are established by the consent of the
whole kingdom called together for the purpose by the king;
but the king's approval is also necessary. 1 The king is indeed
superior to the laws in this respect, that he can grant "privi-
legia" to individuals, or municipal bodies, or societies
(collegiis), but only so far as they do not injure any third
person. 2
Two years later, however, in 1607, Cavell set out in 'The
Interpreter' political principles which certainly seem to be
very different. This work is in form a dictionary of legal
terms in alphabetical order; and we may conveniently begin
by noticing the article on the king. "Thirdly," he says, " the
king is above law by his absolute power (Bracton, lib. pri. 8);
and though for the better and equall course of making laws,
he does admitte the 3 Estates, that is, Lords Spirituall, Lords
Temporall, and the Commons into counsell, yet this, in divers
learned men's opinions is not of constrainte, but of his own
benignitie, or by reason of his promise made upon oath at
the time of his coronation. For otherwise were he a subject,
after a sort, and subordinate, which may not be thought
without breach of duty and loyalty. For then must we deny
him to be above the law, and so have no power of dispensing
with any positive law, or of granting especiall priviledges
and charters unto any, which is his onely and clear right, as
1 James Cowell, 'Institutiones Juris versi regni consensu per Regem ad
Anglicani' (cd. Cambridge, 1605), I. hoc convocati stabiliuntur. Sic tamen
2,3: "Consuetudines nimirum voteres, ut Regis approbatio necessario re-
tam communi populi sponsione quam quiratur. "
Regis Sacramento comprobatas, et 1. 2, 8: "Jus civile Anglorum potest
statuta, quae ad dictorum consuetu- eorum consensu mutari, quorum con-
dinem vel supplementum vel etiam silio est promulgatum. "
emendationem, communi regni consilio 1 Id. id. , I. 2, 5: "In hoc tamen
sanciuntur. " Rex Anglorum legibus est superior,
I. 2, 4: "Jus scriptum apud nos, quod privilegia pro arbitrio suo,
saltem quod in usu est, continent dummodo tertio non iniuriosa, personis
statuta. Illa autem non a sola prin- singulis, vel etiam municipiis aut
oipis voluntate proficiuntur, scd uni- collegiis, concedere potest. "
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? 456
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Sir Thomas Smith well expresseth (lib. 2. cap. 3, 'De Eepub.
Anglorum '), and Bracton (lib. 2. cap. 16, 3), and Britten (cap.
39). . . . And though, at his coronation he take an oath not to
alter the lawes of the land: yet, the oath notwithstanding, he
may alter or suspend any particular law that seemeth hurtfull
to the public estate (Blackwood, 'Apologia Eegum,' 11). "
There are clearly two conceptions expressed in the passage.
First, the King of England does normally consult Parliament
in making laws, but Cowell will not say that this is neces-
sary; and second, that there is in the king an absolute power,
which is above law; but Cowell may not here mean much
more than the power of dispensing with the law or of granting
"privileges " in special cases.
We go on to the article on "Parliament. " "In England we
use it for the assembly of the king and the three Estates of the
realm, videlicet, the Lords Spiritual! , the Lords Temporall,
and Commons, for the debating of matters touching the
commonwealth, and especially the making and correcting of
laws. Which assembly or court is of all other the highest
and of greatest authority, as you may recall in Sir Thomas
Smith, 'De Eep. Ang. ,' 2. 1, 2, &c. . . . And of these two
one must be true, that either the king is above the Parliament,
that is the positive laws of the kingdom, or else that he is not
an absolute king (Arist. , lib. 3, Politic, cap. 11). And, though
it be a mercifull policie, and also a politique mercie (not
alterable without great perill) to make laws by the consent
of the whole Eealme, because so no one part shall have cause
to complaine of a partialitie: yet simply to bind the prince
to or by those laws were repugnant to the nature of an absolute
monarchy. See Bracton, lib. 5, Tract. 3, ca. 3 nu. 3. . . .
That learned Hotoman in his ' Franco Gallia' doth vehemently
oppugne this ground . . . but he is clean overborne by the
pois of reason. "
This does not add much to the contentions of the last
passage, but there is perhaps a slightly different emphasis;
for though Cowell uses the highest terms of the authority of
Parliament, he maintains that an absolute king must be above
Parliament and the positive laws of the kingdom.
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? CHAP, in. ] THEORY OF THE ABSOLUTE MONARCHY. 457
In the article on Prerogative he declares very emphatically
that the King of England is an absolute king. He explains
that by the Prerogative he understands "that especiall
power, pre-eminence or privilege that the king hath in any
kind, over and above the ordinarie course of the common
law, in the right of the crown. . . . Now for these regalities
which are of the higher nature (all being within the compass
of his prerogative, and justly to be comprised under that title),
there is not one that belonged to the most absolute prince in
the world which will not also belong to our king, except the
custom of the nations so differ (as indeed they doe) that one
thing be in the one accompted a regalite, that in another is none.
Onely by the custom of the kingdom, he maketh no laws
without the consent of the 3 estates, though he may quash
any laws concluded of by them. And whether his power of
making laws be restreined (de necessitate) or of a godly and
commendable policy, not to be altered without great perill,
I leave to the judgment of wiser men. But I hold it
incontrovertible that the King of England is an absolute
king. "
It is clear that Cowell conceives of the "Prerogative" as
being some ultimate and reserved authority possessed by the
King of England over and above his ordinary powers, which
was comparable with the "absolute" power of other kings;
this suggests a comparison with Albericus Gentilis; and, while
he admits that by the custom of the country he made no laws
without the consent of Parliament, he will not say whether
this was necessary or merely good policy.
In the article on Subsidies he makes a somewhat curious
suggestion. He defines a "Subsidie" as "a tax or tribute
assessed by Parliament and granted by the Commons to bo
levied of every subject "; and adds: "Some hold the opinion,
that the subsidie is granted by the subjects to the prince in
recompense or consideration, that whereas the prince, of
his absolute power, might make laws of himself, he doth of
favour admit the consent of his subjects thereto, that all
things in their own confession may be done with the greatest
indifference. "
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? 458
[PART IV.
THE LATER SIXTEENTH CENTURY.
If we now endeavour to sum up the development of the
theory of the absolute prince in the sixteenth century, it
seems to us clear that there were two elements in this, one
theological, the other legal; but neither of these has any
real relation either to the Eenaissance or to that great
religious movement which we call the Eeformation and
Counter-Eeformation.
If we begin with the conception that the authority of the
prince is absolute because he is the representative of God,
and because his authority is therefore equivalent to that of
God, it is obvious that it rested upon little except the tradi-
tion of the unfortunate phrases of Gregory the Great, and a
superficial interpretation of some passages in the Old and
New Testaments. Writers like Tyndale and Bilson among
those who followed the Eeformed movement, and Barclay
among those who adhered to Eome, had evidently no serious
or critical foundation for the view; while Luther once held
it but later abandoned it; and Calvin and Hooker among the
Reformed, and the great Jesuits like Suarez and Bellarmine
among the Eomanists, repudiated it. It is quite impossible
to relate this in the sixteenth century to any one of the
theological movements of the time in particular.
The nature of the legal conception of the absolute king is
more complex. We recognise here the effects of the revived
study of the Eoman Jurisprudence in the Corpus Juris Civilis.
The great Jurists were indeed perfectly clear that all
political authority in the Eoman State was derived from the
people; but they wrote at a time when practically the legis-
lative power belonged to the emperor; their conception of
law and its source was for practical purposes represented in
the words of Ulpian, "quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eiuis lata est,
populus ei et in eum omm suum imperium et potestatem con-
forat" (Dig. I. 4,1). The normal mediaeval conception of the
nature and source of positive law was much more complex; it
rested upon the principle that positive law was primarily
custom; and this was expressed in the words of Gratian, founded
indeed upon St Isidore: "Humanum genus duobus regitur,
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? CHAP, m. ] THEORY OF THE ABSOLUTE MONARCHY. 459
naturali videlicet iure et moribus" (Gratian, 'Decretum,' D. 1).
When the conception of deliberate legislation gradually took
shape the law was thought of as representing the action of
the whole community, of the king doubtless, but also of the
great and wise men, and as requiring the consent of the
whole community. The words of the 'Edictum Pistense' of
864, " quoniam lex consensu populi et constitutione regis fit"
(M. G. H. Leg. , sect. ii. vol. ii. 273) are not, as some careless
observers have sometimes seemed to think, mere empty
phrases, however incidental in their original context they
may have been; rather they represent the normal conception
of men in the Middle Ages.
The revived study of the Eoman law therefore brought
into the political thought of the Middle Ages a now and revolu-
tionary conception; and while there is little trace of this
even in the fourteenth and fifteenth centuries outside of the
technical work of the Civilians, we can hardly doubt that it
did gradually exercise considerable influence, and that the
development of the theory of the absolute authority of the
king or prince in the sixteenth century may, at least in part,
be traced to this.
Again, it was from the revived study of the Eoman law that
there came the conception that the emperor was "legibus
solutus," was not only the source of law, but was above it, or,
if we may put it so, outside of it. What the original meaning of
the phrase may have been, we do not feel competent to discuss.
It is difficult to reconcile the view that it meant that the
emperor could do or command whatever he pleased with the
terms of the rescript of Theodosius and Valentinian of 426 a. d.
"Eescripta contra ius elicita ab omnibus iudicibus praecipimus
refutari" (Cod. I. 19, 7). What is quite certain is that the
conception that the prince could normally ignore and over-ride
the law was contrary to the whole tradition of mediaeval society
from Hincmar of Eheims in the ninth century (cf. vol. i.
pp. 230-235) to John of Salisbury in the twelfth (cf. vol. iii.
pp. 137-142), Bracton in the thirteenth (cf. vol. iii.
