Argument From Roman Law in Political Thought, 1200-1600

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HARVARD HISTORICAL MONOGRAPHS XV

Argument from Roman Law in Political Thought

1200-1600

Argument from Roman Law in Political Thought

1200-1600 By

MYRON PIPER GILMORE

/

NEW YORK / RUSSELL fc? RUSSELL

COPYRIGHT,

1941

BY THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE REISSUED,

1967,

BY RUSSELL & RUSSELL

A DIVISION OF ATHENEUM HOUSE, INC. BY ARRANGEMENT WITH HARVARD UNIVERSITY PRESS L. C. CATALOG CARD NO.:

66-2708 I

PRINTED IN THE UNITED STATES OF AMERICA

LAURENCE BRADFORD PACKARD

NOTE I should like to express here my deep gratitude to Pro¬ fessor Charles Howard Mcllwain, who first suggested that I should study French political thought in the six¬ teenth century and who has constantly inspired and encouraged whatever I have since done. I am indebted to the officials of the Harvard Law Library for their courtesy and cooperation in assisting me to make use of their magnificent collection.

My

brother. Allen Austin Gilmore, gave valuable assist¬ ance in the preparation of the manuscript, and my friend, Edwin Leo Popper, kindly cooperated in the reading of the proof. M. P. G.

CONTENTS Introduction.

3

The Glossators and Postglossators.

15

The Humanists.

45

The Theory of Office in Bodin and Loyseau

93

.

.

Conclusion.127 Bibliography.133 Index.

143

ARGUMENT FROM ROMAN LAW IN POLITICAL THOUGHT 1200-1600

INTRODUCTION The interest of this essay is that it analyzes certain ex¬ amples of the way in which political theorists adapt and modify to their own uses distinctions taken from an authoritative and traditional source. The examples are chosen from the period roughly 1200 to 1600, that is, when the national state was emerging as the central fact of the political organization of Western Europe. The authoritative text is the Roman law as it appeared in the Justinian compilation which, during the whole period, enjoyed an unquestioned reputation as ratio scripta.

Thus the essay is concerned with particular

illustrations of two general problems, the existence of an authoritative tradition and the relation of individuals to that tradition. We may register the fact of the authority of Roman law without being required to give a complete explana¬ tion of it.

At other times and with other thinkers the

Bible and the writings of Aristotle have enjoyed a sim¬ ilar authority.

The appeal to an unchanging text cre¬

ates the illusion of continuity. During the period from the twelfth to the end of the sixteenth century came first the revival of the study of Roman law, and then its penetration in varying degrees of the laws and customs of the different groups which made up the social and political organization of Europe, including groups as small as a province or pays, represented by its own coutumier, or as large as England or the Church. Finally there was the complete reception of the Roman law in

4

ROMAN LAW IN POLITICAL THOUGHT

Germany, a development which was the logical extreme of the process which was elsewhere a matter of degree, with the minimum represented by England.

During

this time there are instances in which courts applied law which was neither immemorial custom nor the de¬ cree of a sovereign power but which rested on the de¬ cision of an Italian jurisconsult, commenting a text of Justinian. In this general situation the extent to which Roman law supplied argument for political theory has been insufficiently recognized.

We are familiar with

famous authors who appealed to Scriptural authority in their discussions of political power, but we are not so familiar with many authors who, although equally in¬ fluential, found in the Roman law their most important arguments and analogies.

The approach of these au¬

thors to theoretical questions was historical rather than religious, and legal rather than philosophic.

Therefore

much of their positive political theory is advanced in works which appear to us to be of a technical erudition. They believed in general that an argument from history was not only a good argument but also a representation of truth, a justification for a present political program. What would today appear as a new theory of the state then appeared as a new history of France, and what we should call a new philosophy of law was then entitled a commentary and contained an exposition of the Digest or the Liber Feudorum or the Coutume de Paris.

In

studying these authors we must accustom ourselves to a habit of mind which found a good argument in the proof that a given institution had existed since Pharamond, or which settled a point of law by analogies out of the law of Rome. Among several historical criteria almost

INTRODUCTION

5

universally accepted the Roman law was of course only one, but, given this persistent habit of argument from authority, the extent to which there was a general appeal to Roman law is a testimony of its importance. One has only to pick up any of the works of Dumoulin, Charondas, Bodin or Loyseau, to mention some of the most important French theorists of the sixteenth cen¬ tury, to see how much they depended, not only on the citation of the Roman texts, but also on the long line of authors from the Glossators to their own time who had commented the Roman texts.

The names of Azo, Ac-

cursius, Petrus de Bella Pertica, Bartolus and Baldus, Joannes Faber, Philip Decius, Jason Maynus and a host of others occur with a frequency discouraging to those who are trying to follow a coherent argument. This vast mass of legal literature, however depressing in style and bulk it appears to us, was recognized by many theorists as an important source of their concepts.

The great

French historian Pasquier rightly claimed that We have naturalized in our France the civil law of the Romans and built upon its ruins many forms of government, known neither under the first line of our kings, nor under the second, nor for long under the third.1 He added, I do not think, therefore, that I will be doing a work unre¬ lated to my purpose if I discourse on the fashion in which, having been lost, the Roman law was refound and came in the fullness of time to be received in this kingdom.2 The attitude of Charles Loyseau is also typical. He had written a book on a subject of the French private law, 1 E. Pasquier, Recherches de la France, Paris, 1723, book IX, ch. 33. 2 Loc. cit.

6

ROMAN LAW IN POLITICAL THOUGHT

deguerpissement, chosen because it seemed most irrecon¬ cilable

with

the

Roman

law,

and

nevertheless

he

boasted of having explained it entirely by Roman au¬ thorities, rules and maxims. He concluded, “We must, then, marry law with practice, usage with reason; in a word we must conjoin the Roman law with our own.” 3 These words perfectly express the spirit of the great tradition of the revival of Roman law in the West. Bartolus of Sassoferrato and his disciples are generally considered to have been the most complete representa¬ tives of this tradition, wdiose characteristics were a regard for Roman law as ratio scripta, and an interpre¬ tative effort to fit it to contemporary conditions. development of historical perspective and

The

accurate

scholarship on the Roman lawT are rightly said to have begun with the humanistic school whose achievement is one of the glories of sixteenth-century France. There is not, however, sufficient recognition of the fact that a great part of the Bartolist tradition persisted through the sixteenth century and beyond. In France I know of only two considerable opinions which were raised against the opinion expressed by Loyseau. One was that of an individual and the other was that of a school.

Francis

Hotman was a brilliant and original mind, and in the Antitribonian, even if it be true that it was written on the advice of De l Hospital, his was a voice crying in the wilderness; his own life and works belied what he said. The attitude of the school of which Cujas was the chief representative sprang from the same source, a developed critical interpretation of Roman law and history. 3 Loyseau,

But,

Traicte du deguerpissement et delaissement par hypotheque,

Paris, 1597, preface.

INTRODUCTION

7

whereas Hotman and the scholarly interpreters were agreed upon the independence of the French and Roman law, Hotman was led to profess himself an advocate of the study of French law in and of itself as a system or education, while the pure Romanists exacted a devotion to classical antiquities at the expense of their native customs.

The humanist school professedly abdicated

the chair of contemporary political theory, but its in¬ fluence on that theory was none the less of decisive im¬ portance.

Wholly apart from the great number of

magistrates who wrere trained under masters like Cujas, and who influenced practice, the theorists who contin¬ ued to use Roman law as institutional argument now used the more accurate Roman law supplied them by those masters. The fact that Roman law existed as an authoritative tradition is therefore obvious. But merely to say that it was an important source for many political theorists is not enough.

What do we mean when we speak of the

Roman law as a source of theory? How is the individual related to the general tradition? The answers to these questions involve the analysis of the implications of such a phrase as “the influence of Roman law.”

We

must try to explore a little more fully the process by which individual theorists adapted distinctions and arguments from a body of writings which in itself had very little relation to the institutions which they were trving to describe and explain. Now the understanding of such a process is not a subject upon which modern historians are in agreement. Since the writings of Marx and Freud there has been an important distinction made between influences and motives of which an individual

ROMAN LAW IN POLITICAL THOUGHT

8

is conscious and those of which he is not.

Much atten¬

tion has been given to the exposition of unconscious motivation, and this method has given us valuable re¬ sults. It has been possible to increase our understanding of the intellectual phenomena of many periods by view¬ ing them as a reflection of general economic, social or psychological phenomena of which individual thinkers were often not expressly aware. Thus it is undoubtedly true that, taken as a body, the theorists with whom this essay is concerned can be described and in a sense under¬ stood in terms of the immediate environment in which they lived. That is, the new theories of the state which they developed may be said to have been chiefly influ¬ enced not by an intellectual tradition but by the large practical needs of the society.

The description of the

needs belongs to social, economic and institutional his¬ tory and particularly to that portion of it which de¬ scribes the rise of newT groups to social and economic power.

Individually, it may be said, the men wrho

worked out theories to fit the new needs and to help in realizing them were not very aware of the sort of real¬ ities in their environment wfhich we can now analyze as decisive.

So it is said that the learned men in any so¬

ciety may be apparently unconscious of the social needs to wfliich their own activity is nevertheless a collective response. This sort of analysis gives us valuable generalization. But it surely cannot be taken by itself as completing our understanding of the position of the theorist in so¬ ciety.

If it does give us an adequate account of those

influences of which he is not conscious, it altogether leaves out of the account those of w7hich he is conscious. The former may give us an analysis of the purposes of

INTRODUCTION

9

the individual, but the latter gives us the description of the ways in which those purposes are realized. An account of unconscious motivation is in the last analysis based on a present psychology and a present sociology, but the data of conscious motivation are ex¬ plicit in the records of the past. If the one gives us the generalizations which are necessary for our appreciation of the picture as a whole, the other gives us what has been well called “the climate of opinion”; it tells us that this is the way in which men once accounted for their thought and for their action.

So the writing of history

weavers between the search for uniformities, the achieve¬ ment of sociological generalization on the one hand, and, on the other, the attempt to appreciate another way of life, to describe a unique emotional reality remote from our own. Nowr in the period with wThich this essay is concerned, when the national state was becoming the central fact of the political organization of Europe, political theorists were learned men, and the stimuli of which they were themselves chiefly conscious were as often associated with books and lectures as with contemporary condi¬ tions.

Their reactions to the chaos and movement of

life around them are to be seen and studied through the media of learned discussions of problems which belonged to an intellectual inheritance which far transcended their immediate environment. In the latter part of this period especially, great changes in religion, in economic relationships, in the uses of politics and perhaps above all in the enlargement of the European horizon were very upsetting to traditional modes of thought.

New

ways of life were being introduced with a rapidity which is paralleled in Western history perhaps only at the be-

10

ROMAN LAW IN POLITICAL THOUGHT

ginning of the Hellenistic period, at the end of the Roman Empire, at the end of the eighteenth century and again today.

People who were concerned with

systems of thought were confronted with chaos and sought to introduce new concepts of order.

This essay

is concerned with one example of the way in which this was done by theorists of the state. Whatever the analy¬ sis of the motives which operated on any theorist in terms of his total situation, the appeal to the Roman law is a fact.

The conscious and avowed motive was

very often a desire to find an “accurate” solution of a traditional problem of interpretation of a Roman text. This does not mean that an impartial intellectual curi¬ osity constantly sought truth about law and politics in the Roman texts, and that when such truth was dis¬ covered it passed into political theory.

There was of

course no “accurate” solution other than the historical one of determining to what the text had applied in the Roman constitution.

But what such an attitude does

mean is at least this: that over a period of more than four centuries many political theorists, who had mo¬ tives, conscious and unconscious, presumably not un¬ related to their environments or their situations as individuals, did in fact find in the Roman law distinc¬ tions, concepts, types of analysis which made possible the construction of their own systems.

This is not in¬

tended to imply that in the absence of the Roman law no systems would have been constructed. The purposes generated by the needs of a particular society, or group, or individual are generally stronger than any particular mode of formal expression.

Political theories which

were an expression of the same purposes might have

INTRODUCTION

11

been and were constructed by drawing upon other sources.

But between the twelfth and the end of the

sixteenth century there were many authors, chiefly lawyers and political theorists, who found provided in the elaborate structure of Justinian’s codification the mate¬ rials for a solution of their own problems.

This essay

presents particular examples of interpretation by these authors, whose systems were thus determined in form if not in purpose by the tradition of Roman law. This is the understanding of the phrase “influence of Roman law” which is presupposed in the following pages. In a study the main interest of which is in the applica¬ tion by individual thinkers of certain formal concepts, we must retrace the stages in the history of the heritage which was so universally recognized. But we must also obviously limit ourselves to specific examples.

The

terms of the discussion of some of the weightiest prob¬ lems of the sixteenth century, though not the problems themselves, were set as early as the twelfth and thir¬ teenth centuries by the commentators of the revived Roman law, but it is impossible to discuss without limi¬ tation the connection of Roman law with all these problems.

The problem here chosen for the sake of its

importance as well as for its representative character is that presented by the structural analysis of public power and in particular the theory of office. Esmein in one brilliant essay4 and Meynial in another5 6 have 4 A. Esmein, “La maxime Princeps legibus solutus est dans l’ancien droit public frangais,” Essays in Legal History, edited by Sir Paul Vinogradoff, Oxford, 1913, pp. 201-214. .. 6 E. Meynial, “Notes sur la formation du theorie du domaine divise, Melanges Fitting, Montpellier, 1908, vol. II, pp. 409-461.

12

ROMAN LAW IN POLITICAL THOUGHT

shown the influence of specific maxims of the Corpus Iuris Civilis on parts of the public law and political theory of France.

An influence similar to those ex¬

plained by Esmein and Meynial is discernible in the description of public power and the theory of office set forth by a succession of writers.

Many of the texts of

the Roman law were capable of being related to these subjects, but none were more directly relevant to the discussion than those which dealt with the merum im¬ perium.

There was in particular the statement of

Papinian on the title of the Digest, De officio eius cui mandata est iurisdictio, together with that of Ulpian on the title, De iurisdictione omnium, iudicum. These texts can hardly be said to be less important than those on the princeps legibus solidus and the actiones directae and utiles, the influence of which has been described by Esmein and Meynial.

The application of the texts on

the merum imperium to what I have called the descrip¬ tion of public power was not a simple one. We are trac¬ ing the gradual evolution of some of the concepts of public power which were most used by sixteenth-century theorists when they came to the writing of theories about the national state.

But in so doing we find that

we have in reality to record the changes in the interpre¬ tations of a few authoritative texts as the interpreters responded to the social needs of the age in which they lived. The history of the merum imperium is a remark¬ able example of the persistence of the formal concept in the history of thought.

But although the term re¬

mained unchanged, the realities to which it was applied did change and therein lies the interest in following the course of its successive applications.

Stated in very

INTRODUCTION

13

general terms the revival of the Roman law made pos¬ sible the construction upon certain misunderstood texts, like those which dealt with the merum imperium, of a political theory which was completely unrelated to the original meaning of the texts, but nevertheless was represented as being the inevitable deduction from them.

Gradual recovery of an accurate historical in¬

terpretation of the texts made it impossible to use this material in the same way.

In the first place it proved

the earlier theories wTrong, but it also finally left sepa¬ rated from any connection with them a body of defini¬ tions and conclusions in turn to be interpreted and applied and worked into a new synthesis with political theory. No one is more conscious than myself that the authors who are examined as representative of the stages of this history are an arbitrarily limited group.

A complete

treatment of the subject would take account of an in¬ calculably greater number of juristic writings and po¬ litical theories.

Yet there is some positive justification

for those who have been included.

For the latter part

of the period most of the examples have been chosen from France, which has been well called the laboratory of political thought in the sixteenth century.

This is

not because Roman law had no influence in other coun¬ tries, but because of the importance of some of the French authors, especially Bodin, who is certainly the preeminent theorist of the national state. For the rest, the estimate made by these authors of the relative im¬ portance of scholars of the past, as influences on their own thinking, provides in some sort a canon of discrim¬ ination.

Azo is included because he was one of the

14

ROMAN LAW IN POLITICAL THOUGHT

protagonists on whom centered a great part of the sub¬ sequent discussion.

The importance of the Gloss of

Accursius needs no justification. There was a tradition, repeated by the historian Pasquier, that Durandus was the first of the Postglossators. In any event the Specu¬ lum luris stands in the same relation to the work of the Postglossators as do the Sentences of Peter Lombard to o scholastic philosophy.

The inclusion of Bartolus and

Baldus is obvious. Jason Maynus concludes the repre¬ sentation of the Bartolists because he was one of the teachers of Alciatus and his position at the end of the fifteenth century is a good example of the strength of the Bartolist doctrine. In

the sixteenth century

Budaeus,

Alciatus

and

Zasius were by their successors universally regarded to¬ gether as the founders of the new jurisprudence.

The

consideration given to Dumoulin is justified by the ad¬ mission by Bodin and others that he was the most im¬ portant of their predecessors.

The humanist school

which culminated in Cujas is studied in some detail be¬ cause it was the solvent of the old modes of thought, and also because it is possible to suggest a direct filiation between its work and the syntheses at the end of the century.

CHAPTER ONE The Glossators and Postglossators

In 1610 Charles Loyseau published his Cinq Limes du

droit des offices.

The Traite des seigneuries had been

published two years before, in 1608, but there is ample evidence to show that the two had been conceived and written together, and that they had been long in the writing. Taken as a whole they are a good summary of some of the fundamental positions of the theorists of the sixteenth century in describing and justifying the na¬ tional state.

The second book of the Offices opens as

follows: There was once a memorable dispute between those two celebrated doctors of law, Lothair and Azo, on the question whether the imperium (le commandement) belonged to magis¬ trates, Azo upholding the affirmative and Lothair the nega¬ tive. They wagered a horse on the issue and the Emperor Henry IV (sic), whom they had chosen as judge of the wager, awarded the victory to Lothair and adjudged the horse to him. Nevertheless Azo did not consider himself defeated, but made public his arguments against the emperor in such a way that they were approved by all the doctors of law of his century, among whom it became a common saying that, al¬ though Lothair had had a horse (equum), Azo had had the right (aequum). But in the time of our own fathers that great man Alciatus, the new luminary of the Roman law, which had been obscured by the twilight of antiquity and the night of the ignorance of the intervening centuries, returned to the opinion of Lothair and upheld by very cogent reasoning the decree of the em-

16

ROMAN LAW IN POLITICAL THOUGHT

peror. . . . And in this he has been followed by the profound Dumoulin. Thus the question remains still, as it were, in the balance, and it is a question which the ancient doctors thought con¬ cerned not only the imperium, which is the most noble species of public power, but also all other public power belonging to magistrates. Therefore it may well serve as the foreword to this book, not only because it is the origin of its purpose and the essence of its matter, but also because of its colossal diffi¬ culty and perplexity. For, although there is hardly one of the doctors of law, whether ancient or modern, who has not treated it, I can nevertheless say that there is not one who has sufficiently explained and illuminated it.

Loyseau is here beginning an analysis of the structure of public power.

He is interested above all in defining

the office of the magistrates and determining their rela¬ tion to the supreme power in the state.

Furthermore,

although his work is in one sense a universal political theory, his primary concern is with the French public law as it was in his own time at the beginning of the seventeenth century.

Yet he dwells at the very begin¬

ning of his work on the importance of a controversy which took place more than four hundred years before his time and which was itself based on a text of the Roman law. The implication is that the accuracy of the solution offered for this problem determines the validity of his political theory.

In this Loyseau was in no way

departing from the accepted modes of argument and exposition, and, in emphasizing the significance of this particular controversy, he was following among others Jean Bodin, the greatest political thinker of the six¬ teenth century. Bodin, also discussing the relation of the powers of the

THE GLOSSATORS AND POSTGLOSSATORS

17

magistrate to those of the sovereign, gives an account of the dispute between Lothair and Azo substantially the same as that of Loyseau. He then continues: Thence has come a notable question which is not yet de¬ cided, namely, whether the power of the sword, which the law calls the merurn imperium, belongs to the sovereign prince and is inseparable from sovereignty, while magistrates have no merum imperium but only the execution of the haute justice, or, on the other hand, whether such power belongs to magis¬ trates to whom the sovereign prince has communicated it.1

How are we today to understand the importance of a question so phrased?

What did Bodin and Loyseau

mean by the “merum imperium” ?

Above all, although

admittedly the formal terms of the question were un¬ changed, to what extent was the understanding of them by Bodin and Loyseau different from that of the original protagonists in the controversy and how had such a dif¬ ference, if one exists, come about? These are questions which can only be answered by studying in some detail various texts illustrative of the stages in the history of the controversy from the end of the twelfth century to the end of the sixteenth. The actual historicity of the debate is no matter of great concern.2

Whether it took place in the manner

circumstantially described in the tradition or not, the significant fact is that the tradition existed and, from the thirteenth century onward, furnished a fulcrum for the elucidation of principle. The first text which estab1 Six Livres de la Republique, French edition of 1.379, p. 431. 2 Savigny has a discussion of the incidents of the debate in Geschichte des

rdmischeii Rechts im Mittelalter, second edition, Heidelberg, 1834-1850, vol. IV, pp. 180-183.

18

ROMAN LAW IN POLITICAL THOUGHT

lished the tradition in all its details is not strictly con¬ temporary; furthermore, as an historical account, it is open to suspicion from the character of its author. It is from the civilian Odofredus 3 who thus describes the controversy: Master Azo and Master Lothair were teaching in the city, and the Emperor (Henry VI) summoned them to him on’a matter of business, and, while he was one day riding with them, he propounded this question, “My lords, tell me to whom belongs merum imperium (cui competit merum impe¬ rium). And Azo said to Master Lothair, “Do vou speak first.” [Here Odofredus, who sided with Azo, cannot forbear to tell the reader that, although Lothair was the better rider, Azo was superior in the law, and that Lothair delighted much in the society of women, but in spite of this was later made Archbishop of Pisa.] And Master Lothair said, “Since Master Azo wishes that I speak first, I declare that to you alone belongs merum imperium and to no other.” Then the Emperor asked Master Azo his opinion. And Master Azo said. In our laws it is said that judges other than yourself have the power of the sword but that you have it per excellentiarn; nevertheless other judges also have it such as praesides provinciarum and still more so others who are even greater than these. V hence it is that you cannot revoke the jurisdiction of magistrates. . . .” When they had returned to the palace the lord Emperor sent to Master Lothair a horse and to Master Azo nothing. Whereupon Master Azo states in his commentary on this title: “ I state that merum imperium belongs to the prince alone per excellentiam but that others like praesides provinciarum and still higher judges also have the merum imperium. If on account of these words I lost a hoise (equum), yet it was not just (aequum), because rightly did I declare the law and not Master Lothair." 4 3 On Odofredus see Savigny, op. cit., vol. V, pp. 356-380. 4 Odofredus, Matura diligentissimeque repetita interpretatio in undecim

primos Pandectarum libras .... Lyons, 1550, title, De iurisdictione omnium iudicum, fol. 38, paragraph 9.

THE GLOSSATORS AND POSTGLOSSATORS

19

Azo’s own testimony is less complete than that of Odofredus.

It occurs in his discussion of the title,

De iurisdictione omnium iudicum et de foro competenti, Code, 3, 13: Some say that merum imperium belongs to the prince alone and that he alone has it. . . . But certainly it is obvious that higher magistrates have the merum imperium as well. ... I say that the full or fullest jurisdiction belongs to the prince alone, since by the Ilortensian law the people have transferred all their imperium and potestas to him ... so that he alone can decree general equity (ipse solus statuere generalem possit aequitatem). ... I maintain, however, that any magistrate whatsoever can decree newr law (statuere ius novum) in his city (civitas). And I also maintain that merum imperium belongs to other of the higher powers (aliis sublimioris potestatibus competere), although on account of this I lost a horse, which was most unjust.5

Thus the question of who in fact received theequum is decided by the testimony of Azo himself, but the

aequum remained a subject of discussion for more than four hundred years. The question under debate in these texts is to whom did merum imperium belong, but the question which we have to ask ourselves is, what did the phrase “merum

imperium” mean to Azo, Odofredus and other early civilians? For these civilians this was obviously a funda¬ mental question of what we should call political theory, but it is equally obvious that it was by them treated as a matter of authority and a matter of law. The question to whom belongs public power in general would have had little or no meaning to minds trained in such a nice legality as theirs.

Like Saint Thomas and sometimes

6 Azo, Summa locuples iuris civilis thesaurus . . . , Basel, 1563, col. 186.

20

ROMAN LAW IN POLITICAL THOUGHT

even more than he, they wished to “distinguish.”

It

may well be said at the outset that as a body they ac¬ cepted certain fundamentals of the medieval tradition, such as the statements that all power was of God, but that it was mediately of the populus who had trans¬ ferred it to the prince. These were current coin and did not arouse debate, but the real interest of the civilians and one of their really lively sources of political contro¬ versy was expressed in the question we have seen put into the mouth of the emperor, “Cui competit merum imperium? ” Merum imperium was a term taken of course from the Roman law, and indeed both the question itself and the various answers which were given to it were suggested by the concentration of interest on certain texts of Jus¬ tinian’s compilation.

The meaning of the term in the

original texts is a sufficiently difficult and confusing problem, entirely aside from the understanding of it by the Glossators and their successors.

The difficulty was

appreciated by some of the later commentators, and indeed, when Loyseau first mentions the term in the Offices, he says it well merits a long digression to explain, “for it is, in my opinion, the most difficult point of all the Roman law without exception, and even its most perfect scholar Cujas is constrained to confess that the true significance of these words, 1 merum mixtumque im¬ perium et iurisdictio,’ perished with the state of Rome.”6 Imperium was in the Roman constitution the legal word used to describe the assemblage of the highest forms of public power, including both the jurisdiction and the supreme command, in opposition to the nega6 Loyseau, Offices, book I, ch. VI, paragraph 28.

THE GLOSSATORS AND POSTGLOSSATORS

21

tive power of the tribunes and the inferior power of the lesser magistrates.7 This was the imperium of the con¬ sul, praetor, dictator, and in this most general sense it was used in the phrase “et imperium et potestas,” where potestas was the word of wider significance, applicable equally to magistrates and officers, irrespective of their origin, whether by creation by the populus or by dele¬ gation by a superior magistrate.8

In a second sense

imperium was used more restrictedly but quite as tech¬ nically to designate the command of the military.9 Iurisdictio is evidently opposed to imperium in this latter sense, but it is both a part and a consequence of the more general imperium, the highest public authority. Our interest is wholly in this general imperium, for in the historical process of the growth of the magistracy, it was the effort to analyze the relation of iurisdictio to im¬ perium which produced the special senses and the dis¬ tinctions which we are concerned to explain.

These

distinctions were elaborated chiefly in the imperial period, and it is above all in terms of Justinian’s Digest that they must be presented, since the exegesis of the definitions there propounded was the most pressing problem for the medieval and later commentators. The explanation of the merum imperium offers less difficulty than that of the mixtum but this is not to say that it is free from possible confusion. From the sum of the powers of jurisdiction, it is the abstraction of the highest.

In the famous words of Ulpian’s definition,

7 See Mommsen, Slaatsrecht, second edition, 1876, vol. I, pp. 22-24. 8 But for texts in which the phrase “imperium et 'potestas” is used with cumulative effect, see Mommsen, op. cit., vol. I, p. 23, n. 3. 8 Mommsen, op. cit., vol. I, pp. 114-133.

22

ROMAN LAW IN POLITICAL THOUGHT

which, it may be noted, was intended to apply to magis¬ trates alone and not, as many Bartolists later thought, to the emperor or the people, “Merum est imperium habere gladii potestatem ad animadvertendum facinorosos homines, quod etiam potestas appellatur.” 10 An initial confusion arose from the last clause, for potestas in this sense is a contraction for potestas or ius gladii and is of course a conception entirely different from the potestas which represents the legal power of any officer. It is, however, of still greater importance to distinguish the merum imperium from other senses of the word im¬ perium. It is affirmed that the merum imperium was the complete criminal jurisdiction.11

But it never implied

in the constitution of either the Republic or the Empire the military command or the extraordinary command with which some later commentators confused it.

It is

particularly important in this respect to clarify the powers of the provincial governors of the Empire. Mommsen states it:

As

In the third century the capital jurisdiction or, to use its technical expression, the ius or potestas gladii (merum impe¬ rium), which always belonged in theory to the emperor and senate, is exercised by the emperor by means of a delegation to all the governors, even those of the senatorial provinces.

. . . Since the capital jurisdiction attached to these functions does not come from the provincial government itself but is conferred by a special mandate of the emperor, it is not sus¬ ceptible oi another transfer as is the civil jurisdiction. The ius gladii is not then the ancient extraordinary capital jurisdiction inherent in the provincial government but the 10 Digest, II, 1, 3. 11 See Pauly-Wissowa, Real Encyclopaedic, Leipzig, 1894-1939, article “imperium merum,” which contains a short bibliography of the subject.

THE GLOSSATORS AND POSTGLOSSATORS

23

ordinary capital jurisdiction reserved to the emperor and delegated by him. . . ,12 The point is that this ancient extraordinary jurisdiction was with equal propriety denominated imperium but, whereas it could be delegated, since the provincial gov¬ ernors had it in right of their office, the merum imperium could not.

However, its content expanded with the

empire and since, from the third century on, the free inhabitants of the Roman state came to possess the rights of citizenship, the merum imperium came in the late period to be regarded as the criminal jurisdiction in general. Mixtum imperium is a late term and one even more susceptible of error and confusion. According to Ulpian it is that imperium which also partakes of jurisdiction. “Mixtum est imperium cui etiam iurisdictio inest, quod in danda bonorum possessione consistit.” 13

Ulpian’s

adoption of this term is described by two such masters as M ommsen and Girard as unfortunate. The definition in this sense really summarizes the long historical proc¬ ess by which the various aspects and powers of juris¬ diction

were

distinguished.

As

the iurisdictio

was

originally considered a unity in the royal period, its first analytical separation is evidenced by the tradition of the distinction made between ius and indicium at the time of the establishment of the Republic.

That is, al¬

though the function of the supreme magistrate had be¬ fore been iudicare, it now became iudicare inhere. Again with the establishment of the praetorship a distinction was made between what was called the iurisdictio volun12 Mommsen, Staatsrecht, vol. II1, pp. 259-260. 13 Digest, II, 1, 3.

24

ROMAN LAW IN POLITICAL THOUGHT

taria and the iurisdictio contentiosa. The voluntaria was that in which the magistrate presided at a legis actio brought by the parties in fiction to arrive at an agreed result, such as emancipation or adoption. The contenti¬ osa on the other hand was essentially the jurisdiction over true processes which were either to be judged or formulated for judgment. Finally the need to define the power of such lesser officers as the municipal magistrates and the curule aediles led to the establishment of a sepa¬ rate category of those questions which, although they were questions of jurisdiction, were to be determined by the magistrate in virtue of his imperium.

Most ques¬

tions which were relegated to private persons appointed as judges by the authority of the magistrate were so relegated in order to preserve the action of the authority of the law. But there were cases in which the magistrate intervened independently of the law by his authority as magistrate.

It was in this sense that the magistrate

was said to be a lex loquens.

This whole analysis was

designed to make clear the distinction between two types of jurisdiction, a lower, which had only the iurisdictio contentiosa or simplex, and a higher which had as well a competence over those questions which were not intro¬ ductory of a further process.

Such questions were

described as pertaining more to imperium than to iurisdictio.14

To them the term mixtum imperium was

applied and in the Roman law they consisted primarily of missiones in possessionem, interdicts and restitutiones 11 Digest, L, 1, 26, pr. “ Ea quae magis imperii sunt quam iurisdictionis, inagistratus municipalis facere non potest.” Also Digest, II, 1, 4, “Iubere caveri praetoria stipulatione et in possessionem mittere imperii magis est quam iurisdictionis.”

THE GLOSSATORS AND POSTGLOSSATORS

25

in integrum,15 The mixtum imperium was, then, by the Roman constitution limited to a certain kind of civil jurisdiction and even to particular forms of action.

It

was considered to belong to the whole class of maiores magistratus, even under the Empire, and was therefore delegable.16 It is not difficult to appreciate how conceptions so technical could become subject to the most various in¬ terpretations from medieval times almost to our own day.17

The remarkable fact is that terms like merum

and mixtum imperium were taken from an intricate legal analysis, which made sense only as related to the whole social complex of which it was a part, and were applied as universal realities in the description of public power in political societies. The long connection of these terms with the discussion of the nature of public power and the office of the magistrate is a perfect example of the persistence of the formal concept in the history of politi¬ cal thought.

The record of the interpretations of the

merum and mixtum imperium from the time of the Glossators to the time of the humanists is the history 16 For the preceding summary I am indebted to the following: Mommsen, Staatsrecht, vol. I, pp. 182-187; Girard, Manuel elementaire du droit romain, eighth edition, 1929, p. 1032, n. 5; Girard, Histoire de Vorganisation judiciaire des Romains, Paris, 1901, vol. I, pp. 47-103, 173, n. 1, 228, n. 1.

Whether

praetorian stipulations were also within the sphere of the merum imperium was debated.

The text of the Digest quoted above would imply that they

were (Digest, II, 1, 4). See Girard, Manuel, p. 1116, n. 2. 16 Digest, I, 21, 1, 1, “Paulus notat:

et imperium quod iurisdictioni co-

haeret, mandata iurisdictione transire verius est. 17 In 1815 an inaugural dissertation was published at Jena entitled, Im¬ perium mixtum et iurisd'ictionem non tantum nominis sono sed re ipsa distingui, the very title of which is illustrative of the confusion of thought which prevailed on this subject.

26

ROMAN LAW IN POLITICAL THOUGHT

of the strange power of the word. unchanged

but the meanings

The terms remained

given

to

them

adapted to the social realities of the moment.

were

In fact

the substitution of the humanist approach to the merurn and mixtum imperium, which was historical, for the Bartolist approach, which was essentially logical, is in theory an accompaniment of the centralization of power and the appearance of the national state in fact; the modifications in the notion of the merum imperium perfectly reflect what has been called the transition from dominium to sovereignty. At the end of the twelfth century when the contro¬ versy between Lothair and Azo took place, the interest of the doctors of law was more directed to understand¬ ing the texts which had been newly established than it was to applying to contemporary conditions principles derived from the texts.

That was to come later.

In

Azo’s writings on the Roman law we hear much of con¬ suls and proconsuls, praesides provinciarum and mu¬ nicipal magistrates, but almost nothing of counts and bishops. There is little attempt made to apply the legal analysis to contemporary society.

This does not mean

that Azo had a sense of history or any true understand¬ ing of the place of Roman law, but simply that so great an effort was needed to make any sense of the text at all that the question of the extensive application of it was necessarily left to a later generation.

However, when

the emperor put the question to Lothair and Azo, to whom does merum imperium belong, it was a real ques¬ tion of present political theory.

It was as if the Presi¬

dent of the United States today were to ask two professors of government: To whom does sovereignty

THE GLOSSATORS AND POSTGLOSSATORS

belong in these United States?

27

In the case of the em¬

peror’s question, it was answered in terms of Roman law because of the theoretical continuity of the emper¬ or’s position. But a further extension of the application of Roman law to contemporary politics was at this time left unexplored. It had not yet been perceived that the position of a praeses provinciae could be equated with that of a count. Azo’s discussion of the question seems for these rea¬ sons very limited compared even with that of his im¬ mediate successors.

He accepts without any expansion

Ulpian’s definition of the merurn imperium as “habere gladii potestatem.” 18 And he bases his case that other magistrates besides the emperor have the merum im¬ perium on the position of the governors of the Roman provinces rather than on any analysis of the powers of contemporary feudal magnates or of Italian cities. However, by the time of the Great Gloss of Accursius the process of the redefinition of the merum and mixtum imperium had been carried further.19 It was now per¬ ceived that the question of delegation was the best approach to the question of the imperium because of the statement of Papinian in the Digest that an officer could delegate only that power which he had in right of his office, not that which he held by special commission.20 The important point, then, was to decide what powers an officer had in right of his office. This would settle the 18 Azo, Summa, commentary on Code, III, 13, cols. 183-188 of the edition of 1563. 19 For Accursius and the Gloss see Savigny, op. cit., vol. V, pp. 262-305. 20 Digest, I, 21, 1. This whole text is of the greatest importance and recurs frequently throughout the discussion.

28

ROMAN LAW IN POLITICAL THOUGHT

question of the location of the vierum imperium.

If it

should in fact be found that magistrates could delegate powers equivalent to the merum imperium, then the response of Azo could be considered correct. The analy¬ sis of the delegation of powers in connection with the attempt to define the merum imperium was undoubtedly a stimulus to thinking on the nature of office but the results were at first confusing. The commentary of the Gloss on Papinian well illus¬ trates some of the difficulties.21

According to it the

intent of the law is to be deduced as follows. In the first place no judge to whom belongs merum or mixtum im¬ perium may delegate it.

In the second place those

powers which belong to judges in right of their magis¬ tracy may be delegated. But, instead of inferring from this that therefore the merum and mixtuvi imperium do not belong to the judge in right of his office, the Gloss merely reiterates from the first statement that nothing which is of the merum and mixtuvi imperium may be delegated.

The Gloss next asks wdiether a magistrate

who has the cognizance of a certain kind of case may be said to have any jurisdiction of his own (iur is diction evi propriavi). The response is that he has modica coercitio but not merum imperium. This point is elaborated: For, although a proconsul commits jurisdiction to his legate, he does not transfer the merum imperium. And if you ask whether the jurisdiction committed to me is mine or his who committed it, I respond mine, but if he who committed it has merum imperium, he does not seem to have committed 21 Corpus Justinicinaeum, edited with the Gloss of Accursius, notes of Contius, Cujas and others by D. Gothofredus, Lyons, 1604, vol. I, Digestum vetus, cols. 152-153.

THE GLOSSATORS AND POSTGLOSSATORS

29

that as well. So that although by his mandate I do not have merum imperium, yet I have coercitio.22 This left undecided the question to whom in fact the merum imperium belongs, but the Gloss on the same title attributes it to the three highest grades of the magistracy, illustres, spectabiles and clarissimi. The whole question is further discussed in the com¬ mentary of the Gloss on the title De iurisdictione omnium iudicum, which may be regarded as the Gloss's most ordered and final expression of opinion on the general subject of jurisdiction.

This title is carefully distin¬

guished from Digest, I, 21, 1, the commentary on which we have been discussing, because, it is said, merum and mixtum imperium and iurisdictio were there treated only as they applied to delegated jurisdiction, whereas here the subject is the ordinary jurisdiction which is capable of definition in itself.23 On the important question of the location of merum imperium this particular passage fol¬ lows Azo, yet it adds that certain authors say that the merum imperium belongs to the prince alone.

This ad¬

mission operated to continue the opinion of Lothair as an uncertain tradition and gave opportunity to Renais¬ sance humanists to praise the Gloss at the expense of the Postglossators. The explanation given by the Gloss for preferring the view which allowed the merum imperium to magistrates is that the potestas gladii refers to all capital punishments, the power of inflicting which all praesides have.24 If the power of the praeses thus com¬ bines the power of inflicting capital punishment with ordinary jurisdictional powers, it is necessary to con22 Loc. cit.

23 Col. 163.

24 Col. 164.

30

ROMAN LAW IN POLITICAL THOUGHT

sider the relation between the merum imperium and the iurisdictio.

Iurisdictio was defined by the Gloss as

“potestas de publico introducta cum necessitate iuris dicendi et aequitatem statuendae.” It is obvious, says the Gloss, that merum imperium must be related to iurisdictio in this sense, but the question is really one of a further and final analysis of iurisdictio.

There follows

a passage of the Gloss which became famous in which it is maintained that there are four degrees of jurisdiction, merum imperium, mixtum imperium, modica coercitio and a final one which retains the name of the whole and is called iurisdictio. Every case in the world is declared to fall into one of these categories.

Under merum im¬

perium are those cases which concern our persons, our citizenship or our liberty.

The content of the mixtum

imperium is vaguely said to be determined by two con¬ ditions, that it is not to be one of the three cases just mentioned and that the jurisdiction over the case be accompanied with the full powers of acting which the issue of the case implies, as missio in possessionem.

On

the mixtum imperium the Gloss is evidently still floun¬ dering with the difficulties of the Roman concept. Under jurisdiction are those powers which belong to the magis¬ trate in right of his office, which include the cognizance ol both civil and minor criminal cases. Modica coercitio coexists with this jurisdiction as the right of the magis¬ trate to enforce his decisions or to compel respect for his authority.

I he first two classes of power, merum and

mixtum imperium, are again stated to be incapable of delegation.-0

There is an interesting conclusion of this

26 Cols. 163-165.

THE GLOSSATORS AND POSTGLOSSATORS

31

passage to the effect that certain civilians, Placentinus and Guilielmus, have accused the author of holding that mixtum imperium and iurisdictio were one and the same thing, and according to them whatever pertained to the mixtum imperium could be delegated, since iurisdictio in its narrow sense was always susceptible of transfer. These opinions are declared to be patently false but they are again an indication cf the existence of an early opin¬ ion along the lines which later became the orthodoxy of the sixteenth-century commentators. It is to be remem¬ bered that there were more points of similarity between the Glossators and the humanists than is commonly supposed.26 Both applied themselves more to the texts than to the synthetic interpretation which was the aim of the Postglossators. That the opinion of Azo should have prevailed is not surprising.

His solution, by allowing an imperium to

others than the emperor, was much more adaptable to the social system, namely feudalism, which the Postglossators were trying to rationalize. The heretical sug¬ gestions of Placentinus and Guilielmus, which the Gloss reports, would have tended to destroy the analysis of iurisdictio and imperium. in terms of a hierarchy of de¬ grees. Therefore this opinion was rejected and was only found and taken up again in the sixteenth century. In the meantime the Gloss, however confused was its in¬ terpretation, provided the foundation upon which the elaborate treatises on jurisdiction of the succeeding commentators were raised. 26 Cujas recommended to the enquiring student to possess above all the books of Justinian and Accursius. See J. Flach, “Cujas, les Bartolistes et les Glossateurs,” Nouvelle Revue historique de droit, vol. VII, 1883, pp. 205-227.

32

ROMAN LAW IN POLITICAL THOUGHT

The Speculum Iuris of Guilielmus Durandus deserves to be considered here, not only because of the wide repute which it enjoyed but also because it was closely influenced by the Gloss and illustrates the continuance of the tradition on the imperium.27 It contains further¬ more perhaps the best early exposition of the vierurn imperium as it was applied to the canon law and the supremacy of the papacy.

The division of jurisdiction

follows closely that of the Gloss, that is, there are species of jurisdiction called merum imperium, mixtum imperium and viodica coercitio.28 But because Durandus is inter¬ ested in according the meruvi imperium of the civil with that of the canon law, he endeavors to make his defi¬ nition more philosophic and comprehensive so that it will fit both. Merum imperium is then declared to be a certain highest power by which the weightiest matters of jurisdiction are expedited. It is called merum because it is purged of the cognizance of those things which in¬ volve pecuniary matters. Ulpian’s definition (“potestas gladii ad animadvertendum facinorosos homines'’) is according to Durandus no definition but an effect of this power.

Durandus then announces that he will list the

specific attributes which are a part of the merum im¬ perium according to the civil law and later those which canon law allows. By the civil law the summary of the undoubted powers of meruvi imperium includes the cognizance of all criminal cases, rights of inflicting im¬ prisonment, right of determining time and place for the 27 Ca. 1271.

For the life of Durandus and his work see Savigny, op. cit.,

vol. V, pp. 571-602.

10.

28 Durandus, Speculum iuris .... Venice, 1602, vol. I, p. 135, paragraph

THE GLOSSATORS AND POSTGLOSSATORS

33

bringing of an action, presidence at financial transac¬ tions and the cognizance of cases involving questions of maintenance, missiones in possessionem, and praetorian stipulations.

In brief, wherever the penalty of death is

imposed or the case is in any way a capital one, it is to be considered a case of merum imperium.

Authentication

of wills is included in the list as having formerly been a matter of merum imperium, but is expressly stated to be so no longer. In canon law the merum imperium consists of the rights of the deposition or suspension of clerics, excommunication, permission for procedure by oath, dispensation, imposition of a solemn penitence, erection of churches, consecration of virgins, ordination, anoint¬ ment with the chrism and reconciliation to the church, for these things are declared to pertain to the ordo and cannot be delegated.29 The question of the delegation of merum imperium is treated in Durandus at length but without clarity of conclusion.

According to some, he reports, although a

count or marquis cannot transfer merum imperium by special decree, nevertheless, if he has given a charter to any civitas or castrum, then merum imperium is trans¬ ferred to this universitas unless it is specially excepted. On the other hand many of the judges of the French king are said to hold that in the case of a general or in¬ definite concession that which pertains to the merum imperium is not transferred unless it is expressly so stated.30

There is thus a first opinion by which the

merum imperium accompanies the general grant unless there is a clause of exception and a second opinion by 29 Pages 135-138 passim. 30 Page 136, paragraphs 15, 16.

34

ROMAN LAW IN POLITICAL THOUGHT

which merum iviperium never accompanies the grant unless there is a clause of addition.

This discrepancy

gives occasion for a long additio to the text by a later author in which four more possible opinions on the transfer of merum iviperium are reported.31

Although

this additio contains fourteenth rather than thirteenth century opinion, it is convenient to summarize it here. It is confused but it illustrates together with much ex¬ traneous matter some of the views which were in the process of becoming dogma.

The additio begins by a

restatement of the two opinions in Durandus which we have just resumed. There is a third, it says, which dif¬ fers from the general rule of the second — that merum iviperium is never transferred unless by a clause of addition — only by admitting that a concession of the prince may transfer the imperium without the additional clause. A fourth opinion further restricts the tacit dele¬ gation of the merum imperium to those cases alone in which the prince has acted motu proprio. A fifth opinion distinguishes a concession wThich is a donation from a concession which is a sale.

In the former case merum

imperium accompanies the concession; in the latter it does not unless the price paid should be “so great as to be suitable to the buying of merum imperiumThe sixth opinion holds that “merum iviperium so adheres to the bones of the prince that he cannot alienate it.” I hus the opinion of Lothair that the possession of an inalienable merum imperium is the distinguishing char31 Page 136, additio h.

This is probably by the hand of Joannes Andreae.

For the additions to Durandus see Savigny, op. cit., vol. V, p. 587. Joannes Andreae died in 1348. pp. 98-125.

For his life and works see Savigny, op. cit., vol. VI,

THE GLOSSATORS AND POSTGLOSSATORS

35

acteristic of the emperor or prince is put last, and various versions of Azo's answer explaining in detail the various ways in which magistrates or feudal magnates have merum imperium occupy the main place in the discus¬ sion.

That the opinion of Lothair is cited at all is cer¬

tainly not because it is held by Durandus or by Andreae who is the author of the additio.

It is simply set forth

in the list of six opinions reputed to be held by author¬ ities. But although by now the position of Azo had been almost universally adopted and applied to contemporary lawT and politics, this mention of the opinion of Lothair meant that sixteenth-century theorists were not de¬ prived altogether of medieval authority when great social changes made it necessary for them to look for a new interpretation. The text of Durandus reverts once more to the ques¬ tion whether the merum imperium belongs to the pope and emperor alone, perhaps with the desire of removing any uncertainty implicit in his previous admission that the grant of a municipal charter by count or marquis could transfer merum imperium. You know [he says] that according to some the pope and the emperor alone, from whom there is no appeal, have the merum imperium. . . . But others from whom appeal is al¬ lowed have the mixtum imperium. . . . Nevertheless bishops and other superiors are said to have the merum imperium in respect to inferiors, just as they are called supreme pontiffs and priests in respect to their inferiors. And some there are who say that merum imperium belongs to others like praesides. From all these things it is evident that a case is said to be of the merum imperium when it is a question of judgment involv¬ ing the penalty of death.32 32 Page 137, paragraph 23.

36

ROMAN LAW IN POLITICAL THOUGHT

The idea that the merum imperium involved the criminal jurisdiction has, then, persisted from the Roman texts, but for the conception of the unity and supremacy of the public power has been substituted the statement that every superior has merum imjperium in respect to his inferiors. The ideas which were sketched in the Gloss of Accursius and the work of Durandus were most completely elaborated in the work of Bartolus of Sassoferrato and his immediate successors in the fourteenth centurv.33 Confusion gave place to certainty and a definite theory on the merum imperium was established which became dogma.

Yet the greater certainty was at first reflected

in an attitude towards the texts rather than in an under¬ standing of the texts. Durandus had made an applica¬ tion of the Roman law to the canon law and also to a certain extent to contemporary conditions. But he also showed some evidence of continuing the tradition of the Glossators and trying to explain the Roman law as a coherent entity in itself.

With the Postglossators the

application of the Roman texts to contemporary society became the great aim. Thus in fact difficulties inherent in the texts on the meaning of a term like merum im¬ perium were increased for the Glossators and their suc¬ cessors because of their attitude towards the texts. Complicated and difficult as the task of elucidation is for us, we at least are aided by our ability to relate these analytical texts to an historical reality about which we know something from other sources.

But for medieval

See the brilliant book of C. S. N. Woolf, Bartolus of Sassoferrato, Cambridge, 1913.

THE GLOSSATORS AND POSTGLOSSATORS

37

thinkers in general and for the Postglossators in par¬ ticular it is not too much to say that, so far as they applied to a reality at all, they applied to the present as well as to the past.

The Roman Empire and the

Roman law persisted in theory but in fact there existed a feudal society ruled by a feudal custom.

If we were

asked the question, “To whom does merum imperium belong? ” and if we had been able to agree on a meaning for the term, we should expect to distinguish the ques¬ tion, “To whom did it belong under the Roman consti¬ tution where it was first elaborated? ” from the questions “To whom did it belong in the time of the Emperor Henry VI?” and “To whom does it belong today?” and these again from the further question, “To whom ought it logically to belong?” No such distinctions were pres¬ ent to the medieval civilians and when they answered the emperor’s question there was an element of all these questions involved in the answer.

No sense of history

intervened to cut their age from that of Rome and in logic the statements of the Roman law were as author¬ itative for them as were those of Aristotle for the philosophers. Rartolus of Sassoferrato is the obvious source from which to represent the typical theory.

lie more than

perhaps any other medieval civilian founded a school and his influence continued unchallenged for above two hundred years after his death.

His very full discussion

of the concepts of the merum and mixtum imperium is to be found in his commentary on the first title of the second book of the Digest, De iurisdictione omnium

iudicum. He begins with the fundamental concept of iurisdictio which he defines in the words already used

38

ROMAN LAW IN POLITICAL THOUGHT

by the Gloss, “potestas de iure publico introducta cum necessitate ius dicendi et aequitatis statuendae,” to which Bartolus adds the words, “tamquam a persona publica.” 34 That is, equity must be decreed by a person who has public office.

But iurisdictio is a genus which

can be divided into two species, imperium and iuris¬ dictio simplex,35 an arrangement more logical than that of many of his predecessors who had postulated three or four species as direct divisions of iurisdictio.

The gen¬

eral basis of distinction between imperium and iurisdictio lies m the fact that the former belongs to what Bartolus calls the “officium nobile iudicis,” while the latter be¬ longs to the

“officium mercenarium.”

These

terms

apparently represented Bartolus’ apprehension of the distinction in the Roman constitution between that part of the magistrate’s power in which he had discretion and that in which he was bound by the law.

But the

choice of language was confusing; officium. nobile could be interpreted to represent the high criminal jurisdiction and officium mercenarium civil suits in which a certain amount of money was involved.

Beyond the first divi¬

sion of iurisdictio into imperium and iurisdictio simplex, imperium is further divided by Bartolus into merum and mixtum.

With these categories established Bartolus

then precedes to the definition of the many species of jurisdiction under each category. First there is the merum imperium, so called, accord¬ ing to Bartolus, for three reasons. In the first place it is 34 Bartolus, Commentaria in primam Digesti veteris partem cum additiombus dommi Alexandri de Imola . . . , Lyons, 1552, vol. I, fol 56 para¬

graph 3.

36 Fol. 57 verso, paragraph 1.

’ 1

THE GLOSSATORS AND POSTGLOSSATORS

39

free, that is, freely granted to the prince, subject to no necessity, and afterwards communicated by him to others. In the second place it is free in the sense of not being dependent on the bringing of an action.

The

magistrate who inquires against malefactors does so freely, he is not bound as is the magistrate in a civil suit. In the third place it is called merum as opposed to

mixtum from which it is distinguished by being exer¬ cised for the public utility while mixtum is exercised for the private utility.36 After thus discussing why merum imperium is so called, Bartolus turns to his definition of what it is. In his opinion neither the text nor all the glosses give a true definition of merum imperium but only examples of it. He reports that Jacobus de Arena was the first to offer a definition. This, however, he rejects because it leaves no place for the founding of law, which he says all must agree is of the merum imperium. Bartolus finally adopts the unsatisfactory statement of Petrus that the merum

imperium is that jurisdiction which is exercised through the offieium nobile of the judge, chiefly concerning public utility.37 This does not convey very much and we have to proceed to his treatment of the location of merum

imperium and its delegation to get a clear idea of what the concept meant to him. When he comes to the most important question of all, to what magistrates merum imperium belongs, he begins by stating a general rule that anyone who heads a

universitas of the order of a province has the merum imperium, and he who heads a universitas of the order 36 Fol. 58, paragraphs 5 and 6.

37 Ibid.

40

ROMAN LAW IN POLITICAL THOUGHT

of a city has not. But he is at once sadly constrained to admit that this rule fails in very many places.

There

are many cities which have an immunity based on a concession of the prince, and there are others which have it by prescription or custom, and Bartolus implies that he who governs such a city with an immunity has the merum imperium. There are thus obviously degrees of the merum imperium, since the ruler of a city cannot be said to have the same power as the prince. But the only way to solve the problem of what the specific powers of the merum imperium are in each case is to return to the rule of Papinian and examine the question of what each magistrate can delegate.

By this process

Bartolus discovers that there are six grades of merum

imperium: maximum, maius, magnum, parvum, minus, minimum. And what is most significant is that precise powers are assigned by him to each of the six grades. Thus maximum merum imperium is declared to be the founding of general law which belongs solely to the prince, to the senate and to the praetorian prefect. This single example is sufficient to demonstrate the enormous extension of meaning given to the concept over its original significance in the Roman texts.

The chief ex¬

ample of the maius merum imperium is the right to inflict punishment involving death or loss of members.

The

third class of powers are those which involve cases of loss of citizenship or status. The fourth covers cases in which the penalty is banishment without loss of civil rights. An example of the fifth is modica coercitio, tech¬ nically the power of the magistrate to coerce any who affronted his authority as magistrate. Significantly this is stated to belong to all magistrates as does also the

THE GLOSSATORS AND POSTGLOSSATORS

41

sixth degree, merum imperium minimum, which is the right to exact a small fine.38

The question, then, to

whom belongs merum imperium, is answered by a proc¬ ess of analysis in which the powers of the merum im¬

perium are atomized and the comprehension of the term is extended.

Bartolus concludes that the two lowest

degrees of the merum imperium belong to the magis¬ trate in right of his office and it therefore only remains to be stated, in accordance with the principle of Papinian, that these two, the minus and the minimum merum im¬

perium, can be delegated while the higher degrees can¬ not. This whole discussion by Bartolus of the merum imperium is an exposition in law of Azo’s answer to the emperor that the merum imperium belonged to him “per excellentiam,” but that it also belonged to other magistrates.

Bartolus’ elaborate classification is the

equivalent of the “per excellentiam.” The mixtum imperium was subjected to a similar analysis with similar conclusions. And the final species of jurisdiction, that is, iurisdictio simplex, was also de¬ fined and analyzed in the same way.39 In summary, this whole exposition by Bartolus of the grades of jurisdiction represents a careful attempt to explain fourteenth-century dominium in terms of the By dividing the categories of merum and mixtum imperium and iurisdictio simplex into six degrees Roman law.

each and assigning to each of those degrees specific powers, taken either from the Roman constitution or from contemporary practice, Bartolus achieved a hier¬ archy of superiorities, wherein each superior had what 38 Fol. 58, paragraphs 7-12. 39 Fol. 58 verso and fol. 59.

42

ROMAN LAW IN POLITICAL THOUGHT

might be called a property right in his power.

The

system suffered few modifications at the hands of the contemporaries and successors of Bartolus.

Baldus 40

inclines somewhat more to the position of Lothair by his recognition of the fact that the merum imperium of the prince is different in character from that of the lesser magistrates.41

Not only is this expressly recog¬

nized by Baldus but it is also implicit in his declaration that what is conceded or committed in sign of superi¬ ority cannot be further delegated.42 That is to say, that part of the merum imperium which indicates the superi¬ ority of the officer does not exist in right of his office. Under the merum imperium absolutum, which is that of the prince, Baldus lists sixteen specific powers, many of which are by Bartolus and others assigned to the mix-

turn imperium. There was agreement in principle among the Postglossators but wide disagreement on the degree of imperium which was to be assigned to a particular legal act. The mention of a merum imperium absolutum might seem to indicate that Baldus followed the opinion of Lothair, but his admission that there was a merum

imperium which was shared by the prince with inferior officers proves that he was after all in the tradition which

stemmed from Azo.

This imperium Baldus

groups with the mixtum imperium and the iurisdictio

simplex as the three species of the genus iurisdictio, but to each he gives only three degrees instead of the six 40 For a notice of his life see Savigny, op. cit., vol. VI, pp. 208-248.

41 Baldus, In

. . . primam Digesti veteris partem commentaria . . . , Venice,

1586, vol. I, fol. 69 verso, paragraph 1. 42 Fol. 67, paragraph 3 of the commentary on the title, De officio eius cut mandata est iurisdictio.

THE GLOSSATORS AND POSTGLOSSATORS

43

which appeared in the scheme of Bartolus. The general construction, however, remains the same. Since Baldus regarded the subject of the relation of imperium to iuris-

dictio as “sublime, diffuse and hitherto badly treated,” it may be assumed that his first impulse was to introduce some simplification.43 One of the last great supporters of the specific con¬ struction of Bartolus, although by no means one of the last representatives of the Bartolist tradition, was Jason Maynus wTho lived at the end of the fifteenth and the beginning of the sixteenth century.44

He sums up the

traditional analysis with slight modification. To him as well as to others the question of the imperium was the “key and fundamental of the whole question of juris¬ diction.” 45 He mentions the view that jurisdiction as a genus has four species, but he rejects it in favor of the distinctions of Bartolus by which modica coercitio is placed either under imperium or iurisdictio simplex. By a judicious combination of some of the degrees of Bartolus’ divisions, Jason arrives at four degrees of the

merum imperium, three of mixtum imperiuvi and three of iurisdictio simplex, arranging accordingly the various magistrates to whom each degree belongs in right of office.46 The traditional theory of jurisdictions which was thus carried on into the very beginning of the sixteenth cen43 Fol. 70 verso, paragraph 1. 44 For a notice of his life see Panzirolus, De Claris legum interpretibus libri quatuor .... Leipzig, 1721, pp. 225-230; also bound with the same, Marcus

Mantua, Epitome virorum illustrium, p. 478. 46 Jason Maynus, In primam Digesti veteris partem commentaria . . . , Venice, 1585, vol. I, fol. 58, paragraph 1. 46 Fol. 58 verso, paragraph 6, and fol. 60 verso, paragraph 24.

44

ROMAN LAW IN POLITICAL THOUGHT

tury was epitomized in all editions of Bartolus and in many of the Digestum vetus by a pictorial representation of a tree of jurisdictions, analogous to a genealogical tree or to the canonists’ tree of consanguinity.

In these

schemata a figure in armour, robed and wearing the imperial insignia, is represented as the trunk of a tree from which the various species of jurisdiction branch, only to subdivide in turn again to the last degree of each species. Each branch carries with it written in a circle the definition of the degree which it represents.

The

success of a symbol is at least a partial indication of its correspondence to some sort of social reality for the representation or understanding of which the symbol was created. But symbols sometimes persist when they are no longer relevant.

In this case the tree of juris¬

dictions was kept on the books of students long after it had ceased to be relevant either to social fact or to political

theory.

Capitalism,

sovereignty

and

the

national state were in various ways replacing feudalism,

dominium and the medieval empire.

But this symbol

persisted long after even the political theory in which it had originated

succumbed

humanistic method.

to

the criticism

of

the

CHAPTER TWO The Humanists The conflict

of two schools of legal interpretation in

the sixteenth century, the Bartolists and the humanists, was one of the most important phenomena in the process of the development of a new political theory. Out of the conflict came the formal elements in the new systems. Thinkers like Bodin and Loyseau found in the critique engendered by it the source of those concepts which helped them to realize their theories.

During the first

quarter of the century three scholars were eminent above others in this conflict and were afterwards uni¬ versally recognized as the founders of the new juris¬ prudence, Budaeus in France, Alciatus in France and Italy, and Zasius in Germany. Their deserved eminence was in part due to their style as is often the case, but style here was the genuine instrument of conviction. An elegant latinity was by them regarded as no mere ornament but the result of a methodology which had as its chief principle the belief that the Roman law can only be rightly interpreted in conjunction with the whole corpus of classical literature.

Of the three Budaeus is chronologically the first in significance since his famous Annotationes in Pandectas appeared in 1508.1 These are critical, philological and 1 See L. Delaruelle, Guillaume Bude, les origines, les debuts, les uUes mattresses, Paris, 1907 and Repertoire analytique et chronologique de la correspondance de Guillaume Bude, Paris, 1907.

46

ROMAN LAW IN POLITICAL THOUGHT

explanatory notes, based on the text of the Florentine Pandects and Budaeus’ wide reading in Greek and Latin literature. They were expanded and improved with each edition during his own lifetime, in 1519, 1524 and 1535, and still further by the addition of some posthumous notes of Budaeus and the corrections of Jean Thierry in the edition given in 1556.2

This celebrated work con¬

tained perhaps the first attack on the “Accursians” and the Postglossators from the point of view of method. It may be regarded as the manifesto of the humanistic school of legists. Italian humanists like Valla and Ricci had remarked the barbarousness of the latinity of the old interpreters but Budaeus’ attack was more complete and more founded on doctrine.

His judgments on

Accursius are in no sense ordered but occur throughout the work wherever there is occasion for them.

The

burden of them is that Accursius was ignorant of his¬ tory, and failed to take account of the fact that the law changed from one century to another.

Also, a matter

which is even worse to the mind of Budaeus, all the fol¬ lowers of Accursius have sworn by the same errors as if they believed them to be dogma.

Budaeus is usually

careful to point out that he inveighs rather against the ignorance of that barbarous period than against the man Accursius.

It may be noticed that he makes little dis¬

tinction between the Glossators and the Bartolists. Cujas and other writers later in the century were less inclined to lump together all commentators who wrote bad Latin. The whole spirit of the attack on Accursius is revealed in a letter of Budaeus to Nicolas Berault of 2 For the bibliography of the Annotationes see Delaruelle, Guillaume

Bude, pp. xx-xxiii.

THE HUMANISTS

47

the date, March 25, 1511, in which he alludes to his work on the Pandects, fears that his ill health will prevent him from finishing, but declares that he will at least have had the glory of opening the war against “xAccursian bar¬ barism.” He hopes his example wall bear fruit and urges Berault to help him.3 If we ask what modification of the Accursian doctrine on the imperium accompanied this attack on Accursian method, we find that we have to turn to other writers who discussed more specifically the traditional contro¬ versy between Lothair and Azo. The political theory of Budaeus is most important as an early, if somewhat confused, statement of the authoritarian position of the national monarch.

He is also very interesting on

the authority of a body of magistrates like that of the Parlement de Paris.

In his general theory were to be

put into the terms of the legal argument, it might be said that his position would be much nearer the opinion of Lothair than that of Azo. It was difficult to maintain in the period of Francis I that magistrates had a pro¬ prietary right in the imperium. But Budaeus is for our purposes more important as the originator of a new approach than as a positive contributor to the history of the merum imperium. The new legal solution which was a revival of the opinion of Lothair is most clearly represented in Alciatus, the second of the triumvirate of humanistic lawyers.4

Of sixteenth-century lawyers he gives the

3 Reported in Delaruelle, Repertoire, p. 3. 4 See the notice in Panzirolus, op. cit., p. 279; the excellent biography of P. E. Viard, Andre Alciat, Paris, 1926; also Jugler, Beitrdge zur juristischen Biographie, Leipzig, 1777, vol. Ill, pp. 14-43.

48

ROMAN LAW IN POLITICAL THOUGHT

earliest, most complete and clearest discussion of the legal points of the dispute between Lothair and Azo. Of the early “restorers” of Roman law he was regarded by his successors as the chief. His style, which was again an element in his success, appealed equally to mere law¬ yers and to professional humanists and in simplicity and clarity far surpassed that of Budaeus who fell too often into an extreme Ciceronianism and confusion. “In the adornment of his diction,” says Panzirolus, “An¬ dreas Alciatus of Milan by far surpassed all who had preceded him in the interpretation of the civil law; elo¬ quent in the Latin tongue and imbued with Greek letters, he first taught our jurisconsults to speak classi¬ cally who, he was accustomed to say, had before blabbed but not spoken.” 0 A pupil of Jason Maynus, much of the influence of the Bartolist school remains with Alciatus, but he perfectly marks the break between the old and the new. His innovations are nowhere more apparent than in his treatment of the question of the imperium. In 1518 his Paradoxa caused him to be regarded as a genius at the age of twenty-six.

This work is composed of short,

pointed chapters, with the whole apparatus of citations which had so cluttered the Bartolist texts relegated to the margin, a reform which was not without ideological significance.

Several chapters of this work are devoted

to the imperium,6 but one in especial, Chapter VI of Book II, to the dispute between Lothair and Azo and this chapter became famous in the course of the six¬ teenth century.

Alciatus begins by declaring that the

6 Panzirolus, op. cit., p. 280. 6 Especially book II, chs. VI, VII, and VIII.

THE HUMANISTS

49

condemnation of the judgment of the emperor has smothered the whole discussion in a conspiracy of silence. No one has ever been thought worthy of cre¬ dence, he says, who approved the opinion of Lothair. But it seems to him obvious that the opinion of Lothair is correct and that magistrates have only the exercise of the merum imperium, while the actual right to it resides in the prince who has delegated the use of it to the magistrates. This is the first important statement which adapted the interpretation of the merum imperium to the facts of state power as they began to be apparent in the sixteenth century.

Just as the interpretation of

Bartolus had suited a society in which functions of gov¬ ernment and rights of property were not distinguished, so this definition suited a society where for a long time already public power had in fact begun to be distin¬ guished from private property and office from the fief. Alciatus supports his statement by a lengthy and learned argument. He gives a statement from Papinian referring to the capital jurisdiction of the magistrate as an “exercitatio” which, Alciatus says, shows that the “ius ipsum ” belongs to the prince. He also claims that the texts refer frequently to magistrates as “adminis¬ trators,” which shows that they have only an adminis¬ trative right to the public power.

There are other

phrases such as the taking of an oath by the magistrate which confirm these conclusions.

On the other hand

there are phrases which seem to be in favor of Azo, as when the praetor is said to act “pro imperio suo,’' and to circumvent these Alciatus is forced to say that a word like imperium can have a double sense, one for the actual right to the power and the other for the use and

50

ROMAN LAW IN POLITICAL THOUGHT

exercise of it. It is in the latter sense that such phrases as “pro imperio suo ” must be interpreted when used of the praetor. This same distinction must be adopted with words like “habere” when it is said that magistrates “have” the criminal jurisdiction. Such words according to Alciatus are very vague and refer either to a pro¬ prietary right vested in the person, or to the possession of a usufructuary right. All these arguments lead Alciatus to a new reason why the merum imperium cannot be delegated.

If he is cor¬

rect in interpreting the right of the magistrate in the merum imperium as a mere usufructuary right, then he can invoke the statement of Papinian in the Digest that delegated powers cannot be redelegated, and also the rule of Roman law that he to whom a usufruct is granted cannot recommit it to another. This affirmation of the unity and supremacy of the public power in the highest degree allowed the right of the prince alone in that power to be described as a private proprietary right. In this respect it was a stage in the disassociation of government and private prop¬ erty which has been so fundamental to modern political thought. These arguments were resumed in detail by Alciatus in his Commentarii in Digesta, first published in the form of a series of commentaries on separate titles, with addi¬ tions made in subsequent editions of the Opera omnia.7 It is impossible to determine at precisely what date the commentary on the title De iurisdictione omnium iudicum was written, as the whole work was compiled from various readings given over a great number of years. 7 See Jugler, op. cit., vol. Ill, p. 26.

THE HUMANISTS

51

However, there is no doubt that the commentary as we have it considerably postdates the Paradoxa and it represents a certain amount of progress in the appre¬ hension of the subject.

In the course of recapitulation

and elaboration, some phrases and some new texts de¬ duced in proof throw an interesting light on the general theory. There is a more evident disposition to consider the public power as different in kind from the private power which is expressed in the concept of property. In support of his own position and that of Lothair, Alciatus quotes the Digest 8 and the Liber feudorum 9 to prove that the prince is the fount, origin, and constitutor of all magistrates, and that therefore it is impossible that magistrates have the merum imperium, since this would create the possession in solidum which he claims is im¬ possible by Digest, XIII, 6, 5.8 9 10 The concept of property in the time of Alciatus was beginning more nearly to approximate the concept of property held in Rome, just as the exercise of state power more nearly approximated the state power described in the Roman texts.

There¬

fore phrases on both property and power were given a new application, but, because of the long connection of the two in medieval times, there was still nothing uno

suitable to the mind of Alciatus in applying to the 8 XLVIII, 14, 1, pr., “Haec lex in urbe hodie cessat, quia ad curam principis magistratuum creatio pertinet, non ad populi favorem.” 9 Book II, title 53, paragraph 5, “Iudices vero, et locorum defensores, vel quicunque magistratus ab imperatore vel eius voluntate constituti seu confirmati, qui iustitiam facere neglexerint, et pacem violatam vindicare legitime supersederint: compellantur. . . .”

damnum omne iniuriam passo pacem resarcire

10 Commentarii in Digesta, Opera omnia, Basel, 1582, vol. I, col. 143, paragraph 88.

52

ROMAN LAW IN POLITICAL THOUGHT

public power a text on possession in solidum which was intended to apply to the private law of the Romans. But Alciatus had now to consider a further difficulty. If the ordinary magistrate has no more than a delegated

imperium, how does he differ from an extraordinary delegate whom the prince may appoint at any moment? Why does not the authority of the magistrate cease with the death of the king as does the authority of the dele¬ gate? To solve this problem, Alciatus found it necessary to appeal to a distinction which came to have a great importance in the later discussions of the subject.

He

invoked the law. Magistrates, he declared, were really in the position of delegates of the law. A magistrate differs from a delegate of the prince in respect of the merum imperium chiefly in this, that the magistrate is primarily the delegate of the law and secondarily the delegate of the prince, whereas the delegate of the prince is truly his delegate and secondarily the delegate of the law.11 Alciatus was here trying to explain such continuity and independence as in fact described the magistracy and at the same time to locate the actual proprietary possession of the highest public power in the head of the state, the prince. Therefore he appealed to the law, by wdiich he meant the regulated organization of the public power. There was nothing inconsistent in this if merum im¬ perium were taken as a power within the already con¬ stituted structure of the state.

A system in which all

the magistrates, or, rather, all the offices of magistrates are in a sense the creation of the law is perfectly com¬ patible with the existence of one supreme magistrate in 11 Col. 145, paragraph 92.

THE HUMANISTS

53

whom the proprietary possession of the public power is said to reside.

The whole position in fact is no more

than an application of the new interpretation of public power to the older medieval doctrine which had always maintained that the prince was absolute in the sphere of administration and limited in the sphere of the private common law.

The sphere of the administration was in

fact constantly being enlarged by the Renaissance states, and if the theorists applied to it the term merum imperium, it was obvious that the interpretation of the merum imperium would necessarily be very different from that given by the medieval theorists. 1 hus Alciatus settled to his own satisfaction the question to whom merum imperium could be said to “belong.”

This was accomplished quite as much by his

interpretation of “belong” as it was by his interpretation of the imperium.

A failure to distinguish adequately

between senses of the words “habere,” “competere,” and “proprium,” as applied to the imperium, had in fact been one of the means by which the medieval commentators had been able to make an interpretation which was both consistent for them and suited to their needs. The old question, to what magistrates does the merum imperium belong, thus becomes for Alciatus, to what magistrates does the prince grant the administration of the merum imperium, since it has already been decided that all magistrates have the administration only. Alci¬ atus decides that any magistrate equivalent to a praeses provinciae ought to be granted the administration of the merum imperium. And to come from Roman to modern times any magistrate who has power over a city with

54

ROMAN LAW IN POLITICAL THOUGHT

many inhabitants like a metropolitan seat also has the

imperium, since such a power is obviously equivalent to that of a praeses}2 But this would indicate that such a magistrate has the merum imperium in right of his office, which seems to be the opposite of Alciatus’ first conclu¬ sion, so that he is forced to make a further examination of the relation of office to the person of the holder: Say that the praeses has the merum imperium from the fact that he is praeses, but nevertheless it cannot be said to belong to him in right of his magistracy, for he has it not on account of the nature of his magistracy but because the law has specially conceded it.13 The conception which Alciatus is here trying to develop is based on a set of complicated distinctions on the nature of office.

These distinctions were, however,

necessary and influential because they were the only way in which certain facts of the tenure of office could be brought into accord with the political theory of the state. The office of the magistrate is considered to be a creation of the fundamental law of the land.

And the

power of the office is said to derive from the office rather than from a special delegation of the prince. Yet as far as the person of the magistrate is concerned, he may be thought of as holding a usufructuary power compared to the supreme magistrate or king.

This emphasis on

the continuity of office as distinct from the continuity of the persons was natural in an age wdien tenure of magistrates had been guaranteed by law and venality of office was an outward sign of the independence of the magistracy. 12 Col. 14!), paragraph 98. 13 Col. 150, paragraph 98.

THE HUMANISTS

55

Following Alciatus’ discussion of the possession of the merum imperium comes his critique of Bartolus’ state¬ ment of the content.

It will be remembered that

Bartolus had placed for the merum imperium maximum the “facultas legevi condendi”

Alciatus significantly

denies this, saying that this power is not of imperium nor yet of jurisdiction but rather it is a kind of permis¬ sion or faculty reserved to the prince. All the old doctors have declared the decreeing of statutes to be not a part of jurisdiction but rather a kind of permission and the same is true of general law. 14 Whatever the meaning of this rather obscure statement, it is at least obvious that Alciatus diminishes the content of the Bartolist imperium.

By separating the “facultas

legem condertdi” and the merum imperium, Alciatus shows a greater appreciation of the legislative activity of the supreme power.

But the significant fact is that,

however he limited the scope of the merum imperium, he does continue to apply the texts on the merum im¬ perium to the supreme power and thereby he shows that he is really thinking of the supreme power in judicial and not legislative terms.

After exclusion of the power of

making general law, Alciatus assigns to the merum im¬ perium a series of powers which closely corresponds to that given by Bartolus.15

That he accepts a division

into six grades and consents to examine the content of each is no proof that he attached much importance to this kind of analysis. This was the traditional form but 14 Col. 153, paragraph 110. 16 For the powers which Alciatus includes under the merum imperium see cols. 156-158.

56

ROMAN LAW IN POLITICAL THOUGHT

Alciatus was more interested in the question of the nature of the tenure of merum imperium. The question for him was not how much of the merum imperium is held by a particular magistrate, but how is merum imperiuvi held in general; what is the relation of the magis¬ trates to the prince? When he is discussing the mixtum imperium, he lists the various degrees of it which vari¬ ous doctors have given and adds, “About these things I do not much insist, because they are of small utility.” 16 But Bartolus had thought them the key of the whole matter. In sum, the changes introduced by Alciatus in the doctrine of the merum imperium amounted to two.

In

the first place there was the affirmation of the opinion of Lothair that the merum imperium belonged to the prince alone in “ius propriuvi.” In the second place there was the limitation of the content of the merum imperium. The function of founding law was declared special, which in effect limited the merum imperium to the high crim¬ inal jurisdiction. The adoption of the opinion of Lothair did not mean that Alciatus did not recognize that praesides provinciarum in the ancient law and in the modern dukes, heads of universitates,

bishops and ordinary

magistrates, all had merum imperium in a sense.

They

represented, after all, degrees of the criminal jurisdiction. The difficulty came in finding a way to describe the mean between the unitary possessor of the highest public power, on the one hand, and the mere delegates on the other.

Here Alciatus made his important dis¬

tinctions towards a theory which would adequately describe the actual tenure of magistrates. 16 Col. 180, paragraph 182.

He declared

THE HUMANISTS

57

that magistrates had only a usufructuary right in the public power, but on the other hand that they were dele¬ gates of the law which created their offices rather than of the prince who appointed them as officers. The posi¬ tion was not described by Alciatus with absolute clarity but the indications which he gave were so important that several later theorists found that they could make use of them. The final figure in the trio of humanistic scholars, Ulrich Zasius,17 is, like Budaeus, less important for his systematic thought on the imperium than he is for his methodology.

Unlike

does contain controversy.

specific

Budaeus,

however,

discussions of

the

his

work

traditional

In the first place we have in the preface to the In-

tellectus singulares, which appeared in 1526, an able statement of the credo of his school.18 He states that he wishes to rely on the texts alone and not on the author¬ ity of the doctors. The mere fact that a name like that of Accursius or Bartolus has great authority is to have no weight whatever, unless it is combined with a true interpretation of the texts. In spite of this scorn for the authorities, Zasius did not 17 See in general R. Stintzing, TJlrich Zasius, ein Beitrag zur Geschichte der Rechtswissenschaft im Zeitalter der Reformation, Basel, 1857.

18 According to Stintzing this is the preface to the Intellectus luris singulares but in all the editions of the Opera omnia which I have examined (Basel,

1541;

Lyons, 1548;

Lyons, 1550, the Gryphius;

Frankfort, 1590), this

preface precedes the Singularia responsa and immediately follows the dedi¬ cation of that work to the Archduke Ferdinand. The Intellectus iuris singulares follows the Responsa as a separate section in two books with a prefatory note to the Chancellor Mathias Held by Johann Ulrich Zasius, who edited the second book of the Intellectus from his father’s manuscripts. There is a German translation of the preface in question in Stintzing, op. cit., p. 144.

58

ROMAN LAW IN POLITICAL THOUGHT

at first seem to depart greatly from the Bartolist inter¬ pretation. In his Paratitla on the Digest he finds in sum that there are three kinds of jurisdiction, merum imperium,

mixtum

irnperium

and

iurisdictio

simplex.

Merum irnperium is the power of the sword or the power of public punishment and it includes the founding of general law as Bartolus had said. This sort of irnperium is however declared by Zasius to be an absolute posses¬ sion of the prince, whether he be a spiritual or a temporal one. This is deduced from the fact that the prince alone has the power to legitimate bastards, grant restitutiones in integrum, etc.

The merum irnperium has degrees

according to which it is delegated either fully or with limitation.19 These remarks are, however, amplified in the Commentarii where he specifically discusses the irnperium in the title De iurisdictione omnium iudicum. This law [he says] is the key of the whole title and on its account I have undertaken the task of interpreting the title. It is, moreover, not only subtle but also useful when it is accommodated to the German customs of our own time. Many of the doctors, all writing much which they might have omitted and omitting much which they might have written, give readings on this law. But contrary to the greater part of them I will teach only those things which seem to me to be true out of these opinions. ... I gather, since it said here that irnperium may be either merum or mixtum, that imperium may be taken in three ways. Sometimes it is a certain eminence or the highest excellence of a prince, as when we speak of the irnperium of the Romans or the irnperium con¬ ferred on the prince by the people. ... In another sense we speak of the irnperium of any judge or the command of any 19 In primam Digestorum sive Pandectarum partem paratitla, Opera omnia, Lyons, 1550, vol. I, col. 42, paragraphs 1-4.

THE HUMANISTS

59

exalted person whatsoever, public or private, as when orders are given or the judge says that this or that be done. . . . And in these two ways we do not use iviperium here. In the third place imperium is said to be the authority of the man judging or the judge, emanating from his noble office whether it per¬ tains to private or to public utility. And in this way imperium is applied here when it is said that imperium is either merum or mixtum, that is, the authority of the judge pertaining either to public or to private utility. This resolution of the question which you will not find in all the doctors ought to be kept well in mind for we often repeat it in that which follows.20

This passage is particularly important because it shows how the Bartolist dogma was dissolved.

That

there could be more than one meaning to a word like imperium, and that one meaning in preference to others fitted a particular Roman text was a relatively new idea.

It was an idea which could only have come with

the disappearance or at least the decline of the social and political institutions which the Bartolist doctrine had suited so well, and with the emergence in the theorists of a sense of history. Laws [says Zasius in this same passage] ought to be under¬ stood according to the nature of the title in which they are placed. . . . Who then can deny that the text here speaks of the merum imperium as the jurisdiction of judges and not of the excellence and eminence of the prince from whom all jurisdiction proceeds?

Thus for purposes of this title Zasius rejects the in¬ terpretation which he had previously admitted.

All

aspects of the imperium which do not refer to juris¬ diction are eliminated and so the making of law is de20 Commentaria in titulos aliquot Digesti veteris, Opera omnia, Lyons, 1550, voi. I, col. 418, paragraphs 1-6.

60

ROMAN LAW IN POLITICAL THOUGHT

dared to belong to the “eminence” of the prince rather than to his imperium.

After this paring down of the

content of the imperium, Zasius distributes various powers of the criminal jurisdiction among three grades of the imperium, quite in the Bartolist tradition.21 When Zasius comes to the question, to what magis¬ trates the merum imperium so defined belongs, it is obvious that his answer is very much influenced by the fact that he was a German.

The constitution of the

Holy Roman Empire may be said to have offered more inducement to him than to his contemporaries in France to choose Azo’s solution of the problem of the location of the merum imperium.

He concludes that the im¬

perium, that is, the highest judicial imperium, shorn of the “eminence” which includes the declaring of law, belongs in proprietary right to all superior magistrates and lords of lands. All these [he says] have merum imperium by reason of dignity and the excellence of their condition. Let us so un¬ derstand our text since it speaks of the power of the sword. This imperium belongs even to cities of the Empire which do not recognize a superior, whether they have it from privilege which is the general case, or from prescription. For it is today commonly received by authorities that the merum imperium may be prescribed, although it was formerly a subject of doubt which gave rise to many controversies. This imperium cannot be delegated to others.22

1 hus with some ambiguity Zasius pronounced for the position of Azo, that magistrates as well as the em¬ peror had the merum imperium in proprietary right. 21 Cols. 421-422, paragraphs 18-25. 22 Col. 422, paragraph 26.

THE HUMANISTS

61

The great modification made by Zasius was the stricter limitation of the content of the merum imperium. This was necessary if he were to continue to uphold the pro¬ prietary right of magistrates in the imperium, as it was natural for him to do since his own observations were taken from the Empire and not from a centralized state like France. He rightly thought that it would be much easier to prove that all magistrates had the merum im¬ perium in right of their office if the merum imperium were not given quite so inclusive a definition. He there¬ fore limited it to a strictly jurisdictional significance. But what led him to do this was the same as that which had led Alciatus in France and Italy to claim that the right to the merum imperium was entirely in the king, namely a perception of the gradually growing functions of government. The theoretical solution of Zasius was to find a place for these functions by defining merum imperium in several senses and allowing that magistrates as well as prince had merum imperium. The prince had it in one sense and the magistrates in another. But Alciatus, in spite of the fact that he agreed with Zasius in separating the making of law from the merum im¬ perium, continued on the whole to regard the merum imperium as the highest public power and therefore to deny that magistrates had any right in it. With Zasius the magistrates could be said to have a certain inde¬ pendence from the fact that they had a share in the merum imperium,, even though the merum imperium was limited and excluded the highest public power. With Alciatus such independence as was allowed to magis¬ trates derived from the fact that their offices were estab¬ lished by the law, not from the fact that they had any

62

ROMAN LAW IN POLITICAL THOUGHT

share in the merum imperium which resided wholly in the prince.

Both solutions for the traditional contro¬

versy allowed for the increase in the power of the su¬ preme magistrate; both were in accord with the political facts of their time, but one was written in France and the other in Germany.

Alciatus used the concept of the

merum imperium to define the power of the prince, while Zasius used it primarily to define the power of the magistrate. repeated

Interestingly enough this divergence was

throughout

the century.

The

interest

of

Zasius in the application of Roman texts on the impe¬

rium to the position of the magistrate was followed by many of the humanistic school of lawyers, but not for the same reasons.

They professed to care nothing

about the position of the contemporary magistrate and everything about the magistrate in the historical Roman constitution.

The theorists, however, whose interest

continued to be the application of the Roman law to contemporary politics, took over the work of Alciatus and tended to use the concept of the merum imperium as an aid to the analysis of the highest power in the state. The most important theorist who appropriated the work of Alciatus and applied it to French law and politi¬ cal theory in general was Charles Dumoulin who wrote in the first half of the sixteenth century.23 It was said of 23 On Dumoulin see the learned and valuable biography of Julien Brodeau, Vie de Charles Dumoulin, Paris, 1654, also published as a preface to the Opera omnia of Dumoulin of 1681. Among more modern works see Hello, Dumoulin, Revue de legislation et de jurisprudence, vol. X, 1839, pp. 97146; E. Haag, La France protestante, second edition by Bordier, Paris, 1886, art. Dumoulin ; Aubepin, “ De l’influence de Dumoulin sur la legislation frangaise, ’ Revue critique de la jurisprudence, vol. Ill, 1853, pp. 603-625,

THE HUMANISTS

63

him that if a comparison were to be made between him and Cujas, the great scholar of Roman law, Dumoulin would be estimated the most celebrated luminary of the forum, while Cujas would be regarded as the column of the old jurisprudence.24 By this it was intended to con¬ vey that there was a great contrast between a man like Dumoulin who was interested in vital contemporary questions and a scholar like Cujas who held himself remote from contemporary affairs. Dumoulin published in 1539 the first part of his Commentarii in consuetudines Parisienses, which marks an epoch in the development of the theory of the French monarchy.

His emphasis

upon the general ideas of unity and royal supremacy is apparent on nearly every page, and, in other connec¬ tions, the Oratio de concordia et unione consuetudinum Franciae, on the common law, and the Consilium on the Council of Trent, on the ecclesiastical side, illustrate the same conclusions.

For one whose program was the

strengthening of the French monarchy the legal theory of the imperium developed by Alciatus under the impe¬ tus of the humanistic revival of Roman law studies provided a powerful weapon. The existing confusion as to the nature of the authority which Roman law enjoyed in France made the more possible an accommodation between the Roman and the French public law. Starting from his general conviction of what public power ought to be, a conviction derived from his obser778-806; vol. IV, 1854, pp. 27-44, 261-300; vol. V, 1854, pp. 32-62, 305332. There are also very valuable references in M. A. P. Th. Eyssell, Doneau, sa vie et ses ouvrages, Dijon, 1860. 24 Fabrot, Replicatio adversus Claudium Salmasium, published in Everard Otto, Thesaurus iuris Romani, Treves, 1733, vol. Ill, col. 1286.

64

ROMAN LAW IN POLITICAL THOUGHT

vation of fact and expressed in terms of the Roman public law, Dumoulin first of all suggests that the seigneurial jurisdictions are an intolerable abuse and that they ought to be abrogated, a doctrine which was echoed

by

succeeding

monarchical

theorists

as

a

commonplace. Who does npt see [he says] that it would be useful to the republic, if the barons, castellans and the rest of the temporal lords, whether ecclesiastic or secular, who have all kinds of jurisdiction over their lands and vassals, had only one grade of jurisdiction and that much better and more diligently administered ?26 He points out that there are great delays and priva¬ tions in the administration of justice of which the king alone is the sole possessor. If the seigneurs exercise their judicial rights wrongfully or negligently, why should not their jurisdiction lapse and return to the king? For it is evident in all this realm and in any part of it what¬ ever that the king is by common law vested with all juris¬ diction and imperium, since he is the most high monarch of his kingdom. . . . And he is vested with these rights by spe¬ cific disposition of the ius gentium . . . and from this it must be agreed that they are mad who think the king vested only with the final appeal, or, if I may use their words, with the last resort, because, on the contrary he is established in every grade and species of jurisdiction in the whole realm and in any part of it whatever, just as the intentio of a bishop is established in his whole diocese and any part of it. . . . And so by common law and ius gentium all jurisdiction of this realm is the king’s since not the least jurisdiction may be ex¬ ercised unless by him or in his name and authority. No other -6 Opera omnia, 1681, vol. p. 128, paragraph 10.

I,

Commentarii in consuetudines Parisienses,

THE HUMANISTS

65

may have ownership of any jurisdiction or have jurisdiction in his own right or name, unless only a special jurisdiction by the mediate or immediate investiture or concession of the king. And even in the case of any inferior dominium by special law the king remains vested with the recognition of that jurisdiction and its dependence on himself mediately or immediately and with the right of final appeal, from the final sentence of inferior lords to himself or his judges.26 The absolute character of the royal proprietary title in the supreme jurisdiction is also well illustrated in Dumoulin’s discussion of the inheritance of the kingdom by minors.

Some have objected that the transfer of a

kingdom to a minor gives jurisdiction to him, which he is manifestly incapable of exercising. The transfer does give him, according to Dumoulin, the title to the king¬ dom and the jurisdiction but not to the exercise and administration of the jurisdiction.

These are two very

different things which can be illustrated by an extreme example.

There is nothing to prevent the proprietary

title from being vested in an infant who is not yet even born but exists in the womb.

But the exercise of the

jurisdiction cannot be assigned either to an infant nor even to a minor. This is sufficient to show the absolute character of the proprietary right of the monarch as conceived by Dumoulin. It was still possible to combine the concepts of property and power. Yet, although the king had a ius proprium in his authority, he was not the proprietor of his kingdom.

The proprietary possession

of the highest public power can be distinguished from the proprietary possession of the object on which that power acts. 26

Loc. cit.

Like Alciatus, Dumoulin held that, al-

ROMAN LAW IN POLITICAL THOUGHT

66

though the right of the supreme magistrate was de¬ scribed as a proprietary right, it was apparent that it was not an ordinary proprietary right.

This was there¬

fore again a stage in the process by wdiich theorists were preparing to separate the notion of public power alto¬ gether from that of property.27 It was easy to assert and to find logical support for the theory that the highest public power, the merum imperium, resided in the king absolutely by proprietary right but it was more difficult for Dumoulin to reconcile this theory with the survivals of feudalism on the one hand and the existing practices of the magistracy on the other.

As has already been suggested the feudal juris¬

dictions were regarded as usurpations and, where they could not be so regarded their competence was dimin¬ ished by emphasizing royal rights of appeal. Wherever merum and mixtum imperium are conceded, says Du¬ moulin, it is not understood that this includes the right to hear cases of appeal.28

Again he emphasizes the

imperium always reserved to the king in any transfer of territory or jurisdiction: I declare that in the grant of a castellany, duchy or county, made by the supreme prince with all imperium, and even with the clause, omni iure, which obtains with no reservation, there do not accompany the grant and there are not transferred the regalia and other rights reserved to royal majesty in sign of supreme power, but only such things are transferred as can be vested in him to whom the concession is made. . . . For the king has a double right in any castellany or concession, one as individual proprietor of that castellany which he may have bought, and that right is regarded as transferred; another as king, because he has the dominium directum and the ius 27 Page 490, paragraph 12.

28 Page 78, paragraph 50.

THE HUMANISTS

67

regium universally in the whole kingdom, and that right is not transferred.29 Dumoulin grants one exception to this perfectly clear statement, namely, in the creation of royal appanages in which case he thinks some of the regalian rights may be conceded. Among those, however, which are never con¬ ceded, is the power of establishing laws and statutes, “because the establishment of laws is so high a matter that even if certain of the regalia were conceded under a general clause, this wrould not be included.” 30 This is a significant emphasis on “ condere legem ” and it was in accord with the facts of political practice, but it shows how much the theory had changed since the time of Bartolus when the establishment of law had been only one of the varying list of powers which together had made up the content of the merum imperium. The thought of Dumoulin thus tended to exalt the royal power and to distinguish it sharply from every other power in the land with more particular emphasis on the making of law than had hitherto been found. As we have seen, it was not difficult to reconcile this theory with the existence of the seigneurial jurisdictions, but the problem presented by the tenure of magistrates was not so simple.

Here Dumoulin took over the solution

which Alciatus had given to the problem in dispute be¬ tween Lothair and Azo, but he did not give to magis¬ trates even that degree of security and continuity which Alciatus had allowed.

Throughout the rest of the cen¬

tury most discussions of the subject made reference to Dumoulin’s arguments. 29 Page 79, paragraph 53.

In the first place, he main30 Page 79, paragraph 56.

68

ROMAN LAW IN POLITICAL THOUGHT

tained, the right to create a magistrate was an effect of the ownership of jurisdiction or imperium.

Whenever

any jurisdiction or imperium is transferred, if it is trans¬ ferred as a property right, it is accompanied by the right to create a magistrate suitable for the administration of the jurisdiction or imperium. The magistrate so created cannot be regarded as having any proprietary right in his jurisdiction, since all such right resides in the prince or seigneur who created the office.

This according to

Dumoulin is the reason why magistrates cannot appoint vicars or lieutenants for themselves but this right rather belongs only to those who actually own jurisdiction. Also, and most important of all because of its applica¬ tion to the question of the tenure of magistrates, because magistrates do not own their own power, thev cannot claim a possessory interdict when the title to their office is in dispute, unless their offices are in fact hereditary. This was Dumoulin’s greatest difficulty because here he was most obviously in conflict with recognized practice. In his view the title of a magistrate to his office was that of a mere usufructuary. But for many years the French government had recognized the principle of irremovability and had combined with it the practice of venality of offices. It was difficult to see how a man who had in¬ vested the savings of a lifetime in the buying of an office for himself or for his son could be told that he could enter no possessory plea for that office if his title were to be disputed by a third person. Dumoulin is indeed forced to admit that the formulas used in disputing the title to an office before the maitres des requetes approximated Roman possessory action.

He tries to avoid incon¬

sistency by claiming that the maitres des requetes have

THE HUMANISTS

69

no jurisdiction whatever over the creation of an office and therefore although possessory formulae may be used, nothing can be decided about the actual pro¬ prietary right in the office. This was thin reasoning and the position of Dumoulin really amounted to a denial of any proprietary right in the tenure of magistrates.31 The work of Dumoulin thus presents an example of a logical system carried to an extreme. He was perfectly clear about his main purpose, which was the distinction of the power of the prince in degree and in kind from all other powers in the land.

This could be expressed in

terms of the ownership of the merum imperium, and in these terms it was sensible to maintain as he did that all feudal and seigneurial jurisdictions were usurpations. This was in accord with the facts of the political evolu¬ tion of his period, but in order to make the theory more consistent, he had to go further and attack the question of the magistracy.

Logically he saw that it was non¬

sense to talk of feudal and seigneurial “usurpations” as long as the magistrates were to be allowed to keep a proprietary right in the imperium, but in extending the logic of the theory he finally widened the gap between theory and fact.

Alciatus had indeed also denied that

the magistrates possessed the merum imperium, but he had characterized them as delegates of the law and not of the prince. Dumoulin found within his framework no means of expressing the degree of independence which did in fact characterize the magistracy.

This need was

to a large extent supplied by other successors of the humanists. 31 Page 79, paragraphs 57-59.

70

ROMAN LAW IN POLITICAL THOUGHT In considering the results of the humanistic revival

of the study of the Roman law we must remember that they were applied to the realization of widely different aims. The work of Dumoulin in adapting to the French theory of constitutional authority ideas and words de¬ rived from the Roman texts on the iviperium repre¬ sented, it is true, one of the results of the humanistic studies.

But in another sense he must be said to have

remained in the Bartolist tradition. If he was humanist in his acceptance of the doctrine of Alciatus on the unity and location of the imperium, and in his repudiation of the feudal hierarchy, he was Bartolist in his failure to distinguish among senses of the word given by different texts and above all in his essential methodology, the application of Roman law without historical sense to contemporary and general theory.

A more logical and

obvious result of the humanistic method was the appear¬ ance of a purely scholarly approach to the interpretation of Roman law.

A group of critical scholars, who repre¬

sent one of the great intellectual movements of the Renaissance and one which has been much neglected bv modem scholarship, fixed their attention on the Roman law with a perception that it was the product of a par¬ ticular state at a definite time and that, whatever the influence of the institutions which it represented, they were in themselves to be distinguished from those of contemporary France. The appearance of a sense of history in legal scholarship as in other departments of thinking is one of the most interesting phenomena of the period.

So in reality two traditions stemmed from the

work of Alciatus and Budaeus.

There was one which

made a direct application of their interpretations to

THE HUMANISTS

71

contemporary political theory and there was another which was primarily interested in the beginnings of his¬ torical scholarship. We must now examine some of the work in the second of these traditions.

It may be

thought that the anti-Bartolist school in its extreme form is less relevant or not relevant at all to the history of political theory.

This is of course true in the sense

that its members for the most part did not profess an interest in political theory nor did they write systems either general or applied to the understanding of events in their own time and country.

They were primarily

historians and their main effort was to forget about the present as far as possible and to understand the Roman constitution.

But in spite of the fact that the contro¬

versies of these professors were thus academic, the re¬ sults were assimilated and applied by others. It was the achievement of these scholars which to a large degree made possible the comparative study of authority and the magistracy by thinkers like Bodin and Loyseau. The formal terms of the thought of a Bodin were pro¬ vided not only by a Dumoulin but also by a Cujas. There has been a neglect of this portion of the intel¬ lectual background of the great syntheses at the end of the century.

To say that the tradition of which Cujas

is probably the greatest representative is an academic tradition is not to deprive it of significance for institu¬ tional theory. Many of the authors who entered the controversial lists on the subject of the imperium were and have re¬ mained exceedingly obscure.

Their combined produc¬

tion, however, resulted in an impressive literature, characterized by a vituperation of opponents which was

72

ROMAN LAW IN POLITICAL THOUGHT

as enthusiastic as their attitude towards scholarship.32 One of the earliest productions of this sort, more courte¬ ous in tone than many of the later, is the treatise of Jean Gillot, De iurisdictione et imperio libri duo, pub¬ lished in Paris, 1538.?3 Gillot’s purpose was to confute the definitions and some of the arguments of Alciatus and of a certain Longovallius or Jean Longueval.34 In a long and repetitious argument he advances the thesis that merum imperium is an absolutely unique power. It is distinct from jurisdiction even in the broadest sense of the latter. The test of its possession is not to be found in certain specific powers, chiefly jurisdictional, but in the general power to execute sentences given in court. 32 The best accounts of this controversy and its bibliography are to be found in Eyssell, op. cit., p. 50; Heineccius, Iurisprudentia Romana et Attica, vol. I, preface, “Vita Balduini,” passim; Meerman, Norus thesaurus iuris civilis et canonici. The Hague, 1751-53, prefaces to vols, II, III and VII; van Vaassen, “Vita Goveani,” preface to the Opera omnia of Govea, Rot¬ terdam, 1766; Jobbe-Duval, Frangois le Douaren, Paris, 1912. For general histories of controversies among jurisconsults see Hommel, Litteratura iuris, Leipzig, 1779, pp. 201-240; Brunquell, Historia iuris Romano-Germanici .... Jena, 1727, pp. 342-385.

33

Reprinted in the Tractatus tractatuum, Venice, 1584, vol. Ill, part I,

fols. 2-18.

34 Meerman, op. cit., vol. II, p. iii, cites the work of Longovallius as Declaratio legis imperium D. de iurisdictione, and gives the date 1539, which, however, must be either the date of a second work by Longueval or an error, since, as Meerman himself notices, Gillot’s work of 1538, the date of which is confirmed from other sources, is a refutation of Longueval.

Moreover

Alciatus and Longueval had themselves engaged in controversy on the im¬

perium and Viard in his Andrt Alciat, p. 67, n. 2, gives 1529 as the date of the Defensio of Alciatus against Longueval and others, although Viard also gives 1539 as the date of the publication of Longueval’s Declaratio. It is of course possible that the work circulated in manuscript from 1528 or before to 1539, when it was finally published. I have not been able to see a copy of it.

THE HUMANISTS

73

The definition of Alciatus, which was that of Ulpian, is rejected because it is declared to be a specific example of the merum imperium and not a generic definition. Gillot maintains that to define merum imperium in terms of the potestas gladii is like saying that fortitude consists in the devotion of oneself to die for one’s country. But no one could maintain that fortitude consists in this act alone.

Therefore it is no definition.

For Gillot, then,

the merum imperium does not refer to the criminal juris¬ diction exclusively; it is the power which can order the execution of all sentences, whether civil or criminal.35 Such a definition seems to be an extension of the tra¬ ditional interpretation, but in another and more im¬ portant way Gillot offers a limitation. Throughout the discussion he claims that the concept of merum impe¬ rium is suitably applied only to the legal authority of the magistrate and not to a vague conception of any author¬ ity whatever, including the highest. Gillot’s position on the relation of the law-making power to the imperium illustrates more clearly than anything else the concen¬ tration of this historical school on a theory of the magistracy alone.

The Bartolist school in general and

Dumoulin in particular put all the emphasis upon a definition of the merum imperium which would include the law-making power.

They were trying to explain

and justify the highest public power which in this period was becoming increasingly legislative in a modern sense. But the scholars like Gillot felt that the Roman texts which they were interpreting never referred to the wider senses of the word imperium but almost always to the 36 Gillot, De iurisdirtione et imperio, book II, ch. 8.

74

ROMAN LAW IN POLITICAL THOUGHT

legal authority of the magistrate.

Therefore they lim¬

ited themselves to the discussion of the problem of the magistracy. Gillot for example maintains that Alciatus and Zasius were right in their opinion that the potestas legis sanciendae could not be included under imperium or under jurisdiction. Imperium and jurisdiction in the opinion of Gillot and his school were legal words which described the authority of the magistrate in a process where there were two parties involved contesting each other. But [he says] since, in the business of making law, there can be neither judge nor judgment, the potestas legis sanci¬ endae is neither a part of imperium nor of jurisdiction. The question is ridiculous for there can never be found any juris¬ consult or any emperor or any reputable authority whatever ascribing the power of making law (legis ferendae) to any but the principal authority.36 There follow other powers wdiich in the opinion of Gillot are likewise to be excluded from the merum impe¬ rium, such as the power of coinage, the power to establish weights and measures, the legitimation of bastards. The interesting thing is that although he is dealing with the same word and the same texts, Gillot’s interpretation is a complete denial of all that Bartolus and his followers had thought most important in the concept of the impe¬ rium. The fact is that as state power in wThat Gierke has called the antique-modern conception became more and more clear, it was obvious that the texts fitted the power of the magistracy in the new organization of the state better than they fitted what was coming to be called the sovereign power. 30 Book

II, ch. 21.

And so the extreme state-

THE HUMANISTS

75

merit of Gillot was in one sense a recognition of the fact that the character and powers of the sovereign had be¬ come such that it was impossible to apply certain of the traditional Roman texts to the analysis and description of the supreme power. The humanists in general reacted by concentrating on the historical meaning of the texts in the Roman constitution and Gillot was a clear indi¬ cation of the advancing separation between scholarship and practical theory. Gillot was answered on the subject of the imperium of the magistrate by Pierre Loriot37 in his Tractatus de imperio et iurisdictione, first published at Lyons in 1545.38 On the more important theoretical points this author accepts, as did Gillot, the conclusions of Alciatus, merely claiming by the way that “Bartolus ought to have blushed to have created so many divisions of imperium with no confirmation by law,” and announcing as a gen¬ erally received truth that the merum imperium in the sense of the highest authority of course belongs to the prince alone and that magistrates have only a delegated power.39 On the more historical question of the impe¬ rium of the magistrate, Loriot resumes and refutes the argument of Gillot.

He points out that Gillot rejects

Ulpian’s definition on the grounds that a part cannot be 37 On Loriot see M. Fournier, “Notes et documents sur les professeurs de droit en France. IV. Le recrutement professoral et les conduites des pro¬ fesseurs de droit a l’universite de Valence au XVIe siecle,” Nouvelle Revue historique de droit, vol. XIX, 1895, pp. 11-47, 166-209; also Berriat-SaintPrix, Histoire du droit romain suivie de Vhistoire de Cujas, Paris, 1821, p. 385. Loriot had been professor at Bourges. 38 Republished in the collection by Loriot, De iuris apicibus tractatus VII et de iuris arte tractatus XX .... Lyons, 1555, cols. 29-46. 39 Loriot, Tractatus de iurisdictione et imperio, axiom XII.

76

ROMAN LAW IN POLITICAL THOUGHT

taken for the whole. But to Loriot, Gillot seems to have made a definition which is so much more than the parts of which it is composed as to be too general. Therefore in Loriot’s opinion the potestas gladii can be taken as a step in the accurate definition of the merum imperium. The merum iviperium is the potestas gladii; the potestas gladii equals the cognition of criminal cases and there¬ fore the merum imperium is this cognition and not the right to execute any sentences whatever.

So Loriot

executes a reversal of the opinion of Gillot and finds the ■merum imperium to be the cognizance of criminal cases as distinguished from the ordinary jurisdiction of the magistrate.40 A further controversy, more significant because of the personalities involved was commenced by the publica¬ tion at Toulouse in 1545 of a reading on the law of the third book of the Digest, De iurisdictione omnium iudicum, by Antoine de Govea, the famous Portuguese juris¬ consult.41 Dedicated to Jean Coras, with an expression of the author’s hesitancy to commit himself to “that sea in which so many have wrecked their ships,” the work, brief as it is, presents a more competent and ac¬ curate view on the theories of the Roman magistracy than had yet been attained. Govea begins by separating the iurisdictio, the ojjicium ins dieentis, from the impe¬ rium in virtue of which the magistrate acts wdthout the organization of a legal process. 40 Axiom XIV. 44 On Govea consult E. Caillemer, “Un manuscrit inedit d’Antoine de Govea, 1505-66,” Revue historique de droit, vol. X, 1864, pp. 416-442 and vol. XI, 1865, pp. 1-72; van Vaassen, preface to Govea’s Opera iuridica, philologica, philosophica . . . , Rotterdam, 1766.

THE HUMANISTS

77

Imperium [he says] is all the power of a magistrate remain¬ ing beyond his true and proper jurisdiction to do those things which a private citizen cannot do and which, even if they are by law or to a degree of the province of the law, in no way pertain to the officium ius dicentis. . . . In the city of Rome some magistrates presided over capital questions, others over the declaration of ius: the former had their cognizance of capital crimes either from the law or the constitution of the prince or a senatusconsultum. This power, since it is absolutely separated from the officium ius dicentis and so from jurisdiction ... is called merum imperium.*2 The conclusions of Govea were accepted and further substantiated by Francois le Duaren 43 who brought to a close his first professorship at Bourges with the publi¬ cation in 1547 of the first book of the Disputationes anniversariae, the fifty-third chapter of which was devoted to the definition of the imperium and the iurisdictio.44 But the opinions of both Govea and Duaren were im¬ mediately

contested,

although

neither

was

directly

named, by the colleague of Duaren at Bourges, Eguinarius Baro.45

Baro published in 1548 at Paris the

Commentarii ad rd irpura digestorum: quorum particula 42 Govea, Opera iuridica, philologica, philosophica . . . , Rotterdam, 1766, p. 3. 43 On Duaren consult Taisand, Les Vies des jurisconsultes . . . anciens et modernes, Paris, 1721, pp. 172-174; Bayle, Dictionnaire, Paris, 1820, art. “Duaren”; Eyssell, op. cit., passim; M. Fournier, “Notes et documents sur les professeurs de droit en France.

IV. Le Recrutement professoral et

les conduites des professeurs de droit a l’universite de Valence au XVIe siecle,” Nouvelte Revue historique de droit, vol. XIX, 1895, pp. 11-47, 166209; and especially Jobbe-Duval, Franqots le Douaren, Paris, 1912. 44 Reprinted in Duaren’s Opera omnia, Lyons, 1579, part II, p. 285. 46 On Baro see Taisand, op. cit., pp. 58-59;

Jugler, Beitrdge zur juris-

tischen Biographie, Leipzig, 1775, vol. II, part I, pp. 29-40; Eyssell, op. cit., passim but especially pp. 47-55.

78

ROMAN LAW IN POLITICAL THOUGHT

prior ius Romanian, posterior ius Gallicum ad singulos titulos complectitur 46 in which appears an extended com¬ mentary on the imperium, and in the same year at Lyons Liber unus quaestionum publiee tractatarum ad Digesta iuris civilis,47 which contained the reading on De iurisdictione. In the Commentarii, again on the title De iurisdictione omnium iudicum, Baro begins by making a distinction between the officium iudicis and the officium iurisdictionis, that is, between the duty of the magistrate where he had discretionary power and his duty where he was simply bound to follow the law. He thought that the officium iudicis included the imperium: Let those who have artfully worked at these words use and enjoy them as they please, but let us understand the officium iudicis to be all manner of extraordinary cognition.4S In his comment on the text of Ulpian he makes still more precise the sense in which he understands im¬ perium : 1 he emperor was called princeps Romanus from imperaudo, that is, from having the command, and he had that supreme right which was formerly in the people. This consisted not only in giving commands but also in functions of cognition and judgment and other things, as much in war as in peace. . . . By the term imperium all power, authority and the whole officium of the emperor is comprised. . . . And since this imperium is in part communicated to magistrates, either by the prince or by law, and since the magistrates are accus46 Kepublished in his Opera omnia, Paris, 1562, vol. I, pp. 1-545. 47 This is republished in Opera omnia, vol. Ill, which I have not been able to see.

The doctrine of Baro is, however, sufficiently clear from the

Commentarii and from the defense published in 1555 by his pupil, Edward

Henry son.

48 Commentarii.... Opera omnia, vol. I, p. 183.

THE HUMANISTS

79

tomed to delegate it when the law allows, their imperium is likewise described as all power and authority. And this im¬ perium is either extrajudicial, as when it pertains to military functions and protection, or it is judicial . . . when it is divided into merurn and mixtum. . . ,4fl

J bus in Baro’s opinion both merurn and mixtum im¬

perium belonged to the discretionary power of the magis¬ trate and were excluded from the officium iurisdictionis. In his distinction between judicial and extrajudicial

imperium, Baro certainly showed an apprehension of the difficulties which had beset earlier commentators but his whole discussion of the imperium of the mag¬ istrate can hardly be regarded as clear.

He failed to

understand the arguments of Govea and Duaren that the officium indicia or ius dicentis referred not to the judgment of a case but to the formulary procedure. Perhaps too great an historical sense ought not to be expected of one who taught of the Salic law that it wras voted in the centuriate comitia of the Franks in the third year of the reign of Pharamond.50 ions are nevertheless of great importance.

His opin¬

He was the

first teacher of Bodin at Angers and he was regarded as one of the great professors at Bourges at a time wdien that university harbored the greatest teachers of law of the century. No sooner were the works of Baro published than Duaren, prompted apparently as much by bitterness over his own departure from Bourges as by disinterested love of the truth, circulated an attack upon them in the 48 Page 184. m Baro, Opera, 1562, vol. I, p. 51. Cited in Pi. Dareste, Eenai hut FranScrie Hotman, Paris, 1850, p. 27.

80

ROMAN LAW IN POLITICAL THOUGHT

form of an Apologia de iurisdictione et imperio under the pseudonym of Ambrosius Laetus.51

This apparently

contained a violent personal attack on Baro 52 and in January of 1549 it was reprinted under the author’s own name with the title De iurisdictione et imperio apo¬ logia Franc. Duareni iureconsulti adversus Eguinarium Baronem iureconsultum.53 The calumny was suppressed in this edition and the claim was made, though hardly to be taken seriously, that the previous pamphlet under the name of Ambrosius Laetus had been printed without the knowledge or permission of Duaren.

The apology

as we have it is perfectly courteous in tone. The author announces in the introductory note that “if these con¬ troversies add something to scholarship, I nevertheless approve them only to the extent that they cause no breach of friendship between men who are most closely united.” 54 The Apologia consists of twenty paragraphs each of which discusses a specific point on which Duaren considers Baro to have erred. The general propositions maintained are those of the Disputationes anniversariae and the principal conclusions are that iurisdictio was in the Roman constitution either the power of declaring the law or of assigning a judge, that the merum impenum was the extraordinary cognition of criminal cases, not envisaged in the original creation of the magistracy at Rome and therefore belonging to that magistracy only by special law. Baro may well have been content 61 So far as I know, no copy of this work exists. reference to it by Duaren and others.

It is known only by the

62 See Jobbe-Duval, op. cit., p. 12, n. 1. “ ^ePrmted in Uuaren’s Opera omnia, Lyons, 1579, part II, pp. 355-360 6 rage 355.

THE HUMANISTS

81

with this refutation. He died in 1550. Duaren returned to Bourges to succeed him and, in taking his chair, pro¬ nounced a eulogy of highest compliment upon his former colleague and adversary.55

Frangois Baudouin,56 who

had been the successor of Duaren at Bourges in 1547, says of Baro: No storms nor tempests disturbed the tranquility of his life but he could not escape that fatal malady of learned men, the bitterness of contention, which is so difficult to endure. For he engaged in odious struggle with those whom he loved, the learned jurisconsults, Frangois Duaren and Antoine de Govea. But in this struggle so admirable was the bearing of this learned man, such his unconquerable temperance and mildness, that when he was most bitterly hurt he controlled himself wonderfully which I have always regarded as the highest virtue and the most beautiful victory.57

The controversy, however, was not concluded. Govea as well as Duaren wished to reply to Baro and prepared an answer De iurisdictione libri duo adversus Eguinarium Baronem iureconsultuvi,58 which was completed, if we accept the date of the dedication, in February, 1550. Unfortunately the work was long in the press and finally appeared in September, 1551. Baro had died just a year before and Govea was thus open to the charge of “hav¬ ing insulted the dead lion,” a charge from which his printer successfully endeavored to clear him by a prefa¬ tory note in which he pointed out that the delay had 66 Jobbe-Duval, op. cit., p. 15. 66 On Baudouin see Heineccius, “Vita Balduini,” preface to vol. I of the Iurisprudentia Romana et Attica and Bayle, Dictionnaire, art. “Baudouin.” 67 “Epistola Francisci Balduini . . . Aegidio Bourdino iureconsulto,” printed as a preface to Baro’s Opera omnia, Paris, 1562, vol. I, p. iii. 68 Govea, Opera iuridica, philologica, philosophica .... Rotterdam, 1766, pp. 7-^52.

82

ROMAN LAW IN POLITICAL THOUGHT

been due to difficulties which arose from the introduction of a new type and new paper in his establishment in that year. Even, however, if Govea had committed the error in taste of composing an argument against a deceased adversary, he could hardly have been seriously con¬ demned, as his work is absolutely free from personal animosity. Indeed he commences with a compliment: I have read your book on jurisdiction, Eguinarius, dili¬ gently. For its author, to whom I attributed more than I should dare to claim for myself, was of the first reputation in France; the question itself is obscure and difficult and I most desirous of knowing what you think of it.59

I he two books contain a careful refutation of Baro's opinions and an expansion of the author’s previous pamphlet.

Particularly Baro s doctrine of juridical

imperium is denied as leading only to confusion.60 Otherwise the response is similar to that of Duaren. In 1554 there was published in Paris a De iurisdictione et imperio libellus 61 by Louis le Caron, called Charondas.

Although it does not mention the controversy

which had begun at Bourges, it may well have been in69

Op. cit., p. 9.

60 Pages 12-13. 61 Reprinted in Otto, Thesaurus iuris Romani, Leiden, 1725, vol I cols

839-852.

62 Charondas has been very little noticed by modern authors.

See A.

lligard, “Louis le Caron dit Charondas,” Revue historique de droit, vol. VII,

1861, pp. 177-192, which is very incomplete and was never finished. There are contemporary notices in the Bibliotheque frangoise of La Croix du Maine and Duverdier, which was edited with additional notes by Rigoley de Juvigny, Paris, 1772-73, vol. II, pp. 46-47 and vol. IV, pp. 592-597.

The best biog¬

raphy ls^that of F. Gohin, De Ludovici Charondae (1531,-1613) vita et versibus, diesis, Paris, 1892, which, however, is concerned more with literature than with the law.

THE HUMANISTS spired by it.

83

There is considerable significance in the

fact that this subject was an early interest of the author who later contributed the Pandectes du droit frangois, an edition of the Corpus Iuris Civilis, a Commentary on the Coutume de Paris, an edition of the Somme rural of Bouteiller and who also wrote two panegyrics to Charles IX, one of which was on the obedience of the people and the other on the duty of magistrates towards their king.63 In no other author wdio wrote on the French law is the influence of his Roman studies more apparent and it is therefore of some importance to consider his early view’s on the Roman theory of the magistracy. His discourse opens writh a description of the origin of civil society and jurisdiction which is strangely like eighteenth-century thinking on the subject.

It is his

opinion that men once wandered free in a condition of equality.

There were some however who were imbued

wfith the habits of beasts and their attempt to get the possessions of others by force led men to congregate. There followed the discovery of divine law and the in¬ stitution of human laws.64

Charondas then proceeds

to an account of the founding of Rome, the regal period, and the creation of magistrates.

Magistrates were,

according to Charondas, the ministers and interpreters of the laws; they issued edicts and decrees, judged and appointed

judges

and

coerced

disobedient citizens.

These magistrates had jurisdiction and imperium, al¬ though not merum imperium. Jurisdiction must not be given so extended an interpretation that it includes imperium as one of its species. Charondas also emphati63 Cited in the Bibliotheque franqoise, vol. IV, p. 593. 64 Charondas in Otto, op. cit., col. 839.

84

ROMAN LAW IN POLITICAL THOUGHT

cally repudiates the analysis of the Bartolists by which jurisdiction as a genus was divided into three species, merum imperium, simplex.

mixtum

imperium

and

iurisdictio

The latter two are viewed by Charondas as

one and the same thing.

There can be no jurisdiction

without imperium. Imperium is in general the power of the magistrate which must be obeyed.

Merum impe¬

rium, however, has nothing to do with the officium ius dicentis. In order that we may know the nature of this imperium, we must recognize that the people always reserved that power to themselves which pertained, not to the enunciation of ius, but to the conservation of the popular form of government and the maintenance of public liberty; to such a degree that the magistracy was never moved to claim this for itself. And the lex Valeria Publicola, in order that it might avoid suspicion of furthering the monarchy, among other provisions intro¬ duced the law that there should be an appeal against the magistracy to the people, whose power was the highest, the true mera potestas, since the imperium was not attributed even to the consuls in right of their magistracy.66

By the establishment of the quaestiones perpetuae, according to Charondas, merum imperium was granted to magistrates but not before.

Again, he thinks those

interpreters wrong who say that either the cognition of criminal cases or the execution of sentences is essentially of the merum imperium, since both of these may be attributes of jurisdiction with which the merum impe¬ rium has nothing in common.66

These opinions were

considerably in advance even of those of professors of 86 Col. 845.

66 Loc. cit.

THE HUMANISTS

85

law of the period. They were perhaps assimilated while Charondas was a student of law under Cujas who later lent them the support of his own authority. They were also opinions which did not immediately prevail. In 1555 Edward Henryson,67 a pupil of Baro’s, published in Paris a defense of his master, Pro Eguinario Barone adversus A. Goveanum de iurisdictione libri duo.6s This work was distinguished for the violence of its attack upon Govea but in other respects it contributed nothing. The reiteration of opinions which Baro himself would hardly have defended, had he lived, did his reputation more harm than good. The work of Henryson did, how¬ ever, fan the flames of the controversy and during the same decade there were published by lesser professors additional treatises which indicate the continuance of a lively interest in the subject.69 Nearly thirty years passed before two of the most distinguished Romanists of the century published their definitive interpretation of the title De iurisdictione omnium iudicum, and we have seen their opinions al¬ ready in part anticipated by authors like Charondas. Books XXI to XXIV of the famous Observations et 67 See the preface of Meerman’s Thesaurus, vol. Ill, p. vii for a very brief account of Henryson. He is there said to have been the author of The Actis

and Constitutionals of the Realme of Scotland, maid in Parliamentis haldin he Kingis James the first, second, third, feird,fyft, sext, and Q. Marie, Edinburgh, 1566. 68 Reprinted in Meerman’s Thesaurus, vol. Ill, pp. 447-482. 69 I notice two: that of Jean Tavard of Toulouse, Tractatus de iurisdictione, Toulouse, 1557, noticed in Meerman, op. cit., preface to vol. II, p. iii; and that of Andreas ab Exea, professor at Valence, Tractatus de iurisdictionet Lyons, 1559, noticed also in Meerman, op. cit., loc. cit., and in Berriat-SaintPrix, op. cit., p. 385, n. 64, as giving evidence that Exea had been professor at Valence for forty years.

I have seen neither treatise.

80

ROMAN LAW IN POLITICAL THOUGHT

emendationes of Cujas 70 were published in Paris in 1585.71 Chapter xxx of Book XXI contains the author’s commentary on the title in question. On the subject of jurisdiction [says Cujas] two kinds of imperium are announced, merum and mixtum, from the book of Ulpian on the office of the quaestor, a magistrate who formerly had not the merum imperium . . . but was neverthe¬ less not without the mixtum imperium. Two, I say, are the kinds of imperium proposed by this law and two are its limits, merum and mixtum imperium, not three, as many opine, merum and mixtum imperium and iurisdidio simplex. For there is no iurisdictio pure and simple, no iurisdidio without imperium by the strength of which it is made effective and which is called mixtum from the association and union by which it is connected with jurisdiction. Therefore mixtum imperium and iurisdidio are one and the same thing. Nor is anything claimed for mixtum imperium which cannot and ought not to be claimed for iurisdidio and vice versa. . . . Y\ hat, however, is claimed for the merum imperium cannot be claimed for iurisdidio, because it is not granted in right of jurisdiction or magistracy but by benefice and permission of a special law which gave it either to a magistrate or to a private citizen, for even a private citizen can have the merum impe¬ rium by law. . . . Merum imperium is defined by this law, “to have the power of the sword for the punishment of criminals.’’ Animadvert ere, used here, is properly a word of extreme punishment. And the definition has been completed by the description of what constitutes the greater part of the merum 70 A complete and definitive modern work on this greatest of Romanists is wanting. The most adequate biography is still that of Berriat-Saint-Prix, op. cit. It is to be supplemented by Savigny, “Lettre a propos du livre de Berriat-Saint-Prix, ’ Thtmis, ou Bibliotheque du jurisconsulte, vol. IV, 1822, pp. 193-207, and by P. F. Girard, “La Jeunesse de Cujas. Toulouse, 15221524, “Nouvelle Revue historique de droit, vol. XXXIX, 1916, pp. 428-504, and “Cujas et Scaliger: Lettres inedites publiees par S. de Ricci, annotees par P. Girard,” idem., vol. XL, 1917, pp. 403-424. 71 According to the dating of Berriat-Saint-Prix, op. cit., p. 472.

THE HUMANISTS

87

imperium. This greater part is the ius gladii. . . . And the ius or potestas gladii is so called because such an excuse for

the taking away of life is generally permitted to him alone to whom the merurn imperium is given. . . . By its superiority the power of the sword is the most exalted part of the merum imperium but the merum imperium includes every other kind of coercion for serious crimes, such as condemnation to the mines, deportation, confiscation of goods and the exercise of a iudicium publicum, delegated by law. In sum . . . the merum imperium ... is the power given and defined by law of coercing criminals.72 This is a complete statement of the position which had already been adumbrated by Govea, Duaren and Charondas. There was at last something like agreement on the fact that in the history of the Roman constitu¬ tion the merum imperium was the highest criminal power, reserved to the people in the first centuries of the Republic and afterwards given to the magistrates by special law at the time of the establishment of the quaesiiones perpetuae.

This position was restated in the

following year by Francis Hotman 73 in his Observations in ius civile™

Neither of these authors, however accurate was their interpretation of the merum imperium in the time of Ulpian, saw the implications of the subject for general n

I have used the edition of Heineccius, Halle, 1737, which contains the

editor’s valuable preface, “De Cuiacii adversariis et obtrectationibus.” 73 On Hotman consult Friedrich Leickher, Vitae clarissimorum iureconsultorum, Leipzig, 1686, pp. 206-263; Bayle, Diclionnaire, art. “Hotman”; Rodolphe Dareste, Essai sur Franqois Hotman, Paris, 1850; Blocaille, Etude sur Franqois Hotman, thesis, Dijon, 1902;

Fournol, “Sur quelques traites

de droit public du XVIe siecle, “Nouvelle Revue historique de droit, vol. XXI, 1897, pp. 298-325. 74 Book VII, ch. xvi. Leickher, op. cit., p. 263.

The date of the first edition, 1586, is given by

88

ROMAN LAW IN POLITICAL THOUGHT

political theory.

They did not consider the possibility

of using the distinctions which had been evolved in the course of the discussion of the imperium for a contem¬ porary theory of the magistracy. A more comprehensive treatise of the sort for which the way had been prepared was given by the Spanish jurisconsult, Antonio de Quintanaduegna 75 in 1598, entitled Libri duo de iurisdictione et imperio.

This author reviewed the opinions

of all his predecessors in great detail and contemplated an excursion into comparative law which, unfortunately, was never finished.

The title page announces the con¬

tents of six books as follows: Book I on jurisdiction and imperium from the works of the jurisconsults and the ancient law of the Romans; Book II in which the same and other titles are explained from the pleas and usages of the interpreters and from the pontifical law; Book III on ecclesiastical jurisdiction; Book IV on secular and royal jurisdiction; Book V is a consideration of the Orient or the Empire of the Paleologi; and Book VI a description of the Spanish monarchy. Of this ambitious program only the first two books were completed. These remain a monumental treatment of the subject, more generous in conception than the works of most of the controversialists who had been motivated by a purely historical point of view. There was, however, another author at the end of the century who described more clearly even than Quin¬ tanaduegna the general positions which had been the result of the treatises on the imperium.

This was

76 For a very brief notice of Quintanaduegna see Meerman’s Thesaurus, preface to vol. II, p. iii. His treatise is reprinted in this volume. According to Meerman it was first published in Madrid, 1598.

THE HUMANISTS

89

William Barclay 76 whose Commentarius ad legem imperiuin D. de iurisdidione 77 was published at Angers in 1604 not by Barclay himself but by one of his pupils, Maurice Calloet, together with readings on the first six laws of the same title of the Digest by Jean Mathieu Legrand, a former colleague of Barclay at Angers with whom Calloet had also studied.78

There is nowhere a

better illustration of what had been the essence of the controversy than in Barclay’s account of the Bartolist position. All the old interpreters allow [he says] that this law is diffi¬ cult. Its difficulty, however, comes from the fact that almost all in its interpretation have followed Bartolus as the prince of legal science. But he, whether by ignorance of antiquity which was especially great in his century, or by a zeal to ac¬ commodate all the titles of the law to the sense of his own time and the practical use of the courts which had already caused a great deal of deviation from the Roman custom and the opinions of the jurisconsults, complicated this law with so many definitions and divisions of both merum and mixtum imperium that he rendered it difficult and almost insoluble. ... In order therefore that we may better understand what Bartolus thinks and in what respect we differ from him, we must discuss this law at somewhat greater length. Ulpian says, “ Imperium is either merum or mixtum," but Bartolus under the name of imperium includes all things whatsoever which either the magistrates or the people itself or the prince can do. However, it is sufficiently evident Irom the order of these books and from the sense of the disputes of the jurisconsults and the definitions here given of the merum and mixtum imperium that it is a question in this law only oi the 76 On Barclay see the monograph of E. Dubois, GuillouTrie hcirctoy, jurisconsulte ecossais 151^6-1608, Paris, 1872. 77 Reprinted in Meerman, op. cit., vol. VII, pp. 813-818. 78 See Dubois, op. cit., p. 86.

90

ROMAN LAW IN POLITICAL THOUGHT

imperium which the magistrate has; here, then, is the first error of Bartolus and indeed it is the fount and spring of the rest of the errors which follow it. . . ,79 Barclay continues with his own distinctions to make the subject even more clear.

He thinks that imperium

in general can be defined as the power of ordering. But there is an absolute, independent imperium which be¬ longs to the prince alone in a monarchy or to the people alone in a democracy and an inferior and restricted imperium which belongs to magistrates who are bound to judge according to the laws. Barclay’s own political views are apparent in the treatment of the absolute imperium of the prince which he cannot forbear to men¬ tion even though the purpose of the discourse is to elucidate a text on the magistrates.

The general im¬

portance of the whole exposition lies in the clarity with which the supreme public authority is distinguished from the authority of magistrates. The remainder of the treatise describes clearly and briefly all that historical scholarship had achieved in the representation of the Roman constitution and the power of its magistrates. Barclay gives an account of the legis actio, the jurisdiction of magistrates and the establish¬ ment of the quaestiones perpetuae, accepting in essence, as far as the magistrates are concerned, the definitions which Cujas had given of the merum and mixtum impe¬ rium.

He of course repudiates the definitions of Petrus

de Bella Pertica and Baldus but he does so with intelli¬ gent comment: Now let us weigh the definitions of Bartolus and his follow¬ ers. According to him merum imperium is that jurisdiction 79 Meerman,

op. cit.,

vol.

VII, p. 815.

THE HUMANISTS

91

which is expedited by the noble office of the judge, principally respecting public utility. . . . The doctors call that office of the judge “noble” which is free and independent and not subject to another, as when a magistrate procedes by inqui¬ sition against a delinquent or when he gives bonorum possessio, because then he acts on no accusation or action. And on the other hand they call mercenary the office of the judge which serves an action or a plea. So that if it is a question of the actio evipti or the like, the mercenary office of the judge is said to be involved because the judge must obey the nature of the action. But all these things are inventions of the doctors, unknown to the authors of law.80

The power to found law which had been the first characteristic of the merum imperium of Bartolus is of course declared by Barclay to have no relation whatever to the ojjicium iudicis.

These distinctions had been

pointed out many times before but Barclay realized their import more clearly than did most of his prede¬ cessors.

His separation of the imperium of the prince

from that of the magistrate is really a development of Baro’s opposition between juridical and extra juridical imperium,, but wThere Baro was hesitating Barclay was sure, for between them came the writings of Bodin. Once a concept of the essence of public power like that of Bodin had been received, it was impossible to apply Ulpian’s text in the Digest to the notion of the sovereign prince or people. Concentration upon that text and the commentary upon it had been a part of the process of the elucidation and apprehension of a concept of sov¬ ereignty.

The humanists in making clear to what

Ulpian’s text did apply at the same time brought out in relief, as it were, the power to which it did not apply. 80 Op. cit., p. 817.

92

ROMAN LAW IN POLITICAL THOUGHT

The scope of the application of the Roman texts to contemporary conditions was thus ostensibly dimin¬ ished but it was still possible for theorists whose interest was not antiquarian to use for a contemporary theory of the magistracy distinctions which the humanists had made in the discussions of the powers of the Roman magistrate. There were those like Quintanaduegna and Barclay who were interested in general theory and took some account of the position of the magistrate in their own time as contrasted with the Roman magistrate. They were not, however, primarily concerned with the theory of office as a problem of the political thought of their own time. And yet this was a problem which was made more important and acute by the general accept¬ ance of the concept of sovereignty. There were theorists who realized this and who furthermore in their solution of the theoretical problem depended heavily on the humanist discussion of the merum imperium.

Two of

the most important were Bodin and Loyseau and it is to them that we must now turn our attention.

CHAPTER THREE The Theory of Office in Bod in and Loyseau We are

now in a position to understand the importance

which was attributed to the question of the merum imperium by Bodin and Loyseau.

Their entire discus¬

sion of the subject was within the framework of the texts the history of which we have reviewed.

It now

remains to be seen how far they adopted the traditional answers of some of their predecessors and how far they modified them to meet the particular problems of their own situation and the needs of general theory. In the first place it must be said that Bodin 1 was in no way unique in his methodology.

He stands in the

line of thought of which Dumoulin whom he admired greatly is perhaps the best previous representative. Like Dumoulin, Bodin depended on Roman law for his argu¬ ments but he did not depend upon it so exclusively. He had enlarged his historical consciousness and he sup¬ ported his reasoning with examples and evidence from many other sources. However, much of his formal edu1 The literature on Bodin is extensive but neither as extensive nor as valuable as the subject demands. R. Chauvire, Jean Bodin, auteur de la Republique, thesis, Paris, 1914, is the best biography. Hermann Rehm, Geschichte der StaaUrechtswissenschaft, Leipzig, 1896, is on the whole, though short, the best theoretical treatment. See also Hancke, Bodin, eine Studie iiber den BegrijJ des Souverdnitdt, Breslau, 1894; Moreau-Reibel, Jean Bodin et le droit public compare, Paris, 1933; P. Mesnard, L’Essor de la philosophic politique au XVI' siecle, Paris, 1936; Allen, Political Thought in the Sixteenth Century, London, 1928.

04

ROMAN LAW IN POLITICAL THOUGHT

cation had been in the Roman law and there can be no doubt that he first approached the problem of the organ¬ ization of authority from an examination of the Roman constitutional structure. This is sufficiently apparent both from the Methodus ad facilem historiarum cognitionem which was published in 1566 and from the Six livres de la republique which was first published in 1576, but it would no doubt have been still more apparent from a work which is lost to us forever. We cannot sufficiently regret that Bodin on his deathbed ordered to be burned before him the treatises De iurisdictione et imperio and De legis actionibus et decretis et iudicibus.2

These treatises were probably

written between 1559 and the publication of the Me¬ thodus which contains reference to them.3

Our regret

increases with our knowledge of the controversy which had been carried on by learned jurisconsults just before this time and which must have been contemporary with the writing of much of the Methodus. There must have been a very close relationship between Bodin’s De im¬ perio et iurisdictione and the controversial literature. We do not however lack in the Methodus and the Re¬ publique very complete discussions of the imperium, the theory of the magistracy and the question in dispute between Lothair and Azo.

These provide a perfect

illustration of the connection of Bodin with the tradi¬ tional thought which we have been studying. file question of who possesses the merum imperium is in the Methodus treated exactly as Bartolus treated it, 2 Chauvir6, op. cit., p. 95. The authority for this fact is Aegidius Menagius in his Vita Petri Aerodii, Paris, 1675, p. 143. 3 Moreau-Reibel, op. cit., p. 24.

THEORY OF OFFICE IN BODIN AND LOYSEAU

95

that is, as introductory of the larger question of the definition of the supreme authority.

Bodin does not

accept the dictum of the humanists that the terms of the discussion of the imperium in the Roman law must be applied to the historical Roman magistracy.

He

argues exactly as did Dumoulin from the Roman consti¬ tution to a general philosophy of the state for which the texts of the Roman law become good illustrations and arguments.

He therefore uses the word imperium to

refer to the highest power in the state. In the definition of the term summum imperium lies, in his opinion, the very essence of the state. He says significantly that he used to think that summum imperium could be defined either as the power to create magistrates or as the power to decree rewards and punishments. But it was obvious that rewards and punishments were often decreed by magistrates and therefore the acceptance of the second part of this definition would mean that the magistrates shared the merum imperium. This, in the view of Bodin, was logically absurd and it had also been historically fatal to every state organized with a division of the imperium.4 This discussion shows that Bodin was perfectly clear about the distinction between the imperium of the high¬ est authority and the imperium of the magistrates, which was a distinction Bartolus had never been able to make, although he was using in many cases precisely the same texts.

Bodin thus denies in the very beginning that

magistrates can have any share in the imperium, using the imperium of course in the same sense in which he 4 Methodus . . . , Paris, 1572, p. 260.

96

ROMAN LAW IN POLITICAL THOUGHT

later used the word sovereignty.

He therefore repudi¬

ates the definition of imperium in terms of the decreeing of rewards and punishments and returns with even more emphasis to the power of creating magistrates. I see that the essence of the state consists of five parts: the first and most preeminent is in the creation of the highest magistrates and the definition of the office of each; a second in ordering laws and in abrogating them; a third in decreeing war and peace; a fourth in the final appeal from all mag¬ istrates and a last in the discretionary power of life and death, since the law itself leaves no room for flexibility or clemency.5 In this list of powers there is to be noticed the remark¬ able correspondence between the first two and certain passages of the earlier commentaries on the imperium, particularly that of Dumoulin in which he pointed out that the first effect of the ownership of the imperium was the ability to create a magistrate suitable for its exercise. Indeed the entire doctrine here set forth might have been the result of extensive readings in the com¬ mentaries on the merum imperium of the Roman law. I hus, whatever may have been the influences which operated upon Bodin’s later and final formulation of the doctrine of sovereignty, it is undeniable that the first effect of his Roman-law studies and of his immersion in the controversy on the imperium was to conceal from him the true importance of the law-making power. The doctrine which is found among many contemporary jurists that the supreme jurisdiction is the distinguish¬ ing mark of sovereignty may have had its inspiration in the medieval theory of kingship, but the preeminence 6 Page 261.

THEORY OF OFFICE IN BODIN AND LOYSEAU

97

here given to the creation of magistrates can be an effect of nothing but the Roman law. After this definition of the summum iviperium Bodin proceeds to consider the position of magistrates.

He

declares that the five powers which he has described as the characteristics of the summum imperium ought never in a well-ordered government to be given to any of the magistrates. They are in fact the property of the prince and there are others which some jurisconsults have put in a similar category, namely, the power to coin money and the right to exact tribute, although there have been times when all these powers have been allowed to magistrates.

Thus the idea of a proprietary

right in the highest public power is still maintained and we gather from Bodin’s reference to his own book, De iurisdictione et imperio that he had there defended the same thesis at somewhat greater length.

It is im¬

portant to recognize that this view of the summum im¬ perium as the ultimate public power manifested in a series of specific acts, of which the creation of magistrates is the most important, represents Bodin’s ideal to which he thought that the organization although not the practice of the French monarchy of the sixteenth cen¬ tury very nearly corresponded.

His discussion of the

question in fact and in history succeeds his first state¬ ment of what the state ought to be. He points out that the question can be fully under¬ stood only by solving the dispute which has raged so long among jurisconsults on the justice of the decision made by the emperor in the dispute between Lothair and Azo.

Does the magistrate have the merum impe¬

rium or is it a property of the prince alone? It may be thought that Bodin had settled the question by his

98

ROMAN LAW IN POLITICAL THOUGHT

introductory definition of summum imperiuvi and by his statement that it ought to belong to the prince alone but this is only a theoretical solution which leaves the historical aspect of the question unexamined and the position of the magistrate uncertain.

Does the magis¬

trate, for example, have the position of a mere delegate? Bodin begins by accepting the older Bartolist view of the definition by Ulpian of the merum imperium as the power of the sword, namely, that this gives only one example of the merum imperium.

The question, says

Bodin, ought really to be asked not only of the power of the sword (criminal jurisdiction) but also of every other power of the summum imperiuvi.

When the

prince gives to a magistrate the power of carrying on war or making peace, creating magistrates, ordering law or any other of the specific powers of the summum imperium, does such a power remain a property of the prince or is it transferred to the magistrate? According to Bodin the answers to this question which have been advanced by jurisconsults since the time of Lothair are all obscure.

They have failed to distinguish between

legis actio and qfficium iudicis in the Roman constitu¬ tion.

In this distinction Bodin thought lay the key to

the whole problem. Now it is an interesting thing about this distinction that it must have been suggested to Bodin by all the literature on the imperium and juris¬ diction which had been written by the humanists. Par¬ ticularly this distinction parallels the distinction made by Baro, who, it will be remembered, was one of the teachers of Bodin, between the ojfficiuvi iudicis and the officium iurisdictionis.6 Of course Bodin did not accept 8 See above, p. 78.

THEORY OF OFFICE IN BODIN AND LOYSEAU

99

all of the distinctions of the humanists and from the point of view of an accurate interpretation of the Roman law he accepted some of the wrong ones. But his funda¬ mental approach to the problem of the imperiuvi was associated with his attempt to make a universal political theory rather than with his desire to understand the history of the Roman law.

The distinctions and argu¬

ments of the humanist lawyers of all schools were useful to him and it is not doubtful that he found a constant inspiration in their writings. His explanation of the difference between the legis actio and the offtcium iudicis was accepted by few and particularly he exposed himself to the scorn of Cujas for having misunderstood the sense of legis actio in the Roman law. Bodin begins by stating that there are two great divisions of universal law, law and equity, and on these two divisions depend the legis actio and the officium iudicis.

If this distinction be kept well in mind and

applied to the old controversy a solution will be found. All the texts which can be cited from Roman law show that in the opinion of the jurisconsults whatever is attributed by law to the magistrates cannot be recom¬ mitted to another.

In such cases according to Bodin

the magistrate is the living law and represents only the action of the law, legis actio.

Therefore powers which

fall under this classification are not possessions of the magistrate but rather possessions of the law itself.

On

the other hand the powers which the magistrate has as a part of his equitable jurisdiction are capable of dele¬ gation because they are in his own right. comes to examples.

Then Bodin

He points out that praetors and

iudices publicarum quaesiionum could not delegate their

100

ROMAN LAW IN POLITICAL THOUGHT

imperium to others nor deviate from the letter of the law whose agent they were. This was done in order that the reputation, life and fortune of individual citizens should not depend on the arbitrary will of any man whatsoever but on the action of the law.

But in the

Roman constitution civil cases were most frequently left to the arbitration of the urban or peregrine praetor who did many things beyond the strict action of the law and who by their edicts emended, extended and moder¬ ated the law.

This activity is what Bartolus called the

“noble” office of the judge whereas the office of the magistrate in executing the action of the law he called “servile” because properly speaking in such a case the magistrate “served” the law. From this it is, according to Bodin, plain that whatever magistrates have in their own right when they have accepted a magistracy is their proper possession but all else on the contrary is the pos¬ session of the law or of those who have granted the dele¬ gation. Therefore in the Roman constitution it may be said that the praetor did not have the merum imperium in respect of the quaestiones publicae but in those cases he had the mere action of the law. But there were those to whom was given extraordinary cognition of capital crimes and these therefore were rightly said to have the power of the sword or merum imperium.7 Bodin gives a further example from the history of the power to make war which makes his meaning even more clear: The consuls [he says], when they had taken charge of the army, had the power of carrying on war in right of their 7 The position is summarized from pp. 261-266 of the Methcdus.

THEORY OF OFFICE IN BODIN AND LOYSEAU

101

magistracy so that on their own decision they pursued and charged the enemy and regulated by their own will the busi¬ ness of supply and military discipline. But they could not declare or conclude a war for the latter was a right proper to the plebs and the former to the whole people.8 Bodin also shows that the emperors sometimes had the right of declaring war or making peace on fixed con¬ ditions and in this case the right could not be said to be a part of their imperium. It was really analogous to the action of the law in the case of the magistrate.9 The reasoning of Bodin thus seems to imply that there was no universal answer which could be given to the question in dispute between Lothair and Azo. Whether or not magistrates had the merum imperium in any particular historical state depends in the first place on the constitution of the state and in the second place on the content assigned to the iviperium. Both of these considerations seem to us obvious but their intro¬ duction in the discussion of such a dogmatic question as that of the merum imperium was in Bodin’s time a novelty.

Thus in regard to the first consideration

Bodin’s recognition of the differences within the organ¬ ization of the Roman Republic at different times indi¬ cates a sense of history which is probably the result of his education in the humanist authors on the law. It is one of the chief differences between the intellectual attitudes of Dumoulin and Bodin, to go no further back than the earlier part of the sixteenth century. In regard to the second consideration Bodin is one of the first political theorists to appreciate the significance of the Page 266.

3 Loc. tit.

102

ROMAN LAW IN POLITICAL THOUGHT

fact that at different times different specific powers had been assigned to the imperium.

We have noticed some

humanist lawyers like Zasius who clearly distinguished several senses of the word imperium and blamed the Bartolists for not doing so.

But Zasius made a distinc¬

tion between the application of the word to the supreme power and its application to the power of the magistrate. What Bodin recognizes is that even the supreme power has perhaps not a universal and unchanging content and that there has in fact been a variety of definitions of the concept in particular states. He is not willing to allow that there has not been a common element in all of them.

As we have seen, when he wrote the Methodus

the common element was the power to create magis¬ trates. But it must be remembered that he gives in the Methodus a variety of other powers upon which he finds that particular states have exhibited differences of fact and particular jurisconsults differences of theory. Allowing, then, for the fact that both history and law have shown wide variations, Bodin found the only cri¬ teria for the settlement of the dispute between Lothair and Azo in his distinction between the action of the law and the duty of the magistrate. The application of this distinction at any time would settle the question of the location of the merum imperium. If a magistrate assigns a death penalty according to a law by which he is bound to do so, then he has not the merum imperium or power of the sword.

But if he assigns the death penalty in a

case where it is genuinely a matter of his discretion he can then be said to have the merum imperium. Bodin’s conclusion would thus be that, whether or not the magis¬ trate has such a power, depends on the constitution of

THEORY OF OFFICE IN BODIN AND LOYSEAU

103

the particular state under consideration, but, in every state, the possession of the summurn imperium, the very highest public power, is finally determined by the possession of the right to create magistrates. This is the doctrine of the Methodus and it is essential to the comprehension of Bodin’s thought, although the later work gave it some changes and much clearer ex¬ pression. The existence of a large body of literature on the imperium provided a natural means of expression for all those parts of his theory which dealt with the relation of the supreme authority to the magistracy. The distinction between the legis actio and the ojjicium iudicis which Bodin proposed to the solution of the question was a distinction which he found in the study of the Roman magistracy approached through the work of the humanist interpreters. This was a distinction the historical meaning of which Bodin misunderstood as much as Bartolus had ever misunderstood a text on the imperium. This only shows that Bodin continued in the Bartolist position in the use which he made of Roman law. The interesting fact is the extension in scope which Bodin gave to ideas taken from contemporary scholar¬ ship when he used them for political theory.

The dis¬

tinction between the legis actio and the oficium iudicis was in fact by him generalized and made the basis of a structural description of public power.

So he came to

regard the authority of each magistrate as made up of two parts, that which has been conceded to him by law and that which he has in virtue of his magistracy. The power given to the magistrate by law does not belong to him and he cannot delegate it. The power which he has in right of his office he can delegate. In the case of the

104

ROMAN LAW IN POLITICAL THOUGHT

highest authority there is a group of powers which make up the summum imperium or sovereignty which Bodin thought ought to be regarded, in their relation to the person of the sovereign, as analogous to that part of the magistrate’s power which was established by law. These powers of the summum imperium ought therefore to be considered as incapable of delegation although they had not always been so considered.

And although these

powers can be and are by Bodin described as the prop¬ erty of the sovereign, the implication of his whole approach in the Methodus is that they are not “prop¬ erty

in the ordinary sense of the word. The arguments

which are designed to establish the fact that such powers cannot be delegated (that is, ought not to be delegated) also mark a stage in the recognition of the inapplicability of concepts

taken

property law to the public power.

from

the private

These ideas were

given expansion and clarification in the Six Livres de la Republique where Bodin again dealt at length with the question of the dispute between Lothair and Azo. The Republique wras published ten years after the Methodus and represents the mature thought of Bodin. There are several changes of fundamental importance to the whole system.

First of all the most important

departure from the argument of the Methodus is the definition of sovereignty primarily in terms of the law¬ making power rather than in terms of the power to create magistrates.

I his was certainly more in accord

with the facts of the exercise of political power which Bodin could observe in the contemporary scene.

The

concentration of interest on the debate about jurisdic¬ tion as well as the traditional medieval theory of the

THEORY OF OFFICE IN BODIN AND LOYSEAU

105

kingship may well have obscured these facts and post¬ poned theorizing in terms of the law-making power until Bodin’s formulation of it. This recognition of the importance of the law-making power long after the beginning of actual modern legislation by the new na¬ tional sovereigns is an example of the way in which a learned tradition can obscure the perception of contem¬ porary fact.

In spite of the explicit importance given

in the Methodus to the power of creating magistrates it will be remembered that there was also an interest in the criminal jurisdiction as one of the attributes of the supreme power.

This interest, sustained by the study

of Roman law, still finds expression in the Republique. In the French edition of 1579 Bodin wrote: The final degree is the power of life and death, that is to say, the power of condemning to death or of pardoning him who has merited death, which is the highest mark of sovereignty and proper to the sovereign, privatively to all magistrates whatever.10 The Latin edition of 1622 is more consistent and omits the words which describe the power of capital punish¬ ment as the supreme mark of sovereignty. In the second place there is a reaffirmation of the public character of office which conveys the impropriety of applying to it terms derived from the private law of property.

Bodin asks the question, “Does the office

belong to the state or to the sovereign prince or to him who is provided with it or finally to the officer and the people in common?” 11 The answer is at once apparent. All magistracies and offices belong to the state as a 10 Page 430. 11 Republique, French edition, 1579, p. 435.

106

ROMAN LAW IN POLITICAL THOUGHT

proprietary right of the state’s, while the sovereign has only the right of making provision to them. Office can¬ not be appropriated by an individual and in those cases where this has been done it is to be explained as a tacit grant of the sovereign, confirmed by the Estates and by prescription.

In fact, in the opinion of Bodin as in the

opinion of Dumoulin, seigneurial justice is a usurpation and an abuse. It is to be tolerated only on the condition that the holder of it renders faith and homage and avows that he holds of the sovereign.12 What Bodin meant by the statement that all offices were the property of the state and that they could not belong to any individual is made more clear as his argu¬ ment proceeds.

He cites the case of a decision of the

Parlement de Paris which he says he has found in the Registres of the Court, in which it w^as maintained that the office of Marshal of France wras a part of the domain of the crown and that the Marshal was to enjoy the exercise of his office for life.13 In citing this case Bodin intended to establish the principle that magistracies wrere as much a part of the organization of the state as was the crown itself. The wffiole structure of office stood in the same relation to the person of the monarch as did the domain of the crown understood in its more usual sense.

What Bodin understood this relationship to be

we know very well from his Journal of the Estates of Blois: The ownership and property of the said domain belongs to the people and consequently they [the deputies] could well consent to the perpetual alienation of the said domain if the 12 Loc. cit. 13 Page 436.

THEORY OF OFFICE IN BODIN AND LOYSEAU

107

provinces had granted express procuration for the purpose and not otherwise.14 If the “ownership” of office is thus as public as the “ownership” of the domain of the crown, the obvious result is that office cannot be the subject of control by an}^ individual person.

From the point of view of the

sovereign this would mean that the power to create magistrates ought to be defined as a power to appoint persons to offices and not as a power to create offices. It is true that in the Methodus Bodin had spoken of “creating magistrates and defining the office of each” but he had not then so clear a view of the public char¬ acter of office. From the point of view of the magistrate this denial of the possibility of the private ownership of office would mean that of course he could not be said to own his particular office. But if this is so, what happens to the distinction made in the Methodus between the magistrate who has merum imperium given him by special law and the magistrate who has it in right of his office? It will be remembered that Bodin had proposed this distinction as a solution to the question debated between Lothair and Azo and that he had based it on his understanding of the differ¬ ence between legis actio and ojjicium iudicis in the Roman law. If the magistrate who has some discretion¬ ary power and who is not bound by the action of the law can be said to “have” the merum imperium, does he not then own the merum imperium and has not Bodin confused ownership and public power again after having so emphatically distinguished them? In Bodin s opinion 14 Charles Josef Mayer, Des etats generaux et autres assemblees nationales, The Hague, 1789, vol. XIII, p. 299.

108

ROMAN LAW IN POLITICAL THOUGHT

the distinction made in the Methodus was still valid but the difficulty was to be explained away by a new distinction: The knot of the question depends upon this distinction to which the doctors have not paid sufficient attention, namely, that there is a great difference between saying that the power or jurisdiction is a property of the magistrate in his capacity as magistrate and saying that it is his in his capacity as a private individual; for it does not follow if the jurisdiction is a property of the praetor that the praetorship is a property of the person.15

Thus the new distinction is one between the power and the office. The office as such cannot belong to any¬ one; it is a part of the organization of the state. But the power which is proper for the exercise of the office can be said to belong to the office. A person in his private capacity cannot be said to own an office but in his official capacity he can be said to have for the duration of his tenure such power as is united to that office. The office cannot belong to the person but the power can belong to the office. This was Bodin’s final answer to the question which the emperor had put to Lothair and Azo but it was an answer which could only have been given after progressive changes in the actual organization of public power had generated a long discussion of the nature of office in general.

The question was originally asked in a

society in which government and private property were inextricably confused with each other but which was nevertheless dominated by a memory of the Roman Empire. 1 his particular answrer was given by a theorist 16 Republique, p. 438.

THEORY OF OFFICE IN BODIN AND LOYSEAU

109

who was working within the framework of the national state and who accepted the concept of sovereignty. It may perhaps be said that in making these distinc¬ tions Bodin was indulging in elaborate casuistry.

It

could be argued that it is in fact and in practice impos¬ sible to distinguish between office and powTer in right of office.

But insofar as such an argument questions the

usefulness of making such distinctions at all, it forgets the purposes which they fulfill.

Now in the case of

Bodin it must be remembered that his principal object was to produce a theory of the state which should be consistent with the facts which he observed in France and elsewhere and at the same time not inconsistent with his own political ideals about which he is certainly not reticent.

He could not well deny that government

had enormously extended its scope during the century which preceded him. Government was no longer in fact what it had been in the Middle Ages.

This was recog¬

nized in his theory in the definition of the concept of sovereignty and in the affirmation that public power was clearly opposed to private property.

But these

elements by themselves were not incompatible with arbitrary government and the ideal of Bodin was a constitutional ideal.

In developing the theory of the

law-making power Bodin had substituted a dynamic conception of the state for a static one and had at the same time deprived himself of the possibility of using some of the older theoretical restrictions on the royal power.

He could not appeal to the medieval tradition

which had allotted to the royal power the sphere of administration, leaving the sphere of the private law as a limitation on the royal power, because this was de-

110

ROMAN LAW IN POLITICAL THOUGHT

stroyed in his formulation of the concept of sovereignty. He could and did surround the new elements in his theory of the state with the traditional sanctions of obedience to divine and natural lawr but these were even in his day not sufficiently practical as a basis in which to vest the liberty of the subject.16 In this dilemma he turned to the examination of the structure of public power and the relation of the magis¬ trate to the sovereign as the best way of expounding the theory of the constitutional state.

He was a great ad¬

mirer of the tradition of the French magistracy.

Fur¬

thermore there was ready to his use what may be called an important part of the material for his theory, a large literature on a traditional controversy which was of the greatest help to him in realizing his aim. found the distinctions which he needed.

In this he

The power of

the sovereign could be described as within the consti¬ tuted structure of public offices.

The distinctions be¬

tween power and person and office enabled Bodin to give to the magistrate as magistrate that degree of inde¬ pendence which accorded both with the facts of the tenure of magistrates in France and with the constitu¬ tional ideal which he was trying to realize. At the same time the same distinctions enabled him to deny to the magistrate as a person any property right in the public power which would conflict with the notion of state and the notion of sovereignty. The amount of independence which was thus allowed to the magistrate was not such 16 For this interpretation of Bodin I am very much indebted to the doc¬ toral dissertation of Mr. W. F. Church, presented at Harvard in 1939 and entitled, “The Evolution of Constitutional Thought in Sixteenth-Century France; a Study in the Writings of the Legists and Historians.”

THEORY OF OFFICE IN BODIN AND LOYSEAU

111

as to make him capable of controlling the sovereign. It was rather that by the mere fact of his independent existence he limited the sphere of the sovereign’s activ¬ ities. Bodin’s meaning is made clear by the comparison of the structure of offices with the domain of the crown which he himself gives. The domain in the sense of the revenues which supported the state of the crown was beyond the power of the king as a person.

It was not

considered to be a possession of the king but rather a possession of the crown.

Similarly the magistracy con¬

sidered as a collective body of offices is declared to be a possession of the crown and beyond the personal power of the king. Nowt as a matter of fact we are familiar with many violations of both of these doctrines.

The domain

revenues of the crown were many times alienated with¬ out constitutional procedures.

Offices were often cre¬

ated for financial reasons and their holders were often removed for political reasons.

However it is to be

noticed that on those occasions when the king increased the number of offices or suppressed existing offices or removed magistrates for political reasons there was on the whole very much the same kind of protest as was evoked by the alienation of domain revenues. In sum, therefore, according to Bodin’s theory all offices were the property of the state or public power and could belong to nobody. But the power which each office conferred on its holder could be said to be a prop¬ erty of that office although not of the person who exer¬ cised it.

That the sovereign could create magistrates,

that is, name persons to offices, no one had ever doubted, but his power to create new magistracies was in fact

112

ROMAN LAW IN POLITICAL THOUGHT

limited and the exercise of it usually evoked the greatest protest throughout the sixteenth century and down to the period of the Fronde in France.

Whether or not

that protest came largely from existing officeholders who felt their interests attacked by an increase in their number is here beside the point.

The protest could be

and was expressed in the form of a constitutional theory which was evidently an accurate reflection of contem¬ porary sentiments. And, after all, contemporary senti¬ ments are a kind of fact which ought not to be left out of consideration when any political theory is being submitted to the test of fact. There was, however, one very obvious fact in the organization of French public power in the sixteenth century of which Bodin failed to take account.

This

was the venality of offices. Although Bodin maintained so clearly in accordance with his theory of sovereignty that the public power was not subject to proprietary possession and that a person could own neither the power nor the office, yet the fact was that certain offices, including most of the judicial and financial magistracies, had long exhibited every sign of being private property, except that they were not yet at the time when Bodin wrote heritable in law. Even this difficulty was circum¬ vented by various subterfuges and in 1603 definite legal provision was made for the inheritance of offices by the payment of the tax called the Pciulette. In other words by the end of the sixteenth century in France public power was “owned” by private persons quite as much as it had in fact been under the seigneurial system pic¬ tured by Dumoulin and by many after him as a usurpa¬ tion.

Of course the practice of venality could still be

THEORV OF OFFICE IN BODIN AND LOYSEAU

113

called an abuse and a usurpation of public power with¬ out warrant. But it is probably impossible for a political theory to abandon too much contemporary fact as abuse and still maintain that it is a representation of fact as well as an indication of what ought to be. On the whole Bodin, for all his complicated theory of office, found no way to take account of venality and all that it meant in the French constitution.

Charles Loyseau 17 who pub¬

lished in 1608 and in 1610 did push the analysis to a closer conformity with fact perhaps because he was stimulated by the institution of the Paulette in 1603. First of all, however, it may be well to examine the more general differences between the theories of Loyseau and Bodin. On a very fundamental point Loyseau was a little more clear and a little more systematic than Bodin, that is, in the distinction between public power and private property.

Loyseau maintained that both

public power and private property were manifestations of power.

To him a private proprietary right conveyed

17 The only monograph devoted to Loyseau is that of J. Lelong, La Vie et les oeuvres de Loyseau, 156j-1627, thesis, Paris, 1909, which is much bet¬ ter on the biography than it is on the theory. See brief but interesting re¬ marks on Loyseau as a theorist in Jellinek, Allgemeine Staatslehre, third edi¬ tion, Berlin, 1929, pp. 132, 460, 462, 488, 508. A fairly complete exposition of the theory is given in P. Louis-Lucas, Etude sur la vSnalite des charges et fonctions publics depuis I'antiquite romaine jusqu’a nos jours, Paris, 1883, vol. II, passim. See also A. Loisel, Pasquier ou Dialogue des avocats du Parlement de Paris, reprinted in the Opuscula of Loisel, edited by Claude Joly, Paris, 1652; Taisand, Vies des jurisconsultes, Paris, 1721, pp. 342-343; Claude Joly, “Floge de Maistre Charles Loyseau,” preface to Loyseau’s (Euvres, 1666; Brillon, Dictionnaire des Arrests ou Jurisprudence universelle . . . , Paris, 1727, vol. II, p. 540; Laurens Bouchel, “Memoires de plusieurs choses advenues depuis 1601,” MS., Bibl. Nat., Fr. 5528, fols. 94, 5214; Papire Masson, Eloges, Paris, 1638; Sacaze, Notice sur Loyseau, Toulouse, 1855; Bordas, Histoire sommaire de Dunois, Chateaudun 1884, v,ol. I, p. 314.

114

ROMAN LAW IN POLITICAL THOUGHT

the idea of power over the object of the right. The gen¬ eral phenomenon of a right or property in power he

seigneurie and there were thus for him two kinds of seigneurie, the public and the private. called

The public seigneurie consists in the superiority and au¬ thority over persons and things which is nevertheless a pro¬ prietary right, whereas the authority of a simple officer lies only in the exercise (of such a right). . . . And this kind of seigneurie is called public because it implies and concerns the command or public power and also it can be exercised only by public persons. ... As to the private seigneurie, it is the true property and present enjoyment of anything and is called private because it concerns the right which each individual has in his thing.18 This fundamental distinction according to Loyseau would have solved the famous dispute between the old doctors, Martinus and Bulgarus, as to whether the emperor was lord of all things.

It is also a distinction

observable in all countries and particularly among the Romans and the French.

But in the case of France,

says Loyseau, there has been a further division of these two species. Because officers of the early feudal regime usurped a portion of the public power and became seigneurs of justice there have come to be two degrees

seigneurie and also because of the growth of the distinction between dominium directum and do¬ minium utile in respect to private property there have come to be likewise two degrees of the private seigneurie. of the public

Thus it happens that in France and in a few other coun¬ tries where the property of public justice is abandoned to individuals there are two degrees of the public seigneurie, 18

Seigneuries,

ch. I, paragraphs 26-28.

THEORY OF OFFICE IN BODIN AND LOYSEAU

115

namely, that which remains inseparably united to the state, notwithstanding such usurpation, which we call sovereignty and that which has been usurped by individuals for the description of which it has been necessary to create a special word and call it suzerainty, a word as strange as this kind of seigneurie is absurd. And similarly we have two degrees of the private seigneurie, namely, the dominium directum which is that of the feudal lords and the dominium utile which is that of the vassals.19 This statement marks even more clearly than that of Bodin the separation of authority from property which Bodin had not fully apprehended in its historical impli¬ cations. For Bodin in describing the difference between royal and seigneurial monarchy had maintained that the “clroict seigneurie,” the public seigneurie which characterized the royal monarchy, was an innovation of modern times because it sprang from the distinction between dominium directum and dominium utile which the Romans had never known.20

Loyseau pointed out

Bodin’s error wThich consisted in mistaking the dominium

directum for the public seigneurie and the dominium utile for the private, whereas they were in reality both divi¬ sions of the private.

The Romans recognized both the

public and the private seigneurie but only one species of each.21

Thus, although it may well be said that

Loyseau did not have what we should today call a clear picture of the history of institutions, he nevertheless recognized the effects of feudalism upon a theory which was founded on the clear separation of government and property. 19 Op. cit., ch. I, paragraphs 82-83. 20 Ripublique, 1579, p. 275. 21 Seigneuries, ch. I, paragraph 86.

116

ROMAN LAW IN POLITICAL THOUGHT

After this examination of the general nature of the relation existing between government and property Loyseau turns to the question of the connection of office with the categories he has already established. Histori¬ cally he is able to dispose of the question of the merum imperium by quoting with approval the definition given by Cujas, namely, that the merum imperium was in the Roman constitution the high criminal jurisdiction. The Roman magistrates did not have merum imperium as a right dependent on their offices because of sacred laws which removed such powers from the ordinary sphere of the magistrates’ authority.

The magistrates could,

however, be given this power by special commission, in the Republican period by a decree of the Senate and in the Empire by a special grant of the emperor.22 But the interest of Loyseau is not an interest in the Roman constitution per se. He is interested in the general ques¬ tion which may be developed from the consideration of the merum imperium in the Roman constitution.

Does

the public power belong to the officer (“On demande si la puissance publique est propre a l’officier.”)?

Now

what made it necessary for Loyseau to expand the treat¬ ment of this question given by Bodin was his determina¬ tion to include in his answer some recognition of the practice of venality of offices in France.

The fact was

that many offices in France could be inherited and if the theory could somehow find a frame of reference for this fact or even allude to it at all, it would seem to have a greater application to reality.

Recognition of the pro¬

prietary tenure of magistrates could only be reconciled with the concept of sovereignty by a set of logical disn Offices, book I, ch. VI, paragraphs 30-32.

THEORY OF OFFICE IN BODIN AND LOYSEAU

117

tinctions for the making of which Loyseau used the traditional line of arguments on office which came to him from the time of the Bartolists. The exegesis of the Roman lawr was thus again the chief source for the argu¬ ments by which elements which seemed contradictory were reconciled in a theory of constitutionalism. The questions asked by Bodin on the relation of property to office are elaborated by Loyseau into four. He points out that the verb “etre propre a” can be interpreted in two ways, either to mean ownership or mere possession, and he retains also the distinctions be¬ tween the power and the office and the person.

The

first question then is, Do magistrates have the public power and especially the merum imperium as a right of their office or do they have it by a special concession of the prince? We have already seen what Loyseau thought in the case of the magistrates of the Roman Republic. He finds that in France the practice is the exact oppo¬ site of what it had been in Rome. Empire

the

practice

of

In the later Roman

enlarging

the

magistrates’

powers by special concession of the emperor was so general that the older interpreters thought that the magistrate had his powers in right of his office. In the present constitution of the government of France this is also demanded by administrative efficiency. That is, it would be impossible to carry on the administration by giving special commissions to each magistrate when¬ ever the merum imperium had to be exercised.

It was

necessary in France for the magistrate to have the merum imperium as a regular part of the power which he assumed with his office.23 23 Book II, ch. I, paragraphs 12-17.

118

ROMAN LAW IN POLITICAL THOUGHT

But in what sense can he be said to “have” this power?

Here Loyseau asks his second question, Are

the powers which the magistrate has in right of his office his by proprietary right?

Here the answer is that, al¬

though the French magistrate unlike the Roman magis¬ trate has all his power in right of his office, yet he does not have a proprietary right in that power. In the earli¬ est times of the French monarchy the Roman practice was followed by abuse and so there grew up a true pro¬ prietary right in power which issued in suzerainties and fiefs. The only proprietary right in the public power in France belongs to the sovereign in right of his office.24 The third question rests on the distinction which Bodin had made between the office and the power. Granting that the power cannot be the property of the individual, can the office in any sense be said to be his property? Loyseau here disagrees with Bodin and holds that although in Rome officers were not proprietors of their offices, which were annual and under the Empire revocable at will, in France they are true proprietors and have been so since the Ordinance of Louis XI which declared that officers were irremovable.

Thus Loyseau

refutes the arguments of many of his predecessors who had maintained that an officer had a title comparable to that of a usufructuary and could not enter a possessory plea for his office.

He points out that the notion of a

usufructuary tenure is quite applicable to the possession of power by the officer but not to his possession of office. The proprietary possession of office can be separated from the proprietary possession of justice.

In fact,

Loyseau recognizes, officers do have recourse to posses¬ sory action in France and therefore the view of Bodin 21 Book II, ch. I, paragraphs 18-27.

THEORY OF OFFICE IN BODIN AND LOYSEAU

119

and Dumoulin is to be revised on this point because it is not in accord with the facts. The kind of proprietary right in office which Loyseau defends is obviously not that which was defended by Azo.

The development of a

distinction between office and power in right of office had made all the difference. On the other hand it is not to be confused with an absolute property right in the modern sense. Property in office, says Loyseau, is to be considered not as a patrimony or private property but only such as properly relates to the nature of office it¬ self, which inheres in the person of the officer so that it cannot be taken from him, but which is not hereditary nor patrimonial nor alienable to another and still less heritable by his heirs after his death.

This doctrine was

introduced by Loyseau to supplement the theory of office expounded by Bodin.

It was intended to explain

the facts of French practice where officers obviously did enter possessory actions for their offices, but it was also intended to bolster the constitutional doctrine whereby the total structure of offices was regarded as a definition and a limitation of the sovereign authority.

Bodin’s

belief in the relative stability of offices as part of the organization of public power was supported by Loyseau, who, however, added to it the notion of the stability of officers as well, that is, the notion of a body of magis¬ trates with a kind of proprietary right in their offices, irremovable, serving in a corporative capacity with the sovereign to make up the public power of France. The advantage of this addition by Loyseau to the Bodinian theory was that it came nearer to explaining the actual tenure of the French magistrates.25 But the kind of property right which Loyseau was 26 Book II, ch. I, paragraphs 28-32.

120

ROMAN LAW IN POLITICAL THOUGHT

willing to allow to officers was not a complete explana¬ tion of the contemporary situation.

Indeed the con¬

temporary situation was such that it was impossible wholly to reconcile it with the theory of sovereignty and the theory of a public power which was disassociated with private property.

For there were, in Loyseau’s

time, offices which could not only be the subject of pos¬ sessory actions at law by their claimants but wThich could be left by the successful claimant to his heirs or sold to a third person.

So Loyseau had to ask his final

question, Can there be offices which are completely hereditary and identical in every respect with private property?

The answer necessarily had to be in the

affirmative but it had immediately to be qualified by the statement that this was an abuse.

The kind of tenure

which had been described by Loyseau in his response to his previous question represented the final extent to which contemporary fact could be reconciled with con¬ stitutional theory.

Beyond that limit there were other

facts, chiefly those associated with the Paulette which allowed offices to be inherited, which could not be ad¬ mitted to a place in the theory without destroying it. The distinctions between office and person and power were already somewhat metaphysical but they were logical enough to permit in theory the co-existence of a royal sovereign with a magistracy which had just the right amount of independence to achieve a constitu¬ tional balance.

If the magistrates had been permitted

to have in theory what some of them had in fact, that is, a right equivalent to a private proprietary right, what would have then become of a theory of state power which had been so laboriously distinguished in theory

THEORY OF OFFICE IN BODIN AND LOYSEAU

121

from private property? Thus Loyseau, although he was on the one hand forced to admit the facts of the inherit¬ ance of office by the Paulette, on the other hand could only describe them as an abuse.

He had gone as far as

he could in describing the nature of the right in office “such as properly relates to the nature of office itself.” Therefore he could only reiterate that the venality and heredity of office was an unjustifiable usurpation which he describes in the same terms as those which Dumoulin had used to inveigh against seigneurial justices.

In a

very significant passage he says: For it is the truth that in good jurisprudence, so far is the property of office from belonging to the officer, that it does not even belong to the prince and sovereign monarch but he has only the collation of them when they happen to be vacant, just as a bishop is not proprietor of the benefices which are in his collation. The true property of offices and benefices is public and of public law and therefore they can belong to no individual and be in no way in commerce. It may even be said that the property of offices does not belong to the state itself in such wise that the estates of the kingdom can alienate it by a complete expropriation, as does the domain of the crown, which could be alienated absolutely without absurdity if it were not for the prohibition of the law, but the property of offices cannot by its very nature be absolutely alienated and irrevocably separated from the state without the dis¬ memberment of the state itself which consists principally in the property of the public power.26 In this passage we have again an affirmation of one of the principles we have recognized as most fundamental to the political thought of Bodin and Loyseau, that is, the principle of the separation of public power from 26 Book II, ch. I, paragraphs 39-41.

122

ROMAN LAW IN POLITICAL THOUGHT

private property.

As it is stated here it is in seeming

contradiction with the response given by Loyseau to his third question in which he says that an officer can have a proprietary right in his office.

The analogy of the po¬

sition of beneficiaries in a diocese is helpful to the understanding of this contradiction. A beneficiary has certainly a kind of proprietary right in his benefice.

He

enjoys the fruits of it and he is irremovable except under certain conditions.

Also the bishop who has the power

of appointing persons to benefices has a proprietary right in the sense that he owns that power; it is a part of his office and cannot be taken away from him.

But the

true property of benefices, if one is to talk of an ultimate right, is vested in the ecclesiastical society, the Church, and is a necessary part of its organization.

So in the

view of Loyseau both sovereignty and office, that is, both the supreme office and the minor magistracies, were considered to be manifestations of the power of the state and a necessary part of its organization. The sov¬ ereign had a proprietary right in the highest functions of the public power which were known as sovereignty, and each magistrate had such proprietary right in his office as was compatible with the nature of office which, in Loyseau's opinion, was equivalent to the kind of right which a beneficiary had in his benefice.

The complica¬

tion of this theory was that in describing the relation between the sovereign and the magistrates it attempted to give to the magistrates a sufficient independence but not too much. Loyseau’s was one of the most elaborate descriptions of the tenure of magistrates in the history of political theory.

As we have seen, it in some ways

fitted the facts better than did that of Bodin.

That is,

THEORY OF OFFICE IN BODIN AND LOYSEAU

123

it took account of the actual tenure of magistrates at the end of the sixteenth century.

On the other hand there

were some obvious facts for which the theory did not offer an adequate explanation.

Loyseau’s whole dis¬

cussion presumed as did that of Bodin that the structure of offices should remain relatively static.

Yet through¬

out the course of the sixteenth century the government had enormously increased the number of offices both as a financial and as an administrative expedient.

There

was never made by Loyseau any explicit recognition of the need for new offices or of the process by which they could be created consistent with the maintenance of the kind of tenure of magistrates which he had described. However, when this criticism has been made it is also fair to ask how successful the theory of Loyseau was in explaining those facts of which it did take account. We have already insisted that as a theory of the tenure of magistrates it was better related to the actual situation of the French magistrates of the sixteenth century than was the theory of Bodin.

But it is still possible to ask

how far the distinctions were valid by which Loyseau was able to reconcile with his theory a degree of pro¬ prietary tenure of office by magistrates.

The answer is

that of course it was impossible to apply any such dis¬ tinctions as those which Loyseau made between the person and the power and the office if by application it is meant that sovereigns acted upon these principles when they appointed men to office, or that officers acted upon them in the discharge of their duty. But, if by ap¬ plication it is meant that Loyseau’s theory corresponded with very general sentiments about the position of the magistracy, then it is not doubtful that the theory was

124 applied.

ROMAN LAW IN POLITICAL THOUGHT The sentiments or combinations of sentiments

which were grouped around the fact of sovereignty, on the one hand, and the fact of the tenure of magistrates, on the other, were necessarily somewhat contradictory and they could only be reconciled by just such a series of elaborate distinctions as were made by Loyseau in his four questions on the traditional question of Lothair and Azo. These distinctions were successful in a work which combined political theory with the public law of France because they took account of contemporary fact and they fitted contemporary sentiment rather than because they were strictly applicable to the business of running the state. The importance of Loyseau’s theory of the magistracy is that it was one of the most organ¬ ized justifications of the action taken by magistrates, both as individuals and as corps, to resist changes made by the sovereign in the organization of the public powTer. As such it helps to explain statements in which magis¬ trates are referred to as a part of the crown and many of the manifestoes of the Parlement in which they de¬ scribed themselves and their function in constitutional terms. This theory is also undoubtedly connected with theories of corporate sovereignty which were afterwards important both in the Empire and in England.

The

class who led the Fronde and who hoped to profit by it were those who in the first place did in fact own their offices and reacted against seeing them devalued, and in the second place justified their position by the theory of the magistracy which we have been examining.

It

was thus a theory which had a considerable influence and at the same time a close connection with the insti¬ tutions which it justified.

THEORY OF OFFICE IN BODIN AND LOYSEAU A final point remains to be noticed.

125

In spite of the

fact that this theory of office was widely invoked as a justification of action by individuals and groups, in itself it provided no sanctions.

That is, it did not envisage

what ought to happen in the event, for example, that the sovereign doubled the number of offices in the state or that the magistrates encroached upon the sovereign’s power.

In that respect this position differed sharply

from that of contemporary theorists like Beza in his De iure viagistratuum in subditos or the author of the Vindiciae contra tyrannos.

It was nevertheless a consti¬

tutional position in the sense that it presupposed a con¬ stituent act by wdfich state power was established and in the sense that the organization of the power so estab¬ lished was carefully distinguished from that of an arbi¬ trary despotism.

The question whether or not such a

theory “works” is not, however, in the last analysis dependent upon its inclusion of provision for all contin¬ gencies.

The theory of Loyseau included no compact,

no “right of revolution.”

But no theory can provide

for all contingencies. The duration of time for which a constitutional theory is

accepted

depends

rather

on the continuing existence in the larger part of the given society of the same presuppositions. Any consti¬ tution demands a social organization which is function¬ ing harmoniously and it can hardly be proof against violent pressures.

Revolution does in fact bring a con¬

stitution to an end and theorists like Loyseau whose conception of a constitution is that it is a description of a political society in working order therefore do not include in their theory a “right of revolution.

This

does not mean that the occurrence of the fact of revolu-

126

ROMAN LAW IN POLITICAL THOUGHT

tion is denied. All that could be said by such theorists is that in the presence of the fact of revolution the constitution has broken down, that is, the state has obviously ceased to be in working order at all.

Thus,

according to these views, the fact that the political theory of Loyseau contains no provision for the event of the violation of the relation between sovereign and magistrate does not mean that it was not in essence a constitutional theory.

CONCLUSION The most obvious fact which emerges from this brief survey is that identical texts and arguments from the Roman law were used to support the most various political theories in the period of the decay of feudalism and the formation of the national state. Bartolus fitted the analysis of the merum imperium to a theory which reflected the feudal organization of society, but for Bodin the analysis of the same terms became the means of describing the structure of public power as it appeared in the national state.

This is perhaps what we should

have expected from our knowledge of the history of other authoritative texts and particularly those which are associated with the history of religions.

But we

should not on that account proceed to the conclusion that Roman law was always used as mere illustration for ideas and arguments which were already formed. It was so used, certainly, but to put all the emphasis on this conclusion would be to forget the much more im¬ portant fact that the study of the Roman law was some¬ times an integral part of the formation of the ideas themselves. It is to be observed that the political theorists who have been examined here were all primarily interested in the explanation and justification of contemporary fact. There is of course another type of political theorist whose approach is altogether different.

A Plato in the

Republic or a More in the Utopia turns away from sur¬ rounding fact to present an ideal. Such a theorist need

128

ROMAN LAW IN POLITICAL THOUGHT

make no compromise with present actuality;

he can

afford to repudiate it to suggest considerations in the light of which it should be changed.

But those who in¬

tend their theories to be a description of the way in which a political society does actually work must give an account of at least a minimum of the political fact of their own time. They must be able to explain in the light of their hypotheses why certain institutions are as they are and how they function as they do.

It is true

that, if there are some conditions which do not fit the theory, these conditions may be described as exceptions or abuses the existence of which does not invalidate the general theory.

But this resort to the notion of abuse

cannot be carried too far unless the theorist is prepared to attempt the description of a societas perfecta and to abandon altogether the effort to apply his theory to the explanation of society as he knows it.

Theorists

whose scope is limited to a present and an imperfect society are thus constrained by fact but, on the other hand, they too are not untouched by sentiments or ideals.

Their notion of what is is inevitably somewhat

infected by their notion of wdiat ought to be. The attempt to fit present fact to a rational system is particularly a characteristic of those whose approach to political theory is primarily legal.

Now all the

theorists mentioned in this essay were either lawyers or professors of law or scholars whose education had been primarily in the law. In the case of each the process of reconciling fact and law varied in complication wTith the extent of the contemporary observation which it was attempted to fit into the system. Thus in Dumoulin we have an example of a particularly single-minded

CONCLUSION

129

theorist whose clear apprehension of one important de¬ velopment made relatively easy the organization of a political theory on the basis of that development.

He

perceived in the practice of the monarchy of Francis I the enlarging scope of the action of the royalty.

The

theory of the unity and supremacy of the public power, defined as jurisdiction and possessed by the monarch as a proprietary right, became the central dogma of his system.

Seigneurial jurisdictions and other contempo¬

rary political phenomena, including the position of magistrates, which did not accord with the royal power as Dumoulin conceived it were classed as usurpations and abuses.

Thus Dumoulin’s ideal, based on the ex¬

pansion of the sphere of government and the subordi¬ nation to it of other political

facts

was naturally

expressed in terms of Lothair’s remark, “To you alone belongs merum imperium and to no other.”

It was

abundantly possible to illustrate this position with arguments from the Roman law. With theorists like Bodin and Loyseau the ideal was less simple and direct and there appeared in their theory a correspondingly more inclusive description of the facts of political organization.

In the first place

because they lived half a century later they appreciated even more clearly than did Dumoulin the progressive enlargement of the sphere of royal action. Bodin recog¬ nized the change from a relatively static to a more dynamic functioning of the royal power in his substitu¬ tion of the concept of sovereignty for the concept of the supreme jurisdiction.

But in the second place both

Bodin and Loyseau also took into account the fact that the power which they described as sovereignty func-

130

ROMAN LAW IN POLITICAL THOUGHT

tioned within a relatively stable organization.

They

were impressed with the fact that magistrates did have some sort of right in their office even in the France of Henry III and Henry IV. It might be true that merum imperium belonged to the king alone but there was still a sense in which magistrates could be said to have the merum imperium.

It may be maintained that their

perception of such facts was a result of wishful thinking; they saw things so because that was the way they as individuals wanted them to be.

This is, however, no

more and no less true than it was in the case of Dumoulin.

The argument about motive does not affect the

fact that Bodin and Loyseau did develop a political theory in which the constitutional organization of the magistracy was one of the elements.

The combination

of this element with others and chiefly with sovereignty to make a rational system was a complicated task. The survey of contemporary fact presented these thinkers with a basic conflict which was not felt by theorists who lived in times when the political scene was less disor¬ ganized. This is merely to say that at some periods it is easier to fit fact to theory than it is at others. and Loyseau lived at one of the difficult times.

Bodin But the

point which I wish above all to make is that for the reconciliation of apparently contradictory elements they depended on distinctions taken from the Roman law as an integral part of their argument.

To put it in the

old terms, there was no way in which merum imperium could belong to the prince alone and at the same time to magistrates unless some useful distinctions were made, and without those distinctions the conflict could not have been resolved. This, then, was a case in which

CONCLUSION

131

the Roman law was used not merely for illustration but for the very essence of the argument. It is ordinarily said that the Roman law was of para¬ mount importance in giving form to what is called the theory of absolutism. It is certainly true that texts like the lex regia and the princeps legibus solidus were widely used for this purpose. But it seems to me that the gen¬ eral conclusion should be modified by several considera¬ tions.

In the first place the interest of scholars in the

apprehension of the Roman legal terms made those terms the natural mode of expressing the theory of the separation of public power from private property when the distinction was in the process of becoming clear in fact.

This was surely the most general and the most

important influence of Roman law. But a theory which distinguishes public power from private property is not synonomous with a theory of absolutism. In the second place,

although

there

are

undoubtedly

important

examples of the use of Roman texts to support an argu¬ ment for the existence of an absolute power, there seem to me to be equally important examples of the use of Roman texts to construct a theory in restraint of ab¬ solute power.

One of the most interesting examples of

the latter with which this essay has been chiefly con¬ cerned is the theory of the constituted structure of public offices by which its supporters hoped to make a secure tenure of the magistracy compatible with the existence of a sovereign power.

The theory of office

developed for this purpose was certainly regarded in the sixteenth,century as a construction on the Roman texts. And finally it might be pointed out as one of the effects of the Roman law not directly connected with

132

ROMAN LAW IN POLITICAL THOUGHT

absolutism that the long controversy on the imjperium and jurisdiction which engaged the attention of so many scholars probably delayed the definition of sov¬ ereignty in terms of the law-making power.

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II. Modern Works Allen, J. W., Political Thought in the Sixteenth Century, Lon¬ don, 1928 Berriat-Saint-Prix, Felix Julien, Histoire du droit romain, suivie de Vhistoire de Cujas, Paris, 1821 Blocaille, Etienne, Etude sur Frangois Hotman, these de droit, Dijon, 1902 Bordas, Jean Baptiste, Histoire sommaire du Dunois, de ses comtes et de sa capitale, Chateaudun, 1884 Carlyle, A. J. and R. W., History of Medieval Political Theory, London,1903-1936 Chauvire, Roger, Jean Bodin, auteur de la Republique, Paris, 1914 Chenon, Emile, Histoire generate du droit frangais, public et prive des origines a 1815, Paris, 1926-1929 Dareste de la Chavanne, Rodolphe, Essai sur Frangois Hot¬ man, Paris, 1850 Declareuil, Joseph, Histoire generate du droit frangais des origines a 1789, Paris, 1925 Delaruelle, Louis, Guillaume Bude, les origines, les debuts, les idees mattresses, Paris, 1907 -, Repertoire analytique et chronologique de la correspondance de Guillaume Bude, Paris, 1907 Dubois, Ernest, Guillaume Barclay, jurisconsulte ecossais, 1546-1608, Paris, 1872 Eber, Karl Ferdinand, lmperium mixtum et iurisdictionem non tantum nominis sono sed re ipsa distingui, thesis, Jena, 1815 Esmein, Achille, Histoire du droit frangais, fifteenth edition, Paris, 1925 Eyssell, M. A. P. Th., Doneau, sa vie et ses ouvrages, Dijon, I860 Fournier, Marcel, Histoire du science du droit en France, Paris, 1893 Girard, Paul F., Manuel clementaire du droit romain, eighth edition, Paris, 1929

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Girard, Paul F., Histoire de Vorganisation judiciaire des Romains, Paris, 1901 Gohin, Ferdinand, De Ludovici Charondae (1534-1613) vita et versibus, thesis, Paris, 1892 Greenidge, A. H. J., The Legal Procedure of Cicero's Time, Oxford, 1901 Haag, Eugene, La France protestante, second edition by Bordier, Paris, 1886 Hancke, Ernst, Bodin, eine Studie iiber den Begrijf des Souverdnitdt, Breslau, 1894 Jellinek, Georg, Allgemeine Staatslehre, fifth edition, Berlin, 1929 Jobbe-Duval, Emile, Frangois le Douaren (.Duarenus) 15091559, Paris, 1912 Belong, J., La Vie et les oeuvres de Loyseau, 1564-1627, thesis, Paris, 1909 Louis-Lucas, Paul, Etude sur la venalite des charges etfonctions publiques et sur celle des offices ministerielles depuis Vantiquite romaine jusqu' a nos jours, Paris, 1883 Mcllwain, C. H., The Growth of Political Thought in the West, New York, 1932 Mayer, Charles Josef, Des etats generaux et autres assemblies nationales, The Hague, 1789 Melanges Fitting, Montpellier, 1908 Melanges P. F. Girard, Paris, 1912 Mesnard, Pierre, L’Essor de la philosophie politique au XVD siecle, Paris, 1936 Mommsen, Theodore, Romisches Staatsrecht, second edition, Leipzig, 1876 Moreau-Reibel, Jean, Jean Bodin et le droit public compare Paris, 1933 Pauly-Wissowa, Real Encyclopadie der Klassischen Altertumswissenschaft, Leipzig, 1894-1939 Sacaze, Notice sur Loyseau, Toulouse, 1855 Savigny, Friedrich ICarl von, Geschichte des romischen Rechts im Mittelalter, second edition, Heidelberg, 1834-1850 Stintzing, Roderich von, Ulrich Zasius, ein Beitrag zur

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Geschichte des Rechtswissenschaft im Zeitalter der Reforma¬ tion, Basel, 1857 Pardif, Adolphe, Histoire des sources du droit frangais, origines romaines, Paris, 1890 Viard, Paul Emile, Andre Alciat, Paris, 1926 Vinogradoff, Sir Paul, editor, Essays in Legal History, Ox¬ ford, 1913 Viollet, Paul, Histoire du droit civil frangais, third edition, Paris, 1905 Woolf, C. S. N., Bartolus of Sassoferrato, his Position in the History of Medieval Thought, Cambridge, 1913 III. Periodicals Bulletin de la societe d'histoire et d’archeologie de Geneve, Geneva, 1898Revue critique de la jurisprudence, Paris, 1850Revue de legislation et de jurisprudence, Paris, 1870-1876 Revue historique de droit frangais et etr anger, Paris, 1855-1869 Nouvelle Revue historique de droit, Paris, 1877Themis ou Bibliotheque des jurisconsultes, Paris, 1819-1830

INDEX OF NAMES

INDEX OF NAMES Accursius, redefines question of imperium, 27; Gloss, 14, 27-31, 38; mentioned, 5, 46, 57 Alciatus (Alciati), Andrea, compared with Zasius, 61-62; refuted by Gillot, 72-75; views on imperium, 47-57; Commentaries, 50-56; Paradoxa, 48-50; mentioned, 14, 15, 45, 63, 65, 67, 69, 70 Alexander de Imola, 38 Allen, J. W., 93 Andreae, Joannes, 34, 35 Aristotle, 3, 37 Azo, compared with Accursius, 27; with Bartolus, 41; with Zasius, 60; with Loyseau, 119; dispute with Lothair, 15, 17-19, 47, 48; relation to feudalism, 31; Summa, 19; men¬ tioned, 5, 13, 26, 29, 35, 42, 49, 67, 94, 97, 101, 102, 104, 107, 108, 124 Baldus de Ubaldis, 5, 14, 42-43, 90 Barclay, William, 89-91 Baro (Baron), Eguinarius, conflict with Duaren and Govea, 80-82; influence on Bodin, 98; Commen¬ taries, 77-79; mentioned, 85, 91 Bartolus de Sassoferrato, and the re¬ vival of Roman law, 6; contrasted with Alciatus, 49, 55, 56; with Dumoulin, 67; with Bodin, 95,100, 103; critique of, by Gillot, 74-75; by Barclay, 89-91; theory of im¬ perium, 36-42; Commentaries, 3841; mentioned, 5, 14, 43, 57, 58, 94, 127

Baudouin, Francois, 81 Bayle, Pierre, 77, 81, 87 Berault, Nicolas, 46, 47 Berriat-Saint-Prix, Felix Julien, 75, 85, 86 Beza (Beze) Theodorus, 125 Blocaille, Etienne, 87 Bodin, Jean, and dispute between Lothair and Azo, 16-17; contrast with Loyseau, 113-119, 122, 123; influence of humanists on, 71, 9394; importance of his theory of office, 110-113; taught by Baro, 79; Methodus, 94-104; Republic, 16-17, 104-109; mentioned, 5, 13, 14, 45, 91, 92, 121, 127, 129, 130 Bordas, Jean Baptiste, 113 Bouchel, Laurens, 113 Brillon, Pierre Jacques, 113 Brodeau, Julien, 62 Brunquell, Johann Salomon, 72 Budaeus (Bude), Guilielmus, founder of the humanist school, 45-47; mentioned, 48, 57, 70 Bulgarus, 114 Calloet, Maurice, 89 Charondas, Ludovicus, 5, 82-85, 87 Chauvire, Roger, 93, 94 Church, W. F., 110 Code, 19, 27; see also Corpus Iuris Civilis, Justinian Contius, 28 Coras, Jean, 76 Corpus Iuris Civilis, 12, 28, 83

146

INDEX

Cujas, Jacques, and the humanist school, 6, 7, 71; compared with Dumoulin, 63; imperium,

interpretation of

85-87,

116;

Observa-

tiones, 85-87; mentioned, 14, 20,

Faber, Joannes, 5 Fabrot, Charles, 63 Flach, J., 31 Fournier, Marcel, 75, 77 Freud, Sigmund, 7

28, 31, 46, 75, 90, 99 Gierke, Otto von, 74 Dareste de la Chavanne, Rodolphe, 79, 87

Gillot, Jean, 72-75, 76 Girard, Paul F., 23, 25, 86

Decius, Philip, 5

Gloss, see Accursius

Delaruelle, Louis, 45, 46, 47

Gohin, Ferdinand, 82

Digest, De iurisdictione omnium iudi-

Godefroy, see Gothofredus, Diony¬

cum, 12, 37, 50, 58; De officio eius

sius

cui mandata est iurisdictio, 12, 22-

Gothofredus, Dionysius, 28

25, 27, 29, 50, 91; importance of,

Govea (Goveanus, Gouvea), Antoine

for medieval commentators, (xm, 6, 5), 51; pr.), see

51; also

(l,

1,

Corpus

(xlviii, 26,

21;

de, commentary on jurisdiction,

14, 1,

76-77; conflict with Baro, 79, 81,

pr.),

Iuris

24;

Civilis,

Justinian

82; with Henryson, 85; mentioned, 72, 87 Guilielmus, 31

Doneau, Hughes, 63 Donellus, see Doneau, Hughes

Haag, Eugene, 62

Douaren, see Duaren, Frangois Duaren, Baro,

Frangois, 79-82;

conflict

Hancke, Ernst, 93 with

Disputationes,

77;

mentioned, 87

Heineccius, Johann Gottlieb, 72, 81, 87 Henryson, Edward, 78, 85

Dubois, Ernest, 89

Hommel, Karl Ferdinand, 72

Dumoulin, Charles, compared with

Hotman, Frangois, 6, 7, 79, 87

Cujas, 62-63; with Alciatus, 70; with Gillot, 73; with Bodin, 93, 95,

Jacobus de Arena, 39

96, 101, 106; with Lovseau, 119,

Jason, see Maynus, Jason

121, 128-130; theory of office, 67-

Jellinek, Georg, 113

69; theory of royal supremacy,

Jobbe-Duval, Emile, 72, 77, 80, 81

63-67; mentioned, 5, 14, 16, 71,

112 Durandus, Guilielmus, 14; Speculum, 32-36

Jugler, Johann Friedrich, 47, 50, 77 Justinian, authority of his compila¬ tion, 3, 4; recommended by Cujas, 31; source of medieval theory, 11,

20, 21 Esmein, Achille, 11, 12 Exea, Andrea ab, 85

Le Caron, see Charondas, Ludovicus

Eyssell, M. A. P. Th„ 63, 72, 77

Leickher, Friedrich Jacob, 87

INDEX

147

Lelong, J., 113

Odofredus, 18-19

l’Hospital, Michel de, 6

Otto, Everard, 63, 82, 83

Liber Feudorum., 4, 51 Legrand, Jean Mathieu, 89

Panzirolus

(Panciroli),

Guido,

43,

47, 48

Loisel, Antoine, 113 Longueval (Longovallius), Jean, 72

Papinian, importance of his state¬

Lombard, Peter, 14

ment on delegation, 12, 27; inter¬

Loriot (Loriotus), Pierre, 75-76

preted by the Gloss, 28; by Barto-

Lothair, cited by Durandus, 34, 35;

lus, 40-41; by Alciatus, 49-50

dispute with Azo, 15, 17, 18, 26;

Pasquier, Etienne, 5, 14

supported by the Gloss, 29; by

Paulus, 25

Alciatus, 49, 56; by Dumoulin, 129;

Pauly-Wissowa, 22

mentioned, 42, 47, 48, 67, 94, 97,

Petrus de Bella Pertica, 5, 39, 90

98, 101, 102, 104, 107, 108, 124

Pharamond, 4, 79 Placentinus, 31

Louis-Lucas, Paul, 113 Loyseau, Bodin,

Charles,

compared

with

113-115;

dependence on

Plato, 127

describes

Quintananduenas et

dispute between Lothair and Azo,

tonius de, 88, 92

Roman

law,

129-130;

Villegas,

An-

15-16; influenced by humanists, 45-71; on deguerpissement, 5, 6;

Rehm, Hermann, 93

quotes Cujas on imperium,

Ricci, Paulo, 46

success of

his theory,

20;

125-126;

theory of office, 116-123; Offices,

lligoley de Juvigny, Jean Antoine, 82

15, 16, 116-121; Seigneuries, 15, 114-116; mentioned, 17, 92, 93

Sacaze, 113 Saint Thomas, 19

Mantua, Marcus, 43 Martinus, 114 Marx, Karl, 7

Savigny, Friedrich Karl von, 17, 27, 32, 34, 42, 86 Stintzing, Roderich von, 57

Masson, Jean Papire, 113 Mayer, Charles Josef, 107

Taisand, Pierre, 77, 113

Maynus, Jason, 5, 14, 43, 48

Tavard, Jean, 85

Meerman, Gerard, 72, 85, 88, 89, 90

Thierry, Jean, 46

Menagius (Menage), Aegidius, 94 Mesnard, Pierre, 93 Meynial, Edouard, 11, 12

Ldpian, commented on by Baro, 78; definition of merum imperium, 21-

Molinaeus, see Dumoulin, Charles

22, 27, 32, 73, 75, 86, 89, 91, 98;

Mommsen, Theodore, 21, 22, 23, 25

definition

More, Sir Thomas, 127

23;

Moreau-Reibel, Jean, 93, 94

12

of

mixtum

statement

on

imperium,

jurisdiction,

148 Valla, Lorenzo, 46 Viard, Paul Emile, 47

INDEX Zasius,

Ulrich,

compared

with

Bodin, 102; founder of humanist

Vindiciae contra tyrannos, 125

school, 14, 45; theory of imperium,

Vinogradoff, Sir Paul, 11

57-62; supported by Gillot, 74;

Woolf, C. S. N., 36

58

Commentaries,

58-60;

Paratitla,