POLITICAL SCIENCE CLASSICS

ISSUED UNDER THE GENERAL EDITORSHIP OP LINDSAY ROGERS, OF THE FACULTY OF POLITICAL SCIENCE, COLUMBIA UNIVERSITY

The STATESMAN'S BOOK of JOHN OF SALISBURY

Being the Fourth, Fifth, and Sixth Books, and Selections from the Seventh and Eighth Books, of the

POLICRATICUS

Translated into English with an Introduction by

JOHN DICKINSON, A.M., PH.D. [Princeton]
LL.B. [Harvard]

New York RUSSELL & RUSSELL

1963

COPYRIGHT, 1927, BY ALFRED A. KNOFF, INC.

COPYRIGHT, 1955, BY LINDSAY ROGERS

REISSUED, 1963, BY RUSSELL & RUSSELL, INC.

BY ARRANGEMENT WITH APPLETON-CENTURY-CROFTS, INC.

L. C. CATALOG CARD NO: 62—16195

MANUFACTURED IN THE UNITED STATES OF AMERICA

TO

ANDREW FLEMING WEST

Teacher: Builder: Humanist,

in gratitude and affection.

EDITORIAL FOREWORD

The following translation of the earliest, and one of the most influential of mediæval treatises on politics, should have a practical rather than an antiquarian interest. The political thought and institutions of the Middle Ages are receiving increased attention from modern students. This is as it should be, for certain theories and problems of the Twelfth Century are not without their Twentieth Century parallels. Such a connection between widely separated epochs gives a more concrete meaning to the phrase "the unity of history." It is not necessary to multiply examples. Anthropologists investigating the life of primitive peoples throw fresh light on present day behavior. Historians of the Roman Empire deal with problems which now, as they did then, result from an enlargement of the area of human intercourse. Scholars in different fields are continually unearthing streams of tendency and development which in hidden ways exert their modern influences from the graves of a past that refuses to die. The Policraticus has its modern applications, and not the least apposite ones are in the United States. Too definite a connection, of course, should not be insisted upon, but the main lines, though dim, are unmistakable. Recent political theorists have sung the requiem of the unitary system of the Renaissance nation-state. Whether the wrong music was chosen, or whether the chorus was premature remains to be seen. It cannot be denied, however, that we now have diversities and multiplicities of interests that put heavy strains on the political institutions of the modern state. Internally, the state must avoid dissolving into a welter of competing groups, while externally these same groups reach across national boundaries

and threaten other states. What emerges even more clearly is that amid such confusion, the mechanism for the orderly expression and adjustment of the wills of the different groups breaks down. The problems to be decided are too complicated, the wills are too numerous and too irreconcilable, and the human capacity for attention is too limited. Thus an increasing number of pessimistic writers are doubting whether public opinion is a possible, or, if possible, whether it is a safe motive force for political institutions. Cries are becoming more numerous that "democracy" is breaking down, and there are tendencies to seek automatic good government either in the rule of "experts" administering a supposedly satisfactory set of ready made scientific principles, or in the personal excellence of a supposed superman vested with the powers of a dictator. These alternatives represent a recrudescence of ideas prevalent in the early Middle Ages, under conditions of confusion in many ways similar to our own, and before machinery for organized group action had yet been evolved.

There is also, as has been said, an added interest for Americans in the study of such mediæval ideas. In the United States there are at work the forces of complexity and confusion which are incidental to modern life everywhere, but mediæval ideas are also encouraged by our special form of government. The American Constitution puts no premium on government by discussion; it makes difficult the formulation of enlightened public opinion. Whether wisely or no, we do in fact use governmental machinery which is so checked and balanced that it can respond only at fixed intervals and when public pressure is especially strong. We rely to a much greater degree than do other political systems on a body of higher law supposed to be evolved from written constitutions by the expert consciousness of judges. We resort in times of stress to the personal power of a President, who is thought to represent and act for the whole nation in a way denied to our representative assemblies. The

country desires these assemblies to be as little in evidence as possible. We seem to crave executive authority and prefer to be told rather than argued with.

For these reasons, the lamp of the Middle Ages burns with a light that may illumine our present. The lamp, however, has been neglected. With one exception, this volume is the first modern translation of an important mediæval political treatise to appear in English. Mr. Dickinson brings to his editorial task the equipment of an original training in the classics followed by graduate studies in political science and law, and by several years of active legal practice. He deals with the Policraticus as a student of politics rather than of philology, and applies to twelfth century institutions and ideas a practical as well as a theoretical knowledge of the problems of constitutional law and government.

L. R.

PREFACE

The aim of this book is to make available for a wider circle of readers an outstanding mediæval treatise on politics. The political literature of the middle ages has no such compelling and universal human appeal as belongs to the great masterpieces of classical political thought; but from the narrower stand-point of political science it is at least equally deserving of study. The mediæval literature represents not the lonely insight of great thinkers, but the commonplace ideas which ruled the common minds of men for long centuries and wrote themselves indelibly into abiding institutions; and it must not be forgotten that the modern world is the direct heir of mediæval institutions and ideas, while it is the heir of classical antiquity only indirectly. The Policraticus has more light to shed on the issues of 1688 and 1789 than either the Republic of Plato or the Politics of Aristotle.

The increased attention paid to social history by the newer schools of historical writers has served to emphasize the importance of the history of thought; and this means not so much the history of the systematic theories of particular thinkers as of the broad currents of thought which, coming to the surface with varying emphasis in the writings of different individuals, can yet be said to underlie and characterize the whole culture of a period. From this stand-point the history of thought during the middle ages, and especially of political thought, is of the utmost consequence; for it represents the seed-plot of many, if not most, of the ideas and attitudes which became explicit for practical effectiveness in later periods. The signifi-

cance of the Policraticus is that it contains the inchoate and incipient forms of so large a number of the political doctrines which were to identify themselves with greater clarity in later centuries.

Considerations of space have made it impossible to present here more than approximately half of the entire treatise. While the amputation has eliminated some of the finest parts, notably the chapters on philosophy at the commencement of the Seventh Book, the plan and scope of the work minimize the loss for the student of politics. The political thought of the Policraticus is loosely embedded in a general discussion of manners and philosophy in such a way that it has proved easy to separate and present here in their entirety all the directly political sections without doing violence to the integrity or consecutiveness of the treatment. The result is a practically self-contained treatise, disengaged from a mass of other materials which, however important from the standpoint of literary history, have only an indirect political relevance.

The text used for the translation is that of Professor Clement C. J. Webb's monumental edition, Oxford, 1909. The existence of Professor Webb's elaborate annotations, as well as the specialized purpose for which the present translation is intended, have led me to restrict the footnotes, with a few exceptions, to indicating the sources of direct quotations. For convenience of reference biblical citations, except to the apocryphal books, are to the Revised Version rather than to the Douai version. In the case of proper names an effort has been made to reproduce the spelling of Professor Webb's text. In the Introduction I have resisted the temptation to duplicate biographical, historical and critical material which is easily available elsewhere. I have rather tried to indicate the place of the Policraticus in the development of political thought and to show its connection with preceding and subsequent theories. I have emphasized especially the theory which it contains of the relation

between law and government and its doctrine of a "higher law;" not only because of the perennial importance of this set of problems for political science, but more particularly because it was this aspect of the thought of the Policraticus which first seriously attracted my attention in the course of preparing my book on Administrative Justice and the Supremacy of Law (Harvard University Press, 1927), a treatment of some of the current aspects of the same problem.

For counsel and aid in making the translation I am under many obligations. Chief among these is my deep indebtedness to Professor Edward Kennard Rand who generously supplied comments and suggestions on a large number of passages which seemed to me to leave room for differences of opinion. For similar aid in special fields I am indebted to Professors Ephraim Emerton, George LaPiana, Charles H. McIlwain and Chandler R. Post. I have had the satisfaction throughout my task of receiving from Professor Haskins a constant encouragement which, from such a source, supplied the highest incentive to workmanship. Professor Alfred O'Rahilly of University College, Cork, Ireland, called my attention to a number of matters which would otherwise have escaped me. The editor of the series, Professor Lindsay Rogers of Columbia University, has exercised his editorial functions with the patience and sympathy of generous personal friendship; and Mr. Paul B. Thomas, of Alfred A. Knopf, Inc., the publishers, has shown exemplary forbearance and understanding of the details and delays incidental to the preparation of a book of this character. Apart from these immediate and specific obligations, I have a sense of underlying debt to the teachers whose aid and inspiration in the past aroused my interest in the Latin language and literature: Edward Lucas White, Esq., of Baltimore, Maryland: Professor Wilfred P. Mustard, of Johns Hopkins University; and the distinguished scholar who first made me see the charm and importance of the Latin literature of the middle ages

in general, and of the Policraticus in particular, and to whom I have dedicated this book, Dean West of Princeton.

JOHN DICKINSON

BRIER HILL, ASHFIELD, MASS., APRIL, 1927.

CONTENTS

INTRODUCTION: THE PLACE OF THE POLICRATICUS IN

THE DEVELOPMENT OF POLITICAL THOUGHT xvii

I THE COMMONWEALTH xviii

II THE LAW xxvii

III THE PRINCE AND HIS GOVERNMENT xl

IV THE CHURCH Iviii

V TYRANNY, TYRANNICIDE, AND INDIVIDUAL LIBERTY Ixvi

THE POLICRATICUS

TABLE OF CHAPTERS lxxxv

BOOK IV 3

BOOK V 63

BOOK VI 171

BOOK VII 281

BOOK VIII 335

INTRODUCTION

THE PLACE OF THE POLICRATICUS IN THE DEVELOPMENT OF POLITICAL THOUGHT 1

The Policraticus of John of Salisbury is the earliest elaborate mediæval treatise on politics.2 Completed in 1159, the date of its composition makes it a landmark in the history of political speculation for two reasons. It is the only important political treatise written before western thought had once more become familiar with the Politics of Aristotle. It thus represents the purely mediæval tradition unaffected by ideas newly borrowed from classical antiquity. It is the culmination in their maturest form of a body of doctrines which had evolved in unbroken sequence from patristic literature in contact with the institutions of the earlier middle ages. In the second place it comes just before the important turning-point in institutional development at the end of the twelfth, and at the beginning of

1 LITERATURE: "loannis Saresberiensis Episcopi Carnotensis Policratici, sive de Nugis Curialium el Vesiigiis Philosophorum, Libri viii, recog. Clemens C. I. Webb, Oxonii, MCIX," hereafter cited as Webb; "Johannes Saresberiensis," C. Schaarschmidt, Leipzig, 1862; "Die Staatsund Kirchenlehre Johanns von Salisbury," Paul Gennrich, Gotha, 1894; "Die Staatslehre Johanns von Salisbury" Ernst Schubert, Inaug. Diss., Berlin, 1897; "John of Salisbury and the Policraticus," by E. F. Jacob in "Social and Political Ideas of Some Great Mediaeval Thinkers," ed. F. J. C. Hearnshaw, New York, 1923; "History of Mediaeval Political Theory in the West," R. W. and A. J. Carlyle, vol. iii, pp. 136-146, vol. iv, pp. 330-337; "Illustrations of the History of Mediaeval Thought and Learning," by Reginald Lane Poole, 2 ed., London, 1920.

2 "The first attempt to produce a coherent system which should aspire to the character of a philosophy of politics," R. Lane Poole, "Illustrations of Mediaeval Thought," 2 ed., p. 204.

the thirteenth, century, when legal precision began to be stamped on a great number of previously indefinite relationships and when feudal independence tended to become consolidated into definite organs of political control. It therefore speaks from a point of view which was about to disappear, but which it is all the more important to understand because it contributed a heritage of ideas whose momentum made them, in spite of the newer influences, the dominant force in political thought down to at least the middle of the sixteenth century.

I. THE COMMONWEALTH

The first half of the twelfth century was in some respects the great age of conscious feudalism. It is therefore striking that there is hardly a trace of contractual feudal theory in the Policraticus.3 It is true that in one passage John of Salisbury accepts the feudal doctrine that public offices are transmissible by descent like private property;4 in a second he conceives the relation between the prince and his subjects in terms of the oath of fealty;5 in a third he denies the right of tyrannicide to those who are bound by fealty to the tyrant.6 But these passages are exceptional; the whole view of the state which is presented is at variance with the conception that there is anything contractual or voluntary in its composition.

The obvious explanation of this failure to mirror a dominant contemporary tendency is almost certainly the true one, — namely that John represents the standpoint and theory not of purely secular politics but of the Church. But this by no means implies that his viewpoint is academic or aside from the main currents

3 This is noted by Schaarschmidt, "Johannes Saresberiensis," p. 349.

4 Bk. v, c. 6, infra.

5 Bk. vi., c. 25, infra. Dr. Lane Poole goes too far in saying that "there is not a trace even of the terminology of feudalism." "Illustrations of Mediaeval Thought," 2 ed., p. 204.

6 Bk. viii., c. 20, infra.

of practical governmental development. On the contrary the ecclesiastical theory of the state was a powerful element in practical politics throughout the feudal period in opposition to the distinctively feudal theory; and it was precisely this ecclesiastical theory which was at the basis of the pretensions of national monarchy against feudal aggression, and which served to keep alive the conception of "commonwealth" during an era of particularistic disintegration. Luchaire has pointed out that the monarchy of Hugh Capet and his immediate successors was royalty of an ecclesiastical character inheriting Roman tradition through the channel of church theory, and that at the era of its lowest ebb it was prevented by this theory from ever degenerating into purely feudal suzerainty.7 From the standpoint of practical development this body of ecclesiastical-Roman doctrine is accordingly vital in that it was the doctrine which finally emerged triumphant in the triumph of national monarchy; and its statement by John of Salisbury is therefore significant as a stage in the transmission of the conception of organic political unity from antiquity to modern times.

The conception of a true political relationship between the members of a state as distinguished from the mere network of private relations to which feudalism tended to reduce them 8 is embodied in the survival and use of the term "respublica" or "commonwealth." It is the ear-mark of the ecclesiastical-Roman as opposed to the feudal view; and it occurs repeatedly not merely in political treatises written by churchmen, but in the official utterances of princes and their ecclesiastical advisers from the time of Charlemagne to the date of the Policraticus.9

7"Institutions Monarchiques," 2 ed., i, 35-59; Guizot, "Histoire de la Civilisation en France," 11th ed., 1869, iii, 290 ff; 312 ff.

8 Luchaire, in Lavisse, Hist. de France, vol. ii, pt. 2, pp. 7-14.

9 e. g. Hincmar of Rheims, "De Regis Persona et Regio Ministerio," praef., in Migne, P. L., tom. 125, col. 834; Sedulius Scotus, "De Rectoribus Christianis," c. vi., et passim, Migne, P. L., tom. 103, col. 291 ff; speech of Adelbero at election of Hugh Capet, Richer, Chron., ed.

The term implies some grasp of the meaning of political organization; and this perception comes to even clearer consciousness in another kindred conception which reaches its first full development in the Policraticus and has generally been treated as the most striking feature of John's political thought, — the so-called "organic analogy," or comparison of the body politic to a natural organism.

The organic analogy, which was so congenial to the symbolic tendency in mediæval thought, and which after its first elaboration in the Policraticus was to reappear with ever increasing refinements down to its culmination in Nicholas of Cues,10 traces back in part no doubt to the Christian identification of the Church with the body of Christ.11 The union of Father and Son in the Trinity was used to explain the coexistence in the "body" of the Church of the temporal and priestly powers.12 In an introduction to the Institutes of Justinian which Fitting attributes to a date between 850 and 1100, and which he regards as representing earlier Byzantine tradition, the different ranks in the imperial hierarchy are compared to different parts of the human body — the prince to the head, the "illustres" to the eyes, the "spectabiles" to the hands, the "clarissimi" to the thorax, etc.13

Waitz, pp. 132-33; charter of Philip I to Abbey of St. Denis, 1068, "Receuil des Actes de Philippe Ier," ed. Prou, p. 115. The word seems to have been transmitted through Augustine, as in the earlier treatises it is often found in quotations from his works. See Jonas of Orleans, "De Institutione Regia," c. xvii., in D'Achéry, Spicilegium, tom. i., p. 324. Jonas's work is also in Migne, P. L., tom. 106.

10"De Concordantia Catholica," i, cc. 1-6, in Schard, "De Jurisdictione," pp. 465 ff.

11 Gierke, "Political Theories of the Middle Age," tr. Maitland, note 77. See Rom. xii, 4, 5.

12 Hugh of Fleury, "Tractatus de Regia Potestate et Sacerdotali Dignitate," Bk. i., cc. 1, 2, M. G. H., Libelli de Lite, vol. ii, p. 468.

13 Fitting, "Juristische Schriften des früheren Mittelalters," Halle, 1876. p. 148; for date see ibid, p. 98. Cf. also Justinian, Cod., ix, 8, 5, quoted in vi, 25, infra, where the senators are referred to by the Emperor as "pars corporis nostri."

A similar comparison, but far more elaborate, constitutes the framework on which a great part of the political theory of the Policraticus is hung.14 The "commonwealth" is a body "endowed with life by the benefit of divine favor." The prince is its head, the priesthood its soul. "The place of the heart is filled by the Senate, from which proceeds the initiation of good works and ill. The duties of eyes, ears and tongue are claimed by judges and the governors of provinces. Officials and soldiers correspond to the hands. Those who always attend upon the prince are likened to the sides. Financial officers may be compared with the stomach and intestines.... The husbandmen correspond to the feet which always cleave to the soil." 15

John claims that he has borrowed this elaborate scheme from a "libellus" of Plutarch entitled "Institutio Trajani." 16 No such work of Plutarch at present exists or is elsewhere referred to; and since John did not know Greek, opinion is divided between the view that his source was a Latin translation of a compilation of passages from Plutarch's writings and the view that it was a Latin original masquerading under the name of Plutarch.17 At all events, its adoption into the Policraticus launches the "organic analogy" on a new and triumphant career through the remainder of the middle ages.

It seems clear from John's handling of the organic analogy that he had very firmly grasped the conception of the interdependence of individuals in society. He repeatedly returns to the saying that "all are members one of another." 18 "Then and then only will the health of the commonwealth be sound and flourishing ... when each regards his own interest as best served by what he knows to be most advantageous for the others." 19 "So long as the duties of each individual are performed with an eye to the prosperity of the whole, so long, that is, as justice is

14 i. e. Books v and vi. 15 Bk. v., c. 2, infra. 16 Ibid.

17 Schaarschmidt, op. cit., pp. 123-124; Webb, vol. i., p. 280.

18 Bk. iv., c. 1, infra. 19 Bk. vi., c. 20, infra.

practiced, the sweetness of honey pervades the allotted sphere of all."20 "The function of duty is to bring different acts into harmony by allotting them to the different individuals to whom they are appropriate."21 And elsewhere in a passage of truly poetic eloquence he expresses the harmony of a well-ordered society by musical analogies reminiscent of Plato.22

And not only does John grasp the functional interdependence of the members of society, he grasps also what is more remarkable for his age, the need for that basis of psychological unity, for that bond of common social feeling, which was to remain almost unemphasized in later political thought until Rousseau put forth his doctrine of a general will.23 "There can be no faithful and firm cohesion," he says, "where there is not an enduring union of wills and as it were a cementing together of souls. If this is lacking it is in vain that the works of men are in harmony, since hollow pretence will develop into open injury unless the real spirit of helpfulness is present." 24 In at least two places John even uses what we are accustomed to regard as the characteristically modern term, "public opinion." 25

There is, however, one great difference between John's conception of the functional and psychological unity of society and the modern conception. John's view was essentially Platonic. The relation between the parts of his organism was a fixed and static one. It was built upon, or at least was to be brought into conformity with, a pre-established design which he took for granted was eternal and immutable. He has no conception of any continuous process of reciprocal adaptation whereby the relations between the different elements in the body politic shall gradually alter. The plan is once and for all divinely given, and the perfect society is that wherein the members exactly fit them-

20 Bk. vi., c. 22, infra. 21 Bk. v., c. 4, infra. 22 Bk. iv., c. 8, infra.

23 See A. Lawrence Lowell, "Public Opinion and Popular Government," pp. 7-9.

24 Bk. v. c. 7, infra. 25 Bk. iv., c. 8; Bk. v., c. 12, infra.

selves into the respective niches which it marks out for them. And these niches are conceived almost as rigidly as those of Plato's Republic. The great body of the people, the husbandmen and craftsmen and artisans, are totally divorced from political functions. Their place is "to provide their superiors with service just as the superiors in their turn owe it to their inferiors to provide them with all things needful for their protection." 26 No channel is supplied whereby their collective views and wishes can be brought to bear on the conduct of government. The supreme directing power is concentrated in the hands of the prince,27 who has all power that he may bear the entire responsibility to God. "Wherefore deservedly there is conferred on him and gathered together in his hands the power of all his subjects to the end that he may be sufficient unto himself in seeking and bringing about the advantage of each individually and of all." 28

26 Bk. vi., c. 22, infra.

27 This Platonic conception became more fully developed in the later scholastic theology. The lex aeterna provided a distribution of functions among individuals according to a sublime plan wherein each had an allotted place. It should be the aim of human society to approximate as nearly as possible to this great design. The entire universe was conceived as "under a providential plan, governed by an eternal law which is nothing but the order of things, the sum of relations which result from the nature of beings. The rationale of governing others must therefore be in the final analysis a divine command according to which the rulers carry out those necessary functions which will enable the individual members to occupy their assigned places in the divine economy." De Wulf, Philosophy and Civilization in the Middle Ages, Princeton, 1922, p. 243, and passages from the Summa Theol. of St. Thomas there cited. The whole conception goes back to Augustine (see e.g., "De Civ. Dei," xix, 13-14) who made the harmonious co-operation of members of society, each in his appointed place, the essential feature of that ideal of "pax" which was to be so powerful throughout the Middle Ages. Cf. Dante, "De Monarchia," i, 15. Cf. also John of Salisbury's conception of "duty," infra, v, 4.

28 Bk. iv., c. 1, infra.

It was therefore only in a passive and not in an active sense that John conceived of society as a psychological organism. It was not an organism wherein each element contributed of its own thought, feeling and aspirations to shape the combined direction of the whole. The psychological bond was the passive one of contentment, of willingness on the part of each individual to fulfill the duties of the station allotted to him in the eternal scheme of things. It was in the co-ordination of these different duties and their allotment to different individuals and classes according to the divine plan that the organic unity of society consisted. It was a functional organization, but the functions were those of automata which must move only in the direction dictated to them by the rational order of the universe. John might refuse to take his stand on the side of predestination when a clear-cut issue was presented on the question of free-will;29 but when he turned to deal with other problems the tacit presuppositions of his age were too strong for him and he regarded the individual, not to be sure as subordinate to the state, but as a mere unit in that universal organization whose design was implicit in the eternal law.

A question is thus raised to which John gives no explicit answer — what "commonwealth" or society did he have in mind in his comparison of the "commonwealth" to an organic body? Was it a city, or a province, or a kingdom, or the Roman Empire, or the Universal Church? One of the chief difficulties which we meet throughout the Policraticus is that we can never be quite certain of what organization John is at any given moment speaking. He avoids any admission that the whole Christian world still constitutes a single state, the Roman Empire; and when he has occasion to speak of a contemporary emperor of the German line he cautiously refers to him as merely "King

29 Policraticus, Bk. ii, c. 26, "liberum arbitrium manet cum providentia."

of the Romans." 30 In the same connection he remarks in passing that in some manner the "principate," — i. e., the Empire — seems to have been "cut off at the root." 31 Accordingly, he generally appears to have in mind the "provincia" 32 as the political unit or "commonwealth" whose head, whether bearing the title of "rex" or "dux," is the "prince" of whom he is speaking. This term "provincia," suggested undoubtedly by the territorial correspondence of kingdoms like France and England to provinces of the older empire, is the designation which the later middle ages came regularly to apply to the kind of political organization which we should call a "nation-state." 33 But John seems to apply the term indifferently to a kingdom like England, which stood under no feudal overlord, and to a territory like Brittany 34 which was a vassal state.

Indeed, one of the striking features of John's political thought is the way in which he totally omits to consider the relationships between the different political powers, feudal, royal, imperial, which were at the moment so hotly contending with one another for a demarcation of their respective jurisdictions. The questions arising out of their competing claims are completely ignored, although these are precisely the first questions which a modern political scientist would have set about seeking to answer. John seems to have accepted the fact that all were "powers" of a temporal as distinguished from a spiritual character, and for

30 Bk. iv., c. 6, infra. Strictly speaking, this title was technically correct, as Conrad was never actually crowned at Rome. But it was only from the time of Conrad's predecessor, Lothair, that the restriction of the imperial title to an emperor crowned at Rome commences. Even Lothair had in effect used the title before coronation. Waitz, Deutsche Verfassungsgeschichte, 2 ed., vi., pp. 106-7, p. 173.

31 Ibid. 32 Bk. vi., c. I; Bk. vi., c. 24; infra.

33 Bartolus treats the terms "provincia" and "regnum" as interchangeable and as applying to a political group all the members of which are not gathered together into a single city. Comment on Const. "Qui sint Rebelles," cited in Woolf, Bartolus of Sassoferrato, p. 124.

34 Bk. IV., c. 18. infra.

his purposes that was sufficient. Indeed he makes no clear distinction between "political" power and the power of rulership over such a group as the family, or household, which from the modern standpoint is not political at all. He deals with the concept of "rulership" in the lump and undifferentiated. The rich man, the "dives," 35 ruling over a large household, falls within the scope of his treatment as much as and in quite the same way as the lord of a province, or a king, or even the emperor himself.

It may be supposed that to some extent this failure to draw what we to-day regard as necessary distinctions was a deliberate attempt to blink embarrassing questions. It was more than a century longer before men became bold enough to proclaim openly that the kings of the national "regna" were independent of the supremacy of the empire.36 It took several centuries before the greater feudal princes in France were willing to abandon their claims to a practically complete independence of the crown.37 John of Salisbury's own king, Henry II, aptly illustrates both attitudes. There is some evidence that at one time he did lip service to the Emperor 38 and at another dallied with the prospect of seizing the imperial crown for himself;39 on the other hand he was almost continually at war with his feudal overlord, the King of France.40 Amid such conditions

35 Bk. v., c. 10; Bk. vi., c. 22, c. 27, infra.

36 The earliest writers cited by Woolf as advancing the idea are Andreas de Isernia (1220-1316) and Durandus (1237-1296); see Woolf, Bartolus of Sassoferrata, p. 373.

37 See Du Fresne de Beaucourt, Histoire de Charles VII., tom. ii., pp. 605-606.

38 Rahewin, Gesta Friderici, iii., c. 7, M. G. H., SS. xx., p. 419. See F. Hardegen, "Imperialpolitik König Heinrichs II. von England" (Heidelberg, 1905).

39 G. B. Adams, Political History of England, 1066-1216, p. 306.

40 But see ibid., p. 268, for a remarkable instance where apparently "the feudal spirit of Henry could not reconcile itself to a direct attack on the person of his suzerain."

a more relentless logician than John might well have shrunk from the consequences of clean-cut analysis.

There is no reason, however, to suppose that the omission was deliberate. After many centuries men were just beginning to make an attempt to think with legal accuracy. If they were commencing to grip once more the meaning of the idea of organic political union which had never completely vanished from abstract thought, it is too much to expect that they should at once have faced some of the deepest difficulties in which it involved them. They were saved from these difficulties for the time being by two prevalent and deeply-grounded elements in their political thinking. The first of these was the persistence from their barbarian past and from their saturation in scriptural tradition of what may be called the patriarchal ideal, which admitted no distinction between the state and what we now designate as "society" on the one hand, or between the state and the family on the other.41 The result was that just as to-day we are not especially disturbed over the existence of incoherent and even conflicting organizations within "society," so the thought of the twelfth century does not seem to have been for the moment interested in the existence of competing and conflicting governmental organizations. It took them largely for granted. Meanwhile the same attitude was promoted by the dominant mediæval conception of law.

II. THE LAW

It is the idea of law which in the Policraticus as throughout the political thought of the middle ages really dictates the ap-

41 See below, p. liii. Much of what is said by Professor Pott (Chinese Political Philosophy, pp. 65 ff.) concerning the Chinese attitude toward government applies to the Middle Ages. The difference is that the Middle Ages were continually working out of this attitude under the influence of actual institutional progress and of the progressive development of ideas inherited from classical antiquity.

proach to all the other problems of government, and affords the clew to the solution which is found for them. Indeed, one of the principal reasons for the representative significance of the Policraticus as a sample of mediæval political thought is precisely the fulness and clarity with which it discloses the typical mediæval conception of the relation between law and government.

It has become a historical commonplace that mediæval thought was dominated by the conception of a body of law existing independently of the authority of any government and to which all positive law must conform and to which governments no less than individuals owed obedience.42 Rulers were thought of as bound by a "higher law," which, in the vivid phrase of Mr. Justice Holmes, was a "brooding omnipresence in the sky," 43 and which accordingly made it possible to apply to their acts the criterion of legality or illegality. In the words of the Policraticus, "between a tyrant and the true prince there is this single or chief difference, that the latter obeys the law and rules the people by its dictates." 44 "A tyrant is one who oppresses the people by rulership based upon force while he who rules in accordance with the laws is a prince."45 "There are certain precepts of the law which have a perpetual necessity, having the force of law among all nations.... And not only do I withdraw from the hands of rulers the power of dispensing with the law, but in my opinion those laws which carry a perpetual injunction are not subject at all to their pleasure." 46

This conception of a "higher law" accounts not merely for the characteristic trend of mediæval political theory, both in its

42 "Medieval doctrine while it was truly medieval never surrendered the thought that Law ... does not depend upon the State for its existence. To base the State upon some ground of Law ... the medieval publicist felt himself absolutely bound." Gierke, "Political Theories of the Middle Age," tr. Maitland, p. 74.

43 Southern Pacific Co. v. Jensen, 244 U. S. Rep. (Sup. C't.) 205 at 222. 44 Bk. iv., c. 1, infra. 45 Bk viii, c. 17, infra. 46 Bk. iv., c. 7, infra.

omissions and in the points which it selected for emphasis, but it also explains many aspects of mediæval political organization and development which from the modern point of view are most difficult to understand.

For one thing, it rationalizes the coexistence side by side for so many centuries of a number of competing types of political organization, like the Church, the Empire, the national kingdoms and the practically independent feudal principalities, which must otherwise appear as a mere chaos of anarchy. In mediæval theory their coexistence was not anarchic because all were conceived as alike agencies of, and existing under, the "higher law," which was supposed to allot to them their respective functions, and to regulate their relations. The conception is quite analogous to that of eighteenth-century international law which was thought of as a body of rules obligatory upon sovereign and independent states, although emanating from no human legislature and enforceable in no independent international court. So the higher law of the middle ages was enforceable only by the several powers which were conceived as being under its authority.

Just as such a conception permits the existence side by side of a number of independent systems of authority without any attempt to bring them into more organic connection than is supplied by the abstract "higher law" itself, so within each system it tends to postpone the perception of any need for organizing an effective machinery of government as we understand such organization. For, unlike international law, the "higher law" of the middle ages was thought of as binding directly upon individuals. Positive law must be simply a reproduction of it and therefore it supplied all the organization and regulation needful to bring human relations into order, including the relations between governmental officials.47 It was at once international,

47 Cf. St. Bernard's view that the functions of ecclesiastical officials, lower as well as higher, were derived from and prescribed by the

constitutional, and private law. All that was necessary for each individual, whether official or private person, was to learn and perform his duties under that law. "What is the official duty of a publican?" asks John of Salisbury: "This is his duty, to exact and receive no more than is appointed." 48 The directive and discretionary element in government is thus completely eliminated and attention is diverted from the problem of how best to organize and allocate governmental functions for the attainment of political ends to a more or less barren insistence upon the necessity of the strict personal performance of pre-established legal duties under the organization of society at the time existing.

The conception of a "higher law" had two other consequences which tended to retard the organization of effective government. On the one hand it opened the door wide to individual resistance to governmental power. If government as well as the individual was under a higher law it followed that governmental acts against the individual might well be illegal. In such a case it would be obviously unfair to conclude the individual by the illegal decision of the government in its own favor, and since there was no other agency to judge between them, they were in the same position toward one another as independent states under modern international law. In such a case the individual had therefore a legal right of judging for himself and insisting upon his own rights and duties under the law as against the government. Even the soldier according to John of Salisbury, must resist the commands of his superior officer in cases where these transcend the "higher law." 49 The result of this conception was at once to promote the natural mediæval proclivity toward private war which expressed itself in the practical work-higher law and therefore could not be altered by the supreme authority of the Pope. The Pope could not lawfully "place the members in the body of Christ otherwise than He Himself arranged them." "De Consideratione," iii, 4, § 17, tr. Lewis, p. 85.

48 Bk. vi., c. 1, infra. 49 Bk. vi., c. 12, infra.

ings of feudalism50 and on the other hand to give to such war that character of a struggle for legal rights which Stubbs has noted as one of the most characteristic features of mediæval history.51

In the second place the mediæval tendency to remit all questions to the decision of a "higher law" had a consequence which in exactly the opposite way from the tendency just noted worked toward the same end of retarding effective political organization. If on the one hand it promoted the resort to private resistance, on the other it produced a tendency toward political "quietism." This followed from the mediæval identification of the "higher law" with the law of God. On this view, if government acted illegally it disobeyed God and God might very well be trusted to punish violations of His own law. If He did not do so, it must be because He had some hidden purpose of His own to further, perchance the punishment of an unfaithful people, by permitting them to be oppressed by the illegal acts of an unjust king. Under such circumstances men would be impiously presumptuous if they undertook to thwart God's purpose by taking their relief into their own hands and attempting to throw off the tyranny to which God wished them to be subjected for their sins. This view is very strong in John of Salisbury.52 "If Kings hear and keep the word of God, they will fill out their days in prosperity and their years in glory; but if they hearken not, they shall pass by the sword or be consumed by their folly."53 With God thus in continual attendance to enforce obedience to His law, subjects who act directly to rid

50 Luchaire, "Manuel des Institutions Françaises," pp. 213-230.

51"Seventeen Lectures on the Study of Medieval and Modern History" pp. 208-223.

52 "He that resisteth the power resisteth the ordinance of God," Rom. xiii, 2, quoted Bk iv, c. 1, Bk. vii, c. 21, infra. See also Bk. vi., c. 27, "Ego quidem non tantum bonis et modestis sed etiam discolis arbitror serviendum in omni humilitate et reverentia, fideliter tamen et in cultu potestatis Dei venerandum a quo est instituta." See also Bk. viii., c. 18.

53 Bk. v., c. 6, infra.

themselves of tyranny are always in danger of interfering with the divine plan. This line of thought survived strongly into the post-Reformation period of monarchical absolutism and characterizes much of the French and Jacobite theory of the later seventeenth century.

The conception of a "higher law" rests at bottom upon a failure or refusal to distinguish between the kind of rule of conduct to which the name of law seems best fitted, and the raw materials for such a rule, — in other words between the rule which is actually applied and enforced by a governing authority from which there is no legal procedure of appeal to any earthly superior, and the mere body of principles or ideas of right and wrong which that authority can select from and combine for the purpose of announcing or applying such a rule. More briefly, it results from a failure or refusal to see a difference between what had better be called "positive law" on the one hand and "justice" on the other. The failure to draw this distinction has been laid by a distinguished authority at the door of classical philosophy.54 Whether or not the charge is entirely justified as to Plato and Aristotle, it is certainly true of the Stoic tradition through which classical philosophy was transmitted to the middle ages, and especially of Cicero.55

To conceive of an identity between justice and the rules of positive law, requires that justice itself must be conceived as more than the raw-material for rules but as itself a body of rules, or as capable of being immediately translated into a body of rules. This was essentially the Stoic doctrine. Their derivation of justice from nature, and their conception of nature as a rational order, brought into the foreground that trend of thought which identified the "laws" of justice with what we should to-day call the laws of physical science. They were definite rules which could be "discovered" and formulated in the

54 Voigt, "Jus Naturale," vol. i., p. 208.

55 See especially "De Legibus," Bk. i., c. xvi.

same sense as the "laws" of heat and motion. This conception had a close affinity, and therefore entered into very powerful combination, with the Christian conception of the "law of God." The importance of the Christian element in the combination consisted in the fact that it was able to supply ready-made a body of such concrete and tangible rules, practically a code, in the shape of the Scriptures.55a Here was a corpus of "higher law" which consisted of rules as definite as those emanating from the legislative power of prince or emperor. A "higher law" became possible as never before because the law-making authority was placed in Heaven while its specific enactments remained definite and visible in the sight of men on earth.

It is interesting to note that John of Salisbury conceives the "higher law" to which princes are subject almost entirely in terms of scriptural commandments or prohibitions. He discusses in detail in two places in the Policraticus the injunctions which are binding upon rulers. The first passage sets forth the provisions of Deuteronomy, xvii, 14-20. Almost the whole of the Fourth Book of the Policraticus is simply a commentary on this passage as constituting the "law" which princes must obey. The second set of scriptural injunctions cited by John as especially binding on princes are drawn from Job, xxix, 7-25.56 But there is no doubt that he conceived the whole Bible as having a similar obligatory force.

With the revival of the study of Justinian's law-books in the eleventh century the doctrine of a "higher" law received another

55a See Ernst Troeltsch, "Die Sociallchren der Christlichen Kirchen," in Gesammelte Schriften, i, 157 ff.

56 Both these passages had already been cited in the same connection by Jonas of Orleans (c. 828 A.D.), "De Institutione Regia," c. 3, 4. (D'Achéry, Spicilegium, tom. I., pp. 324 ff.) The passage from Job is used as establishing the rule for princes by Hugh of Flavigny, M. G. H., SS., tom. viii, p. 436, and thence copied by Hugh of Fleury, "Tract. de Reg. Pot. et Sac. Dig., i., c. 6, Libelli de Lite, tom. ii, p. 473. The passage from Deuteronomy is used for the same purpose in the fifteenth century by Fortescue, "De Laudibus Legum Angliae," c. i.

increment of strength in a peculiar way. It seems to have been conceived that if human enactments to be valid must simply reproduce the provisions of a higher law, therefore the provisions of this higher law could be discovered from the human enactments which had come to be looked upon as valid. In other words, men treasured the Roman law because they regarded it as faithfully reproducing the divine law and therefore as affording a means of knowing the latter.57 This attitude pervades the Policraticus. John of Salisbury regards the provisions of the Corpus Juris as but "publications" and "expositions" of the divine law. Thus he says that Justinian and Leo "disclosed and proclaimed" the "sacred" laws and "took especial pains to the end that the most sacred laws which are binding upon the lives of all should be known by all."58 And elsewhere, referring to the silencing of Vacarius in England, he casually speaks of the Roman law as "the law" itself.59

The identification of the "higher law" with the "law of God" as embodied in the scriptures, and the belief that its provisions were directly reproduced in existing texts of the Roman law, eliminated for thinkers of the twelfth century one of the cardinal difficulties which beset the doctrine of a "higher law" when it appears in the form of the supremacy of a "law of nature," — the

57 Cf. Maitland, "Bracton's Note Book," vol. i., p. 9.

58 Bk. iv., c. 6, infra.

59 Bk. viii, c. 22, infra; so also Bk. vi., c. 26. To "civil law," as distinguished from "the law," John exhibits a decided and natural aversion. Thus, in one place (Bk. vii., c. 20, infra), he quotes with approval a comparison of "the civil laws" to a spider's web, "which catches flies and gnats, but lets birds and larger insects through; in the same manner the civil laws restrain the wills of people of the humbler sort, but give way at once to the more powerful." This hostility to "civil law" in general John concentrates upon custom in particular: "If you urge reason or authority, they will cast in your teeth 'custom,' which they abuse, or which they themselves have made" (Bk. vii., c. 19, infra). This attitude suggests the similar stand later made famous by John's friend, Thomas Becket. See Ramsay, "The Angevin Empire," p. 43; G. B. Adams, Political History of England, 1066-1216, p. 281.

difficulty, namely, of identifying any specific rules or precepts as belonging to this law.60 When a "higher law" must be spelled out from a vague body of principles of "natural justice" it is hard to conceal the fact that the agency which is charged with the process of selecting and translating these into enforceable rules has a discretionary power so wide as to amount practically to creative law-making. This was the difficulty which became more and more apparent to mediæval thought from the thirteenth century onward. But it had not yet arisen for John of Salisbury. While he repeats the cliche that "nature is the best guide of life," and seems to take it for granted that the will of God and the precepts of rational nature are the same, his attention is directed wholly to the first member of the equation, and he is troubled by no difficulty of identifying the precepts of rational nature, — the "higher law" is itself given in the form of clean-cut scripture texts.

But even where the texts of a "higher law" are thus not to seek, but are concretely given, there remain the seeds of ultimate confusion in what the layman is apt to regard as the comparatively insignificant matter of the need for interpretation.61 For a text needs to be interpreted; and interpretation is a mighty lever in the hands of whoever applies it. The person who has authority to say what a text means is in a position to say when it shall, and when it shall not, apply; and the established doctrine of the Roman jurists that a law was to be extended to all cases where the same reason applied and on the other hand was not to be enforced in cases falling outside its

60 In one passage, Bk. iv, c. 7, where John is confronted by the necessity of specifying a precept of the "immutable law," he instances the so-called "golden rule." This is substantially the answer given by George Buchanan (c. 1570) as to the content of the "law of nature" (De Jure Regni apud Scotos, c. xi).

61 In the sixteenth century Buchanan ascribed the growth of the whole Papal power to the fact that the Popes had made good their claim to the right to interpret the law. Op. cit., cc. xxx-xxxii.

"spirit"62 could be used to convert the power of interpretation into a practical power of legislation on the one hand and of dispensing with the law on the other. More and more during the twelfth century this power of interpretation came to be brought into play until Innocent III could claim for the popes that "secundum plentitudinem potestatis de jure possumus supra jus dispensare."63

The difficulties inherent in the problem of interpreting the higher law were already present to the mind of John of Salisbury, and to it is devoted some of the most subtle thinking in the Policraticus, even if the final result seems inconclusive and obscure. Previous thinkers had done their best to close their eyes to the difficulty. Cicero in a burst of Stoic grandeur had announced categorically that the higher law needed no interpretation — that it was one and the same in the minds of all rational beings.64 Augustine says that there can be no two opinions about what the divine law commands or forbids, — that there can be no human judgments concerning it, and therefore no interpretation.65 On the other hand, the practical inevitability of interpretation was bound to be present to the minds of lawyers and was expressly recognized in Gratian's Decretum.66

John of Salisbury seems to approach the problem of interpretation in different passages from two distinct points of view, the juristic and the metaphysical. From the juristic standpoint he recognizes that justice — aeqititas — is in the final

62 See Digest I., iii., 12-25.

63 Innocent III., Decretal Greg., ix., Lib. iii. Tit. viii., de concess. praebend., c. proposuit, ed. Friedberg, ii., p. 488.

64"De Republica," iii, 22, preserved in Lactantius, Inst., vi., 8.

65"De Vera Religione," c. 31 (Migne, P. L., tom. 34, col. 147).

66Decreti Secunda Pars, causa xxv., Quest. I, Pars ii., c. 2, Gratianus: "Sacri canones ita aliquid constituunt ut suae interpretationis auctoritatem sanctae Romanae ecclesiae reservent, ipsi namque soli canones valeant interpretari qui jus condendi eos habent." (ed. Friedberg, i., p. 1011).

analysis not a body of rules, but a vaguer entity which is focused into rules for purposes of application. This he expresses by saying that "the law" is itself the interpreter of equity.67 But he tacitly recognizes that the rule may in certain cases not adequately accomplish, or may even defeat, the justice which it is its place to further. In such a case there is needed an "interpreter" between law and justice. He then quotes the passage of Justinian's Code which states that the power of "interpreting between law and equity belongs solely to the prince as the author of the law," and goes on to argue from this that the law of which God is the author can be interpreted by no one save God Himself.68 From the juristic standpoint John thus gives no clear answer to the question of where the power is located to interpret the divine laws. Some light, however, is shed on this question from the metaphysical standpoint in a passage where John is speaking of the wisdom of counsellors. "They fall into error," he says, "who think that everything is a matter for the arbitrary will and discretion of those who make decisions instead of being rather a matter of truth and science. But there is, as the ancient philosophers knew, a supreme guiding principle of things divine and human, namely Wisdom, and a science of things to be done and left undone." This wisdom is the result of the fear and love of God, and the man who has it will do the things that he ought to do and omit to do the things that he ought not to do. In others words, apparently, the "wise man" will have, so far as is humanly possible, the capacity to know and interpret the law of God.69 Therefore the prince should surround himself with wise counsellors and learned priests.70 John's view thus seems to be that the prince has no peculiar prerogative to interpret the "higher law," but that this right,

67 Bk. iv., c. 2, infra.

68 Bk. iii, c. 26. This passage does not fall within the translation below.

69 Bk. v, c. 9, infra. 70 Bk. iv., c. 6, infra.

so far as it can be humanly exercised, belongs to every individual who is qualified therefor by the gift of Divine wisdom. What is substantially the same problem as that of interpretation is raised when John comes to discuss directly the prince's right to "dispense" with "the law." "Every censure imposed by law," he says, "is vain if it does not bear the stamp of the divine law.... Through the prince no jot or tittle of the law shall fall to earth because he shall make no exception in favor of his own hands or the hands of his subjects." However, John makes a concession to practical necessity and anticipates the thought of the later middle ages by distinguishing between two different kinds of divine precepts. "There are certain precepts of the law which have a perpetual necessity, having the force of law among all nations and which absolutely cannot be broken with impunity....71 Not only do I withdraw from the hands of rulers the power of dispensing with the law, but in my opinion those laws which carry a perpetual injunction or prohibition are not subject at all to their pleasure. In the case of those rules which are flexible, I admit a power of dispensing with verbal strictness, but only in such fashion that the purpose of the law shall be preserved in its integrity by a compensating concession made to propriety or public utility." 72 John nowhere gives examples of the laws which he regards as "flexible," but a distinction which he draws in another connection is pertinent to the point. Speaking of the duty of soldiers to obey their commanders, he says that they must refuse obedience to commands which violate the necessary precepts of God's law. But there are other things "which philosophers count as 'indifferent,' " as for instance whether or not to enter upon a campaign, or

71 Bk. iv., c. 6, infra.

72 Bk. iv, c. 7, infra. For a particularly bitter attack by John on the "dispensing power," where he recognizes that it practically amounts to converting will into law, or, in other words, to law-making sovereignty, see Bk. vii., C, 17, infra.

whether or not to conduct a foray or sortie; and these are left to the discretion of the commander.73 The distinction between precepts as to things necessary and things indifferent is certainly not quite the same as that between flexible and inflexible precepts, but it points in the same direction. The effect of John's theory is to narrow almost to the vanishing point the power of the prince qua prince to dispense with the precepts of the divine texts just as it is to extend the legal power of interpreting these to all persons endowed with Divine Wisdom. An extreme illustration of this reluctance to allow the prince to interpret the law is his doctrine that where the law is doubtful the prince should dismiss a case without decision.74

One basic difficulty involved in the doctrine that the prince was subject to the higher law was solved by John in a way which anticipates the more famous later solution by Aquinas. This is the difficulty that there is no earthly power having jurisdiction to enforce the law against him — the same difficulty which presents itself in connection with the obligatory character of modern international law upon sovereign states. Aquinas met the difficulty by distinguishing between the vis directiva and the vis coactiva of law, and insisting that while the prince was not subject to the compulsive power he was subject to the directive power.75 John of Salisbury had already expressed substantially the same distinction in a different form. He says that while the prince is not bound by the law in the sense that he will be subjected by any earthly authority to penalties for breaking it, he is subject to it in the sense that it is his duty to obey it without the threat of penalties;76 he remains a prince only while his will is conformable to the law; and when he departs from its injunctions he becomes a tyrant.77

73 Bk. vi., c. 12, infra. 74 Bk. v., c. 12, infra.

75Summa Theol, Ia., 2ae., q. xcvi., art v., ad 3.

76 Bk., iv., c. 2, infra. 77 Bk., viii., c. 17, infra.

III. THE PRINCE AND HIS GOVERNMENT

There is no comparison of the relative merits of different forms of government in the Policraticus. The conventional discussion of the respective claims of monarchy, aristocracy, and democracy, is an academic imitation of classical political theory which comes into mediæval thought only with the recovery of Aristotle's "Politics" in the following century. Monarchy is the only form of government in which John is interested as a working reality, although he seems conscious that there may be other forms.78

There is one kind of government, however, which John in several passages sets up as an ideal in contrast to monarchy, to illustrate the short-comings of the latter. This is rule by judges, as it existed among the people of Israel in the time of Samuel and before the establishment of the Kingdom. John's preference for such a government is closely connected with, and serves to emphasize again, his conception of the supremacy of law. A king is not really needed by a people who follow the law and submit to its dictates — all that they require is a judge to administer it among them as Samuel did. The beginning of kingship marks a falling away from the purity of obedience to the law, and was a token of God's anger. "The earliest patriarchs," says John, "followed nature, the best guide of life. They were succeeded by leaders, beginning with Moses, who followed the law, and judges who ruled the people by the authority of the law; and we read that the latter were priests. At last, in the anger of God, they were given kings, some good, many bad. For Samuel had grown old, and when his sons did not walk in his ways, but followed after avarice and uncleanness, the people, who perchance deserved that such priests should be in authority over them, forced God, whom they had despised, to give them

78 Bk. v., c. 1, infra.

a King."79 "And yet a King was not truly needed, had not Israel after the likeness of the gentiles walked crookedly and showed themselves not content to have God for their King."80 "And if iniquity and injustice, banishing charity, had not brought about tyranny ... perhaps there would be no kingdoms at all, since it is clear from the ancient historians that in the beginning these were founded by iniquity as encroachments against God or were extorted from Him."81

These passages form an interesting link between important earlier and later theories. They reach back to the patristic doctrine that in the state of innocence there was no coercive government, and that it was sin which caused God to set men over one another, subjecting some to the authority of others. In the language of St. Augustine, the primitive just men were rather shepherds of their flocks than kings of men.82 On the other hand the same passages reach forward to the important distinction taken by the author of the second book of the De Regimine Principum between "political" and "regal" rule. Political rule was that of the judges of Israel. This was suited to man in the uncontaminated state of human nature which was called the state of innocence; but in the state of sin, regal rule is more beneficial. "Therefore the rod of discipline, which all men fear, and the rigor of justice, are necessary in the governance of the world because thereby the people and the rude untutored multitude are the better ruled."83 Whether St. Thomas wrote this passage or not, the distinction which it drew came to

79 Bk., viii., c. 18, infra. 80 Bk. iv., c. iii., infra,

81 Bk. viii., c. 17., infra.

82DC Civ. Dei., xix., 15; Irenaeus, adv. Haer., v. 24: Carlyle, "History of Mediaeval Political Theory," vol. i., pp. 126-129. St. Isidore held that temporal rulership would not be necessary if men would heed the preaching of God's law and did not require to be coerced. Lib. Sent., III., 51, quoted in Jonas of Orleans, De Inst. Reg., c. 3; in Hugh of Fleury, Tract. de Reg. Pot., M. G. H., Libelli Ac Lite, ii., p. 469.

83 Thomas Aquinas, De Reg. Prin., ii., 9.

be identified with a similar distinction which he based on Aristotle's Politics,84 and formed the groundwork of Fortescue's famous distinction between the English and French monarchies.85

John of Salisbury, when contrasting monarchy with government by judges, represents the former as essentially despotic in character. "And so Saul was elected with the aforesaid right of a King, namely that he might take their sons and make them his charioteers, and take their daughters to bake his bread and cook his food, and take their fields and lands to distribute at his pleasure among his servants, and in short oppress the whole people beneath the yoke of slavery."86 This conception of kingship 87 is out of line with the main trend of John's views on monarchy. It represents a direction of thought which, however congenial with his attitude toward law, is not the direction which he chose in the main to follow. On the other hand the theory of kingship which he developed in detail embraces at least two distinct elements which it is difficult to harmonize.

John insists in numerous passages that the king is the "representative" of the commonwealth.88 He is "the minister of the common interest ... and bears the public person."89 He

84Com. in Aristot. Pol., III., lect. 13, lect. 15. Grabmann holds that the commentary is the work of St. Thomas only as far as III., lect. 6, and that the later parts are by Petrus of Alvernia (M. Grabmann, "Die echten Schriften des M. Thomas," Munster, 1920, p. 206). Grabmann also holds that the "De Regimine" is genuine only as far as the middle of ii, 4. Ibid., p. 151.

85 "This Diversite is wel taught bi Seynt Thomas in hys boke wich he wrote, Ad Regem Cipri de Regimine Principum." Fortescue, "Governance of England," ch. 1.

86 Bk. viii., c. 18, infra.

87 The identification of kingship and tyranny in connection with the theory of the origin of government, and the resulting inconsistency between this view and the attempt made elsewhere to draw a clear distinction between a king and a tyrant, reproduces itself in the continuation of St. Thomas's "De Regimine Principum," — cf. ii., 9, and iii., 9.

88 Bk. v., c. 2., infra. 89 Bk. iv, 2., infra.

must regard himself as only the servant of the people.90 He is an "officer," and his acts are not his own, but those of the "universitas" or corporate community in whose place he stands.91 This conception of kingship as representative or ministerial is in line with a current of opinion which was emphasized in twelfth century thought by the revived study of the Corpus Juris. A famous text based the authority of the emperor on a lex regia whereby the Roman people had transferred their power to him.92 Therefore the Glossators explained the position of the emperor as that of a "representative" or "vicar" of the people. It happens that the earliest passages in the writings of the jurists which develop this view are probably later than the Policraticus or approximately contemporaneous with it;93 but it was a view which was to become the orthodox legal doctrine of the next century,94 and for that reason its early statement by John of Salisbury is all the more remarkable and significant.

It does not, however, represent John's dominant conception of the position of the monarch. He regards him for the most part not as the representative of the people, but as the "image of God on earth." 95 His ministry is conferred on him not by

90 Bk. iv., c. 1., infra. 91 Bk. v., c. 4, infra.

92 Dig., I., 4., 1; Inst. I., 2., 6.

93Com. in Dig. Tit. "De Diversis Reg. Juris," att. to Bulgarus, reg. 176, ed. F. G. C. Beckhaus, Bonn, 1856, p. 112; Placentinus Summa Institutionum, 1., 2. Tourtoulon places the work of Placentinus after 1166, Vie de Placentin, pp. 120-121. It is impossible to date the Commentary accurately. If it was the work of Bulgarus as Savigny supposes ("Geschichte des römischen Rechts im Mittelalter," Bd. iv., pp. 94 ff.), it might have been written before 1156 and probably before 1159 (ibid., pp. 86-87).

94 Aquinas, Summa Theol., 1a2ae, q. 90, art. 3; Baldus, Com. on Code Venice, 1586), Bk. 10, Rubr. 1, nr. 12, 13, 18; other citations in Maitland's Gierke, notes 210-217 incl.

95 Cf. Hugh of Fleury, Tract. de Reg. Pot., i, 3: "rex in regni sui corpore patris omnipotentis optinere videtur imaginem"; Suger, Vita Ludovici, Oeuvres, ed. Lecoy de la Marche, p. 72: "partum Dei cujus ad vivificandum portat rex imaginem." See Flach, "Les Origines de l'Ancienne France," t. iii, pp. 236 ff.

the people but by God. "All power is from the Lord God; the power which the prince has is therefore from God, for the power of God is never lost nor severed from him, but He merely exercises it through a subordinate hand." 96 The power of the prince is "instituted by God for the punishment of evil-doers and for the reward of good men." 97 The prince "is placed at the apex of the commonwealth by the divine governance."98 Kingship is an honor bestowed by God," and a criminal attempt against the prince is an attempt against God himself.100 He is subject only to God and to the priesthood, who represent God upon earth;101 and he will be judged by God and held to account for his ministry."102

The later middle ages were troubled by the problem of reconciling the doctrine that on the one hand the ruler was the agent or representative of the people, and on the other hand that he held his power from God.103 John does not seem to have felt the difficulty, perhaps because he had a solution for it. "The commonwealth," he says, "stands in the same relation to the prince as a ward to a guardian." 104 In other words, the prince is responsible for the commonwealth, but not to it; he represents it legally, but his responsibility runs to the legal authority to which he owes his appointment, namely to God. The same idea is differently expressed in another passage: "The prince is the Lord's servant, but he performs his service by faithfully serving his fellow-servants, namely his subjects."105

This solution evades the necessity of taking one side or the other upon an issue which was of immediate practical con-

96 Bk. iv., c. 1., infra. 97 Ibid. 98 Bk. v., 6., infra.

99 Bk. vi., c. 26., infra. 100 Bk. vi., c. 25., infra. 101 Bk. v., c. 2., infra.

102 Bk. iv., c. 10; Bk. iv., c. 12; Bk. vi., c. I., infra.

103 For efforts to effect a reconciliation see Maitland's Gierke, notes 140 and 141.

104 Bk. v., c. 7., infra. For the discharge of this trust, the king is responsible to his own judge in Heaven. Bk. v, c. 11; Bk. vi., c. 1, infra.

105 Bk. iv., c. 7., infra.

sequence in the twelfth century, — the issue, namely, between elective and hereditary monarchy. In the Carolingian period the conventional formulae of public acts described the Frankish kings as "elected by the whole people."106 During the feudal era the baronage had succeeded for a time in France107 and permanently in Germany in making the election more than a mere formality.108 In England, at least the form of election seems to have prevailed down to the time of Edward the First.109 At the very era when the Policraticus was being written the French and English monarchs were finally succeeding in making the crown hereditary in their families through the practice of securing the election and coronation of the heir during the life-time of his predecessor.110 "Philip Augustus was the first of his race who felt himself strong enough to dispense with the designation and coronation of his son during his own life-time. It had taken two centuries for the dynasty of Hugh Capet to attain this result."111 During the whole period when the hereditary and elective principles were contending with one another, current theory sought to evade difficulties by accepting both at the same time and refusing to see any inconsistency between them. The typical formulae run to the effect that the king is "Rex jure hæreditario, ... et mediante tam cleri quam populi unanimi consensu et favore;112 or, as Ivo of Chartres explained,

106 Flach, Les Origines de l'Ancienne France, t. iii., pp. 238, ff. 107 See Luchaire, Institutions Monarchiques, t. i, pp. 61-86. 108 Bryce, Holy Roman Empire, 7 ed., pp. 226 ff.

109 Stubbs, Constitutional Hist., ii., p. 107.

110 Luchaire, op. cit., t. i, p. 61, p. 69. Henry II of England had his eldest son, Henry, crowned twice: first in 1170 (G. B. Adams, Political History of England, 1066-1216, p. 293), and again with his wife in 1172 (ibid., p. 303).

111 Luchaire, op. cit., p. 87.

112 Rymer, Foedcra, ed. Clarke and Holbrooke, vol. i., pt. 1, p. 75. Cf. the account of the succession of Richard I given by Ralph de Diceto: "Conies itaque Pictavorum Ricardus hæreditario jure promovendus in regem post tam cleri quam populi solempnem et debitam

"Jure in regem est consecratus cui jure hæreditario regnum competebat et quem communis consensus episcoporum et procerum jampridem eligerat."113

In fact, this mixed theory of election and heredity was not so much the result of a mere failure to distinguish between the two as it was the outcome of a carefully devised argument which formed an important element in that ecclesiastical tradition of political thought which John of Salisbury represents. The full statement of this theory is perhaps the point at which the Policraticus sheds the most direct light on the institutional history of its era.

John starts from the position that "the kingly power is not born of flesh and blood, since in the bestowal thereof regard for ancestry ought not to prevail over merits and virtues."114 Again he says that, while ordinarily public offices descend to the heirs of the holder, governance of the people does not so descend as a matter of right, but is bestowed upon one who has in him the spirit of God, and has a knowledge of the law.115 The theory of absolute hereditary right is thus rejected. On the other hand, John is equally far from accepting an unrestricted freedom of election on the part of the commonwealth. In describing the "ordination" of a Hebrew king, and implying that it is a model to be followed in instituting rulers, he says, "Here is plainly no acclamation by the people, any more than a title founded upon ties of blood"; but the prince should be chosen in the presence of the people, "so that afterwards no man may

electionem involutus est triplici sacramento," etc. Imagines Historiarum, anno 1189, Opera Historica, Rolls Series, no. 68, vol. II., p. 68.

113 "Receuil des Historiens de France," tom. xv., p. 144. For the combination of hereditary and elective theory in the Empire, see Waitz, Deutsche Verfassungsgeschichte, (ed. 1896), vi, 163 ff. Cf. the account of the accession of Otto I. in the Annales QuedKnburgenses, M. G. H. SS, iii, 54: "Henricus rex obiit ... cujus filius Otto ... jure hæreditario paternis eligitur succedere regnis."

114 Bk. iv., c. 3, infra. 115 Bk. v., c. 6, infra.

have ground for retraction, and no least scruple of uncertainty may remain to cloud his title."116 John is particularly opposed to the efforts of kings to ensure the succession of their heirs. "Why is it," he asks, "that the poor are crushed beneath wrongs and outrages, made lean with exactions, despoiled by manifold and often repeated rapine, why are the peoples bidden to clash together in arms and shake the world, to no end but that princes may be succeeded by their natural heirs?"117 "To-day all are actuated by the single motive of making their children, no matter what the character of the latter may be, resplendent with riches and honors rather than with virtues. They even neglect and forget that the burden and responsibility of the common weal rest upon them."118

If thus neither election nor hereditary right affords a sufficient basis for the royal title, whence is it derived? John derives it directly from God, through election or inheritance or such other means as God in the given instance chooses to employ. "The prince is placed by the divine governance at the apex of the commonwealth, sometimes through the secret ministry of God's providence, sometimes by the decision of His priests, and again it is the votes of the whole people which concur to place the ruler in authority."119 Having been so chosen, if he then proceeds to discharge his office faithfully and in accordance with divine law, a presumptive right arises in his children to succeed him. "The father is succeeded by the son if the latter imitates the father's justice. Parents will be succeeded by their children if these shall have faithfully followed them in obeying the commandments of the Lord.... Since there is nought which men more desire than to have their sons succeed in their possessions, therefore this promise is given to princes as the greatest incentive to the practice of justice.... It is the privilege of a prince to have his sons succeed him with-

116 Bk. v., c. 6, infra. 117 Bk. v., c. 7, infra.

118 Bk. iv., c. 11, infra. 119 Bk. v., c. 6, infra.

out any question and in continuance of the original grant from God unless their princely power is subverted as a result of iniquity."120 "It is not right to pass over in favor of new men the blood of princes, who are entitled by the divine promise and the right of family to be succeeded by their own children, provided they have walked in the judgments of the Lord."121

What the theory amounts to, then, is this: that heredity establishes a presumptive or defeasible title which if abused either by the incumbent, his predecessor, or the claimant to the succession, is capable of being divested by human action pursued in execution of the judgment of God and by virtue of authority derived from Him. This was substantially the form in which a compromise between the hereditary and elective principles was maintained by church theory during the two centuries from the election of Hugh Capet to the end of the twelfth century. On the former occasion it was expressed by Adalbero of Rheims: "We are not ignorant that Charles of Lorraine has partisans who pretend that the throne belongs to him by right of birth. But if the question is stated in this way we shall reply that royal power is not acquired by hereditary right, and that he alone should be elevated to it who is designated not merely by his birth and family but also by the wisdom of his spirit and who finds his natural support in his faithfulness to religion, his chief strength in his greatness of soul."122 What is substantially the same view is set forth in the much-disputed speech attributed to Archbishop Hubert of Canterbury on the occasion of the "election" of King John of England. "Let your discretion know," the Archbishop is made to say, "that no one has a right to succeed another in the kingship unless after the invocation of the Holy Spirit he is chosen by the unanimous approval of the universitas of the kingdom, having been previously

120 Bk. iv., c. 11, infra. 121 Bk. v., c. 6, infra.

122 Richer, Bk. iv., c. 11, ed. Waitz, pp. 132-3.

designated for the post because of his pre-eminence in good qualities, according to the example and likeness of Saul, whom God set over His people although he was not the son of a king nor even sprung from a royal stock; and of David likewise, the son of Semey, who succeeded him, the one because he was able and fit for the royal dignity, the other because of his holiness and humanity; thus showing that he who excels all in the kingdom in point of ability should be set over all in power and rulership. But if any of the family of the deceased king so excels others, his election must be consented to all the more readily and promptly."123

Read in the light of contemporary doctrine as developed in the Policraticus, there is no need to see in Hubert's speech the announcement of the principle of election in any modern sense, or to regard it as exceptional in the way that Stubbs seems to do.124 It is merely the emergence of the conventional view upon an opportunity and from a source from which it might naturally be expected to emerge. We should make a serious mistake if we supposed that the elective element was conceived with anything like the sharpness of nineteenth, or the hereditary element with anything like the legitimist absolutism of eighteenth, century theory. Both were outlined with a hazy

123 Matthew Paris, Chron. Maj., Rolls Series, no. 57, vol. ii, pp. 454, 5. The inconsistency between the two elements of the conventional theory, heredity and election, was already breaking apart in the investiture controversy at the end of the eleventh century. The imperialists were driven to advance a theory of indefeasible hereditary right: see Petrus Crassus, Defensio Henrici, M. G. H., Libelli de Lite, i, 432 ff; Liber de unitate ecclesiae conservanda, ibid, ii, 173. On the other hand, for the papalists, Manegold of Lautenbach rested royal authority on delegation by the people: Liber ad Gebehardum, cc. xxx, xlvii, ibid., i, 308 ff. See A. Fliche, "Les Théories Germaniques de la Souveraineté," in Revue Historique (May-June, 1917), cxxv, 1 ff.

121 Stubbs, Const'l Hist., vol. i., p. 454. Election was only a channel through which God manifested his will. See M. Prou, preface to Hincmar, "De Ordine Palatii," p. xxix, Bibl. de L'École des Hautes Etudes, fasc. 58.

informality, which was no doubt all the more congenial to church writers because of the opportunity which was thus left to the Church to intervene in doubtful cases and declare upon the highest authority the will of God.125 But John cautiously refrains from saying that the power of decision always rests with the priesthood; it is true that they always have the power of deposition because they have the power of conferring royalty;126 but it is only sometimes that God works through this power, and He frequently employs other agencies to elevate his chosen candidate to royal office.127

The conception of the king's title as derived from God goes hand in hand with the conception of his "office" as a religious one. "Every office existing under and concerned with the execution of the sacred laws is really a religious office."128 A great part of the Policraticus is taken up with a discussion of the duties of the ruler conceived from this standpoint. The discussion is illuminating as disclosing absolutely no distinction between what we should class as public and private duties.129 The king should be chaste and avoid avarice;130 he should be learned in letters;131 he should be humble;132 he should banish from his realm actors and mimes, buffoons and harlots;133 he should seek the welfare of others and not his own;134 he should wholly forget the affections of flesh and blood and do only that

125 See the very interesting "opinion" handed down by Innocent III when he undertook to decide the case of the disputed election of Philip of Swabia and Otto of Brunswick to the Empire (1201): HuillardBreholles, "Historica diplomatica Friderici secundi," I. 70-76; also in Migne, P. L., tom. 216, 1025 ff.

126 Bk. iv., c. 3, infra. 127 Bk. v., c. 6, infra. 128 Bk. iv., c. 3, infra.

129 Augustine, still living in the classical tradition, had recognized such a distinction. Ad. Bon., Ep. 50., c. 5, § 19. This letter appears as no. 185 in Migne's edition. See P. L., tom. 33, 801.

130 Bk. iv., c. 5, infra.

131 Bk. iv., c. 6, infra. Hugh of Fleury would have the king learn to read, "ut acuatur cotidie ejus ingenium lectione divinorum librorum." "Tract. de Reg. Pot.," i., 6.

132 Bk. iv., c. 7, infra. 133 Bk. iv., c. 4, infra. 134 Bk. iv., c. 8, infra.

which is demanded by the welfare and safety of his subjects; he should be both father and husband to them;135 he should correct their errors with the proper remedies;136 he should be affable of speech and generous in conferring benefits; he should temper justice with mercy;137 he should punish the wrongs and injuries of all, and all crimes, with even-handed equity;138 he has duties to the very wise and the very foolish, to little children and to the aged;139 his shield is a shield for the protection of the weak, and should ward off the darts of the wicked from the innocent;140 he must act on the counsel of wise men;141 he must protect the widow and the orphan;142 he must curb the malice of officials and provide for them out of the public funds to the end that all occasion for extortion may be removed;143 he must restrain the soldiery from outrage;144 he should be learned in law and in military science;145 he must in all things provide for the welfare of the lower classes;146 he must avoid levity;147 he is charged with the disposal of the means of the public welfare,148 and is the dispenser of honor;149 he must not close his ear to the cries of the poor;150 he must raise aloft the roof-tree of the Church and extend abroad the worship of religion;151 he must protect the Church against sacrilege and rapine;152 and finally, he must ever strive so to rule that in the whole community over which he presides none shall be sorrowful.153

This patriarchal-ecclesiastical conception of monarchy and government forms part of a tradition which had become dominant sometime before the reign of Justinian and was destined to govern western thought almost until the end of the sixteenth

135 Bk. iv., c. 3, infra. 136 Bk. iv., c. 8, infra. 137 Ibid.

138 Bk. iv., c. 2, infra. 139 Bk. iv., c. 3, infra. 140 Bk. iv., c. 2 infra. 141 Bk. v., c. 6, infra. 142 Ibid. 143 Bk. v., c. 10, infra.

144 Bk. vi., c. 1, infra. 145 Bk. vi., c. 2, infra.

146 Bk. vi., c. 20, c. 25, infra. 147 Bk. vi., c. 23, infra.

148 Bk. vi., c. 24, infra. 149 Bk. vi., c. 26, infra.

150 Bk. vi., c. 27, infra. 151 Bk. vi., c. 2, infra.

152 Bk. vi., c. 13, infra. 153 Bk. vi., c. 6, infra.

century.154 It emerges with especial emphasis in the Carolingian period,155 and writes itself into coronation oaths and official documents. Thus Otto the First, when crowned King of the Franks, swore that he would "drive out all the enemies of Christ by the divine authority committed to him, and would stretch out the hand of pity to the ministers of God and to all widows and orphans, and never be wanting in the oil of mercy."156 Barbarossa seems to have sworn to defend the Church and the clergy of God, to keep peace and order, and to protect the widows and the fatherless and all his people, "that those who obeyed and trusted him might rejoice, and that he might win glory in the sight of men and eternal life with the King of Kings."157 Bishop Adalbero at the election of Hugh Capet told the assembly, "you shall have him for a father; for who of you when in trouble shall not be able to take refuge with him and find in him a patron and protector?"158 It is interesting to note that in two treatises on royalty written during the Carolingian period,159 there is quoted the same passage from a work certainly not earlier than the fifth century,160 in which this

154 See Sir Thomas More, "Utopia," Everyman's ed., pp. 39-40, for substantially the same conception of kingship as that of John of Salisbury; so also Bodin, "Six Livres de la République," Bk. ii., c. iii; George Buchanan, "De Jure Regni apud Scotos," cc. xxxviii., xxxix, also Epigram ii., 27. See P. Hume Brown, "George Buchanan, Humanist and Reformer," p. 254.

155 Seeliger, in Cambridge Mediaeval History, vol. ii, p. 656.

156 Widukind, ii., c. 1, ed. Waitz, M. G. H. SS., iii, p. 438.

157 Jaffé, Bibliotheca Rermn Germanicarum, vol. I. p. 513. Wibaldi epp., no. 382.

158 Richer, Chron., ed. Waitz, p. 133.

159 Jonas of Orleans, De Inst. Reg., c. 3; Hincmar of Rheims, De regis persona et regio ministerio, c. 2, Migne, P. L., tom. 125, 833 ff.

160 The passage is from a work entitled "De Duodicum Abusionibus Sacculi," (c. 9), wrongly attributed by mediæval writers to St. Cyprian, and printed among his works (Migne, P. L., tom. 4, col. 870 at col. 877 ff.). A scholarly edition of this work under the earlier title "De Duodecim Abusivis Saeculi" has been published by S. Hellmann (Texte und Untersuchungen zur Geschichte der altchristlichen Literatur, ed.

ecclesiastical-patriarchal conception of royalty is very fully developed; and the passage as an obviously important source of much of the later theory deserves comparison with the statement of the ruler's duties in the Policraticus: "The justice of a King is this: not to use his power to oppress any one; to judge between a man and his neighbor without respect of persons; to be the defender of pilgrims and orphans and widows; to prevent thefts: to punish adultery; not to exalt the wicked to power; not to nourish unchaste persons and actors; to destroy the wicked from the face of the earth; not to permit parricides and perjurers to live; to defend churches; to sustain the poor by alms; to place righteous men in charge of the business of the realm; to have old men and wise men and sober men for his counsellors; not to give ear to the superstitions of magicians, soothsayers and pythonesses; to put away anger; to defend the land bravely and righteously against foes; to trust to God in all things; to hold the Catholic faith in God; not to permit his sons to act wickedly; to attend to prayers at regular hours; not to take food before the appointed hours."161 This passage practically sums

Harnack and Schmidt, vol. 34, Leipzig, 1910). Hellmann points out the extensive influence of the work upon Carolingian and later political literature, and ascribes its origin to southwestern Ireland between 630 and 700. See also Bury, "Life of St. Patrick," p. 205.

161 This passage is adopted by Abbo of Fleury (c. 990) as expressing his view of monarchy. "Receuil des Histor. de France," t. x., p. 627. The way in which it reached him is interesting. He attributes it to the Sixth Council of Paris, canons, ii., c. 1. The second book of canons of this Council incorporates practically in its entirety the treatise of Jonas of Orleans above referred to, including of course Jonas's quotation from the "De Abusionibus" (Mansi, xiv, 574 ff.). Prou thinks that the treatise of Jonas is a mere copy from the canons rather than that the canons are taken from the treatise, preface to Hincmar's "De Ordine Palatii," ed. Prou, Bibl. de L'École des Hautes Études fasc. 58, p. xxv. The same conclusion was reached earlier by B. Simson, "Jahrbücher des Frankischen Reichs unter Ludwig den Frommen," i, 381 ff.

up all that John of Salisbury has to say on the duties of the prince. He has nothing to add to it.162

The patriarchal-ecclesiastical conception of monarchy thus looked upon the relations between the monarch and his subjects as purely personal. Its ideal was Job sitting in the gate and rendering judgment in favor of the widow and the poor man,163 an ideal which was actually realized in St. Louis's well-known practice of doing justice under the oak at Vincennes.164 It ignored altogether the question of the organization of an ad-

162 For a similar conception of monarchy in Justinian's Novels, see Bussell, "The Roman Empire" vol. ii., pp. 50 ff. The duties of a king are set forth as follows by Hugh of Flavigny (c. 1100): "The duty of a king is to rule the people of God in justice and equity; to be the defender of churches, the protector of widows and orphans, to deliver the poor man from the mighty and the needy man whom there is none to aid; and like blessed Job to break the jaws of the unjust man and bear away his prey from his teeth; to be the father of the poor, an eye to the blind and a foot to the lame" (M. G. H., SS., viii, p. 436). The passage is copied by Hugh of Fleury, "Tract. de Reg. Pot." i., 6 (Libelli de Lite, ii., p. 473). For a collection of passages from contemporaneous writers setting forth the same view see Waitz, "Deutsche Verfassungsgeschichte" (ed. 1896), vi, 469 ff. A familiar type of treatise consisted of a list of the virtues proper to a king, and a moral discourse on each. Such is the "Via Regia" of Abbot Smaragdus, a Carolingian writer (Migne, P. L., tom. cii, col. 931 ff.), and the first book of the "De Principis Instructione" of Giraldus Cambrensis at the end of the twelfth century (Opera, Rolls Series, no. 21, vol. viii.). Cf. also Sedulius Scotus, "Liber de Rectoribus Christianis," Migne. P. L., tom. ciii, col. 291.

163 Bk. v., c. 6, 8, infra.

164 De Joinville, "Histoire de Saint Louis," ed. Natalis de Wailly, p. 35. It is to be observed that John conceives of the king's public functions as falling into two departments, military and judicial. See Bk. vi, c. 2, infra. The King's non-military duties consist in knowing and applying the law, not in making it. John nowhere suggests the existence of an earthly legislative power vested in the king or elsewhere. Law-making was still viewed as a part of the judicial process, — a more or less surreptitious incident of "jus dicere." See J. Pétrau-Gay, "La Notion de 'Lex' dans la Coutume Salienne," Grenoble, 1920, p. 28. For other examples of the "judicial" conception of the kingly office, see Jonas of Orleans, "De Institut. Reg." c. 4; Hincmar, "De regis persona, etc.," c. 16.

ministrative mechanism for establishing an impersonal contact between government and the individual. There is no hint of this problem in the Policraticus. From the theoretical standpoint it thus omitted some of the most important problems of the science of government. From the practical standpoint it was at once the cause and the reflection of the condition of affairs which resulted in the administrative disintegration that we know as feudalism. The relation of the prince to his subjects being conceived as not essentially different from their relation to one another, there follows naturally the distintegration of public law into private law which characterizes the middle ages. The relation of the subjects to one another being conceived as not different from their relations to the prince, there resulted the establishment by the more powerful subjects of what practically amounted to princely power over their lesser neighbors. The same tendency was furthered by the conception of princely power as paternal; every lord of a large household was necessarily regarded by John of Salisbury165 as in some sort a prince. The patriarchal conception of authority thus worked toward the same result as the conception of a pre-established higher law.166 Furthermore, the existence of only a personal as distinguished from an institutional bond between the prince and his subordinate officials 167 operated on the one hand to make efficient supervision of the administrative system impossible, and on the other hand to place their relations on a footing of private law which lent a color of legality to claims of feudal in165 Bk. vi., c. 22, c. 27, infra.

166 "The mediæval view of government admitted and indeed required that wealth and social influence should be accompanied by political power.... Every householder had some jurisdiction under his roof-gutter and within the hedge. Personal authority over domestic servants and slaves took among other things the shape of criminal and police jurisdiction." Vinogradoff, in Cambridge Mediaeval History, vol. ii., p. 651.

167Supra, p. xxviii

dependence. Feudalism was thus bred in part from the very ideas of personal absolutism which superficially seem most strongly opposed to it. Its persistence was to some degree due to the fact that its presuppositions were accepted by its opponents.168

The absence of any sense of the need for organizing on an institutional basis the relations between the prince and his subordinates no doubt accounts for the scandalous venality of the bureaucracy which so much of the Policraticus is devoted to castigating.169 It is a result which always follows from such a cause; it did so in the Byzantine Empire 170 and in the Renaissance monarchies of the sixteenth century.171 The restraining influence of purely personal supervision is entirely inadequate to control a large body of officials functioning over a wide territorial area; an institutionalized system of responsibility can alone develop the tradition and enforce the practice of honest efficiency. It has been well said that when more power is conferred upon the people than they are able to exercise, effective control is really taken from them,172 and similarly when more power is left in the hands of the prince than he can humanly exercise, effective power passes really to an irresponsible bureaucracy.

There is much food for modern thought in John of Salisbury's attempt to correct the abuses of governmental power by strenuously preaching the virtues of personal morality. It was

168 When the French kings by the middle of the fourteenth century had succeeded in getting possession of the greater feudal principalities which they had been striving to control for more than two centuries, they could think of nothing better to do with them than to parcel them out as "appanages" among younger members of the royal family in whose hands they became the basis of a new feudalism. See Lodge "The Close of the Middle Ages." p. 46.

169 Bk. v., cc. 10, 11, 15, 16; Bk. vi., c. 1, infra.

170 Bussell, "The Roman Empire," vol. ii., p. 53 ff,; 93 ff.

171 L. Einstein, "Tudor Ideals," pp. 56-62.

172 Henry Jones Ford, "Rise and Growth of American Politics," p. 209.

the only method that he knew. It is the method which still appeals most strongly to the average human beings who have in their hands the destinies of modern democracies. But the teaching of all political history proves that it is a futile method. Men's qualities and standards are determined largely by their opportunities and temptations. John himself saw this,173 but it led him to no more fruitful conclusion than a lapse into the Stoic recommendation, so inconsistent with all the rest of his teaching, that a man who wished to preserve his virtue should have nothing to do with public affairs. "Who desires to be good, let him quit the court."174 If this is the inevitable conclusion, political philosophy is a vain and unprofitable study.

John is innocent of any idea of correcting the abuses of administration by an institutional organization of public functions under the prince. Everything rests in his personal judgment. Everything is "guided solely by the determinations of his own mind."175 And this absolutism is tinctured with elements which enable us to see the patriarchal origins of the feudal point of view. The prince is in a sense the owner of all the goods of his subjects. Private law is again called into play and the subjects are conceived as mere tenants by superficies; and "when the advantage of the ruling power so requires, they are not so much owners of their possessions as mere custodians. But if there is no pressure of necessity then the goods of the provincials are their own and not even the prince himself may lawfully abuse them."176 On the other hand "the prince will not regard as his own the wealth of which he has the custody for the account of others, nor will he treat as private the property of the fisc, which is acknowledged to be public. Nor is this any ground for wonder, since he is not even his own man, but belongs wholly to his subjects."177 This is a view which can

173 Bk. v., c. 10, infra. 174 Bk. v., c. 6, infra.

175 Ibid. 176 Bk. vi., c. 1, infra. 177 Bk. iv., c. 5, infra.

easily degenerate into the claim of the overlord to ownership of all the goods of his vassals;178 while in its essence it seems to approach quite nearly to the modern conception of trusteeship. The king can take and use the goods of his subjects when necessary for the common advantage; and he is accountable not to their judgment but only to the "higher law." Implicit belief in the certainty of this law and its enforcement serves to conceal the danger of entrusting such power to an individual. On the other hand, a power of "eminent domain" had obviously to be vested somewhere; and John and his contemporaries were incapable of conceiving it as vested in the state itself because they could not yet conceive of the universitas as acting except through the prince, or as having a persona of its own apart from the persona of the prince. In other words, they had to think in terms of trusts and not of corporations; and they could do so without difficulty because they had the higher law to fall back upon.

IV. THE CHURCH

John of Salisbury's conception of the Church is a corollary of his view that the "higher" law is the law of God; and that "every office existing under and concerned with the execution of the sacred laws is really a religious office."179 Therefore both the organization of the state and the ecclesiastical organization are agencies for the administration and execution of the same body of divine rules and precepts. The sacerdotal power is a part of the same "body" or commonwealth as the princely or temporal power.180 So far, this is but the traditional Gelasian doctrine,181 which had gained general currency at the

178 See More, "Utopia," Everyman's ed., p. 38.

179 Bk. iv., c. 3, infra. 180 Bk. v., c. 2, infra.

181 Gelasius I., Ep. viii., ad Anastasium Imp., Migne, P. L., tom. lix, col. 41; Carlyle, History of Mediaeval Political Theory, i, 190.

hands of Carolingian writers. But even the Carolingian writers had gone farther and maintained that while emperors might be "judged" by priests, priests could not be judged by emperors.182 It is interesting to note that one of these writers, Jonas of Orleans, cities the emperor Constantine as authority for this proposition;183 while John of Salisbury in further developing it relies upon stories of the acts and words of Constantine at the Council of Nicaea.184 The priestly power cannot be judged by the temporal power because the functions of the latter are of inferior dignity, consisting essentially in physical coercion and "being typified in the person of the hangman." The wielder of temporal power "is therefore, as it were, the minister of the priestly power for the purpose of enforcing the divine law by physical sanctions, and receives his sword from the Church." In the organic analogy the priesthood holds the place of the soul in the body as the prince holds that of the head; and hence the prince is subject "to those who exercise God's office and represent Him on earth, even as in the human body the head is quickened and governed by the soul."185 God regards the honor or dishonor of those who "administer the divine laws, i.e. the priesthood, as His own, saying 'Who hears you, hears me.'"186 Accordingly Constantine had declared that "it was not permissible for him, as a man, and one who was subject to the judgment of priests, to examine cases touching Gods, who cannot be judged save by God alone."187 Furthermore, since God sometimes uses the priesthood as the means of conferring kingship,188 they have the power to take away that which they have the power to bestow; and John cites the example of the transfer of the Hebrew crown from Saul to David by Samuel.189

182 Jonas of Orleans, De Inst. Reg., c. 2. 183 Ibid.

184 Bk. v., c. 2, infra. 185 Bk. v., c. 2., infra.

186 Bk. v., c. 5, infra. 187 Bk. iv., c. 3, infra.

188 Bk. v., c. 6, infra. 189 Bk. iv., c. 3, infra.

With the question of the organization of the priestly hierarchy John does not deal directly; his views must be pieced together from statements made in other connections. He was of the school and generation of Bernard of Clairvaux, who had made it their ideal to exalt the papal primacy. Accordingly he says that the "Roman Church" — i. e. the Apostolic See, — is the "mother and head of all the churches."190 "Whoever dissents from the teaching of the Roman Church is either a heretic or a schismatic." 191 "The Roman Church by the high authority of God is the parent and nursing mother of faith and life, and, fortified by the privilege of Heaven, can neither be judged nor blamed of men." 192 "Judgment upon the supreme pontiff is reserved for God alone." 193

On the other hand he makes it clear that he does not approve of the direct centralization of church administration at Rome by the grant of exemptions and immunities from the jurisdiction of the local bishops and other church authorities.194 "I do not presume," he says, "to criticize the generosity of the Apostolic See, but I do think that these indulgences which it grants are not to the advantage of the Church of God ... I say that men who seek exemptions of this character would cast off the yoke of Christ and his Father if they could; nay even, I say more, they do cast off His yoke, so far as in them lies, and falsely contradict the divine ordinances."195 Others, to shield their malice from correction, "get themselves altogether exempted from the jurisdiction of the churches and cause themselves to be received as special children of the Roman Church, with the result that while they may sue in any court, they cannot be sued save at Rome or Jerusalem."196 John

190 Bk. vi., c. 24, infra. 191 Bk. vi., c. 24, infra.

192 Bk. viii., c. 17, infra. 193 Bk. viii., c. 23, infra.

194 For the same view see St. Bernard, "De Consideratione," iii., 4, § 17, tr. Lewis, p. 89. 195 Bk. viii., c. 19, infra. 196 Bk. vii., c. 21, infra.

protests repeatedly that he has no intention of criticizing or resisting the Apostolic See;197 but he expresses disapproval of some of its acts and a belief that they were due to improper pressure brought to bear upon it.198

The impression left by John's whole discussion of the organization and state of the Church is that it is hesitating and ambiguous. He says at one point that the Supreme Pontiff is above the law; and while this might seem to admit a complete dispensing power in the Pope, he hastens to add that one who is in such a position "is all the more strictly obliged not to commit unlawful acts."199 Elsewhere he criticizes the Pope for granting a privilege which was contrary to the canons, — i. e. for an exercise of the dispensing power,200 — and thus seems to imply that the Pope like other magistrates is after all under the "higher law" which the canons reproduce. John conceives of the Pope no more than the Prince as "sovereign" in the modern sense.

John is similarly ambiguous in dealing with the thorny, and in his day extremely practical, question of disputed papal elections. He deplores that the papal throne has too often been the prize contended for by ambitious men who "tear the Church asunder and profane the sanctuary, shake the nations, harry kingdoms, to procure but a wider license and larger immunity for themselves, to heap up money, to favor, aggrandize, and corrupt flesh and blood, to ennoble their families, to lord it over their flocks rather than to be an example unto them. Such men are more rightly to be numbered among tyrants than among princes." 201 He makes, perhaps only half in earnest, the naive suggestion that the world should stand aside and let such contenders fight out their quarrel; after which the defeated party should be drowned in the Tiber and the victor

197 Bk. vii., c. 21; Bk. viii., c. 17, infra.

198 Bk. vii., c. 21; Bk. viii., c. 23, infra. 199 Bk. viii., c. 23, infra. 200 Bk. vii., c. 21, infra. 201 Bk. viii., c. 23, infra.

condemned to penal servitude in the mines or quarries.202 But one who has been canonically elected must be held for pope, whoever he be.203 The question of what election is canonical is not discussed, being apparently remitted to the higher law, which can only mean to the judgment of the individual.204

Most of John of Salisbury's discussion of church affairs occurs in connection with his bitter invectives against abuses, of which he emphasizes chiefly the advancement of improper persons to church preferment, and the resulting corruption in the exercise of ecclesiastical authority.205 Following the traditions of the reforming party in the Church during the preceding century, he traces the root of the evil to the influence of the secular authority in ecclesiastical appointments;206 but even papal legates "at times rage through the provinces in such bacchanalian frenzy as if Satan himself had come forth from the presence of the Lord to scourge the Church";207 and it was contrary to all custom and experience for a legate to return poor after discharging an embassy.208 One of the most vivid chapters of the Policraticus is that in which John recounts a conversation with his friend, Pope Adrian IV, in which he frankly disclosed to the pontiff his opinion of the shortcomings of the Roman See. He thought that many, if not most, of

202 Bk. viii., c. 23, infra. 203 Ibid.

204 John of Salisbury in later life took an active part in the Third Lateran Council of 1178 which promulgated the decree "Licet de Evitanda" regulating the rules of Papal elections.

205 "For the most part such men have been promoted by the court to the offices of the Church against the unanimous wishes of the faithful." Bk. v., c. 16, infra.

206 Ibid. 207 Ibid.

208 Bk. v., c 15, infra. Note also the ironical tone in Bk. viii., c. 17, where John, after saying that he will not criticize the Roman See, proceeds to recount the outrages of legates and ends by saying that these things cannot be, because they are unthinkable. Says St. Bernard: "To think of a legate returning from a land of gold without gold! Does it not sound like news from another world?" De Consideratione, iv, 5, § 13, tr. Lewis, p. 112.

the Roman officials were pure and honest, but "the contamination of the dishonest few brings infamy upon the Church universal; and in my opinion the reason why they die so fast is to prevent their corrupting the entire Church ... Father, you are wandering in the trackless wilderness, and have strayed from the true way."209 And in almost the last chapter of the Policraticus, John sets forth the practically impossible position of the Pope, who in order to maintain himself on his throne must make compromises and yield to influences which taint him with the very sins and vices which it should be his chief duty to combat and destroy. "If he follows these practices, must he not condemn himself with his own voice?"210

It is hard to resist the impression in analyzing John's discussion of the Church that we are witnessing the crumbling of an ideal. The reformers of the eleventh century had seen no other way of purifying the Church and restoring its moral and spiritual influence than by setting it wholly free from temporal control and erecting it upon a pinnacle of supremacy under a world-wide authority of its own, embodied in the Papacy. It remained for their successors in the twelfth century to witness the subtle corrosion of the church organization itself by the same influences which they had been taught to regard as wholly due to secular causes. The result is a vague feeling on the part of both St. Bernard and John of Salisbury that something is wrong; and it is perhaps in consequence of this feeling that John's discussion of the Church is on the whole so unsatisfactory, and marred by so many inconsistencies. Two things, however, stand out from it with sufficient clearness: he held firmly to a theory of papal supremacy, however uncertain he may have been as to just what was meant by that supremacy; and he held with equal firmness to the notion that the church organization, like the organization of temporal government,

209 Bk. vi., c. 24, infra.

210 Bk. viii., c. 23, infra.

was but an instrumentality for applying a "higher" law which marked out the duties of church authorities no less than of laymen. Following centuries were to witness the gradual divergence of these conceptions.211

John's treatment of the relation of the Church to the temporal ruler is marked by similar ambiguities.212 He is explicit enough in his positive assertions that the prince is subject to the priesthood and is but the minister of priests. This might be expected to lead logically to the conclusion that the prince must submit to the supreme adjudication of the priesthood all questions requiring an interpretation of the divine law. But John nowhere institutionalizes to this extent the priestly supremacy. Responsibility for bringing human law into accord with equity rests upon the Prince himself. Where the Church has al-

211 Robert Grosseteste in the middle of the 13th century displays far more clearly than John of Salisbury the conflict between an implicit acceptance of Papal Supremacy and a sense of intolerable evils and corruption within the Church. See A. L. Smith, "Church and State in the Middle Ages," Lecture III.

212 See especially Bk. iv., c. 3; Bk. iv., c. 6, infra. A clear statement of the ambiguities of John's view of the relation of Church and state is that of Ernst Schubert, "Die Staatslehre Johann's von Salisbury." Inaug. Diss. (Erlangen), Berlin, 1897, "If we take certain of John's general expressions as to the relation of Church and state, the view which results of the basis of the relation is the extreme hierarchical one ... John thus seems to be the first who theoretically put forward the complete absorption of the state in the Church; his theory of the two swords could not be more destructive of the state. But if we examine his theories more closely on precisely this point, we must agree that on several very critical points, as for example, the choice of the prince by the priests, the right of the Church to depose the ruler, the manner and way in which the Church communicates its commands to the prince and imposes them upon him, he simply evades them silently. This shows that he did not have in mind a complete subjection and absorption of the state in practice, as his theories seem to indicate, but rather regards the prince and the state as servants of the Church and of the priesthood only in an ideal sense, that is to say, only when the priests are really such as they ought to be." (Op. cit., p. 36). I am the more inclined to agree with Dr. Schubert as I had reached the same conclusion before I saw his monograph.

ready acted and laid down a rule he must follow it. If "lawful" priests advise him, he must hearken to them. But there is no assertion that he must remit all doubtful points to their decision, or that they constitute a governmental organ vested with the official function of deciding such questions as a legal tribunal of last appeal. It would be easy to draw such a conclusion from his premises, but John does not draw it himself. Instead, he says that the ruler must know the law personally, and to that end should learn to read; but if he cannot read, then he should learn the law from the mouths of priests. "In accordance with their preaching should the ruling power guide the government of the magistracy committed to him."

The impression produced by such language is that John conceived the Church as having rather what we should today call a moral supremacy than a strictly legal one.213 Of course, he would not have understood such a distinction; and as time passed and ideas came to be defined with greater legal precision, such views as his tended to shape themselves into the papal claim of something like legal sovereignty over the whole world. But no such articulated doctrine is to be found in the Policraticus. John does not even specify what priests the prince must obey; apparently he is thinking of all priests indiscriminately, provided only they be "legitimate." Obviously such obedience is characterized by an informality which is difficult to bring within the modern categories of legal or political subordination.214

213 The Carolingian writers had definitely expressed this idea by defining the function of the bishop as that of "oversight." Hincmar, "De Ordine Palatii," c. v., ed. Prou, p. 16.

214 John's theory is ordinarily represented as an extreme form of the doctrine that temporal governments are subject to the political and legal supremacy of the priesthood. "The safest conclusion would be that in John of Salisbury and Honorius of Augsburg we find the first definite statement that all authority, ecclesiastical or secular, belongs to the spiritual power." Jacob, in "Social and Political Ideas of Some Great Mediaeval Thinkers," p. 79. John "gathered together in his hand the separate threads of argument which had here and there been

Precisely because it was thus informally conceived, the doctrine was able to maintain itself; it broke down in the moment of achieving final legal definition.215

V. TYRANNY, TYRANNICIDE, AND INDIVIDUAL LIBERTY

The doctrine of the Policraticus is that there can be "tyranny" wherever there is rulership. "Tyranny exists not only in the case of princes, but everyone is a tyrant who abuses power that has been granted to him from above over those who are subjected to him." 216 "In common speech the tyrant is one

used by the Hildebrandine party and busied himself in weaving out of them, as well as out of newly invented material of his own, an enduring and colorful web wherein all the relations of the political and legal life of individuals as well as of peoples are firmly held together by the indestructible connecting link of the universal supremacy of the Church." Gennrich, "Staats-und Kirchenlehre Johanns von Salisbury, p. 157. See also Schaarschmidt, p. 348; Carlyle, "History of Mediaeval Political Theory," vol. 4, pp. 335-6; Gierke, "Political Theories of the Middle Age," tr. Maitland, note 10. It seems to me that this view is the result of unconsciously reading into the Policraticus the clean-cut definiteness of constitutional ideas with which we are familiar but of which John of Salisbury was innocent. His conception of the relations between Church and state cannot be interpreted in terms of constitutional law because he drew no distinction between constitutional and moral conceptions. His doctrine undoubtedly pointed in the direction of the constitutional supremacy of the church but did not itself embody it. Schubert seems to me correct in his view that most of the interpretation of John's doctrine has been one-sided (Die Staatslehre Johanns van Salisbury, p. 8) and that "the theories of the Policraticus are not exclusively of the high ecclesiastical variety but are combined with others which attribute to the state a high and independent significance" (ibid., p. 49 ff., pp. 36-37).

215"Unam Sanctam" preceded by one year the collapse at Anagni, and by three years the subjection of the Papacy to the French King.

216 Bk. viii., c. 18. "Tyrant" is a name frequently applied, from the Carolingian period onward, to the feudal magnates who were forcibly extending their authority. Einhard, Vita Caroli, c. 2; Suger, Vita Ludovici, c. xxiii., Oeuvres, ed. Lecoy de la Marche, pp. 92-93, William of Newburgh, Historia Rerum Anglicarum, i, 22, in "Chronicles of the Reigns of Stephen, Henry II., and Richard I.," Rolls Series, no. 82, i, 69.

who oppresses a whole people by rulership based on force; and yet it is not only over the people as a whole that a man can play the tyrant, but he can do so, if he will, in the meanest station"217 ... "It is not only kings who practice tyranny, but among private men there are a host of tyrants, since the power which they have, they turn to some forbidden object."218 These passages illustrate the absence of any clear distinction in John's thought between the social and the political; abuse of public power is conceived simply in terms of a breach of personal morality.

So there may be tyranny on the part of persons holding ecclesiastical as well as temporal offices;219 and "of the two kinds the ecclesiastical tyrant is worse than the temporal."220 Much of John's discussion of the behavior of tyrants has reference to the ecclesiastial variety; but his theory of temporal tyrants is far more complete and well-defined.

In the sphere of temporal rulership the difference between a prince and a tyrant is that the prince obeys "the law," while the tyrant "oppresses the people by rulership based upon force, and regards nothing as accomplished unless the laws are brought to nought and the people reduced to slavery."221 John then quotes the traditional etymology of "rex," which connected it with "recte," and gave a basis for the argument that he alone is entitled to the name of king who rules rightly.222 This leads to the further inference that the will of the prince cannot be unjust or opposed to the law, because when it becomes so, he

217 Bk. viii., c. 17 infra. 218 Ibid.. 219 Bk. viii. c. 23, infra.

220 See especially Bk. vii., c. 17; Bk. viii., c. 17, c. 23, infra.

221 Bk. viii., c. 17, infra. The idea that the difference between a prince and a tyrant consists in the fact that the one rules in accordance with law, and the other not, goes back in ecclesiastical tradition to St. Gregory's Com. on Job, xv., 20, Migne, P. L., lxxv, 1006.

222 Hor., Ep., i., 1, 59-60; the definition seems to have come into serious political thought with St. Isidore of Seville, Etym., ix., 3, Migne, P. L., tom. 82, 342.

then ceases to be truly a prince and becomes a tyrant instead. "The will of the true ruler depends upon the law of God ... but the will of a tyrant is the slave of his desire."223 It is therefore quite proper to say that the will of the Prince has the force of law, because, insofar as he is truly a prince, his will cannot fail to be in accordance with the law.224 "Who, indeed, in respect of public matters can properly speak of the will of the prince at all, since therein he may not lawfully have any will of his own, apart from that which the law or equity enjoins, or the calculation of the common interest requires? For in these matters his will is to have the force of a judgment; and most properly that which pleases him therein has the force of law, because his decision may not be at variance with the intention of equity."225

Having by this sleight-of-hand reconciled the doctrine of a "higher law" with the text "Quod principi placet," it would no doubt have been possible for John to proceed to the conclusion later reached by Bartolus that some or all of the acts of the tyrant are legally void, and that his rule is without authority;226 but he does not do so; for his way is here blocked by another current of authority to which he could hardly have dared to refuse deference. This is the tradition proceeding from the scriptural texts "The powers that be are ordained of God,"227 and "Servants, obey your masters."228 The tyrant must be regarded as holding his power from God no less than the true prince, for "all power is from the Lord God.... It is not the ruler's own act when his will is turned to cruelty against

223 Bk. viii., c. 22. infra.

224 Dante attempted to show realistically that one who was sole monarch of the world must have a will directed toward good, for there is nothing further for him to desire. De Mon., i., 11, 5.

225 Bk. iv. c. 1, infra.

226 See Bartolus, "De Tyrannia," trans. in Emerton, "Humanism and Tyranny," especially c. vii, pp. 134 ff.

227 See Bk. iv., c. 1, infra. 228 Quoted Bk. vi., c. 27, infra.

his subjects, but it is rather the dispensation of God for His good pleasure to punish or chasten them. Power is worthy of veneration even when it comes as a plague upon the elect."229 "Even tyrants of the gentiles who have been damned unto death from eternity are yet the ministers of God and are called the anointed of the Lord."230

In other words, tyranny is a part of God's providential ordering of the universe, and, as such, it must be met with due submission. "All power is good since it is from Him from whom alone are all things, and from whom cometh only good. But at times it may not be good, but rather evil, to the particular individual ... upon whom it is exercised, though it is good from the universal standpoint, being the act of Him who uses our evil for His own good purposes. Therefore the rule of a tyrant is good, although there is nothing worse than tyranny."231 "Because of the wickedness of our generation, who are continually provoking against ourselves the wrath of God, it more frequently happens that power comes into the hands of bad, than of good, men."232 "For tyrants are demanded, introduced, and raised to power by sin," and "are properly deserved by a stiff-necked and stubborn people."233 And just as God inflicts a tyrant upon a sinful people, so when they turn from their wickedness, God frees them from the oppressor.234 A wicked king cannot escape the judgment of God. "Run through the sequence of all the histories, and you will see in brief the succession of kings and how they were cut off by God, like threads in the warp of a web." 235 Therefore the best way to get rid of tyrants "is for those who are oppressed to take

229 Bk. iv., c. 1, infra. 230 Bk. viii., c. 18, infra.

231 Ibid. This is a commonplace of the 12th century: "De bonis et de malis bene facit Deus qui omnia juste facit atque disponit. Et sic fit ut et malus angelus et malus homo divinae militent providentiae." Hugh of Fleury, Tract de Reg. Pot., i., c. 4.

232 Ibid. 233 Bk. viii., c. 20, infra.

234 Ibid.; also Bk. iv, c. 11, infra. 235 Bk. iv., c. 12, infra.

refuge humbly in the protection of God's mercy, and, lifting Up undefiled hands to the Lord, to pray devoutly that the scourge wherewith they are afflicted may be turned aside from them."236 For "the end of tyrants is confusion, leading to destruction if they persist in malice, to pardon if they repent and return to the way of righteousness."237 Therefore a tyrant should be borne with in patience until he either suffers a change of heart or falls in battle, or otherwise meets his end by the just judgment of God.238

The notion that in God's good time tyrants are certain to meet a bad end is part of the conventional tradition of ecclesiastical political theory. It is found in the early work "De Duodecim Abusionibus Saeculi,"239 from which it is taken over by the Carolingian writers. According to this text if the king fails in his duty, many evils will come upon him and his land, his children will die, enemies will invade the provinces, there will be storms and tempests, wild beasts will devour the flocks, and his children will not inherit his throne.240 In other words, his ruin will be brought about through causes wholly beyond the control of his subjects. They are encouraged to pray and to wait passively in the faith that God is just and will do justice. It is the strictly logical conclusion of the doctrine that tyrants are ministers sent of God.

From this conclusion, John of Salisbury strikes off at an inconsistent tangent into one of the most interesting and characteristic of his contributions to political thought. His point of departure may have been the situation presented when the tyrant commands the Christian subject to perform an act which is

236 Bk. viii., c. 20, infra. For a full statement of this doctrine see Hugh of Fleury, loc. cit. note 231, supra.

237 Bk. viii., c. 21, infra. 238 Bk. viii., c. 20, infra. 239 See above note 160.

240De Duodecim Abusionibus Saeculi, c. 9; Jonas of Orleans, De Inst. Reg., c. 3; Hincmar of Rheims, De Reg. Persona el Reg. Minist., c. 2.

contrary to the divine law. Here John's theory of the higher law compels him to say that the subject is bound to decline obedience. God must be preferred before man.241 "Loyal shoulders should sustain the power of the ruler so long as it is exercised in subjection to God and follows His ordinances; but if it resists and opposes the divine commandments, and wishes to make me share in its war against God, then with unrestrained voice, I answer back that God must be preferred before any man on earth."242

Whether in such a case John advocates active opposition by the subject, or merely passive resistance as Luther was afterwards to do on practically the same premisses,243 he does not make entirely clear. He appears to feel that as a matter of policy passive resistance is ordinarily best. "If princes have departed little, by little from the true way, even so it is not well to overthrow them utterly at once, but rather to rebuke injustice with patient reproof until finally it becomes obvious that they are stiff-necked in evil-doing."244 But there may come a time when active resistance is necessary: "Better would it be by far were the diadem torn from the head of the prince than that the good order of the chief and best part of the commonwealth, which is the part concerned with religion, should be destroyed at his pleasure."245

The right of resistance thus established, the transition is almost inevitable to the thought that here is one of the instruments which God can use in executing His judgment upon tyrants. Why should He be confined to resorting to the use of the inanimate forces of nature or the attacks of foreign enemies rather than to the arm of the tyrant's oppressed subjects? Since God must have an intermediary in the physical world through

241 Bk. vi., c. 9; c. 12, infra. 242 Bk. vi., c. 25, infra.

243 Cf. J. W. Allen, "The Political Conceptions of Luther," in "Tudor Studies," ed. R. W. Seton-Watson, pp. 98-100.

244 Bk. v., c. 6., infra. 245 Bk. vii., c. 20, infra.

which to administer His vengeance, why is not a subject justified in becoming such an intermediary? "Malice is always punished by God; but sometimes it is His own, at others it is a human, hand which He employs to administer punishment to the unrighteous." 246 This is apparently the chain of inference which resulted in John's famous doctrine of tyrannicide,247 a doctrine which perhaps more than any other part of the Policraticus engaged the attention of later mediæval thinkers and which emerged into practical prominence during the period of the Counter-Reformation.248

John bases his theory of tyrannicide on the authority of examples drawn from scriptural, classical and ecclesiastical history. Many times, he says, the Children of Israel were in bondage to tyrants in accordance with the dispensation of God, "and then, when they cried aloud to God, they were set free. And when the allotted time of their punishment was fulfilled, they were allowed to cast off the yoke from their necks by the slaughter of their tyrants; nor is blame attached to any of those by whose valor a penitent and humbled people was thus set free, but their memory is preserved in affection and honor by posterity as the servants of God."249 By the example of Sisera and Holofernes he "establishes" that "it is just for public tyrants to be killed and the people set free for the service of God."250 These stories show that the use of "pious dissimulation" to lure tyrants to their ruin "is not treachery be-

246 Bk. viii., c. 21, infra. And again: ''The Lord employed first the sword of the angel against the army of the wicked king, and afterwards against the king himself He used the hands of his own sons." Ibid.

247 John of Salisbury was the first mediæval writer to erect tyrannicide into a doctrine and defend it with reasoned arguments. See Gennrich, "Die Staats- und Kirckenlehre Johanns von Salisbury," pp. 106 ff.

248 See A. Douarche, De Tyrannicidio apud Scriptores xvi Seculi, Latin thesis, Paris, Hachette, 1888.

249 Bk. viii., c. 20, infra. 250 Ibid.

cause it serves the cause of the faith, and fights in behalf of charity." "Even priests of God repute the killing of tyrants as piety, and if it should appear to wear the semblance of treachery, they say that it is consecrated to God by a sacred mystery." But as for the use of poison against tyrants, John says that he has not read that it is ever permitted by any law. "Not that I believe that tyrants ought not to be removed from our midst, but it should be done without loss of religion and honor."261 Similarly "the histories all teach that none should undertake the death of a tyrant who is bound to him by an oath or by the obligation of fealty."252 With these limitations, "it is as lawful to kill a tyrant as to kill a condemned enemy." All these passages merely go to show that tyrannicide is not unlawful, and not that it is a positive duty; indeed it is in connection with them that John expressed his opinion, already quoted, that usually the safest and most expedient method of destroying tyrants is for those who are oppressed to pray to God that their scourge may be removed; and he praises the forbearance of David, who "although he had to endure the most grievous tyrant, and although he often had an opportunity of destroying him, yet preferred to spare him, trusting to the mercy of God, within whose power it was to set him free without sin."253 Elsewhere, however, John represents tyrannicide as amounting to a public duty. "To kill a tyrant," he says, "is not merely lawful, but right and just. For whosoever takes up the sword deserves to perish by the sword. And he is understood to take up the sword who usurps it by his own temerity and who does not receive the power of using it from God. Therefore the law rightly takes arms against him who disarms the laws, and the public power rages in fury against him who strives to bring to nought the public force. And while there are many acts which amount to lèse majesté, none is a graver crime than that which is aimed

251 Bk. viii., c. 20, infra. 252 Ibid. 253 Bk. viii., c. 20, infra.

against the body of Justice herself. Tyranny therefore is not merely a public crime, but, if there could be such a thing, a crime more than public. And if in the crime of lèse majesté all men are admitted to be prosecutors, how much more should this be true in the case of the crime of subverting the laws which should rule even over emperors? Truly no one will avenge a public enemy, but rather whoever does not seek to bring him to punishment commits an offence against himself and the whole body of the earthly commonwealth."254

John of Salisbury, it seems plain from this passage, had fundamentally no clear conception of the difference between private individual action and public collective action to rid the community of a tyrant. Or rather he seems to have been unable to conceive of the community as capable of so ridding itself except by private action; the need for, or the possibility of, organized collective action is not suggested.255 It was the obvious danger latent in the irresponsibility of private tyrannicide which caught the attention of later thinkers and caused them to repudiate John's position. St. Thomas points out that it would be subversive of all civil order if private individuals should claim the right to murder their governors on the ground

254 Bk. iii., c. 15. This passage does not fall within the part of the Policraticus covered by my translation. Unlike the reference to tyranny in other parts of the work, it seems to emphasize usurpation of authority as the essence of tyranny. This suggests a possible foreshadowing of the later distinction between "tyrants by defect of title" and "tyrants by abuse of power." See Bartolus in Emerton, "Humanism and Tyranny," p. 132. The notion that usurpers — i. e. "tyrants by defect of title," — might be lawfully resisted, although it was never lawful to resist a legitimate hereditary ruler no matter how he might abuse his power, was advanced by an imperialist writer at the end of the eleventh century: Liber de unitate ecclesiae conservanda, i, 13, M. G, H., Libelli de Lite, ii, 173 ff.

255 In the next generation after John of Salisbury, the doctrine of tyrannicide is stated as a commonplace by Giraldus Cambrensis, "De Principis Instructione," Dis. I., c. xvi. Opera, Rolls Ser., no. 21, vol. viii., p. 56: "Percussori tyranni non poena sed palma promittitur."

that they believe them tyrants.256 Coluccio Salutati undertakes to answer John specifically and denies that a single person or even several together can properly take justice into their own hands; the tyrant must be removed, if at all, only by the collective action of the community.257 The question came to the attention of all Europe in a vivid and dramatic way at the beginning of the fifteenth century when the Council of Constance was called upon to condemn a book written by one Jean Petit in which the murder of Louis of Orleans at the instigation of the Duke of Burgundy was defended on the ground of the right of tyrannicide. Petit cited the Policraticus as an authority.258 Gerson replied by arguing that to vest the right of tyrannicide in a subject would be to make him the legitimate judge of his ruler; and a legitimate judge, even the king himself, may not condemn an accused person without summons, trial and conviction. "Certainly no mere private individual can have greater authority over one not lawfully subject to him than a king has over his own subjects."259

John of Salisbury had based his doctrine of tyrannicide on the conception that a private individual may lawfully act to enforce "the law" against a tyrannical or "outlaw" ruler. What

256De Reg. Prin., Bk. i., c. 6. There is nothing to indicate that John did or did not regard the self-appointed slayer of a tyrant as in some informal way "representing," or at least acting in behalf of, the community. Perhaps he did. But since he permitted any individual to take this service upon himself without waiting for any orderly mandate from the community, the result certainly does not conform to our conception of organized community action. In most instances, however, John seems to have regarded the slayer of the tyrant as "representing" God rather than the community.

257"De Tyrannia," c. ii., in Emerton, "Humanism and Tyranny," p. 92. But Coluccio apparently holds that a private individual may assassinate a "tyrant by defect of title." Ibid. p. 85.

258 See his "Assertio Propositionum adversus magistrum Joannum de Gersono," Gerson, Opera, (Antwerp, 1706) tom. v., col. 397.

259"Reprobatio novem Assertionum Joannis Parvi," op. cit., tom. v., col. 363.

later thought brought out was that law can be enforced only by an agent holding a legitimate mandate from the community. The difference between these two conceptions registers the most momentous advance in political thought during the interval; and it isolates and emphasizes the cardinal element which was missing from the political thought of the Policraticus and the whole tradition which it represents. John of Salisbury does not seem to have conceived that the community, or universitas, could act except through the prince.260 If action was to be taken against him, it had therefore to be taken as private individual action. This seems to stand out clearly from the last passage quoted from the Policraticus. The action there contemplated against the prince is public action; but public action not taken through the prince cannot be organized action; it can only be action by all or any, that is to say, action by separate individuals. This is the natural outcome of the patriarchal conception of society as an organized hierarchy; it is the same conception which no doubt lay at the bottom of Bodin's denial that a representative assembly could do more than offer good advice to the prince.261

But meanwhile in John of Salisbury's own generation another idea was taking form which was to supply this missing element to later thought. It was an idea which seems to have had its source among the Roman lawyers, and it consisted in identifying the corporate or organized community with the whole membership of the group, — the "universitas" with the "populus." Once this idea had taken hold, it is no longer necessary to think that the community can act as a community only through the prince who is set over them by God; from now on they can

260 This view is definitely expressed by Baldus in the fourteenth century: "imperator est ipsum imperium," Com. on Cod., Bk. X., Ruhr. 1, nr. 13; see also Baldus, Consil., vol. iii., c. clix., nr. 5. John of Salisbury himself seems to identify the corporate community with its head: "adversus caput aut universitatem membrorum." Bk. vi, c. 25, infra.

261"Six Livres de La Republique," Bk. i., c. 8.

act through whatever organization they choose to shape for themselves. The idea of the king's trusteeship gives way before the idea of an autonomous corporation. The universitas ceases to be a mere inert thing whose "persona" is permanently delegated to and "borne by" the prince; it becomes an active unity, bearing its own "persona," and capable of speaking and acting for itself, against the prince if need be. This is the idea which is already emerging in the speech of Archbishop Hubert at the coronation of King John of England, above referred to; Hubert says that it is the universitas, not merely the "clerus et populus," which must assent to the choice of a King. In other words the universitas can act independently of, and even against, the king. The importance of the idea for establishing a check on the king and eliminating the necessity of resort to tyrannicide comes to a head in Bracton. Bracton like John of Salisbury says that the king is the vicar of God and as such is subject only to God; so that if he abuses his power, there is room only for supplication that he should amend his ways, and if he will not do this, he must be left to the judgment of God. But Bracton no more than John is content with this result; and by the same sort of sudden inconsistency with which John had advanced the doctrine of tyrannicide, Bracton turns about upon himself and adds that the "universitas regni" and "baronagium," acting through the king's court, may restrain his tyranny.262 Here is the beginning of a conception which men were more and more to grasp during the thirteenth century but which they were not to transform into effective political practice until the sixteenth and seventeenth centuries.263

Meanwhile the doctrine of individual action in the form of tyrannicide was, apart from the self-limitation of their own

262 Bracton, iv., 10.

263 The idea first takes a firm hold in Buchanan's "De Jure Regni apud Scotos," cc. xxviii, and in the Vindiciae Contra Tyrannos, ed. Laski, pp. 127-136.

power by rulers,264 the only conceivable check upon despotism; and at the same time it was the almost necessary inference from the doctrine of a higher law. For, after all, kings and governments and organized communities had no peculiar prerogative to know and enforce that law; it was binding upon them no less than upon private individuals, and knowledge of it was the result of grace and wisdom and not of official position. If this view was honestly and fully accepted there was nothing inherently objectionable in the idea that a private individual might enforce the law by private action; for its precepts were definite and uniform and were as accessible to private persons as to officials. The doctrine of a higher law carried with it an inevitable implication of what today would probably be called philosophic anarchism.265

It is not hard to see that this philosophic anarchism forms an important strain running through the thought of the Policraticus. It emerges in John's yearning for a condition of society where there would be no princely rule, but men in a state of innocence would live together under "the law" in Christian love. "For if iniquity and injustice, banishing charity, had not brought about tyranny, firm concord and perpetual peace would have possessed the peoples of the earth forever, and no one would think of enlarging his boundaries. Then kingdoms would

264 Bk. viii., c. 20, infra.

265 For John's individualism, see Gennrich, "Die Staats- und Kirchenlehre Johanns von Salisbury," p. 14; E. F. Jacob in "The Social and Political Ideas of Some Great Mediaeval Thinkers," pp. 61 ff. Gennrich, loc cit., points out the significant absence from John's thought of any consideration of the connection between individual and social life or of the transition from one to the other. For a survival in the seventeenth century of the notion that there was no agency save the conscience of individuals to judge whether the ruler had broken the "fundamental laws," see the passages from Philip Hunton's Treatise of Monarchy quoted and criticized in Sir Robert Filmer's Anarchy of Mixed Monarchy, in The Freeholders Grand Inquest (ed. 1680), pp. 265, 272.

be as peaceful, according to the great father Augustine, and would enjoy as undisturbed repose as the separate families in a well-ordered state, or as different persons in the same family; or perhaps, which is even more credible, there would be no kingdoms at all, since it is clear from the ancient histories that in the beginning these were founded by iniquity." 266 Here comes to the surface that combined current of Christian and Stoic thought which religious tradition was to carry forward from the days of the apostles to the days of Godwin and Shelley. The same thought lies behind John's reiterated assertion that it is the function of the prince to reign and not to rule,267 — the true prince says, "I will not rule over you, but God shall rule over you";268 under a good prince, it is not the prince himself who governs, but the law.

In other words the existence of a complete code of intelligible laws of divine authority practically eliminates the necessity of government except as a purely ministerial instrumentality of enforcement; and in so far as men are good they will obey without being forced. There need not be, there must not be, any subordination of one merely human "will" to another, for men can find agreement and harmony in their contacts only by being shaped or by shaping themselves to the passionless reason of the divine law. It is better that they should shape themselves than that they should be shaped by the power of government. At this point there enters John's thought the concept of "liberty," which is akin to the individualism underlying his doctrine of tyrannicide.

"Liberty means judging everything freely in accordance with private judgment." Nothing is more important, because liberty and virtue are interdependent. "Virtue can never be fully attained without liberty," while on the other hand a man who is not virtuous, i. e. whose will does not faithfully follow the

266 Bk. viii., c. 17, infra. 267 Bk. viii., c. 20, c. 22, infra.

268 Bk. viii., c. 22, infra.

divine laws, can never be said to be truly free. The love of liberty therefore leads to the introduction of good laws because only with such laws is true liberty compatible. "It is the part of a wise man to give free rein to the liberty of others." "But when under the pretext of liberty rashness unleashes the violence of its spirit it properly incurs reproach."269

Here is another unmistakable vein of tradition — the tradition which runs from St. John's "The truth shall make you free,"270 to Milton's

"They still revolt when truth would set them free, — License they mean when they cry liberty."

But of this doctrine of liberty, John of Salisbury makes almost no further use. The one inference that he draws from it is an earnest plea in favor of freedom of speech; for "what will be safe and secure if even the virtues, among which the spirit of liberty and independence holds a leading place, are to be punished?" And he cites the example of the Roman Saturnalia to prove that "the law" itself recognized a right of free speech "in respect of utterances which are designed to serve the public advantage." John's thought seems to be that since all have at least potential access to knowledge of the "higher law," the community is entitled to the benefits of the knowledge of all; and this requires that all should be allowed to speak their knowledge freely.

SUMMARY AND CONCLUSION

It is the very inconsistencies in the political thought of the Policraticus and its blending of apparently incompatible elements which give it its principal value; for it discloses still in combination a number of separate strains of thought whose later

269 Bk. vii., c. 25, infra. 270 John, viii., 32.

dissociation was to form the main currents of opposing doctrine for many succeeding centuries. It presents the patriarchal theory of monarchy which in union with ideas derived from Renaissance Italy was to culminate in the seventeenth century conception of personal absolutism. It foreshadows the doctrine of the divine right of kings in its derivation of the ruler's title directly from God. In its insistence on the superiority of spiritual over temporal rulers and on the primacy of the Apostolic See it contains the elements of the theory of universal papal supremacy. In its emphasis on a "higher law" supreme over all governments it has its place in the tradition leading up to Coke's doctrine of judicial supremacy. In its insistence that men in so far as they are free from sin can live by the law alone and need no government, it anticipates the Christian communism of the more advanced Reformation Sects and modern doctrines of philosophic anarchism. The one outstanding current of thought of which absolutely no trace is present is that which was to prove ultimately the most fruitful of all — the thought, namely, that the community can organize itself for the accomplishment of its common purposes by developing institutions for pooling the ideas and harmonizing the ends of its members.

It seems a futile question to ask which of these various strains of thought was dominant in the Policraticus or to seek some way of harmonizing their divergent tendencies. The very point for emphasis is that their diversities are the product of the distinctness which was to be given them by centuries of subsequent controversy. They were able to live together side by side in the Policraticus simply because they were not conceived with modern distinctness. Early thought, Maitland has said, is confused thought. "Simplicity is the outcome of technical subtlety, it is the goal, not the starting point. As we go backward, the familiar outlines become blurred; the ideas be-

come fluid, and instead of the simple we find the indefinite."271 It is from this point of view that we must read the Policraticus. We must not ask exactly where John of Salisbury would have drawn the line between princely power and priestly supremacy; or between royal discretion and the "higher law." The point is that he draws no clear line. Every important idea is deeply tinged with much of what we conceive to be its opposite; and it carried much of this tinge with it into its later history. The significance of the Policraticus for students of the political ideas of after times consists precisely in the fact that it discloses the more or less confused mass of contradictory ideas in which they were originally embedded, and which served to limit and correct them.

271"Domesday Book and Beyond," p. 9.

THE

STATESMAN'S BOOK

OF

JOHN OF SALISBURY

TABLE OF CHAPTERS

THE FOURTH BOOK

(AND HEREIN CHIEFLY OF THE PRINCE AND THE LAW)

I

Of the Difference between a Prince and a Tyrant, and of what is meant by a Prince

3