A/530161
Principles of Government
and Politics
in the Middle Ages
Walter Ullmann
Routledge
Taylor&FrancisGroup
Contents
ABBREVIATIONS
PREFACE
page 13
15
INTRODUCTION
The ascending and descending themes of government
19
PART I: THE POPE
i:INTRODUCTION
The historian and the medieval papacy - The requirements of
a correct historical approach — The nature of the source material
— The Archives — The evaluation of the sources
29
2: FOUNDATIONS
The theme of papal primacy - The totality of the Christian The concept of the Church — Its social nature — The prerequisites of government: scientia and potestas — The language
of the law - The Roman model- The principle of succession Pope Leo I's theme - The letter of Clement I - Its significance
— The principle of hierarchical ordering — The pope not a
member of the Church and forming an estate of his own — The
separation of office and person - The derivational theme - The
vicariate of Christ - The principle of monarchy
32
3 : THE SECULAR PRINCE AND PAPAL LAW
The papal zaictontas - The principle q/gratia - The mediatory
principle - Exemplification through papal documents - Papal
grace and disgrace — The standing of the secular prince — The
Pauline roots - The auxiliary function of the king - The
principle of division of labour - The principle of public
good (utilitas publica) - The concept of justice — The law —
Papal legislation — and theology — The idea of sovereignty
— The pope as universal monarch — The nature of the
papal law — The principle of usefulness — Deposition of a
king — Excommunication of a king — Deposition of a bishop —
The setting up of kings by popes — The prince to implement the
decrees of the pope — Some illustrations of the practical exercise
of papal functions
57
Contents
4 : ASSESSMENT OF PAPAL PRINCIPLES
Assessment of papal principles of government — The possible
lines of opposition — Papal electoral pacts — The problem of the
temporalia and spiritualia - The papal reaction to the
opposition — The ancient contrast of anima and corpus — The
Apostolic Constitutions and Innocent III— Petrinology— Faith
and law — The dualism of the opponents to papal principles —
Frederick II — The changing concept of the Church — Clerical
property - Inconsistency of imperial and royal opposition - The
changing views of the relation between office and person — The
objective standpoint supplanted by the subjective assessment —
The imitatio Christi - The originality of papal principles - The
ecclesiastical and the political principles compared — The
reason for the ineffectiveness of the papal government towards
the East — The reason for the success in the West
87
PART II: THE KING
I.' THEOCRATIC KINGSHIP
The king by the grace of God — Theocratic kingship — and
descending forms of government - The Pauline background The royal grace formula - Royal grace and disgrace - The
royal vicariate of God- Folk-law (Volksrecht) and Royal law
(Konigsrecht) - The principle of royal concession - The concept ofMunt — The king's peace — The king not belonging to the
people, but forming an estate of his own - The royal theocracy
illustrated by the coronation rites — The principle of subjection
to the king's government and law — The subject (Untertan) —
No citizens — Where in a case of a vacancy does power reside? —
The principle of public good (utilitas publica) - The crime of
lese majesty - The concept of high treason
117
2 : LIMITATIONS OF THEOCRATIC KINGSHIP
The pure royal theocracy examined — Its weaknesses — The
unction — Indelible character denied to royal unction — The
coronation service and the role of the bishops — The coronation
promises — The element of Recognition in the coronation service
— Royal elections — The royal office an ecclesiastical office — The
lack of immunity from ecclesiastical attacks
138
Contents
9
3: FEUDAL KINGSHIP IN ENGLAND
The feudal function of the king - Medieval feudalism and
government — The king as theocratic ruler and as feudal lord —
The repudiation ofthe feudalcontract- The dual function ofthe
medieval king — The securing of peace by King Henry II —
Criminal jurisdiction in the hands of the theocratic king — King
John's exercise of his royal voluntas - 'Due process of law' The Roman law background — The significance of the Leges
Anglorum - Their aim - The feudal decree of Conrad II The baronial opposition to John and the problems raised —
Magna Carta — Its essence — The law of the land as feudal
law - The later common law as the thirdgreat European system
of law — The Statute of Merton — The feudal substance of
Magna Carta — and its theocratic clothing — Roman law barred
entry into England — The security clause of Magna Carta —
Consequences in regard to governmental principles — The community of the realm — Bracton — Analysis of his views — Bracton's gubernaculum and jurisdictio — The concept of the
Crown - The Crown a legal union - The Declaration of 1308
— Richard IPs conflict with Parliament — The concept of royal
prerogative — The coronation oath in the fourteenth century —
John Fortescue - English government charactered by a
regimen regale et politicum
150
4: THEOCRATIC KINGSHIP IN FRANCE
French principles of government—compared with English - The
curia regis - Composition - The Hotel du roi - The inquisitorial principle in French judicial proceedings — The protection
of the kingdom — The Inquisition introduced — The pays de
droit coutumier and the pays de droit ^crn — The Roman
law in France — The Ugistes and their influence — The cas
royaux — La religion royale — The rex christianissimus —
Constitutional principles reflected in the coronation services —
Marked differences between French and English coronations —
The king in his kingdom an emperor — Beaumanoir — Brae ton's
contemporary — Paris as the communis patria — The
assemblies of estates — The Junction of the king exemplified in
Philip IV s conflict with the pope — The interpretation of the
lex regia — The release of popular forces — Feudal kingship in
England and theocratic kingship in France
193
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Contents
PART III: THE PEOPLE
i : POPULAR ASSOCIATIONS
Populist manifestations - The 'lower' regions of medieval
society — The communal sense — The. association or group —
Village communities — Towns — Free unions — The harnessing
of the masses to a particular programme—Heretical sects — The
Friars — The crusades — Education of lay people — The law
schools — No theory of populism
215
2: TOWARDS POPULISM
Aristotle - His naturalism - The State - His Politics Difficulties of assimilation - The concept ofnatun and natural
law - Gratian - St Augustine - The new orientation illustrated
by William ofAuxerre — The significance of the new learning —
Thomas Aquinas — His synthesis — The principle of nature in
the Thomist system — The Thomist concept qfhumanitas —
Grace and nature — The principle of double ordering of things —
The good man and the good citizen - The State in Thomist
thought — The nation — The new science: political science — The
citizen and the Christian - The regimen politicum - Democracy— The Thomist civilitas — The fruitfulness and flexibility
of Thomist principles — Dante — His Thomist background —
His dualism of government - Humanitas and Christianitas Nature and nation — Differences of law and government conditioned by different climatic and geographical factors — John
of Paris — The natural and the supra-natural— Law and morals
differentiated — The voluntas populi — The role attributed to
the people — Natural law and the papacy — The importance of
John of Paris — Pre-Marsilian principles reviewed— Marsiglio of Padua — His civitas — Natural law — The human legislator — The people — Sovereignty of the people — The essence of
the law as a preceptum coactivum — because willed by the
people — The constitution (forma) — The government — The
nature of the law as an oculus ex multis oculis — The enforceability of the law — The function of the Church in Marsiglio's
system — Appointment of clerical officers by the State — The
doctrinal significance of Marsilian principles
231
Contents
11
3: THE LEGISLATIVE SOVEREIGNTY OF THE PEOPLE
The lawyers and the Roman law — Customary law — Popular
usages — The North Italian republican cities — The importance
ofBartolus - His juxtaposition of the tacit and expressed consent of the people — The legal sovereignty of the people in
Bartolus' thought — The principle of representation in Bartolus
— The State — The concept of citizenship — Natural and
acquired citizenship — Bartolus and Marsiglio compared
280
4: APPLICATIONS AND IMPLICATIONS OF POPULISM
The Conciliar Movement—an application of populistprinciples
notably of Bartolus and Marsiglio - The legal character of this
movement — Governmental principles expressed in it — The
ascendancy of the University of Paris — The changing ideas of
right and law — Consequences for governmental principles —
The law schools and the changing ideas of right and law — The
changing concept of justice — Populist writers - Their spreadTheir scope — The release of the citizen — Man and the Christian - The lex regia - The service of the Roman law - Changes
reflected in the literary scene — The Vitae - Historiography —
Portraiture and sculpture — Changes observable from the
thirteenth century onwards - Boccaccio and Petrarch - The
Renaissance - The re-discovery of Man - Subjectivism - The
via moderna
288
APPENDIX
306
INDEX
317
NOTE TO FRONTISPIECE
These illustrations are from MS. Ee. 3.59 in the University
Library, Cambridge (The Life of St Edward the Confessor).
For details, cf M. F. James, La estoire de saint Aedward
le Roi (Facsimile edition for Roxburghe Club, Oxford, 1920).
Both pictures reproduced by kind permission of the Library
Syndics.