Front Page Titles (by Subject) IV: Constitutionalism in the Middle Ages - Constitutionalism: Ancient and Modern
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IV: Constitutionalism in the Middle Ages - Charles Howard McIlwain, Constitutionalism: Ancient and Modern 
Constitutionalism: Ancient and Modern (Indianapolis: Liberty Fund, 2008).
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Constitutionalism in the Middle Ages
Between Glanvill at the end of the twelfth century and Bracton in the middle of the next the development of English governmental institutions goes on apace, and some incidental light on their spirit could no doubt be got from a careful study of the contemporary records of the law cases which now become available. But of the true character of the general principles underlying the medieval English constitution there is no indication so clear as the book on the laws and customs of England by Henry of Bratton, or Bracton—the greatest of medieval books on English law and constitutionalism, if not on the law of any European nation.
Bracton’s book is a book of case law; it is probably, as has been said, the unique medieval book of case law, and without doubt that case law is almost entirely an English law. But no attentive reader of the book can miss in it the great influence of a jurisprudence that is far older and far wider than any mere “law of reason secondary,” and “particular” to England. All this has been so admirably stated by the greatest master of our medieval legal history that I take the liberty of quoting a brilliant passage in place of a bad summary:
“If for one moment we set his [Bracton’s] book beside the Customs of Beauvais and the Saxon Mirror,” says Maitland,
one fact worthy of note stares us in the face. The Englishman’s work both in its general structure and in many details has been influenced by Roman jurisprudence. Really if we place ourselves in the thirteenth century and look only at the surface of things, it must seem very likely that England will soon adopt Roman law as a whole, while into Northern France and Germany it will make its way but slowly or never. After the event we can see why such a prediction would be foolish. The development in England of a centralized royal justice was rapid, precocious. Before the end of the thirteenth century the system with its stubborn writs and formulas had become too osseous to be much modified by new outlandish learning. And looking closer we see that Bracton had no intention of supplanting English by Roman law. It is Rationalism rather than Romanism that he learnt from Azo’s book, and this fact that at an early date English law was rationalized by an able man, is not the least among the causes which protected us against Romanism in the following centuries.
Trying to state in general terms . . . what was Bracton’s debt to the civilians we may put it thus:—First he had learned certain wide principles of jurisprudence, had found some of the highest premisses of all civilized law expressed in neat and accurate phrases. For these, at least for some of these, the England of his time was ripe. They are not, he might argue, specifically Roman; the Romans themselves regarded them as common to all mankind; they are dictates of reason implicit in all law. . . . Then there are instances in which rules that are less general and more specifically Roman are adopted, or rather proposed, as solutions for concrete cases. . . . But the main debt is less palpable, for what he has converted to his use is spirit rather than substance, not these or those rules, but a method of reasoning about law, of perceiving the interdependence of rules, of making them take their places as members of a body.1
The “spirit” that animated Bracton’s book includes the public as well as the private law, and I find it hard to distinguish this spirit from the Geist des römischen Rechts.
Among the extracts from Bracton’s book that most directly concern our present subject, we may dismiss the famous statement, so often repeated in the English constitutional struggle of the seventeenth century, that the king has a superior, not only in God and in the law which makes him king, but in his curia as well—in the earls and barons who are his associates there—“and one who has an associate has a master; and therefore if the King is without a bridle, that is without law, they ought to put a bridle on him.” Modern research in the manuscripts of Bracton has shown that this rather startling doctrine is no statement of Bracton’s, but an addition by another hand, made probably by some adherent of the baronial party opposed to Henry III.2
There are, however, enough genuine statements of Bracton from which his essential constitutional views may be perceived. From what has been said earlier of Roman constitutionalism it will be evident that one of the most significant of these statements is Bracton’s quotation, word for word, of the dictum of Papinian, “Lex is a common engagement of the republic (communis rei publicae sponsio),”3 and his application of it to English law. About the same time a jurist of Orléans was quoting the same passage in a French form.4 Another example occurs in Bracton’s Introductio, which is in part a paraphrase of Glanvill’s Prologue:
Moreover, while in almost all regions they use leges and a written law, England alone employs within her boundaries an unwritten law and custom. In this at least without a writing what usage has approved becomes law. But it will not be absurd to call the English laws leges even when unwritten, since whatever is justly defined and approved with the counsel and consent of the magnates and the common engagement (sponsio) of the republic, the authority of the King or prince preceding, should have the force of a lex. . . . The English leges and customs, by the authority of kings, sometimes command, sometimes forbid, sometimes take vengeance and inflict a penalty upon transgressors. These laws, since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whose counsel and consent they have been promulgated.5
In dealing with the Roman constitution we have already noticed the maxim of Ulpian, “What has pleased the prince has the force of a lex.”6 It has the force of law because the populus confers on the prince its whole imperium and potestas (cum lege regia . . . populus ei et in eum omne suum imperium et potestatem conferat). Bracton’s treatment of this important passage is so remarkable that we must examine it in some detail. This is his statement:
For the king has no other power in his lands, since he is the minister and vicar of God, save that alone which he has of right (de jure). Nor is that to the contrary where it is said quod principi placet legis habet vigorem, for there follows at the end of the law cum lege regia quae de imperio eius lata est (together with the lex regia which has been laid down concerning his authority). Therefore it is not anything rashly presumed by will of the king, but what has been rightly defined with the king’s authorization on the advice of his magnates after deliberation and conference concerning it.7
It is worth comparing Justinian’s statement of the principle with this later gloss of Bracton. Where the former says the prince’s will has the force of a lex “because” (cum) the people by a lex regia have conceded to him the whole of their authority, Bracton says it has the force of a law “in accordance with a lex regia (cum lege regia) which had been made.” In the Institutes the cum is a particle introducing a clause which gives merely a historical reason for a complete and arbitrary authority actually in the emperor; whereas in our Bractonian text the cum is a preposition governing a noun in the ablative. Justinian says the prince’s will is law, because (cum) the people have conceded all their power to him; the existing text of Bracton says the prince’s will is law together with, or if in accordance with the lex regia (cum lege regia); and this lex regia admits of nothing beyond a true definition of what the law already is, promulgated by the king’s authority only after discussion with the magnates and on their advice. Justinian’s is a doctrine of practical absolutism; Bracton’s seems to be a clear assertion of constitutionalism. In the one the prince’s will actually is law, in the other it is only an authoritative promulgation by the king of what the magnates declare to be the ancient custom. No doubt Bracton was acquainted with the true wording of the original text, and his own book is conclusive proof of his skill in the Latin tongue; and yet our text of Bracton, in quoting this plain statement of absolutism, turns it into an assertion of constitutionalism by such heroic means as changing a causal conjunctive into a preposition and omitting entirely the reference in the original to the concession of the people’s whole power to the prince.
So far as I recall, attention has never been drawn to the significant fact that this passage in Bracton follows immediately upon a quotation of the English coronation oath and serves as a commentary on it. The inference seems obvious that Bracton considered the oath taken by the kings of England at their coronation in some ways analogous to the lex regia by which the Roman emperors at their accession had received the imperium and potestas of the people; the king’s coronation oath is in fact Bracton’s English lex regia. But it is no lex regia which, like that of the Institutes, confers on the prince the people’s entire authority. On the contrary, it limits any authority the prince may have to acts in conformity with its solemn promises, and within little more than half a century after the appearance of Bracton’s book, if not earlier, these promises included an engagement to govern according to the laws which the people have chosen (quas vulgus elegerit).8 Thus, says our text of Bracton, it is only when an expression of the prince’s will is in conformity with this lex regia that his will becomes a binding law; and this the oath restricts to the official judgments or decrees of the kings’ curia. Later, French liberal jurists were to employ somewhat the same argument when they interpreted the royal words, car tel est nôtre plaisir, to mean merely placitum est.9
It seems clear from this evidence that for Bracton the English monarchy was far from a despotism such as Justinian’s. There are, however, other words of his which have been thought to point to a very different conclusion. In the same passage from which I have just been quoting Bracton says that the king “ought not to have a peer, much less a superior,” and then goes on to quote from Justinian’s Code the famous Digna vox of the Emperors Theodosius and Valentinian: “It is a worthy voice of reigning majesty to profess that the prince is bound by the laws”—which seems properly to indicate nothing more than a check upon the prince’s actions imposed by himself alone and of his own free will. In another passage, which seems undoubtedly genuine, Bracton says that “neither justices nor private persons ought or can dispute concerning royal charters and royal acts.” “No one can pass judgment on a charter or an act of the king, so as to make void the king’s act.”10 The king is under no man (non sub homine), even if he is under God and the law.11
The apparent contradiction disclosed here between these different statements of Bracton led in later centuries to a twofold tradition, one constitutional, the other absolutist. In the great state trials under the Stuarts involving alleged infringement by the king of the subjects’ rights or liberties, Bracton is almost invariably quoted by both opponents and defenders of the royal prerogative, and all these quotations seem plausible. In 1627, for instance, in Darnel’s Case, which resulted in the Petition of Right, on the question of release on bail of a subject imprisoned on an order of the king showing no cause of arrest, Calthrop, counsel for one of the prisoners, quoted Bracton’s statement that the king can do nothing save what is done according to law; while Heath, Attorney General, ended a long speech for the king by saying:
I shall conclude what I shall say on this case . . . with the words of Bracton, who spake not to flatter the present age,. . . Si judicium a rege testatur (cum breve non currat contra ipsum) locus erat supplicationi quod factum suam corrigat et emendet. . . . My lord, I English it not, for I apply it not; any man may make use of it as he pleaseth.
Possibly I had better “English it.” “If a judgment is attested by the king [i.e., a decision infringing the legal right of a subject] (since no writ runs against the king) there was opportunity of supplication that he might correct and amend his act.”12
It is somewhat surprising that historians have been content to leave such an apparent discrepancy as this so largely unexplained. Was Bracton, then, an absolutist or a constitutionalist, or was he just a blockhead? This is our question. If we were to frame that question in terms of the institutions and ideas of the twentieth century, or possibly even of the seventeenth, “blockhead” might seem the only reasonable answer. It seems impossible that the same man, if a sane man, could declare that the king has no peer on earth, much less a superior, and that no subject, not even a judge, can question or ought to question the legality of any of his acts; and could then go on to add that the king’s will is not law except in the form of a definition to which the assent of the magnates is absolutely essential. For if the latter were true, must it not follow, as the annotator of one of Bracton’s manuscripts said, that a prince who must act in concert with such companions in reality has a master who may “put a bridle on him”? Is not the medieval English monarchy then a mixed and not a pure monarchy? This is the principal riddle, not of Bracton alone, but of medieval constitutionalism generally, and a solution of it is the first essential for an understanding of this important stage in our constitutional history, and, I think I may add without exaggeration, of almost every stage subsequent to this.
The riddle of Bracton is in reality the riddle of our medieval constitutionalism. If I can offer any solution at all, it will be more concrete and more convincing, I think, if I first try it on the text of Bracton and then if possible give illustrations of its wider aspects. Now there is one great passage in Bracton which, to my mind, gives the key to his own reconciliation of the two apparently contradictory views we have been noticing, and I cannot find that historians have given all parts of it the attention they deserve, although they have often discussed some parts and other passages at great length. For, as it seems to me, this passage contains nothing less than the solution of the great problem of our medieval constitutionalism, and it will be necessary to read it. I would spare you these dry details if I could, but I know of no safe road by which we may arrive at true generalizations in history except the narrow and sometimes devious path through the concrete details, and by the most minute and careful examination of them. Generalizations without such a basis—and we have too many of them—are not merely worthless; they are often in their practical results very dangerous.
The passage to which I have referred occurs in a book dealing with the acquisition of dominion over external goods, and Bracton first treats of corporeal goods and then turns to incorporeal, such as “rights” and “liberties.” In his treatment of the latter, in the twenty-fourth chapter of his second book,13 the author considers the question as to who may grant liberties and which ones belong to the king. “Now,” he says,
in the matter of liberties, we must consider who is able to grant them, to whom and in what manner they are transferred, in what way they are in possession or quasi possession, and how they are retained by user. Who, then? And you must know that it is the lord king himself, who has the ordinary jurisdiction and dignity and power over all who are in his realm. For he has in his hand all rights touching the crown, and the secular power, and the material sword which pertains to the governance of the realm (qui pertinet ad regni gubernaculum). Moreover he has the justice and the judgment belonging to his jurisdiction, so that by virtue of his jurisdiction as minister and vicar of God he attributes (tribuat) to each one what is his own. He has also those things which concern the peace, in order that the people entrusted to him may live in quiet and repose, that none should beat or wound or maltreat another, that none should take or carry away another’s goods, that no one should maim or kill a man. For he has coercive power to punish and compel wrongdoers. Likewise he has it in his power in his own person to observe and to make his subjects observe the enactments and decrees and assizes provided, approved, and sworn to in his realm (leges et constitutiones et assisas in regno suo provisas et approbatas et iuratas).
Note particularly that last phrase indicating the kinds of enactment which the king is free to observe or ignore at his pleasure—and note not merely what Bracton includes but also what he omits. It is not by accident, I think, that an enactment defining consuetudo or custom does not accompany constitutio in this list. “For,” as the author continues,
it is useless to establish rights if there is no one to maintain rights. Therefore the king has the rights of this kind, or jurisdictions, in his hand. In addition he has in preference to all others in his realm privileges of his own under the jus gentium which are owing by the law of nature, such as treasure trove, etc.
Then, after enumerating such privileges, he goes on:
Those things which belong to jurisdiction and the peace, and those which are incidental to justice or the peace, pertain to no one except to the crown alone and to the royal dignity; nor can they be separated from the crown, since they constitute the crown itself. For the esse of the crown is to exercise justice and judgment and to maintain the peace; and without these the crown could neither subsist nor endure. Moreover the rights of this kind, or jurisdictions, cannot be transferred to persons or to fiefs; they cannot be in the possession of a private person, neither the enjoyment nor the exercise of the right, except where this has been granted to him from above as a delegated jurisdiction, and it cannot be delegated in such a way as to prevent the ordinary jurisdiction’s remaining in the king himself. On the other hand those things known as privileges (privilegia), though they pertain to the crown, may be separated from it and transferred to private persons, but only by special grace of the king himself. If his grace and special concession should not appear, lapse of time does not exclude the king from such a claim. For time does not run against him in this case where there is no need of proof. For it ought to be clear to all that things of this kind pertain to the crown unless there is someone who can prove the contrary by producing a special grant. In other matters, where proof is necessary, time runs against the king just as it would against any others.
I think it is fair to say that in these few remarkable sentences we find the whole sum of the English polity, and of even more than the merely English polity, in the middle of the thirteenth century. But if these statements are now combined with the others already quoted, the following propositions among others may, I think, be legitimately deduced as a solution of the Bractonian dilemma, and even as a tentative outline of our medieval constitutionalism.
In Bracton’s discussion of these questions the order may not be logically the best, but it seems advisable generally to follow it. First, he says, the king has in his hand the government (gubernaculum) of the realm. The significant fact is that acts of government strictly defined are in the hands of the king alone. There he “has no peer, much less a superior.” No one, not even a judge, can question a specifically royal act so as to bring its legitimacy into doubt. There is here a separation far sharper than we make in our modern times between government and law, between gubernaculum and jurisdictio. And in government thus more narrowly defined the king not only is the sole administrator, but he has of right and must have all powers needed for an effective administration; he has “in his hand” all things incidental or “annexed” to government. I am reminded of a striking statement of Bracton’s great Italian contemporary Egidio Colonna, who says that the king should have “a fullness of civil power (abundare in civili potentia) in order to be able to control those who would rise in revolt and disturb the peace of the realm.”14 Bracton’s English constitutional principle is in fact nothing but a commonplace of late thirteenth-century European political theory. And of all Bracton’s constitutional statements this is probably the most fundamental. Government does not include jurisdiction in our narrower definition of the latter word. In this government and the things annexed thereto the king is properly an autocrat; he is “absolute”; he has no peer; his strictly governmental acts are beyond question. Within that sphere no act of his can be illegal, because within it his discretionary power is legitimate, complete, and shared by none. All government is the king’s government and there is no other.
Possibly one reason for Bracton’s reiteration of this fundamental doctrine was the fact that it was questioned at the very time when he was finishing the writing of his book, about 1259. The Provisions of Oxford of 1258 were a striking practical application of the contrary theory, that the earls and barons, fellow members with the king in his curia, were his equals and collectively even his superiors—not in jurisdiction alone, which was admitted, but in government as well—and that if necessary they might “put a bridle on him,” as the later “addition” to Bracton’s text puts it. Such was certainly not the view of Bracton, and apparently it was not the view generally accepted throughout England or Europe in the thirteenth century. Though it was repeated in the English lawbook known as Fleta in the reign of Edward I, Edward’s adherents had repudiated it in the Dictum de Kenilworth before his father’s death, and his own later policy as king shows no traces of it. The decision of St. Louis in 1264 against the Provisions of Oxford was dictated by a political doctrine which is in all important respects the same as Bracton’s.
One of the essential features of Bracton’s constitutionalism undoubtedly is the clear-cut separation he thus makes between gubernaculum and jurisdictio, allowing the king an autocratic and irresponsible authority within the former, but never beyond it. It is also the one important feature of our medieval constitution which above all others modern political developments have tended most to obscure. The debates in parliament and in Westminster Hall even in the early seventeenth century show plainly that the men of the time, whether unconsciously or intentionally, frequently blur this distinction which so colors the whole of Bracton’s constitutional views. They cite without discrimination his statements as conclusive proof, either of an almost complete royal absolutism, or of a direct parliamentary control in Bracton’s age; to neither of which Bracton himself could possibly have subscribed, even if he had understood it.
No doubt partisanship accounts in part for these one-sided interpretations, but it by no means accounts for all; and it accounts still less for the fact that subsequent historians, even some recent ones, have taken almost as little account of this prime principle of medieval constitutionalism as the heated controversialists of the time of the Stuarts. The changing world always makes earlier times incomprehensible. In the apt words of Sir Henry Spelman,
When states are departed from their original Constitution, and that original by tract of time worn out of Memory; the succeeding Ages viewing what is past by the present, conceive the former to have been like to that they live in; and framing thereupon erroneous Propositions, do likewise make thereon erroneous Inferences and Conclusions.15
In this particular case some of Bracton’s own illustrations of “governmental” action may have contributed to the later misunderstanding, especially his apparent inclusion of royal charters among those things annexed to “government” and therefore “not fit for the tongue of any lawyer”; or his assertion above, which seems to imply that it lies within the king’s discretion (habet in potestate sua) whether to obey or to enforce obedience to such important forms of legal enactment as leges, constitutiones, and assisae. It must be confessed that medieval English history as a whole does seem to show that a royal charter promising reform in “government” was seldom better than a “scrap of paper”; nor is there anything in Bracton’s theory itself to make it legally enforceable.
A striking proof of the accuracy of Bracton’s statements concerning these charters of “government” occurred in 1223. In a colloquium or parliament of that year, Archbishop Langton urges young Henry III to observe the promises of reform in government made in the earlier reissue of Magna Carta; but even he does not say the king is legally bound to do so. He only says that the king, and all the nobility with him, have taken a solemn oath to observe “omnes libertates praescriptas.”16 At most, in matters of public administration rather than private right, if the two could be distinguished in a feudal period, he seems to imply no more than a moral obligation on the king’s part to observe a promise under oath. This is no legal restriction on the king’s power. If he issues a charter promising reforms in the royal government, he is bound only by the moral obligation of the Digna vox to stand by his oath. That view was stated in its baldest form by William Brewer, one of the oldest and most experienced of the members of the curia, who answered Langton on behalf of the young king thus: “The liberties which you have demanded ought not to be observed as a matter of right (de jure), because they have been extorted by violence.” In his reply to this Langton does not assert any obligation de jure. He only upbraids Brewer for endangering the peace of the realm. In conclusion the king gave way to Langton, but he conceded nothing whatever as a matter of right: “All those liberties we have sworn to and for all we are bound, so that we will observe what we have taken oath to.” It is noteworthy that in the reissue of the Charter which Henry finally made in 1225 in response to these repeated complaints, he says explicitly that he is conceding the liberties demanded only of his own free will (spontanea et bona voluntate nostra).17 He concedes absolutely nothing as a matter of right. Whether justifiable or not, this interpretation of the “constitution” is the one held by St. Louis,18 and by the framers of the Dictum de Kenilworth19 containing the terms of pacification after the fall of Simon de Montfort.
Bracton’s assertion concerning royal charters seems on the whole to have had the support of precedent. But in a feudal period, such as this was, “private” rights and public law are so interwoven that the line is hard to draw between such libertates praescriptae as belong to the king alone as a part of the “government” over which he has plenam potestatem et liberum regimen—in the phrase of St. Louis20 —and, on the other hand, those prescriptive rights of tenants or subjects which are wholly outside and beyond the legitimate bounds of royal administration and fall properly under jurisdictio, not under gubernaculum. As to the latter rights, those which we in modern times should be tempted to call “private” or “individual,” the principles of the law are perfectly clear; and charters concerning these alone are vastly different from those, such as some parts of Magna Carta, which had been wrung from an unwilling king by force and involved a real diminution of royal or strictly “governmental” authority. True, as Bracton says, interpretation of even a “private” charter, when ambiguous or uncertain, is forbidden to the judges; that right belongs only to the king who made it, if he is alive. But the legal aspect of such a charter is clearly within the sphere of jurisdictio, not of gubernaculum, and Bracton says plainly that the judges will quash the charter if it infringes rights contained in an earlier grant, whether made by the same king or by a predecessor, provided there has been no loss of the earlier right by nonuser. So much seems clear in principle. Nor is the principle without practical consequences. Although no writ runs against the king himself, title to a hereditament, corporeal or incorporeal, if derived from an extralegal grant of the king, is bad, and in many cases the king’s justices so decided. Obviously, the king can do wrong, even if the penalty can, in Bracton’s phrase, be exacted by none but God the avenger.
A greater suspicion of Bracton’s constitutionalism might, however, naturally arise from his statement above about the decrees and assizes which he also appears to annex to “government.” If, as Bracton seems to imply, it is within the king’s legitimate discretion to disregard these important enactments of law, “approved and sworn to” in his realm, how possibly can the English king be other than a prince solutus legibus?
Again, like St. Thomas Aquinas, I would solve the problem by making a distinction—and this is another of those medieval constitutional distinctions almost as important as that between government and jurisdiction, and unfortunately almost as often overlooked in modern times—namely, the distinction between an enactment of administrative procedure, on the one hand, and on the other, a definition of legal right. This distinction is fundamental with Bracton, but has been forgotten by us. To him leges (in the narrow sense of the word), constitutiones, and assisae are nothing more than administrative orders and therefore a part of “government”—something which “pertains to the administration of the realm (pertinet ad regni gubernaculum)”21 —and as such are properly within the king’s exclusive control. Definitions of “right,” on the other hand, share the character of the immemorial custom they define, and these, Bracton says, “since they have been approved by the consent of those using them and confirmed by the oath of kings, can neither be changed nor destroyed without the common consent of all those with whose counsel and consent they have been promulgated.”22 This is another apparent contradiction in Bracton, but like the former one we noticed, I hope to be able to show that it is a contradiction of our own making.
Proofs of the accuracy of this distinction made by Bracton, and of its great importance in medieval England and elsewhere, are scattered all through the historical sources of the period, official and nonofficial. The earliest clear case I recall is one in the Curia Regis during Stephen’s reign, in which the justices quashed a royal order of Henry I which infringed certain rights of Battle Abbey granted by the Conqueror.23 A king might be strong enough to enforce such an illegal provision during his own life, as the Dialogue of the Exchequer suggests,24 but it is none the less illegal. The closing words of Henry II’s great assize of Clarendon of 1166, “and the lord King wills that this assize shall be binding in his realm as long as pleases him,”25 show that this was one of those enactments which the king, as Bracton says, has in his own discretion (habet in potestate sua).26 But its content is administrative only, and from a very early time it was clearly recognized that a right, or a custom defining such a right, or an official promulgation of what such a custom truly means, was a far different thing from these mere administrative orders. Such a custom, Glanvill said, the king does not will and does not dare to change.27 When all courts of law had been finally absorbed in the royal jurisdiction as they had been by Bracton’s time, no writ ran against the king; and a right, if against the king, could be made good only by petition. Nevertheless, an infringement by the king was a wrong and the law clearly recognized it as such.28 When recorded cases become available, they furnish innumerable instances of the principle from the opening of the thirteenth century to the end of the Middle Ages and afterward.
Of all the discretionary powers of the crown, the maintenance of the peace was practically the most important on account of the general disorder of the time. To maintain peace was one of the three things to which the king was bound in the coronation oath. Peace and justice are the two things that make the crown what it is, says Bracton; they above everything else constitute the raison d’être of kingship. Peace and those powers necessary to its maintenance are, therefore, wholly within the king’s control. Many other aspects of “government” prominent in modern times, such as foreign relations, do not come within Bracton’s purview, but the general principles of his politics may be gathered from his treatment of the few which were most important in his day.
From these things which the king has within his discretion, his gubernaculum, we must now turn to the ones that fall under Bracton’s correlative term, jurisdictio. The word jurisdictio, like lex, is used by Bracton sometimes with a wide, sometimes with a narrower meaning. In its widest sense it embraces no less than the whole of the king’s authority, but in many places it is clearly used in distinction to gubernatio or gubernaculum, the two together constituting the whole of the powers of the crown. Like government proper, jurisdiction is in constitutional theory a monopoly of the crown and inseparable from it. All jurisdiction is a delegation from the king. It may be said that by Bracton’s time the king is “the fountain of justice,” and in no respect was the institution of kingship more fully warranted than in the administration of justice. There were, of course, many courts which were not the king’s courts, but the rights of subjects were ultimately protected by royal writs, through which cases might be transferred to the royal courts on the ground of a failure or a defect of justice. And in view of the effectiveness of these royal remedies, Bracton’s assertion that all jurisdiction was the king’s jurisdiction, exercised directly or through delegation—fiction though it was—came nearer to being an actual fact in England at that time than it did in some other parts of Western Europe for centuries.
The aspect of jurisdictio which is most important for our thesis, however, is the negative one—the fact that in jurisdictio, unlike gubernaculum, the law is something more than a mere directive force. It is not merely the vis directiva of St. Thomas, or the moral inhibition implied in the Digna vox. Those ought to guide the will of a king and, if he is a good king, they will. But the king may legitimately disregard them, for they are only self-imposed; and, if he refuses to be so guided, he is within his undoubted legal rights in so doing. This is true, however, only within the sphere of government (gubernaculum). It is never true in the sphere of jurisdiction, although the king is the sole fountain of justice. For in jurisdictio, as contrasted with gubernaculum, there are bounds to the king’s discretion established by a law that is positive and coercive, and a royal act beyond these bounds is ultra vires. It is in jurisdictio, therefore, and not in “government” that we find the most striking proof that in medieval England the Roman maxim of absolutism was never in force theoretically or actually. For in jurisdiction the king was bound by his oath to proceed by law and not otherwise. Although the judges were his, appointed by him and acting in his name alone, they were nevertheless bound by their own oaths to determine the rights of the subject not according to the king’s will but according to the law; and any careful study of the masses of plea rolls which survive from this period must convince one that this was no mere pious theory, but on the whole the actual and the general practice. When King John substituted his will for this law, in proceeding by force against vassals whose wrong had not been judicially proved, civil war and the Great Charter were the result. The famous thirty-ninth chapter of Magna Carta contains merely the classical statement of a principle that was always insisted upon and usually enforced as a rule of positive coercive law, and not, as the Austinians would say, as a mere maxim of positive morality—the fundamental principle that the king must not take the definition of rights into his own hands, but must proceed against none by force for any alleged violation of them until a case has been made out against such a one by “due process of law.”
The two outstanding features that distinguish the medieval constitution from the modern are, then, the separation of government and jurisdiction, and the difference in legal effect between an administrative order and a definition of right. In the seventeenth century, the royalists, citing the undoubted precedents for absolutism in government alone, extended these without warrant into the sphere of mere jurisdiction; while the parliamentarians, seeing the limits of the medieval jurisdictio, with equal lack of justification, applied these to acts of government as well as to definitions of right. The mistake was natural, but in a historian it is not therefore the more excusable. In the same way, and for the same reasons, partisans of James I and his son tried to stretch the royal right to issue decrees “annexed” to government, or merely ancillary to jurisdiction, far enough to cover and, in some cases, to trench upon the rights of the subject which a medieval king could not even define without the counsel and consent of his curia. The answer to these pretensions made by Sir Edward Coke, constitutionally a medievalist rather than a modern, is an admirable restatement of the ancient doctrine: “The King by his proclamation, or other ways, cannot change any part of the common law, or statute law, or the customs of the realm.”29
The Roman jurists had distinguished imperium and jurisdictio, but by the time of Justinian the imperial will completely dominated both, as is proved by Justinian’s command to the compilers of the ancient law to make by his sole authority such changes in it as seemed necessary. In medieval England, similar changes might be made lawfully by the king alone in those enactments which he “has within his power” (habet in potestate sua), but in none besides. In the field of government proper the absolutist maxim of the Institutes truly applied; in jurisdictio it had no application whatever. It is on the basis of this distinction between government and law, between Bracton’s gubernaculum and his jurisdictio, that I would venture to try to reconstruct our conception of the medieval constitution, and even of some parts of the modern, for I think they need some reconstructing.
The distinction in question has been illustrated from Bracton, and it is necessary now to show that it persisted after Bracton’s age, if it merits the importance I have attributed to it. The most convincing witness I can call to prove this for the end of the Middle Ages is Sir John Fortescue, Chief Justice of the Court of King’s Bench under King Henry VI, whose Governance of England has been called the first book to be written in English on the English constitution. The formula for English government which Fortescue offers in almost all his works is contained in his phrase regimen politicum et regale; and here his adjective politicum applies to Bracton’s jurisdictio, his regale to Bracton’s gubernaculum. There has been much discussion of this famous phrase, but, so far as I know, the interpretation of it just given was never proposed until I suggested it in 1932. Before then it was customary to identify regale with Bracton’s gubernaculum, but under politicum to introduce into both government and jurisdiction the peers who for Bracton have no part in government but only in jurisdiction. Such an interpretation makes of England not a pure monarchy, but a mixed one, if not even somewhat more, a “mixture” of monarchy and republican government, as one eminent authority has put it,30 rather than the monarchy absolute within certain definite limits established by law, which Bracton certainly implies and, as I believe, Fortescue retains.
The difference between these two conflicting interpretations really lies in the different connotations given to Fortescue’s word politicum. To the Reverend Charles Plummer that word means “republican”; to me, if I had to choose a single word, it would not mean “republican,” but “constitutional.” Fortescue’s politicum does not imply an organ of government responsible to the people and independent of the king, with authority to control his acts of administration—in reality, a mixed and not a pure monarchy—the only possible meaning of the word “republican.” Instead, “politicum,” in its fifteenth-century use, seems not inconsistent with Bracton’s earlier assertion that in government proper the king has no peer, much less a superior. To Fortescue, as to Bracton, it means no more than a negative, legal limit to the king’s government, formed by the rights of his subjects which the king has sworn to maintain, and which he cannot lawfully change or blemish or arbitrarily transfer from one to another.
“Republicanism” in the sphere of administration ultimately became a principle of the English constitution, but it was not for a century and a half after Fortescue’s time, and then only as a result of a great civil war. For Sir John Fortescue, as for Bracton, there was and there could be no legitimate government in England except the king’s government. What Professor Tout has told us as true of the fourteenth century still remained true in the fifteenth: “The great fact, never to be forgotten, is that the king governed the country and, whatever advice he took, was ultimately responsible for all executive acts.”31
Fortescue did not say that the government of England was a mere regimen politicum; he said it was regimen politicum et regale. It was at the same time both “political” and “regal,” limited and absolute; and these, for him, were not mutually exclusive terms as they are for us. One of these two interpretations looks forward to the cabinet government of the eighteenth century and afterward, making Fortescue hardly less than a modern; the other looks back to Bracton’s description of English institutions as they were about the middle of the thirteenth century, and implies that these institutions survived with little change in fundamentals to the end of the medieval period at least. This is not to overlook or to deny the great constitutional developments between Bracton’s day and Fortescue’s. When Bracton wrote his great treatise, representatives, so far as we know, had been chosen to attend an English parliament but once, and that for mere participation in a grant of supply; the Commons were as yet no essential part of the national assembly. The enactments which Fortescue has in mind, those which for him make England, unlike France, a true regimen politicum, are statutes enacted only by a parliament which, in the words of an English chief justice of the fourteenth century, “represents the body of all the realm.”32 The difference is vast. Yet it remains true, I think, that Fortescue’s constitutionalism is medieval and not modern. It still incorporates the essentials of Bracton’s theory of the state.
If this interpretation of Fortescue’s constitutionalism is the correct one—and I think the subsequent more detailed examination of Mr. S. B. Chrimes33 has confirmed it—then we must cease to expect to find, and we must give up the assumption that we actually have found, in Fortescue any trace of modern republican or democratic control of national administration. This means that there is nothing in Fortescue’s words, or in the political institutions or ideas of the age he describes, of our modern doctrine or practice of “checks and balances.” Government, so far as it was strictly government, was then a discretionary power concentrated in a single hand. In 1576 Bodin criticized Aristotle for classifying states on the basis of actual administration, instead of the ultimate source of authority. The hint might apply to medieval constitutionalism as well. No matter how many officials or councils might be employed by a medieval king, if their whole authority was in every case a mere delegation of a royal discretionary power, there is no warrant for our assumption of such anachronisms as mixed monarchy, or “republican” control, or “checks and balances.” In the Middle Ages, as always, there was, of course, the salutary threat of revolution against an oppressive government; but it is a contradiction in terms to call such a check a constitutional or legal one. Within the frame of what we might call the constitution, government proper, as distinguished from jurisdictio, was “limited” by no coercive control, but only by the existence beyond it of rights definable by law and not by will.
If such a system had had no great defects, it might have survived to our own day without any supplementary “control” of administration. It is easy enough now to see what the fundamental defect was: it lay in the lack of any effective sanction for these legal limits to arbitrary will. It was not until comparatively modern times that the developments of nationalism and the concentration of national authority convinced men that the principles of the Digna vox were not a sufficient protection of liberty and right against arbitrary will. As Professor Tawney says, “Skeptical as to the existence of unicorns and salamanders, the age of Machiavelli and Henry VIII found food for its credulity in the worship of that rare monster, the God-fearing prince.”34
The addition of the modern political control of government to the medieval legal limitation of it required a revolution—a revolution that reached England only in the seventeenth century, France only at the end of the eighteenth, and cost both countries much blood.
This, however, was a later and a modern development which can be best treated by itself. Meantime, it might be added, the medieval constitutionalism disclosed by the English historical materials was no monopoly of England or of Englishmen, but a datum with which the historian must reckon no matter with what particular European constitutional system he is immediately concerned. “Racism” may be a convenient cloak for national aggression, but it is a very inadequate explanation of national constitutional development. A generation or two ago it was the fashion to account for England’s unique retention of her medieval constitutionalism by some mysterious quality of the English race or blood, and especially by the Englishman’s Germanic strain. Such arguments have now, happily, been left by historians to the propagandists, and they are refuted by the evidences, plentiful and widely scattered, of the existence in many lands of a medieval constitutionalism not essentially unlike England’s and, though much more rarely, of the persistence of this constitutionalism to modern times.
The great fourteenth-century jurist, Baldus, in his commentary on Justinian’s Code, repeats in general terms the maxim that the prince ought to observe the laws because all his authority comes from them. But the word “ought,” he says, must not be taken too literally, because the supreme and absolute power of the prince is not under the law; therefore that law has reference to the ordinary power, not to absolute power (unde lex ista habet respectum ad potestatem ordinariam non ad potestatem absolutam).35 This is a reference to the familiar merum et mixtum imperium et jurisdictio with which all continental legal writers of the time are concerned,36 but the clear distinction of Baldus between a potestas ordinaria and a potestas absoluta seems to be about the same as Bracton’s between jurisdictio and gubernaculum.
[1. ] F. W. Maitland, Bracton’s Note Book, I, pp. 9–10. See also his introduction to Select Passages from the Works of Bracton and Azo.
[2. ] Maitland, Bracton’s Note Book, I, pp. 30–33. Maitland thinks this addicio may possibly have been made by Bracton himself after the completion of the body of his treatise, but in any case Maitland is also clear that it contradicts other statements made at least five times in all parts of the book. To me it is those other statements, and not this one, that give us the true indication of the political views of Bracton himself and the majority of men in his time. I concur heartily with Dr. Kantorowicz against Maitland, in the former’s higher estimate of Bracton’s knowledge and understanding of Roman law, though possibly for reasons somewhat different from his; but I cannot agree that “no passage more genuinely Bractonian” than this one “stands in the whole treatise” (H. Kantorowicz, Bractonian Problems [Glasgow, 1941], pp. 49–52). The important and revolutionary ideas of Dr. Kantorowicz respecting the date and authorship of the Bractonian text are only remotely related to the question of Bracton’s constitutionalism, and are therefore not discussed here. On pages 71, 80, and elsewhere I have retained the date of Bracton’s Treatise preferred by Güterbock and Maitland. For criticisms of the theories of Dr. Kantorowicz, see Professor G. E. Woodbine, “Bractonian Problems,” in Yale Law Journal, LII (March, 1943), pp. 428–44; Fritz Schulz, “Critical Studies on Bracton’s Treatise,” in Law Quarterly Review, LIX (April, 1943), pp. 172–80. I have discussed the views of Dr. Kantorowicz more at length in “The Present Status of the Problem of the Bracton Text,” in Harvard Law Review, LVII (December, 1943). See also Fritz Schulz, “Bracton on Kingship,” in English Historical Review, LX (May, 1945), pp. 136–76.
[3. ] Ante, p. 47, Digest, I, 3, 1; Bracton De Legibus et Consuetudinibus Angliae, folio 2 A (ed. George E. Woodbine [New Haven, 1922], II, p. 22).
[4. ] “. . . et est loi commun plégen de toute commun chose” (Li livres de jostice et de plet, ed. Rapetti, p. 4).
[5. ] Folio 1.
[6. ]Digest, I, 4, 1; Inst., I, 2, 6.
[7. ] Folio 107.
[8. ] Arthur Taylor, The Glory of Regality (London, 1820), p. 410.
[9. ] This passage of Bracton was commented on with great learning by John Selden (Ad Fletam Dissertatio, cap. iii, § ii), who, according to Hallam (Middle Ages, chap. ix, part ii), “extenuated the effect of Bracton’s predilection for the maxims of Roman jurisprudence.” Maitland seems to agree substantially with Selden, but regards Bracton’s variation from Justinian “rather a playful perversity than a mistake” (Bracton’s Note Book, I, p. 4, note 2). My interpretation does not vary materially from that of Selden and Maitland, except that I fail to see anything “playful” in the passage. It has been criticized by Dr. Ludwik Ehrlich (Proceedings Against the Crown [Oxford Studies in Social and Legal History], ed. Paul Vinogradoff, VI, p. 39, note 3).
There is no doubt that Bracton’s cum is a preposition in the text as we have it. This, however, is only to say on the evidence of that text that Bracton consciously altered Justinian’s statement, whether seriously or “playfully.” It is not to say that he misunderstood it. In fact, although the cum is undoubtedly a preposition in the existing text, I am inclined to believe that this in itself is no sufficient proof that Bracton necessarily thought of the original as such. If he had been preparing this statement for a modern printer he might well have included the words cum lege regia within quotation marks. He could scarcely quote verbatim Justinian’s legalized despotism in support of his own conception of government limited in its scope by law. As Professor Schulz well says, “He [Bracton] ought to have written ‘etc.’ after ‘est,’ or,” as he adds somewhat less convincingly, “perhaps he did write it” (English Historical Review, LX, p. 155).
[10. ] Folio 54.
[11. ] Folio 5. For some practical illustrations of these principles, see the excellent little book by A. B. White, Self-Government at the King’s Command (Minneapolis, Minn., 1933).
[12. ] Howell’s State Trials, III, cols. 28, 49.
[13. ] Folio 55 B ff.
[14. ]De Regimine Principum, Book III, part 2, chap. vi.
[15. ]Reliquiae Spelmannianae, p. 57, English Works (London, 1727).
[16. ] Matthew Paris, Chronica Majora (Rolls Series), III, pp. 75–76.
[17. ] Stubbs, Select Charters, 9th ed., p. 350.
[18. ] Ibid., pp. 395–97.
[19. ] Ibid., pp. 407–11.
[20. ] Ibid., p. 396.
[21. ] Folio 55 B. In form perhaps this is consciously reminiscent of Justinian’s phrase, quod ad singulorum utilitatem pertinet (Institutes, I, 1, 3), as an antithesis to it.
[22. ] Folio 1 B.
[23. ]Chronicon Monasterii de Bello (London, 1846), pp. 65–67.
[24. ]De Necessariis Observantiis Scaccarii Dialogus, ed. Hughes, Crump, and Johnson (Oxford, 1932), p. 139.
[25. ] Stubbs, Select Charters, 9th ed., p. 173.
[26. ] Ante, p. 69.
[27. ] Ante, p. 60.
[28. ] Ante, pp. 73–75.
[29. ]The Case of Proclamations, 8 James I, 12 Rep., p. 75.
[30. ]The Governance of England, ed. Charles Plummer (Oxford, 1885), introduction, p. 83.
[31. ]Chapters in the Administrative History of Mediaeval England, V, p. 61.
[32. ] “Le corps de tout le Royalme,” the words of Chief Justice Thorpe in the Bishop of Chichester’s Case (Year Book, Easter Term, 39 Edward III).
[33. ]English Constitutional Ideas in the Fifteenth Century (Cambridge, 1936). See also T. F. T. Plucknett, The Lancastrian Constitution (Tudor Studies, ed. R. W. Seton-Watson; London, 1924), pp. 161–81; C. H. McIlwain, The Growth of Political Thought in the West (New York, 1932), pp. 354–63; and the admirable new critical edition of Fortescue’s De Laudibus Legum Angliae, ed. S. B. Chrimes (Cambridge, 1942), the first edition to be based on all the known manuscripts.
[34. ]Religion and the Rise of Capitalism, p. 102.
[35. ] In I, II, and III Codicis Libros Commentaria (Venice, 1615), folio 64, cited by A. Lemaire, Les lois fondamentales de la monarchie française (Paris, 1907), p. 41, note.
[36. ] On the Continent, the transition from the medieval theory of dominium to the modern theory of sovereignty—the theoretical concomitant of the development of the modern nation-state—was made largely in the form of a changing interpretation of the merum et mixtum imperium et jurisdictio of the Roman law sources. The contemporary discussions of these all-important terms in the period between the thirteenth and the seventeenth century are fundamental and very numerous but they have been used amazingly little by the historians of political thought. Bracton’s discrimination between gubernaculum and jurisdictio might be called the English equivalent of these discussions; but Bracton came too early to develop his distinction fully, and his successors in England lacked the knowledge of Roman law and the interest in it which so color and control all continental treatments of the same important political problems. It has been necessary here to confine attention to the English side of this development alone. This, however, seems to show that Cowell was historically correct, and Coke wrong, when the former asserted, early in the seventeenth century, that the English common law nihil aliud esse quam Romani & feudalis mistionem (Institutiones Juris Anglicani, Authore Johanne Cowello [Oxford, 1664], “Epistola Dedicatoria”; first published in 1605). For similar views about the Roman element in English law expressed by Lord Ellesmere, see his speech in the case of the Post-Nati (Howell’s State Trials, II, 673). For the continental side, reference might be made to C. S. N. Woolf’s Bartolus of Sassoferrato (Cambridge, England, 1913), which deals with an early stage of the development; and for the later stages, to the volume by Myron P. Gilmore, Argument from Roman Law in Political Theory 1200–1600 (Harvard Historical Monographs, Cambridge, Mass., 1941). I can now include also the admirable study of William Farr Church, Constitutional Thought in Sixteenth-Century France (Harvard Historical Studies, Cambridge, Mass., 1941).