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The Origins Of Modern Constitutionalism|
by Wormuth, Francis D.
|Although the mixed state of Polybius went into
eclipse when the Roman republic collapsed, the doctrine did not disappear. In
the second century Aelius Aristides praised the Roman Empire as being a mixed
state and at the same time a complete monarchy.1 St. Isidore of
Seville in the seventh century said that law was made by those superior in
birth, together with the common people.2 St. Thomas Aquinas argued
that God had provided a mixed government for Israel, and had done well. The
Jewish state, he said, preserved the advantages of monarchy but escaped
corruption into tyranny; it employed virtuous and wise men in the Sanhedrin,
which was an aristocratic element, and these were chosen by the people, which
was democratic. The scheme possessed the stability which results when all have
some share in the government.3 John of Paris believed that monarchy
should be mixed with aristocracy and democracy.4 During the
Conciliar controversy, antipapal writers argued that the Church should employ a
mixed government.5 In Renaissance literature the mixed state became
commonplace. Machiavelli attributed the success of the Roman republic to the
blending of the three elements.6 Giannotti and Guicciardini
recommended mixed government as the best form.7 Erasmus thought that
the absolute rule of a prince blessed with all the virtues was best, but a
mediocre prince, such as one found currently, should be balanced by the
aristocratic and democratic principles, "just as the elements in nature balance
each other."8 However, this was a literary tradition which only
occasionally, as during the Conciliar controversy and in the Italian republics,
touched the political life of the time. The conception of monarchy in the
classical mixed state was in fact entirely alien to the medieval idea of
kingship. What was called the monarchic element in Sparta and in republican
Rome was nothing but a magistracy. Aristotle called the Spartan kings mere
generals for life and classified the Spartan state as a polity or
constitutional government.9 Medieval kingship, on the other hand,
was personal rather than official, and the political bond was a personal tie
between king and subject. To describe this, the Middle Ages resorted to
Aristotle's basic classification of forms of rule. Aristotle had distinguished
three types: despotic rule, in which the ruler employs the subjects as
instruments to serve his own purposes; royal rule, in which a natural superior
governs his subjects for their benefit; and constitutional rule, in which the
citizens rule and are ruled in turn.10 The mixed state fell in the
third category. Forced to choose among the regimen despoticum, the
regimen regale, and the regimen politicum, medieval writers fixed
upon the regimen regale.|
Medieval kingship did correspond, in a degree, to Aristotle's royal
rule. The government was the king's government — originally, indeed, it
was a part of his household. The status of the subject was not one of
citizenship but one of allegiance — allegiance to the person of the king.
But this was only one side of the shield. The principle of personal rule was
military in origin. It had its raison d'Ítre in the field and had little
relevance in civil affairs. There were great areas of life which were organized
without reference to the king, areas which might almost be said to lie outside
the political sphere. This is seen more readily in England than on the
Continent, where Roman survivals qualified the simple German institutions. In
Anglo-Saxon England property hardly came within the range of political power.
Land was owned outright by allodial tenure; there was no escheat to the king
until feudalism altered the situation, nor was there a royal right of taxation
until the levy of Danegeld in the tenth century. Justice, too, was in the main
nonpolitical, and indeed mostly private, for the folk courts were hardly more
than arbitral tribunals for the regularizing of self-help. The effect of
feudalization was in part to politicize property, in part to depoliticize
government. Military duty came to be charged on the land rather than on the
man, and thus land was brought into relation to political power. But by a
corresponding process the king was forced into the position of a feudal
landlord, and attempts were made to translate the political relationship of
king and subject into the settled and reciprocal duties expressed in divided
land title. This meant that kingship would become a mere legal office, and it
is interesting that this point of view was actually urged. In the bill for the
banishment of the Despensers in 1321 they were charged with saying that,
"Homage and oath of allegiance is more by reason of the crown than by reason of
the king's person and is more bound to the crown than to the person ...
wherefore if the king by chance be not guided by reason, in the right of the
crown, his lieges are bound by oath made to the crown to guide the king and the
estate of the crown back again by reason, and otherwise the oath would not be
kept."11 In general it may be said that the attempt of the barons in
the constitutional struggles of the thirteenth, fourteenth, and fifteenth
centuries was to reduce government to the settled rules of property. The kings,
on the other hand, attempted to impress the dynamic character of military
kingship on the whole social order. The royal policy may be compared to that of
the popes, who in the same period insisted that all laws were in scrinio
pectoris.12 The outcome was a kind of compromise. Property
retained its autonomy and taxation took the form of a voluntary grant by the
kingdom, through the Parliament, to the king. Justice became royal, but under
the rules and analogies of land law. Still, however, the king remained a
personal ruler, entitled to personal allegiance and possessed of an indefinite
residue of power.
So in the later Middle Ages government represented simultaneously two
different views of the organization of society. Dominium regale was not
an adequate name for such a kingship. Only one author, however, contrived a
better one. The English jurist Sir John Fortescue found in Ptolemy of Lucca's
continuation of Aquinas' De Regimine Principum, and in the work of the
same title by Egidius Colonna, the Aristotelian classification of dominions,
regale and politicum. There is a third form, said Fortescue,
which is well taught by St. Thomas and also by Egidius, the dominium regale
et politicum. The king who rules regaliter tantum makes laws and
sets impositions without the assent of his subjects; but he who rules
regaliter et politice can make laws and set impositions only with their
assent. The wretched condition of France in the fifteenth century shows the
evils of royal rule, as the strength and prosperity of England show the virtues
of jus politicum et regale. So the merely regal dominion is assimilated
to the despotic, and the virtuous monarchy becomes so through being subjected
to limitations not very well described as constitutional.13
The ambivalence of Fortescue is found in most medieval accounts of
kingship. Gierke has called it the idea of "double majesty."14 There
were two usual ways of expressing the nonregal element. Commonly it was said
that human affairs were governed by natural law, to which the positive law of
the prince must accommodate itself. Christianized Stoicism thus supplied the
equal partner in government by which the Middle Ages limited the king. Some
writers implemented this limitation by justifying resistance to an evil ruler,
and even tyrannicide.15 A second idea, not so much an alternative as
a supplement to the first, was the proposition that the king derived his power
by grant from the people. From this proposition were inferred various legal
limits on royal power and even, in some cases, a right to depose a tyrannical
Aquinas did not originate these ideas, but the tradition flows through
him and it is convenient to examine them in his writings. According to Aquinas
monarchy is superior to constitutional rule. The king establishes the
kingdom;17 he is above positive law, for he makes it and gives it
its coercive power.18 Nevertheless he should voluntarily abide by
human law, and he is of course subject to natural law.19 Moreover,
among a free people (which appears to me to mean in a dominium regale as
opposed to a dominium despoticum) the prince derives his power to frame
laws from the people, and the people can therefore make a law by custom which
will have more weight than the ordinances of the prince.20 Aquinas
even argues that where a king has been thus instituted by a free people, he can
be overthrown by "public authority" for tyranny, for a tyrant does not deserve
that the "pact" be kept by his subjects.21 Here we have an idea that
was developed at greater length by later writers. Ulpian had attributed the
authority of the Roman emperor to the lex regia by which the people
conferred upon him all their power. In the Middle Ages this text was commonly
used to explain the origin of kingship: power was derived from the
people.22 It was not an idea congenial to medieval institutions. If
the king derived power from a Roman lex regia, he was absolute; if from
a pactum, as with Aquinas, he should lose his regal character. Either
alternative would destroy the dualism characteristic of medieval kingship. Some
writers inclined in one direction, some in the other, but without completely
abandoning double majesty.
Some of the statements of Aquinas are highly regal, some are antiregal;
and they have been variously interpreted. It is the opinion of two eminent
Thomists, Mortimer J. Adler and Walter Farrell, that Aquinas meant all these
statements at the same time — he was describing neither a dominium
regale nor a dominium politicum, but what they have aptly named an
In France this tradition endured, if it did not flourish, until the
French Revolution. It is clearly marked in the literature of the sixteenth
century. Even in Bodin's Six Books of the Republic, which comes close to a
theory of sovereignty, the nonregal element survives. The king is the source of
law, always excepting the laws of God and nature; all legal institutions are
emanations of his will. Yet the Estates General, rather than the king, possess
the taxing power; evidently they exist by some other warrant than the king's.
The king is bound by his contracts and by the leges imperii, certain
public laws of the realm which had been objectified by the writers of the late
Better than Bodin, the contemporary Huguenot tract Vindiciae contra
Tyrannos describes the intermediate regime. The king is instituted by the
kingdom and derives his powers from it. The effect of this might be to destroy
the independence of the regal power, but not so, for king and kingdom are two
equal partners, bound by contract. There are officers of the king, deriving
their authority from his commission; and there are officers of the kingdom, who
are quite independent of the king. If the king violates the duty which king and
kingdom owe to God, or governs tyrannically, the officers of the kingdom may
resist him. These officers of the kingdom are the surviving fragments of
medieval pluralism — the Estates General, the Parlements, the twelve peers
of the realm, the other nobility, the officials of the communes, and sundry
other officers. Leaving out of account the doctrine of resistance, this is not
far from Montesquieu's definition of monarchy in the eighteenth century.
Montesquieu recognizes three forms of government: republican, in which the
whole people, or a part of it, has sovereign power — this is the
dominium politicum; monarchical, in which a single man governs, but by
fundamental laws — this is the intermediate regime; and despotic, in which
a single person directs all by his will and caprice — this, of course, is
the dominium despoticum of the Middle Ages.24 Like Bodin,
Montesquieu concedes that in a monarchy all power comes from the prince, but he
argues that the maintenance of the monarchy requires that power be channeled
through "intermediate ranks" by the fundamental laws. These intermediate ranks
are the lords, the clergy, and the cities; the judges also are needed as
"depositary of the laws." If these were overthrown, the government would become
a republic or a despotism." The views of Montesquieu are those advocated later
in the century by the Parlements, the nobility, and the Estates General when
they challenged the authority of the king. Only in the days of the Legislative
Assembly does the pure dominium politicum come into French
In England the issue came earlier, after a series of legal controversies
which rent apart the composite medieval kingship. This composite character is
expressed in legal terms in the treatise De Legibus et Consuetudinibus
Angliae by the thirteenth-century jurist Bracton. Government and justice
are the king's; no man can dispute concerning his acts, because he is subject
to no man, but to God and the law. What is the law to which he is subject? The
laws "approved by the consent of those using them and confirmed by the oath of
kings"; "what has been rightly defined with the king's authorization on the
advice of his magnates after deliberation and conference concerning it" —
these are the limits of royal power. Professor McIlwain, to whom we owe the
explanation of the significance of Fortescue's dominium regale et
politicum, has found in these passages the same conception. Bracton uses
the term gubernaculum to describe the respects in which the king's
authority is regal and unlimited, and jurisdictio for the constitutional
side, on which he is governed by law.26 The same opposition is
neatly pointed up by two passages which Gneist found in the Year Books. On the
regal side "tout fuit in luy et vient de lui al commencement"; but on
the nonregal side "La ley est le plus haute inheritance, que le roy ad; car
par la ley il mÍme et toutes ses sujets sont rules, et si la ley ne fuit,
nul roi, et nul inheritance sera."27 From the Middle Ages to the
seventeenth century the tradition was persistent, if somewhat wavering. In the
controversies of the seventeenth century, however, the stress between
gubernaculum and jurisdictio became intolerable, and as a consequence the whole
character of English monarchy was altered.
Not chronologically, but logically, the first stage in the dispute was
Calvin's Case (1608).28 According to English law an alien could not
own land, because under feudalism land owed political duties. Calvin, a Scot,
nevertheless brought suit for English land, claiming to be eligible because he
had been born under the allegiance of James VI of Scotland after that king's
accession to the throne of England as James I. His counsel contended that
allegiance was to the person of the king and that since Calvin had been born
subject to the same allegiance as the English, he could maintain his suit. The
argument of the defense was substantially that James VI and James I were two
different kings, each enjoying a separate set of allegiances; it was of no
significance that one man held the two offices. The court ruled, naturally
enough, that allegiance was due to the person of the king rather than to any
legal office. To attach allegiance to the office rather than the man was the
"damnable and damned opinion" of the Despensers. Without ruling out the
dominium politicum, the judges recognized dominium regale.
In Bate's Case (1606)29 the right of the king to levy import
duties without Parliamentary consent was challenged. Chief Baron Fleming upheld
the imposts, arguing that "The king's power is double, ordinary and absolute."
The ordinary power was to execute civil justice according to established laws;
this was in the tradition of Bracton's jurisdictio. The absolute power, "most
properly named policy and government," was not restrained by laws. In all
matters of state the king might act outside the law for the general good.
Impositions on foreign goods, and all foreign relations, were matters of state
and fell within the absolute power. Baron Clark in the same case phrased the
distinction as one between the absolute prerogative and the ordinary. In
foreign affairs the king governed by his absolute prerogative, which might not
be disputed; the ordinary prerogative, on the other hand, was measured by the
laws of the land and was subject to determination in the courts. A similar
issue arose in two subsequent cases. In the Five Knights' Case
(1627)30 the judges held that the king might by his absolute
prerogative commit any man to prison without alleging a cause, and no bail
could be granted. In the Case of Ship-Money (1638),31 seven of the
twelve judges ruled that the king might for reason of state collect taxes by
the exercise of his absolute prerogative, without the consent of Parliament. In
none of these cases did the court deny the existence of jurisdictio as well as
gubernaculum. But the effect of these decisions was to make the supremacy of
gubernaculum over jurisdictio depend merely on the king's discretion, and that
meant the virtual abandonment of double majesty. As early as 1621 the
Parliamentary opponents of the Stuarts foresaw this consequence and rejected
the conception of the absolute prerogative. This implied the repudiation of
dominium regale et politicum in favor of dominium politicum. The Long
Parliament accomplished this result by adopting in 1642 the doctrine of the
Despensers, which attributed royal power exclusively to the office of the king
and divorced the office from the person.
The High Court of Parliament is not only a court of judicature, enabled
by the laws to adjudge and determine the rights and liberties of the kingdom,
against such patents and grants of His Majesty as are prejudicial thereunto,
although strengthened both by his personal command and by his proclamation
under the Great Seal; but it is likewise a council, to provide for the
necessities, prevent the imminent dangers, and preserve the public peace and
safety, of the kingdom, and to declare the King's pleasure in those things as
are requisite thereunto; and what they do herein hath the stamp of royal
authority, although His Majesty, seduced by evil counsel, do, in his own
person, oppose or interrupt the same; for the King's supreme and royal pleasure
is exercised and declared, in this High Court of Law and Council, after a more
eminent and obligatory manner than it can be by any personal act or resolution
of his own. ... And the High Court of Parliament and all other His Majesty's
officers and ministers ought to be subservient to that power and authority
which law hath placed in His Majesty to that purpose, though he himself in his
own person should neglect the same.32
This overthrow of the medieval constitution opened the door to twenty
years of speculation and experiment, during which the main outlines of
subsequent constitutional thought were fixed.
(1) C. H. McIlwain, The Growth of Political Thought
in the West (New York, 1932), p. 138.
(2) Etymologiae, V, x.
(3) Summa Theologica, I-II, 105, 1. See also
I-II, 95, 4, c.
(4) Otto Gierke, Political Theories of the Middle Age
(Maitland trans.: Cambridge, 1900), p. 152, n. 165.
(5) Ibid., p. 53; A. J. Carlyle, Mediaeval
Political Theory in the West (London, 1936), vi, 162-164.
(6) Discourses on the First Decade of Titus
Livius, I, 2.
(7) H. A. L. Fisher, The Republican Tradition in
Europe (London, 1911), pp. 25, 27, 32.
(8) Lester K. Born, "Erasmus on Political Ethics,"
Political Science Quarterly (1928), xliii, 520, 528.
(9) Politics, 1285a, 1286a,
(10) Ibid., I, 5, 12.
(11) Statutes of the Realm, i, 82.
(12) Gierke, op. cit., pp. 77, 176 n.,
(13) The Governance of England, chaps. 1-3. On
Fortescue see C. H. McIlwain, op. cit., pp. 358-363, and S. B. Chrimes, "Sir
John Fortescue and His Theory of Dominion," Transactions of the Royal
Historical Society (London, 1934), 4th ser., v. xvii, 117.
(14) Otto Gierke, Natural Law and the Theory of
Society, 1500 to 1800 (Barker trans.: Cambridge, 1934), pp. 43-45,
(15) Gierke, Political Theories of the Middle
Age, pp. 35, 143-145, nn. 127-136.
(16) Ibid., pp. 39, 45.
(17) De Regimine Principum, I, 13.
(18) Summa Theologica, I-II, 96, 5, ad
(19) Ibid., I-II, 95, 2, c.
(20) Ibid., I-II, 97, 3, ad 3. See also I-II, 90,
(21) De Regimine Principum, I, 6.
(22) Gierke, Political Theories of the Middle
Age, p. 39.
(23) "The Theory of Democracy," The Thomist
(1942), iv, 724-743.
(24) The Spirit of the Laws, II, 1.
(25) Ibid., II, 4.
(26) Constitutionalism Ancient and Modern
(Ithaca, N. Y., 1940), chap. 4.
(27) Quoted by A. V. Dicey, Law of the
Constitution (7th ed.: London, 1908), pp. 179-180.
(28) Howell's State Trials, ii, 559.
(29) Ibid., ii, 371.
(30) Ibid., iii, i.
(31) Ibid., iii, 825.
(32) Lords Journal, v, 112.