MEDIEVAL CONCEPTS OF LIMITED GOVERNMENT

Thai: fat the Dear“ a! M. A..,
MICHIGAN STATE UNIVERSITY

Richard Franklin
I960

k‘

1HL§IS

LIBRARY

Michigan Sta.
Univcnity

 

MEDIEVAL CONCEPTS OF LIMITED GOVERNMENT

By

Richard Franklin

AN ABSTRACT
Submitted to the College of Science and Arts of
Michigan State University in partial
fulfillment of the requirements

for the degree of
MASTER OF.ARTS

Department of History
1960

 

Approved 4 ,(j L53)» 1‘ 5 [L C (it-4"

2
Richard Franklin

ABSTRACT

This theSis is a study into the nature of the medieval concept
of authority. Evidence is adduced from the political writings of certain
key figures in the church-state controversy, beginning in the eleventh
century and culminating in the fourteenth, to indicate that the medieval
concept of political authority was in no way absolute. These key figures
have been selected because they represent important concepts as to the
limited nature of medieval authority.

’rhe first of those key figures is Pope Gregory VII who represents
the attitude oi’ the papacy and the medieval church toward secular authority.
the doctrine of papal supre acy had never been stated so strongly and
e bodied so thoroughly by a pope as by Gregory VII. His strong personality
is very evident in his correspondence with important church and lay officials.
His far-reaching claims and the dominance of his personality implied and
imposed severe limitations upon secular authority. Secular authority
must fit into and take its proper place in the divine direction and ordering
of the universe.

The second key figure is Thomas Aquinas who combined Aristotelian
and Christian principles into a theory of law resulting in a grandiose
scheme of a hierarchical universe. This universe is ordered by the Divine
Reason and man as a rational creature participates in this divine ordering.
The secular authority participates by harmonizing its decrees and actions
‘with natural and divine law. This harmony is necessary for'authority
to be Just and legitimate. Otherwise the ruler can be declared a tyrant

3
Abstract Richard Franklin

and no longer legally entitled to rule. The medieval doctrine of higher
law found its best expression in the writings of Thomas Aquinas and is
significant in any study of the nature of the medieval concept of
authority.

The third important figure to this study of the nature of medieval
political authority is Marsilio of Padua. His significance for this
thesis lies in his concept of the doctrine of the popular will, that is--
that the ruler is directly responsible to the conscious determination of
the people's will. The people's will is the unchallenged possessor of
supreme authority. Final authority does not rest in the pope or in some
form of higher law, but is embodied in a positive human agency, the
legislator or the people. The Narsilian doctrine of the popular will
sharply separated the nature of ecclesiastical and secular authority
placing the former under the jurisdiction of the latter.

These medieval concepts as presented by certain key political
thinkers present insurmountable evidence that the nature of secular
authority had severe limitations placed upon it, that secular authority
was in no way absolute, and that it was characterized by certain moral

qualities which made it just and respected.

MEDIEVAL CONCEPTS OF LIMITED GOVERNMENT

BY
Richard Franklin

A THESIS
Submitted to the College of Science and Arts of
Michigan State University in partial
fulfillment of the requirements

for the degree of
MASTER OF ARTS
Department of History
1960

II/j 7 /" A .I-‘ ,1 ..
Approved jébi ; flannel

ACKNOWLEDGMENTS

The author is indebted to Dr. Richard Sullivan for his patience
and helpful advice, and to the Michigan State Library for aid in
securing materials.

iii

TABLE OF CONTENTS

Chapter Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . 1

I. THE DOCTRINE OF PAPAL SUPREMACY . . . . . . . . . . 14

II. THE DOCTRINE OF‘HIGHER LAW . . . . . . . . . . . . 31
III. THE DOCTRINE OF POPULARWILL . . . . ... . . . . . 55
CONCLUSION . . . . . . . . . . . . . . . . . . . . 86

BIBLI mm 0 O O O O O O O O O O O O O O O O O O 9 6

INTRODUCTION

One of the great problems of the medieval period was the relationship
between the ecclesiastical and temporal authority. This issue produced
a considerable body of political theory seeking to clarify the position
of each. The purpose of this thesis is to examine some of the literature
arising from the problem of church-state relationships to see what ideas
'were propounded concerning limitations upon secular authority.

It became obvious soon after investigations had been undertaken
that the amount of literature concerning church-state relationships in
therhfiddle Ages was so great that some basis of selection must be made.
Certain key figures soon emerged as representative spokesmen for the
most significant ideas developed in the Middle Ages relating to limitations
on secular authority. This thesis will consist of an analysis of the
writings of these figures. Pope Gregory VII, Thomas Aquinas, and
Marsilio of Padua have been selected as the most important theorists
discussing limitations on secular power. This thesis will not attempt
to examine the entirety of their political thought, but will restrict
itself to that which concerns the nature of’limitations on government.

The ideas of each of these men did not develop g2,ggzg, Each
was a product of certain developments in the actual state of relations
between church and state. To make their ideas on limitations on
political authority clear demands that a brief description of their
background be undertaken.

The earliest and most formative statement of the distinction
between church and state authority was made by St. Augustine in the

City;gf Q9 . Man is a citizen of two cities, the city of his birth. and

2
the City of God. The earthly city is founded on the natural appetitive
impulses of human nature; the City of God is founded in the hope of
heavenly peace and spiritual salvation. The first is the kingdom of
Satan, the second the kingdom of Christ. History is the dramatic story
of the struggle between these two societies and of the ultimate mastery
which must fall to the City of God. Only in the heavenly kingdom is
peace possible; only the spiritual kingdom is permanent. Like all
Christians St. Augustine believed that "the powers that be are ordained
of God," though he also believed that the use of force in government I
was made necessary by sin and was the divinely appointed remedy for sin.
. Accordingly he did not think of the two cities as visibly separate.
Throughout all earthly life the two societies are mingled only to be
separated at the last judgment.

St. Augustine's theory of the relation between secular and
ecclesiastical authority was no more precise than that of other writers
of his time and consequently, in the later controversies on the subject,
his authority could be invoked by either side.. He set forth the generalities
of the relationship but did not elaborate on the particulars. But what
he put beyond question for many centuries was the conception that the
state must be a Christian state, serving a community which is one by
virtue of a common Christian faith, ministering to a life in which
spiritual interest stands above all other interests, and contributing
to human salvation by preserving the purity of the faith.

There seemed to be little contribution and addition to political
thought between the early formative period and the Investiture controversy

beginning in the eleventh century. Perhaps the most significant contribution

was the two sword theory of Pope Gelasius I, which implied a dual
organization and control of human society. These two authorities
had distinguishable jurisdictions, the one over the spiritual, the
other'over'the temporal. The distinction between the spiritual and
temporal authority was an essential part of the Christian faith. The
combination of spiritual and secular authority in the same hands was
typically pagan. In a Christian society it was unlawful for the same
man to be both priest and king. This double aspect of Christian society
produced a unique problem.which in the and contributed perhaps as much
as any other to European political thought.

The relationship between the temporal and ecclesiastical authority
took on new meaning in the Carolingian period. Christmas day, 800,
when Pope Leo III crowned Charles the Great Holy Ibman Emperor, was
one of the most significant events of the medieval period. It was
significant because this spontaneous action of the pope created the office
of Emperor. There was no election by the people, although they gave
their joyous cries of assent to the newly crowned Emperor»

The coronation enhanced the importance of the temporal office
of the ruler. The new title given to the German king increased the
significance of the monarchical element of authority. The imperial and
kingly offices theoretically were united in the person of the great
monarch. The coronation brought to the forefront the theocratic element
of political authority. The theocratic origin of the imperial office is
certain. Charles looked upon the Empire as a divine state. He had a
high sense of his divine mission in the world, and acted as the

Plenipotentiary of God who had to maintain earthly order in a Christian

' 4
sense. Thus, necessarily connected with the Christian theocratic idea,
was the concept of a strong authority. Charles placed himself at the
service of theocratic ideas in order to combine them with his quest for
power.

The coronation not only increased the significance of the kingly
office but provided a basis for papal claims of supremacy. There seemed
to be evidence that Charles did not wish the crown from the pope because
he foresaw that the latter might build on it a right to crown, and so
deduce claims to supremacy. From this time the papacy began to claim
right to give final sanction to emperors and kings. In the Christian
world there had long prevailed the idea of a priesthood set over the
laity, the idea of a hierarchical order and of the papal primacya-and
these ideas demanded unity in the sense that the supreme head of society
could not be a secular monarch but only the Bishop of Rome. It can
readily be seen that these ideas contradicted the theocratic-imperial.
ideas of Charles the Great. Thus there were two different currents
tending toward unity after the year 800, often working together, often
against each other--the tendency toward priestly universal rule and the
tendency toward theocratic-Christian imperial power.

It was not until the eleventh century that the problem between
the secular and ecclesiastical authority became an acute one. The church
had developed into a well organized hierarchy, the pope being the most
commanding figure. However, the church faced a grave danger. In the
ninth and tenth centuries there was a process of decentralization of
authority by which power passed out of the hands of the monarch into the

hands of’private landholders. The church began to accumulate land and

5
e

many church officials became landholders, and, as such, had certain feudal
as well as clerical obligations. The church became entangled in the feudal
system and the business of secular government. Ecclesiastical offices were
based on political and monetary considerations rather than spiritual
qualifications. Often ecclesiastical preferment was given in return for
political services. The ecclesiastical and temporal authorities were
gradually being intermingled in the feudal system.

The more conscientious clergymen became alarmed_at the growing
evils, and felt most keenly the menace to the spiritual office. There was
a growing demand for reform within the church. The progress of reform
necessarily contained possibilities of conflict between the ecclesiastical
and temporal authorities, because of the deep entanglement in one another's
affairs. Reform meant that the ecclesiastical authority must extricate
itself from feudal entanglements and establish the church as a self-
governing community, with ecclesiastical policy and administration in
the hands of ecclesiastics. It was the refermation within the church
that brought the relationship between the ecclesiastical and temporal
authority to a crisis.

The crisis resulted in the spelling out of the relationship
between temporal and ecclesiastical authority. The theoretical concepts
'were brought into the arena of a real living historical situation and
tested as to their validity. It was the personal embodiment of these
concepts in the lives of certain people which focused attention on the
problem. Those political thinkers who were loyal to a cause or a
person began to defend their position and to particularize the generalizations

made by St. Augustine and the church fathers. The papacy sought the

6

realization of claims which had been made for centuries, but which had been
somewhat static until the present controversy. The legitimacy of temporal
authority had never been challenged to such a degree; consequently, there
was no well developed basis for secular authority. The church had centuries
of tradition with the claims of sacred and respected men in her favor. The
imperialist position at the outset was on the defensive which proved to be
a great disadvantage in the controversy.

From the eleventh to the fourteenth century there was a tremendous
volume of political writings which was concerned with the controversy between
the temporal and the ecclesiastical authority. In these writings is found
the main literary source for the fruition of old political ideas and the
inauguration of new ones. One noted author'on the subject says that in
the course of the controversy "controversalist on the one side or the other
managed to touch on the most fundamental questions of the origin, the nature,
the extent and the sanction of all forms of authority both spiritual and
secular, and in some cases to anticipate theories of state we think of as
only 'modern'."1

The controversy was divided chronologically into several distinct
struggles each with its own cause of friction, and between these periods of
controversial activity were periods of relative tranquility. During these
intervals the chief purpose of political writings was not to refute a particular
position or to attack the opposition, but rather to survey in a calmer spirit
social and political relations and to find a basis on which they could rest.
Between the middle of the twelfth and the end of the thirteenth century was
found such an interval when for a little time political works were more systematic

than disputational.

1Charles Howard MCIlwain, The Growth of Political Thou ht in the West
From the Greek to the End of the’thdle A es ILondon: The MacMillan Co.,
19325, p. 203.

7

However, the period preceding and following this time of tranquility
was characterized by conflict and controversy. In the eleventh century
one of the most dramatic struggles of the medieval period was between
Pope Gregory VII and the Holy Roman Emperor, Henry IV. The outbreak
of the struggle occurred as a result of the Lenten synod of 1075 which
prohibited lay investiture for the first time. Henry IV disregarded the
action taken by the Lenten synod and continued to invest German bishops
with their office. He filled the archbishopric of Milan, the most
important see for the control of northern Italy, with a bishop of his own
choice. This resulted in an ultimatum from the pope on December 8, 1075,
threatening Henry with excommunication and deposition unless he submitted
to the Apostolic See. Henry summoned a council of German bishops on
January 2#, 1076, at worms where he retaliated by excommunicating "Brother
Hildebrand." Gregory answered at the Lenten synod of 1076 in which he
excommunicated and deposed Henry IV and released all those in Germany
who had sworn oaths of allegiance to the king. The climax took place
at Canossa where Henry appeared as a repentent son seeking absolution
fbr'his disobedience to his Overlord, the pope.

The various arguments supporting papal claims to plenitude of
power are contained in the correspondence of Gregory VII. The Registrum
of Gregory's letters was the first nearly complete collection of the
correspondence of a pope since that of Gregory I, nearly five centuries
earlier. The Registrum was composed of nine books, of which the first
seven were in strict chronological order, one book for each of the first
seven years of Gregory's papacy. This carried the collection down to

the year 1080-1081. The eighth book begins with the same chronological

system, but then shows many instances of disarrangement, letters often
being placed before those of earlier date. In the ninth book covering
the period from the spring of 1081 to the end of 1083, there is no
pretense of strict sequence of time.

The text that will be examined in the first chapter of this
thesis will be a selection of some of the letters of Gregory's correspondence
translated by Ephraim Emerton. These letters are considered by him to
be the most important of Gregory‘s correspondence. Encouched in many
of these letters are succinct statements of the papal position in relation
to royal authority. It is the purpose of the thesis to examine these
statements and claims and their resultant effects on royal authority.
These letters lack any systematic and philosophical arguments. The
appeal is always to authority. The Scriptures, the Fathers of the
Church, the decrees of popes and councils, the edict of emperors in so far
as they favor the rights of the church, all are used to support the claim
to power which is the primary object of Gregory's program.

In the interval of calm, between the middle of the twelfth and
the end of the thirteenth century, there appeared one of the most monumental
works of’the medieval period, the Summa Theologica of Thomas Aquinas.
The uniqueness of this work lies in its broad scope. The author's
ability to weave the endless threads of thought and life into an organic
unity, making these diverse interests not merely compatible but
interdependent, and forming them into a hierarchy which leads every
particular back to the whole, was perhaps his greatest contribution to
philosophical thought. Another unique feature of St. Thomas' work was

the provision made in his thought for the assimilation of new ideas and

adjustments to new situations. He maintained his thought on the
metaphysical, and therefore eternal, plane, that his synthesis should not
be a dated system, should not become static, final, and therefore bound
to become obsolete. The great gift that Aquinas left to mankind was

an ultimate synthesis, centered in God, and so elastic as to include
future discovery and by so doing to unify all human knowledge, past,
present, and future.

The significance of Aquinas in political thought rests primarily
in his attempt to reconcile Greek political thought and Christian political
thought. The result was a synthesis of reason and revelation with a
strong emphasis on the rationality and goodness of man. His acceptance
of Aristotle's principle of the social and political nature of man
resulted in his rejection of the concept of political society as a
conventional institution. This was a radical departure from the viewpoint
of St. Augustine, for political society could be justified.purely on a
natural basis. The difference between St. Augustine's and St. Thomas'
concept of the basis of political society was a result of their difference
of viewpoint on the nature of man. St. Augustine saw man in his natural
condition as devoid of goodness. The virtues of the Greeks were merely
"splendid vices." Because of his condition man needed government to
control his corrupt nature. St. Thomas pictures natural man as related
to God through his reason and therefore capable of understanding and
attaining virtue. The purpose of government is not primarily to restrain
the evil impulses of man but rather to cultivate the life of virtue.
Aquinas did not directly reject the patristic tradition, but rather

sought to harmonize it with Aristotelian philosophy.

10

The significance of Aquinas for the purposes of this thesis is
his embodiment of Christian political thought and Greek political thought
in a theory of law. Aquinas' concept of law; beginning with God and
emanating to His creatures and creation, is extremely important for the
discussion on the nature and extent of authority in the Middle Ages.
Aquinas demonstrated to a greater extent than any other'medieval political
theorist the moral responsibility of man under a universal system of law,
and especially the responsibility of a secular ruler who participates
actively and directly in the divine ordering of the universe. He was
to function within the bounds prescribed by divine and natural law,
otherwise his rule did not have the sanction of God and could legally be
resisted. A ruler whose rule was not characterized by law was no ruler
at all but rather a tyrant. The second chapter will be confined to a
study concerning that aspect of St. Thomas' political ideas which relates
to higher law with the purpose of demonstrating the limits that were
placed on secular authority.

In the first half of the fourteenth century the struggle between
the lay and ecclesiastical authorities was renewed with vigor. The
struggle was between Lewis the Bavarian (1314-1347), and the popes
of the church, namely Pope John XXII (1316-1334) and Clement VI (1342-1352).
The occasion of this controversy was an attempt by Pope John XXII to
intervene from Avignon in a disputed imperial election. The outcome was
a repudiation of the papacy's effort to set itself up as an international
arbitrator of disputed elections. In 1328 the imperial electors asserted
in the Declaration of Rense that an election required no papal confirmation,

thus embodying in constitutional law the independence which the emperors

11
since Henry IV had claimed. The Golden Bull, which in 1356 enacted a
procedure fbr imperial elections, omitted all reference to confirmation
by the pope, and Innocent VI had no alternative but to concede the point.

Out of this struggle came perhaps the most remarkable political
treatise of the medieval period, the Defensor Pagis of Marsilio of Padua.
It is remarkable because it contains a departure from medieval thinking
in certain respects and also has a modern tone. Marsilio took the facts
and principles of the medieval world and gave a new interpretation to them.
The Defensor Pacis was addressed to Lewis the Bavarian, but was not
written so much to defend the empire as to destroy the whole system of
papal imperialism that had developed since Gregory VII. Marsilio's
object was to define and limit the pretensions of the spiritual authority
to control, either directly or indirectly, the action of secular government.
His political concepts incidentally grew out of this main purpose.

One of these fundamental political concepts was the idea that the
authority of the executive is derived from the legislative act of the
whole body of citizens. It is therefore essential that this authority
should be exercised in accordance with law and that its function and
powers should be such as the people determine. In Marsilio the opposition
to papal absolution took a new form: no longer an issue between spiritual
and secular authority, but a question of absolute monarchy as against
representative or constitutional monarchy. The problem was shifted to
the relation between the sovereign and the corporate body which he ruled.
Marsilio's discussion on this problem.will be examined in the third
chapter in order to demonstrate the limitations on secular authority.

The progress of the development of church-state relations, from

12
its early formative period to the crisis period beginning in the eleventh
century and finally culminating in the fOurteenth and fifteenth centuries,
was gradually moving toward a separation of the two resulting in a strong
secular state. In the fbrmative period of Christian thought, church-state
relations were not clearly defined although the distinction between the
two was first made. The distinction in the jurisdiction of the temporal
and secular authority became more pronounced in the Gelasian doctrine
of the two sword.theory. In the Carolingian period the importance of
the secular office of the ruler was greatly enhanced by the addition of
the new title of Emperor. The fact that the pope took the initiative in
bestowing the title increased the claims of the papacy in respect to
supremacy over secular authority. The right to approve of’a ruler by the
pope eventually became the right to also disapprove.

The crisis came in the relationship between the two powers in
the eleventh century when the church sought to extricate itself from
feudal entanglements and began to assert itself as never before in temporal
affairs. POpe Gregory VII embodied all the papal claims of supremacy
and sought their realization in the conflict with the Emperor, Henry IV.
All the previous arguments for papal supremacy were re-emphasized but
never had they been realized to such an extent. If the Emperor, Charles
the Great, was the dominant figure in church-state relations in the ninth
century, the situation was reversed in the eleventh and the pope became
the dominant personality. In the latter part of the twelfth and the
beginning of the thirteenth centuries the hierarchical claims of the
papacy reached their fulfillment in the pontificate of Innocent III.

But the most significant and extensive development of the hierarchical

13
idea was by Thomas Aquinas. Secular authority must fit into the order
of the divine direction of the world. However, in Aquinas there is also
a naturalism surrounding his political thinking which was acquired from
Aristotle. The state could be justified purely on a rationalistic basis.
This naturalism in.Aquinas took an extreme form in Marsilio of Padua
who separated sharply ecclesiastical and political authority. In the
fourteenth century the imperialist cause began to revive upon the basis
of a pure natural secular authority, and the influence of the church
began to dwindle noticeably. The period between the eleventh and fourteenth
centuries was one of great political ferment and from.which there emerged
highly significant political concepts. Not the least of these political
concepts was the idea that political authority must in no way be arbitrary

or absolute, but, rather, authority must be subject to careful delimitations.

14
CHAPTER I

In the eleventh century there were two great problems facing the
Roman Catholic Church, one from without and one from within. The church
was so involved in temporal matters that it was losing its religious
uniqueness. Its intricate connection with the feudal system resulted in
a loss of control over matters of discipline and standards in the church.
In reaction to low standards and poor discipline, there grew up certain
exclusive monastic orders with strict rules and regulations. The emphasis
of monastic reform was upon ascetic living, self-mortification, and self;
denial. The solution to the relationship of the spiritual to the temporal
lay in complete exclusion from the temporal. These monastic groups
sought to reclaim the simplicity, poverty, and personal religion of the
early churCh. The Roman Catholic Church managed to absorb many of these
orders, especially those that were a danger to its prestige, and thereby
to control the critical elements within its own ranks. However, the
absorption of the reforming orders into the church resulted in the
penetration of the reforming spirit into the church hierarchy and in
the imposition of reforming measures from above rather than from.below.
The papacy assumed leadership of the drive to revitalize the religious
life of western Europe. Papal leadership emphasized strong organization
and strict adherence to dogma.

The papacy in the latter half of the eleventh century aimed at
something higher than merely the removal of certain evils and abuses.
It sought the realization of'papal supremacy and the implementation of

the hierocratic idea. Gregory VII was the personification of these ideas.

15

Ullmannstates "rarely had an idea found such a protagonist who was at once
its personal manifestation, effective expounder, and fearless executor."2

.In formulating the rationale for papal supremacy and the_hierocratic
idea, Gregory VII set forth certain ideological concepts which placed
definite limitations on secular authority. The concepts themselves were
not new, but the terminology reflects the maturation of'papal claims.
Gregory's ability to set forth the papal position in concise pregnant
terminology demonstrates this maturity. This chapter will consider the
premises on which Gregory based his action rather than the acts themselves.

The Petrine doctrine is the fundamental basis of the whole papal
structure. It may be summed up in three claims: first, that Peter was
appointed by Christ to be his chief representative and successor and the
head of his church; second, that Peter went to Rome and founded the
bishopric there; third, that his successors succeeded to his prerogatives
and to all authority implied thereby. It is beyond the scope of this
thesis to examine the entire Petrine tradition. It is the third claim
with which we are primarily concerned.

However, it does seem relevant to take note of the basis for the
claim of Peter's Special significance to the church hierarchy. Gregory,
in a letter written to Henry IV'admonishing him to show more deference
to the Holy See, used two passages of scripture to substantiate the Petrine

claims.3 The two passages are Matthew 16:18, 19 and JOhn 21:15-17. In

zWalter Ullmann, The Gro h of Pa a1 Government ‘ the 'ddle es
(London: [Methuen and Co., 19555, p. 272.

3The Correspondence of Pope Gregory VII, trans. Ephraim Emerton.
Records of Civilization, Sources and Studies, VOl. XIV (New York:
Columbia University Press, 1932),.p. 87--hereafter cited as Correspondence.

 

16
the former passage Christ says to Peter, "Thou art Peter and upon this
rock I will build my church." This text is made the basis for Peter's
selection as head of the church, and supplies the strongest text in the
arsenal of the Roman see. On the basis of Matthew, 16:19 the Church
claimed that God had given Peter charge of ecclesiastical government.
Peter is given the keys to the kingdom of heaven with the power to "bind"
and to "loose." "And I will give to thee the keys of the kingdom of
heaven and whatsoever thou shalt bind on earth shall be bound in heaven
and whatsoever thou shalt loose on earth shall be loosed in heaven."

The second passage, found in John 21:15-17, is known as the "pastoral
charge." Christ says to Peter, "feed my sheep" and denotes Peter as
pastor of the flock of Christ.

Peter's appointment placed him in a unique relationship to the
church. He was the foundation and head of the church and, as such,
deserved the reverence and allegiance of its members. As ruler and
governor of the church he had the necessary power to execute its decrees
and judgments” Finally, as pastor of the flock of Christ, he had the
responsibility of the spiritual welfare of the members.

Gregory's claim for position was based on the Petrine commission.
At the Roman Synod of 1076 he spoke of himself as the "constituted
representative" or the Vicar of Peter.” How real this was to Gregory was
illustrated in a letter written to Henry IV in which he suggested that
whatever Henry writes to the contemporary pope Peter himself receives,

and "while we read what is written or hear the voice of those who speak,

“Correspondence, p. 91.

17

he discerns with subtle insight from what spirit the message comes."5

The pope rules by virtue of the Petrine commission. Through the
instrumentality of Peter, God had given to the pope the unique power to
bind and to loose on earth as well as in heaven. So Gregory states in
his excommunication of Henry IV, "to me is given by thy grace the power
of binding and loosing in heaven and upon earth."6 Those people who were
entrusted to Peter's care by Christ are now under the spiritual jurisdiction
of the pope. As Peter's representative the pope is entitled to demand of
them unqualified obedience to his decrees. Gregory states in his bull
excommunicating Henry IV, "I believe that it is and has been thy will,
that the Christian people especially committed to thee should render
obedience to me, thy especially constituted representative."7

Gregory claimed that he inherited the fullness of power bestowed
by Christ upon St. Peter.. This claim to comprehensive universal power is
revealed in a letter written to the king of Denmark, where Gregory states
that he was "bound to care not only for kings and princes, but for all
Christians as the universal government entrusted to us brings the interest
of all men more specifically to us."8 Thus the universality of govern-
ment cannot, logically enough, be limited to particular aspects or

particular persons. It applies to all members of the Christian society.

SCorrespondence, pp. 87, 88.

6Correflondence, p. 91.

7Corre§ondence, p. 91.

8Correspondence, p. 67.

18
Just as Peter had been set over the kingdoms of the world as Christ's
vicar, so Gregory as Peter's vicar had inherited the same authority. He
continues Petrine powers in all their fullness.

Gregory, as ruler of this universal ecclesiastical government,
asserted his authority time and again over various kingdoms and rulers.
In a letter to King Solomon of Hungary, Gregory claimed complete suzerainty
over that kingdom, saying in effect that the kingdom was surrendered to
St. Peter by King Stephen as the full property of the Roman Church and
under its complete jurisdiction and control.9 He wrote to the rulers of
Spain reminding them that the kingdoms of Spain "belong to St. Peter
and the Holy Roman Church as handed down in ancient grants."1o He laid
claim to temporal jurisdiction over the Island of Corsica and hastened to
add that those who have held the island by force are guilty of the crime

of sacrilege.11

Gregory reached out to bring even the remotest places
under his influence and control. For instance he sent legates into Russia
bearing a letter to King Demetrius. The message contained the approval

of Jarpolk, the king's son, as the new ruler of that territory.12

By
granting his approval of newly appointed rulers of distant territories,
Gregory was able to extend the influence of the church in those areas.
Such a procedure would set a precedent by which all future rulers would

be subject to the approval of the pope, thus recognizing that ultimate

9
10

Correspondence, p. 48.
Correspondence, p. 124.
11Correspondence, p. 126.

12Corpespondence, p. 79.

19

authority resided in the supreme pontiff.

A claim was made by Gregory VII that the church was the final
judicial authority with the pope as supreme judge. In a letter written
to the bishop of Metz, he said, concerning the holy fathers, that "they
have agreed as with one spirit and one voice that all major cases, all
especially important affairs, and the judgment of all churches ought to
be referred to her as their head and mother, that from her there shall be
no appeal, that her judgments may not and cannot be reversed by anyone."13
Gregory believed that final judgment on all matters both temporal and
spiritual resided in the supreme pontiff. He says, "to whom, then, the
power of opening and closing heaven is given, shall he not be able to judge
the earth? God fbrbid."1u

This was not only jurisdiction over matters concerning the church,
but jurisdiction over temporal affairs. "If the Holy Apostolic See,
through the princely power divinely bestowed upon it, has jurisdiction
over spiritual things, why not also over temporal things?"15 However,
Gregory never considered himself as a temporal ruler, but as a spiritual
father who was responsible for the spiritual well-being of the flock of
Christ. His responsibility took on added significance in his relation to
kings and rulers: "The greater the dignity and the higher the person, so
much greater diligence and eloquence ought we to show in pointing out the

right way to him."16

13Correspondence, p. 167.

1”Correspondence, p. 168.

15Correspondence, p. 103.

16Correspondence, p. 32.

20

Gregory's claim of temporal jurisdiction was based on the principle
of superiority and inferiority. The priestly office was superior to the
royal office in two ways: superiority of origin and superiority of function.
Kings and princes owe their origin to the devil. Had there not been sin,
instigated by the devil, there would have been no need for a physical-
material power to repress sinful conduct. Kings and princes raise themselves
above their fellows by "pride, plunder, treachery, murder--in short,
by every kind of crime.“-7 All good Christians are more properly to be
called kings than are evil princes because the former "seeking the glory
of God, rule themselves rigorously; but the latter seek to further their
own interest and oppress others tyrannically. The former are the body
of the true Christ; the latter the body of the devil.”18

The sacred nature of the priestly function gives it a superiority
over the function of the temporal ruler. By the mystery of ordination
the priests are set apart from the people, so that through them may work
the divine grace that alone brings salvation to men; the dignity of their
service raises them far above ordinary humanity. Gregory pictures a
Christian king upon his deathbed as a miserable supplicant asking the
aid of the priest. Then he asks the question, "but who, laymen or priest,
in his last moments has ever asked the help of an earthly king for the
safety of his soul?"19 The priest alone is qualified to perform the
sacred rites; he alone has the power to transform the bread and wine into

the body and blood of the Lord; he alone is given the power to bind and

17Correspondence, p. 169.

18Correspondence, p. 172.

19Correspondence, p. 171.

21
loose in heaven and upon earth. "From this it is apparent how greatly
superior in power is the priestly dignity."20

Gregory went further than did his predecessors or his contemporaries
in making a sharp distinction between the nature of priestly authority
and that of secular authority. He made industrious use of the old
argument in favor of priestly claims. Spiritual authority and secular
authority were compared with soul and body, heaven and earth, gold and
lead, sun and moon° By means of such comparisons the inferiority of the
kingly office was postulated. Gregory drew a comparison between the
exorcist, a minor order, and the emperor. The exorcist is a spiritual
emperor, having power over demons and even more power over secular rulers,
who are bound in wretched servitude to the demons and are their instruments.
"If even the exorcist possess this superiority,” writes Gregory, "how
much more do the priest?"21

From the papal point of view, the king was to fulfill three
functions: first, he was to protect the church; second, he was to execute
divine law; third, the king was to be a standard of justice, filled with
virtue, and a model of obedience. The primary responsibility of a king
was the protection of the church. Gregory wrote a letter to King Haakon
of Denmark exhorting him to imitate certain virtues, the first being the

protection of the churches.22

The feudal oath, taken by a vassal of the
church, always included first and foremost the safety of the church and

its leaders. Robert Guiscard took a feudal oath to Gregory in which he

20Correspondence, p. 171.

21Correspondence, p. 171.

22Correspondence, p. 153.

22
made certain promises concerning the protection of the church. He promised
to aid no plot or action against the person of the pope. He would render
his aid in the protection of the revenues and properties of the church,
and pay annually the tribute on "the lands of St. Peter" which came under
his jurisdiction. Furthermore, he promised to support the clerical party
in the event of the death of the present pope and the selection of a new
one.23 No doubt this was included in order to guard against the selection
of a pope by temporal authorities. After such an oath taken by Robert
Guiscard, Gregory summoned him to gather a force to enter Ravenna "to

2h

rescue the holy church from impious hands." Finally, the pope promised
absolution from all sin and "grace and blessedness in this world and the
world to come" to those who were faithful in protecting the church.25

A second function of the king was the suppression of evil, but
what is and what is not evil must necessarily be left to those who are
qualified to pronounce upon it, namely, the ordained members of the church.
Divine law made known through the mouth of the Roman Catholic Church was
to be executed by Christian rulers. The king received his sword from the
church and was to use it for the defense and reform of the church. The
temporal ruler, at the bidding of the pope, was to enforce papal decrees
and commands within the church. His execution of human laws was left to

his own volition, but was subject to the judgment of the pope..

The king was to be characterized by the qualities of justice,

23Correspondence, p. 158.

24Correspondence, p. 163.

25Correspondence, p. 195.

23
virtue, and obedience. The first refers to his function as the executioner
of law; the second, to his character; and the third, to his relation to
the officials of the church. These points are best illustrated in a
letter on September 10, 1074, by Gregory in condemnation of Philip I
of France. The letter was occasioned by the policies of Philip I toward
the pilgrims passing through France going to and returning from the
shrines of the apostles. These pilgrims were captured, robbed, imprisoned,
tortured, and held for ransom. He pictures the kingdom as having fallen
into a state of ruin due to "neglect of law" and "contempt for justice."
Philip I, "who is to be called a tyrant rather than a king . . . is the
cause and fountainhead under the inspiration of the devil." The king
has no respect for law and justice. "He who ought to be the guardian of
law and justice, stands forth as the worst of plunderers . . . ."

Gregory indicates that Philip's kingly character leaves much to be
desired. Gregory urges the clergy in France to warn the king to "amend
his evil ways, abandon the practices of his youth and begin to restore
the dignity and glory of the kingdom by adhering to righteousness."
Instead of being a model of obedience, he has defied the orders of the
pope and wasted the churches. Furthermore, his laxity of rule and the
example of his aims and actions has encouraged crime among his subjects.26
The indictment against Philip I demonstrated those qualities which were
lacking, but which were expected to characterize a Christian king.

The church had recourse to three avenues of action against a

king who failed to fulfill the kingly function and exhibit kingly virtues.

26
Correspondence, pp. 39, 40.

24
It could excommunicate him from the body of the faithful, deprive him
of his right to rule, and release his subjects from their oaths of
allegiance to him. Of these three courses of action, excommunication
was the one most often used. There was no greater weapon in the arsenal
of the Roman see against royal prerogative than excommunication.
Excommunication was purely ideological at its base, but wielded the
same power as a whole force of military men. It revealed as nothing else
the tremendous influence and control of the church over the minds of men
in the Middle Ages. It demonstrated how closely church and society were
knit together, in that exclusion from the fellowship of the church
meant in effect the ostracism of the individual from society.

The sentence of excommunication was decreed by bishops, archbishops,
and popes. Usually the discipline of kings and rulers was administered
by the pope, but often effected through legates and bishops. It was
essential that the pope have unanimity-among the clergy against an
excommunicated person. Gregory exhorts the clergy in France to take a
strong stand against the tyrant, Philip I, and not to surrender the
independence of their priestly office. They were to warn the king that
unless he amended his ways he would not escape the "sword of apostolic
discipline."27 If thepriests failed in their responsibility to wield this
sword, they would also be placed under a curse. Gregory reiterates again
and again that passage of scripture "cursed be the man who holds back
the sword from blood," meaning that he is cursed who fails to warn the

sinner of the error of his way, even if the one in error be a king.28

27Correspondence, p. 24.

28Copgespondence, p. 40.

25

This function of the priestly office was just as important as the administer-
ing of the sacraments. Though the methods were different the aim.was
the same--to turn the sinner from the error of his way and to restore him
to the fellowship of the church.

Excommunication was the juristic and concrete social exclusion
from the corporate body of the Christians. It had definite social
implications. Intercourse with the excommunicated individual was prohibited:
he was to all intents and purposes socially isolated. He was as a leper
who had been removed from the main body of society because of infection
with a contagious disease, and those who associated with such a person
were in danger of being infected and sharing the same fate. Gregory
lodged a grievance against Henry IV for continuing his associations with
excommunicated persons, and warned Henry that he could not receive the
"favor of God nor the apostolic blessing" unless he disassociated
himself from such people.29

Excommunication had its religious consequences. The excommunicated
individual was excluded from the fellowship and communion of the church
and was deprived of the sacraments. The great majority of medieval
people believed that the sacraments were the means of obtaining the grace
necessary to assure eternal salvation. When people were excommunicated
the means of obtaining grace were no longer available. They were bound
in the bonds of "anathema" and could only be released through proper
penitence. The aim of such discipline was not exclusion but restoration.

Gregory admonishes those in Germany to pour the "oil of kindness" into

29Correspondence, p. 87.

26

the wounds of Henry IV so that he might quickly repent and render obedience
to his "superior and his mistress," the mother church.30

The distinction must be made in theory between excommunication
and deposition of a king. The latter was a consequence of the former.

The king's social isolation, without contact with his subjects, obviously
left him in no position to govern or execute divine law. The ruler was
affected to a far greater extent under the sentence of excommunication
than was the private individual. The former suffered the loss of political
position and authority as a result of social exclusion, whereas the latter
incurred the normal implications of social isolation. Excommunication
was the consequence of moral or religious disobedience and could be
applied to any member of society, whereas deposition was the consequence
of the ruler's disobedience to papal orders and his failure to execute
divine law. The former concerned his relation to the church as one of

its members who had disobeyed its moral and religious precepts. The
latter related more particularly to his failure to perform the proper
functions of the kingly office. Excommunication concerned Henry the
Christian, deposition Henry the king.

Gregory justified his right to excommunicate Henry IV in an
extremely important letter written to the bishop of Metz. The Christian
king, as part of the flock of Christ committed to St. Peter, is no more
excluded from the discipline of the church than is any member. Gregory

seeks support for his argument from the testimony of the holy fathers.

He refers to the statement made by Pope Gelasius to the Emperor Anastasius,

30Correspondence, p. 106.

27

"There are two powers, 0 august Emperor, by which the world is governed,
the sacred authority of the priesthood and the power of the kings. Of
these the priestly is by so much the greater as they will have to answer
for kings themselves in the day of divine judgment." And a little further,
"Know that you are subject to their judgment, not that they are to your
will."31 Gregory cites the example of Constantine the Great who attended
the Holy Synod of Nicaea and took his proper place below the bishops,
not seeking to pass any judgment upon theme He also justifies his action
on that taken by previous popes. Pope Innocent excommunicated the
Emperor Arcadius because he consented to the expulsion of St. John
Chrysostom from his office; St. Ambrose excommunicated the Emperor Theodosius
I for the massacre of the citizens of Thessalonica. In matters within
the jurisdiction of the church, St. Ambrose held that the emperor was
subject to episcopal authority. "The emperor is within the church, not
over it . . . . In matters of faith bishops are wont to be judges of
Christian emperors, not emperors of bishops."32

There was very little justification by Gregory of the pope's right
to depose a king. He argues from the point of view of the pope's
supremacy and the king's disqualifications. Since the Holy Apostolic
See has jurisdiction over spiritual things, it certainly would have
jurisdiction over temporal things. If spiritual men are to be judged by
the church, then certainly men of this world should be held to account for

their evil deeds. He refers to the words of Pope Gregory I: "If any king,

31Correspondence, p. 167.

32gprrespondence, pp. 168-170.

28
priest, judge or secular person shall disregard this decree of ours and
act contrary to it, he shall be deprived of his power and his office . . . ."33
Deposition was justified on the grounds that the ruler was not qualified
for his position. Gregory cites an instance when a Roman pontiff deposed
a king of the Franks, "not so much on account of his evil deeds as because
he was not equal to so great an office."34 The proper function of a king
was the protection of the church, but, if the king failed in this
responsibility, the pope would have to assume the function of a king.

Thus when Henry IV failed to protect the churches in Ravenna, Gregory
assumed the responsibility to raise a fighting force to enter and "rescue
the church from impious hands."35

Closely allied to formal deposition was the release of the subjects
from their oaths of allegiance to the ruler. The pope was entitled,
through the power bestowed upon him to "bind" and to "loose," to release
anyone from the obligation to fulfill an oath. Gregory assures the clergy
in France who have made vows to Philip I that it is not contrary to law
for them to censure his actions. "we can prove by every reason that
he is far more loyal who rescues another from the shipwreck of his soul,
even against his own will, than he who allows him to perish in the
deadly whirlpool of his sins."36 Not only were subjects released from

their oaths to an excommunicated king, but they were forbidden to obey

33Correspondence, p. 170.
34

Correspondence, p. 170.

35Corre§pondence, p. 163.

36Correspondence, p. 41.

29
him under the threat of suffering the same fate. Gregory put not only
Henry IV but all his supporters under excommunication.37

The sword of apostolic discipline was a very effective weapon
against royal prerogative. It was effective because it was based on
religious principles and sentiments which completely dominated the medieval
mind. The great bulk of society was in the fold of the church and few
doubted the authenticity of papal doctrine. The church was the vehicle
of God's truth in the world, and the pope's pronouncements were merely
putting into effect God's purpose.' The unparalleled advantage which the
papacy had over any other institution was its own storehouse of ideological
memory, the papal archives. From this a basis was formed by the church
for the legitimacy of her power and authority. The royal authority
could not demonstrate a legitimate basis for judging popes and priests.
The lay ruler was forced to take a defensive position and this was a
distinct disadvantage.

Even with these factors in favor of the church there is some
doubt as to their realization without the influence of Gregory VII.
Gregory did not merely state theories, but embodied these theories in
definite and precise action. He was not an innovator so much in his
ideas as he was in enforcing the existing ones. The plenitude of his
actual power became the basis of a theory justifying that power. No
other pope previous to this time had made such far reaching claims and
sought to have these claims realized. The key to such claims is found

in the dying words of its author: "I have loved justice and hated

37Correspondence, p. 151.

30
iniquity; therefore, I die in exile. "38 His highest aim in life was to
bring about the reign of righteousness on earth. Justice and righteousness
was part of the divine will of God to be realized on earth. The means
of this realization was through the visible church. Whatever was
favorable to the teaching of the church was fighting for the cause of
justice and righteousness. 'Whatever opposed the dictation of the church
was instigated by the devil. Everything else was secondary to this
magnificent conception. It had the simplicity which a conquering idea

must have, and lent itself with amazing success to the program of the

Gregorian party.

38Ephraim Emerton, "Introduction," The Correspondence of Pope
QEESQEZIEIL (New York: Columbia University Press, 1932), p, XXIV...

31
CHAPTER II

‘we endeavored in the previous chapter to point out some of the
peculiar problems that existed between the ecclesiastical and temporal
authorities. ‘The main problem was represented in the close ties of the
church with the feudal system. Because of the close connection between
the two, reform by the church necessarily meant a change in the existing
relationship. The church found itself in the position of seeking to carry
on a reform within a political system that desired the "status quo." The
primary aim of the church under its leader, Gregory VII, was to gain the
freedom of the church from lay control, and further to bring to fruition
the idea of’papal supremacy. The fundamental principle of the Gregorian
program seemed to be that of the hierocratic idea. The idea of papal
supremacy and the hierocratic principle placed some drastic limitations
on royal prerogative.

The problem which the church faced in the first half of the
thirteenth century was much different than that of the eleventh century.
The first half of the thirteenth century was a very critical period for
medieval orthodox Christianity. With the reintroduction of.Aristotelian
philosophy the church was faced with the problem of reconciling Christianity
with Aristotelian principles. Some argued that orthodoxy could only be
preserved by making a sharp distinction between reason and faith.

Coming first to Europe through Jewish and Arabic sources, the works of
Aristotle bOre the stigma of infidelity. The earliest inclination of
the church was to ban them, and their use at the University of Paris

was forbidden in 1210, though the prohibition seems never to have been

32
very effective. Others saw nothing impossible in the reconciliation of
Aristotle with orthodoxy. It was St. Thomas Aquinas who carried out the
fullest and most impressive synthesis of Christianity and Aristotelian
philosophy. St. Thomas saw absolutely no conflict between reason and
revelation. Reason and faith, human nature and supernatural values were
fundamentally in harmony.

The fundamental principle of medieval political theory in the
thirteenth century was the supremacy of justice and law. It is the
pursuit of justice which distinguishes a rational and moral society from
a confused and lawless anarchy. In the judgment of the political writers
of this period there is no doubt whatever that the end and purpose of the
state is a moral one. The state exists fer the maintenance of justice
and the setting forward of the life according to virtue. The moral
purpose for which political rule exists implies that authority ought to
be limited and that it ought to be exercised only in accordance with law.

The most eminent scholar to deal with the relation of law to
authority was St. Thomas Aquinas. He seems to have been the firSt to
.put forward a full definition of law taking into account both its fundamental
qualities and a balanced division of its types. ,The primary qualities
of law are reason and justice. The word "law," as a general term,
includes the eternal law of God, the natural law, the divine positive
law, and the human positive law. There are two sections of Thomas's
Summa Theologica dealing with the nature of law. In the first section
St. Thomas considers law in its relation to reason, in the second its
relation to justice. The first deals primarily with eternal and natural

law, the second with positive or human law. The purpose of this chapter

33
is to examine St. Thomas' conception of law and its relation to authority
in order to demonstrate the limitations that were placed on the latter.
St. Thomas defines law as a regulation in accordance with
reason promulgated by the head of the community for the sake of the
common‘welfare.39 He then proceeds to explain the parts of the definition.
By regulation is meant a standard or:measure of action by virtue of
which one is led to perform certain actions and restrained from the
perfbrmance of others.“0 The first principle in all matters of action
is reason. This is based on the principle that in all multiplicity there
must be some controlling principle. God is the controlling principle
in the material world. Just as God regulates and controls the material
universe, so reason regulates and controls the actions of the individual.
Law is the rule and measure of human acts. It, therefbre, belongs to
reason, because that "which is the principle in any genus, is the rule
and measure of that genus."4?
Reason not only regulates action but it also directs it towards
a good end. The principle object of reason is the happiness of the
individual, and since law is related to reason it has the same object.
The individual is not a separate entity, but because of his nature he
is related to social and political groups as the part to the whole.
39Thomas Aquinas, The Summa Theologica, trans. Fathers of the
English Dominican Province 3rd ed. (London: Burns, Oates, and Washbourne,

1942), VIII, Part I-II, question 90, article 4--hereafter cited as §. Th.
with the appropriate Part, question, and article.

40

41§&_2E09 Pt. I‘ll. q. 90. a. 1.

So The, Pt. I‘lIo qo 900 a. 10

34
Therefore, the law is concerned with the universal happiness of all or

42 Since that which is more perfect is greater than that

the common good.
which is less perfect as the whole is greater than the part, so universal
happiness is greater than individual happiness. Law is a regulation
enacted by reason for the common good and happiness of all. The law in
order to have binding force upon those who come under its jurisdiction
must be promulgated. The promulgation of law belongs either to the
community as a whole or its official representative whose duty it is to
inflict penalties. The one who decrees the ends also decrees the means.43

The doctrine of natural law is the central point of St. Thomas'
treatment of politics. It is from this central point that we shall
discuss St. Thomas' conception of law and its relation to authority.

The discussion will be broken down into four categories: the relation
of natural law to eternal law; the relation of natural law to the
individual; the relation of natural law to human laws and institutions;
and the relation of natural law to authority.

St. Thomas defines natural law as the "rational creature's
participation of the eternal law'."[+4 That is, natural law is the rational
human apprehension of those principles of the eternal law which concern
human nature and its natural ends. There are certain principles of

eternal law which every man knows through natural inclination. These

natural inclinations belong to natural law. In other words, only that

”Zelda... Pt. LII. q. 90. a. 2.
43w. ’ Pt. I-II‘ q° 90 0 a0 30
MSG The, Pt. IDII. qo 910 a. 20

35
belongs to natural law to which man is naturally inclined.45 For
instance, there is in man a natural inclination toward reason and good;
therefore, reason and virtue are precepts of natural law. Not all
virtuous acts, however, come under natural law, since some things are
done virtuously which human nature is not inclined toward at first, but
which have been found by reason to be conducive to the common good.“6
Natural law as to its general or first principles is unchangeable and
is the same for all, "both as to rectitude and to knowledge."46 However,
as to its specific or secondary principles it is subject to change, and
may vary both as to rectitude and knowledge. The general principles of
natural law cannot be blotted out from men's hearts, but the secondary
principles can be removed either through "corrupt habits" or "evil
persuasions."47 Sin does not blot out the universal principles of natural
law from the hearts of men, but blots out only particular principles
or conclusions from the general principles. Natural law extends both
toward God and toward man. It is the bridge thrown, as it were, across
the gulf which divides man from his divine creator.

The essence of natural law theory is the belief that certain
fundamental principles of right and justice are rooted in the very
nature of the world; that man as a rational being is capable of knowing
these principles and shaping his life in accordance with them; and that

all positive laws and institutions have validity only in so far as they

“5w” Pt. I-II. q. 94. a. 2.
no

47

§: The, Pt. I-IIo qo 91’". a. 30
S: They Pt. I‘DIIO q. 940 a. 60

36
correspond to the prescriptions of natural law. Great stress is put
upon reason. This is the highest expression of an "intellectualistic"
as against a "voluntaristic" theory of law. Law itself is not so much
the expression of will as it is of reason. This is the key to a proper
understanding of the rationalistic bent which is a distinctive feature
cxflhomasticjphilosophy. Man is distinguished from other created beings
in that he alone participates intellectually and actively in the rational
order of the universe through his reason. Let us now examine natural law
in its relation to eternal law.

The natural order is fbr St. Thomas only a part of a higher
order. He says that all laws in so far as they partake of right reason
are derived from the eternal law.“8 The eternal law in the mind of God
was the first exemplar of all laws and government. The whole universe is
governed by divine reason; therefore, this universe has the character of
law; the end of divine government is God Himself and His law is not other
than Himself.49 St. Thomas defines eternal law as God's plan for the
governing of the whole universe to its ultimate ends.5O It is the rational
guidance of created things on the part of God. Guidance is realized in
nonurational creatures by their implanted instincts which urge them to
fulfill the role allotted to them by God. They are moved by divine
providence rather than by divine commandment.

The universal or eternal law has an intimate connection with the

483. Th., Pt. ImII. q. 93. a. 3
“9§,_2h.. Pt. I-II. q. 91. a. 1.

503, Th., Pt. I-II. q. 93. a. 1.

37
natural law, but is not identical with it. "This eternal law is the
timeless judgment of the Divine Reason, made binding by the Divine Will,
known as it is by the blessed in paradise, and by us, through the
reflection which flow from it."51 If man has in mind the nature of things
in the universe, he is considering the natural law, but he does not yet
proceed to the more fundamental eternal law. To come to the eternal law
he must proceed to an interpretation of the universe and of all essences
in the universe from the standpoint of the ultimate divine principle.

God makes His mind known to His created rational beings in two
ways: through divine revelation or divine law, made known to man through
the scriptures, and natural law which is etched on man's conscience.52
There are certain eternal truths men can learn through revelation and
there are others that are already known through natural inclination.
St. Thomas says, "The natural law is promulgated by the very fact that
God instilled it into man's mind so as to be known by him naturally."53
God has instilled certain eternal truths into man's mind and holds him
responsible to act in accordance with these truths. The eternal law is
binding upon all creatures and includes, besides the principles of morality,
what we should now call laws of nature or scientific laws. The eternal
law transcends all legal categories including natural law and descends
into created minds making men morally responsible. Everything is subject
to the eternal law, nothing can withdraw from it; whoever attempts to

51W; G. de Burgh, The Legacy of the Ancient Wb:ld.(Iondon:
Macdonald and Evans, 1947), p. 387.

52%” Pt. I-II. q. 93. a. 2.

53%” Pt. I—II. q. 90. a. 1+.

38

recede from it violates it. The eternal law bears the promise of supreme
bliss as well as punishment and damnation. '

Special attention should be given the "eternal" aspect of natural
law, because this was absent from Aristotle and the ancients. Aristotle
made extensive use of the concept of natural law, as did Plato, but they
did not conceive of the close connection between the order of the universe
and the concept of God. To them God was only a first cause or a first
mover, and law, right, and morality were rooted in the ultimate reason of
the universe. It has sometimes been asserted that Aristotle left no
room in his ethical thought for the idea of conscience and duty. The
teaching of St. Thomas Aquinas is not defective in these respects, and
this teaching is a natural corollary of his conception of'law. Man is
morally and spiritually responsible to God because he participates in
the eternal law through reason and revelation. Let us examine the
relation of natural law to the individual more carefully.

The relation of natural law to the individual emphasizes the
natural capabilities of man. St. Thomas appears to have a greater
respect for the natural capabilities of man than did the patristic fathers.
Man is capable of achieving immediate benefits in this life by participating
in the political community. St. Thomas disassociates political society
from original sin. Political society is neither a consequence of sin nor
a remedy for sin. Its existence is not connected with the church or the
Christian commonwealth. Thomas prefers to associate political society
with the economy of creation; for him it is part of nature as God made

it and would therefore have existed if man had never sinned.54

5&5, Th., Pt. I. q. 96. a. 4.

39

Sin or evil is that which is contrary to the natural ordering of things.
Man by his natural will desires that which is good. Evil is a deprivation
of good and is, therefore, against the will of man. All men naturally
desire the absence of pain; therefore, pain, or that which concerns the
"form and integrity of a thing such as physical or spiritual blindness,
is evil. But evil also consists in the failure by the individual of
perfect action in voluntary things, and this "has the nature of fault."
"Therefore, every evil in voluntary things is to be looked upon as a pain
or a fault."55

His basis for disassociating political society from original sin
is drawn from Aristotle. Man is by nature a civil, social, and political
animal. St. Thomas was confronted with St. Augustine's contention that
in the state of innocence man was not under the lordship of man. He
answers by pointing out that the word dominium may be taken in two senses.
It may signify the lordship of'man over his slave or it may refer to the
rule exercised by one man over other free men. The first could not have
existed in a state of innocence, but the second would have been lawful
even in a state of innocence. The second is lawful for two reasons:
man is naturally a social and political animal, but social life is
impossible unless there is some authority to direct it to the common good;
and it would have been inconvenient if one man excelled the others in
knowledge and justice, that this superiority should not be used for the

56

benefit of others.

55§. Th., Pt. I. q. 48. a. 5.

56s, T ., Pt. I. q. 96. a. 1+.

The idea of a social and political nature of man leads to a
harmonious integration of individual life in the life of the community.
The relationship between the individual and the community is a mutual
one. Whatever is detrimental to the individual will damage the community,
and whatever is for the benefit of the individual will contribute towards
the betterment of the common good. "The common good is the end of each
individual member of the community."57 Likewise, the individual by
contributing to the common good is advancing his own welfare. The well-
being of the members depends on the well—being of the whole community.
There is a twofold responsibility: the responsibility of the individual
to conduct himself in such a way that all the members will be benefited
thereby; and the responsibility of the community to compensate adequately
the individual for his performance of duty. The integration of the
individual into the community must be conceived as an enlargement and
enrichment of his personality. All men, being a part of the political
community, cannot be truly good unless they adapt themselves to the
common good.58 Thus the state was not just a physical organism, but it
had moral qualities whereby the individual, by sharing in political life,
realized a greater degree of virtue. St. Thomas placed the community
and the individual in a relationship of mutual service and cooperation
aiming to bring about the common good.

This integration of the individual into the community does not

destroy the value of the human personality. Such destruction would be

5780 The, Pt. II-IIo q. 580 a. 90

5883 The, Pt. I‘IIQ q. 910 a. 1+.

41
contrary to St. Thomas' religious concept of a higher end for man. The
concept of man in the natural law theory sets up certain barriers which
prevent his complete absorption by the state. Man is not only a political
and social animal, but he is also a spiritual and moral being, and there
is a part of him which is related specifically to the supernatural. "Man
is not ordained to the body politic, according to all that he is and
has . . . but all that a man is, and can, and has, must be referred to
God."59 No human authority can be absolutely binding in conscience.

The interior acts of man cannot be curbed and corrected by human law.
There is need for a further law to direct man's interior acts in order to
achieve the perfection of virtue. This is the divine law which directs
man to his higher end.60 The church is responsible for the execution of
divine law. A higher authority is given to man which.rises above the
authority of the state; that authority is the church. Thus St. Thomas'
theory of politics leads us back to a medieval theocracy. The state is
not denied the right of existence, but it must fit.intoa scheme of
hierarchical and graded society, and accept its subordinate place.
Aquinas is clear and emphatic in his statement of the doctrine
that the authority of the ruler is derived from the divine order, that
obedience to the ruler's authority is required of Christian men, and
that disobedience is mortal sin. But he is equally clear and emphatic
that the Christian is only bound to obey as far as the order of justice

requires. The limits of obedience are necessarily fixed by the correspondence

595, fl" Pt. I-II. q. 21. a. 1+.

60g. The, Pt. I-‘II. q. 910 a. 1+0

42

of human authority with divine and natural law, that is, with justice.
"It must be said that a man is so far obliged to obey secular princes,
as the order of justice requires; hence if the authority is not just but
usurped, or if they command that which is unjust, a subject is not
obliged to obey, except, according to the circumstances, to avoid scandal
or peril." 1 The subjects are not bound to obey a usurper or an authority
which commands unjust things. Sedition is a mortal sin because it is
directed against the unity of the community and the common good. However,
a revolt against a tyrannical and unjust authority has not the nature
of sedition, for such an authority is not directed to the common good, but
only to the convenience of the ruler.62

Law is the expression of reason and justice. The rational aspect
of law, as has been noted, relates man to natural law and ultimately to
God. Reason also directs individual action toward a good end. St. Thomas
defines justice as "a habit whereby a man renders to each one his due
by a constant and perpetual will."63 Justice upholds the impartiality
of the law, directing men in their external relations to one another and
to the community, so that each man will get what is due to him according
to his position in society.64 Justice not only relates men's individual
external actions to one another, but also the action of the individual

to others in general.65 Justice in this sense is the supreme virtue

“Ln... Pt. 11.11. q. 104. a. s.

62%” Pt. II-nII. q. 42. a. 2.
63Lm° 9 Pt’ II“II° qo 580 a. 1o
614’s. The, Pt. II-IIO q. 580 a. 120

65%., Pt. II‘IIO q. 58. a. 5.

43
directing all other virtues to the common good.66 Justice is to this
world what love is to the next. Love has as its object the Divine good,
while justice has as its primary object the common good. A positive law
is unjust if it is contrary to the common good or opposed to the Divine
good.67 Authority, in order to be legitimate, must be according to law
and law must express reason and justice. Therefore, if authority lacks
these principles, it is not according to law. That leads us to our third
main category, the relation of natural law to positive law and institutions.

To the people of the Middle Ages there was only one supreme
authority in the state, that of law. Behind the law of the state is the
law of nature to which the law of the state is subordinate. Natural law,
while still keeping the form of legal precepts, actually becomes a structure
of norms. It defines the goal to which human institutions are ordained
and by which they must be measured; but does not prescribe the legal
means through which that goal may be reached. The norms expressed in
natural law were conceived as specific, permanent, and universally valid
for the judgment of human institutions because they were rooted in the
specific, permanent, and universal tendencies which scholastic philosophy
conceived to be characteristic of human nature itself.68

Aquinas described two ways in which human laws and institutions
might be derived from natural law. First, they can be derived by logical

deduction which adds secondary principles to the primary principles of

66min... Pt. Inn. q. 58. a. 6.
67am». Pt. I-II. q. 96. a. u.

68Ewart Lewis, "Natural Law and Expediency in Medieval Political
Theory,"" Ethics, L (1939-40), p. 149.

42,
natural law; second by the process of "particularization" through which
the principles of natural law are embodied in specific ferm.69 The
former is the same throughout the world and its validity is independent
of governmental action. The latter is identified with civil law which
proceeds from governmental authority and varies in different states at
different times. The former orders the punishment of evildoers, but the
fixing of the penalty is left to the latter.70 The laws derived from
the natural law by the first way are binding not only as positive laws but
also by reason of the natural law.71 Those derived by the second method
possess validity only because of human promulgation. Human laws made

in either of these ways derive their binding force ultimately from
natural law, but do not attain the permanent and universal validity
which characterize the primary principles of natural law.

There are three reasons for the variability in human law; First,
operations of practical reason differ from the operations of speculative
reason. Since the speculative reason deals entirely in abstractions the
conclusions logically derived from its premises will be as universally
true as the premises themselves. But the practical reason must adjust
general principles to particular cases; and in proportion as it descends
to particulars its conclusions become increasingly less universal.
Second, human laws properly vary in accordance with the level of wisdom
and knowledge attained by those who made them. The rational application

of natural law to human affairs was to Aquinas a gradual historical process.

69am” Pt. I-nz. q. 95. a. 2.
70%.! Pt. I‘llo qo 950 a. 2.

71%., Pt" I‘lIo q. 950 a. 20

45

The perfect set of institutions which will realize the public good cannot
be discovered all at once. Third, human laws will properly vary in
accordance with the circumstances to which they are applied. Time and
place, the character and capacity of the citizens, the custom of the
country-~all must be taken into account in judging whether a particular
institution will be the most expedient means of attaining the common good.72

Natural law as a rule or measure of human institutions has become
identical with the "common good" or the "common utility."73 Any law
passed which is not for the common good will be contrary to natural law,
and likewise, any ruler ruling for his private advantage rather than the
common good, is opposed to justice and natural law. The institution of
human law cannot abrogate the divine or natural law, but there are certain
things which can be added to natural law'by human reason. Such is private
property. Natural law did not create private property, but rather private
property was established by human reason for the advantage of human life.
Natural law was not changed but only added to. However, the right to
acquire and control things does not permit an unlimited right to use them
for one's own convenience. According to the natural law the inferior things
were to serve man's needs, and therefore the division or appropriation
of things which was instituted by human law may not hinder their use
for this purpose. If man possesses a superfluity of things, the natural
law requires that this should be used fer the maintenance of the poor.
Those who have a surplus must give to those who are in extreme need,

according to the dictates of natural law. If the individual is forgetful

725. Th. , Pt. I-II. q. 97. a. 1.

7380 The, Pt. I-IIo q. 940 a. 20

46

of his obligation, the state may intervene and act for the common good.74

The common good is for St. Thomas the touchstone by which to
judge the validity of all modification of law. The modification may be
affected either by a conscious change carried out by direct legislative
authority or by the more gradual pressure of custom. St. Thomas emphasizes
that the first method should be resorted to only when there is clear
evidence that the common good requires the law to be changed.75 The
rational character of customary changes in law is defended by the argument
that such changes in action are just as much motivated by the reasoned
will as are the written changes of statutorylaw.76

A fundamental principle of the Middle Ages is that law is the
expression, not so much of the deliberate or conscious will of any person
or persons who possess legislative authority, but rather of the habits
and usages of the community. According to Aquinas "custom.has the force
of law, abolishes law, and is the interpreterof.’law."77 Human law is
the expression of the reason and will of the legislator, but these are
declared as plainly by men's actions as by their words. The frequently
repeated actions of men, which constitute custom, can change or establish

78

or interpret laws. This does not mean that law is irrational. The

custom of the community is determined by the conditions or the environment

74w” Pt. II-II. q. 66. a- 7.
75w” Pt. I-II. q. 97. at. 2-
7514mm Pt. I-II. q. 97. a. 3.
77w” Pt. I-II. q. 97. a. 3.

703. Th., Pt. I-II. q. 97. a. 3.

47
under which it lives and by the moral ideas which possess the community.
Customary law is not fixed but alters with the change of circumstances
and ideas.79 St. Thomas represents custom as the main source of positive
.law. Whatever forms of positive law there might be, he was clear that
custom lay behind them, and was still paramount over them.

This leads us to our final main point of this chapter, the relation
of natural law to authority. St. Thomas teaches that the ultimate source
of all authority is God, but in the sphere of government, or elsewhere,

He works through secondary agents. He does not exercise his authority
directly but through men. There is a real sense then in'which the people
are the source of the authority of the law as St. Thomas says, "A law,
properly speaking, regards first and foremost the order to the common
good. Now to order anything to the common good, belongs either to the
whole people, or to someone who is the vicegerent of the whole people.

And therefore the making of a law belongs either to the whole people or

to a public personage who has care of the whole people: since in all other
matters the directing of anything to the end concerns him to whom the

end belongs."80 This describes the end and purpose of law, the legislator
as the representative of the people, and the responsibility of the
legislator for the good of the community. It is not mentioned precisely
by St. Thomas how the public person or people come to possess this
authority. He had no one definite theory as to the source of legislative

authority but seems to think that in some constitutions the people are

79%., Pt. I-II. q. 97. a, 3.

80$. The, Pt. I‘II. q. 900 a.-~ 30

48
the ultimate source of law, in some not.

The king did not have complete legislative sovereignty, nor had
he any arbitrary or unlimited authority. The concept of an absolute
monarch, the source of law and superior,to all law, was alien to St.
Thomas. When circumstances called for anything more than enunciation or
restatement of custom, the ruler acted with the counsel and consent of
the great men, lay and_ecclesiastical, and behind them in more or less
distinctly the whole community, for, as must be remembered, the custom
of the community was the main source of positive law. However, St.
Thomas did not commit himself to anything that remotely approached the
idea of an original or natural right of the people. Some have tried to
make him a proponent of the more modern theory of popular sovereignty.
Hewever,where St. Thomas speaks of the common good being the task of
the whole people or the public person standing in the place of the
people, he is not discussing the original subject of civil authority.
He merely says that the power to make laws rests either with the people

81 His conclusions and

or with the person who represents the people.
reasonings about the intervention of the church in secular affairs and
his open preference fbr monarchy cannot be made to conform to the idea
of popular sovereignty.

th only have the people the right of choosing their ruler, but
they can remove him from office if he abuses his power. St. Thomas says,

"If it is the right of the people to choose the sovereign, they can

without injustice remove the sovereign they have established or fix

815, Th., Pt. I-II. q. 90. a. 3.

49
limitations to his power, if he abuses the royal power in a tyrannical
manner. The people must not be considered as acting disloyally in so
deposing a tyrant . . . for he himself deserves this fate because he has
not faithfully conducted the government of the nation according to his

82 we must not misunderstand St. Thomas here.

vocation as a ruler."
He repudiates the view that individual patriots are justified in rebelling
against or assassinating the tyrant. He declares "it is more seemly
to proceed to the overthrow of tyrants not according to personal presumption
on the part of any one man, but on the public authority."83

There is a legitimate basis on which the people can claim the
right to depose a tyrant. The object of government is to secure the
good of the community. The kingdom does not exist for the sovereign, but
the sovereign for the sake of the kingdom. All government rests
implicitly upon a contract. In a state where the political sense of
the people is sufficiently far advanced and the populace well educated,
the circumstances of the pact may be more or less recognized. But in
every state there is always the implicit understanding that the authority
of the monarch depends upon a kind of contract. The sovereign, by the
very fact that he assumes the government of the state, contracts to seek
in all his acts the good of the community. If the sovereign breaks his
part of the contract, the people remain free to break theirs.

Earlier in this chapter we took note that according to St. Thomas
man is by nature a rational being and a social and political animal.

82Thomas Aquinas, De Regimine Principum, I. C. 6, as quoted in
.A Short Histogy of western Philosophy by S. J. Curtis (London, 1950), p. 191.

83Thomas Aquinas, De Regimine Erincipum, I. c. 6, as quoted in A Short
Histogy of Western Philosophy, by S. J.,Curtis (London, 1950), p. 191.

50

If the state is founded upon the very nature of man then it will be
characterized by the same qualities. The state is the natural expression
and embodiment of the moral as well as the physical characteristics of
human nature. Political institutions are an aspect or part of natural
morality. As such they can be justified on a purely human plane, independent
of religious values, which do not alter the natural order. This implies
that the pagan state had positive value. "It must be granted that
government and authority are derived from human law, while the distinction
between believers and unbelievers is introduced by divine law. Now the
divine law, which is founded on grace, does not abolish human law, which
derives from natural reason. Hence the distinction between believers and
unbelievers, considered in itself, does not abolish the government and
authority of unbelievers over believers."84

Though the state has positive value outside the religious realm,
yet its action and value, as part of the natural order, must be considered
in the general frame of the divine direction of the world and are entirely
subservient to that direction. This is so because the natural order
is for St. Thomas only part of a higher order, as natural law is but a
part of the eternal law of God. This in no way qualifies the statement
that political authority is in itself justified as an expression of human
and natural law. Political authority can be justified on the basis that
it contributes to the common good. The state's right to dominion may with
justice be abrogated by order of the church in virtue of her divine authority.

This refers primarily to newly established governments and the danger to

8480 The. Pt. II-IIO q. 10. a. 100

51
the faith of the believing subjects in letting an infidel become the
ruler.85 Such a ruler might easily, especially in despotic forms of
government, issue commands that would conflict with the faith and that
might be obeyed by the faithful subjects because of the weakness of their
character.

Sovereignty is the essential attribute of political power and
its exercise can and must be subject to careful delimitations. There
are certain international limitations placed upon all nations. war is
evil unless it is a just war. The common good and the preservation of
peace may make the recourse to force inevitable. There are special
conditions required for a just war--a legitimate authority, a just cause,
and a rightful intention.86 ‘War can be resorted to only in the absence
of a superior authority.

There are also certain internal_limitations placed on authority.
The structure of the state itself places limitations on monarchy. The
essential feature of the best fbrm of government is fbr St. Thomas some
form of constitutional system in which the principles of monarchy,
aristocracy, and democracy are combined, and the prince is dependent on
the rule of the law as the expression of the will of the community.87
Following Aristotle, Aquinas distinguishes three fbrms of constitutions
according to whether the government is in the hands of one man, a few men,

or the many. These forms are monarchy, aristocracy, and democracy.

There are three perverted forms corresponding to the normal types

8§§;_223. Pt. II-II. q. 10. a, 10.
86am” Pt. mu. q. no. a. 1.

87s. Th., Pt. I—II. q. 95. a. 4.

52

previously mentioned: tyranny, oligarchy, and anarchy.88

St. Thomas feared anarchy and tyranny; hence he is suspicious of
democracy. He describes democracy as government by the people where the
decrees of law arise from the commonalty.89 He feared that democracy
could easily get out of hand and lead to the abuse of liberty, mob
tyranny, and the oppression of the other classes in the state by the
proletariat. This does not mean that he excludes people from participation
in government. How far the people may be permitted to govern themselves
depends upon their aptitude fortxmatask. St. Thomas considers that it
is extremely dangerous to assume that in every case a people is capable
of participation in government or even of electing their ruler. The
exercise of political power by a populace which is not ripe for it
exposes the state to perils as grave as those of government by an
irresponsible monarch.

In theory'there is no doubt as to the best form of government.
The most important need of every state is unity, and this is best

90

secured when there is a mixed form of government. If a perfect man
could.be found, a monarchical form.of'government would be ideal. St.
Thomas is impressed that the perfect man never turns up. Therefore, in

practice an absolute monarch is always a potential danger. He can so

easily become a tyrant.91 Hence the people must have safeguards against

88S. The, Pt. I-IIO q. 950 a. 4.

8980 The. Pt. I-IIO q. 950 a. #0
90$. Tho, Pt. I'II. q. 1050 a. 10

91s. Th., Pt. I-II. q. 105. a. 1.

53
an undue extension of the monarch's power. Although, in special cases,
St. Thomas would choose a hereditary monarch, on the whole he prefers an
elected one since every election gives the opportunity for the people
to place new restrictions on his power, if these are deemed necessary.92
On the other hand, he shows that he realizes the advantage of an hereditary
monarchy in the avoidance of the troubles attendant on a disputed
succession. It is,not the form of the constitution but rather the
character that makes it a good or a bad one.93

Government has for its object the common good.- The state is the
sum total of all the individuals who compose it. The principal business
of the state is to promote the good of all the individuals who compose
it, fer without them the state would cease to exist. The state has
reference to the immediate need of man on this earth and its aim is
temporal good. The benefits of the future life can only be attained
through the gift of supernatural grace. The authority, St. Thomas tells
us, that will lead men to their supernatural end and which has not been
entrusted to earthly rulers, is the church.91+ The temporal good which is
made possible for man through the government of the state can be achieved
only through the good life. Hence, the state should be organized to
establish the good life amongst its citizens, to maintain it and to develop

it to a still higher level.

92in“ Pt. I-II. q. 105. a. 1.

9350 The, Pto I"IIO q. 1050 a. 10

9“Thomas Aquinas, De Re imine Princi um, as found in Ewart Lewis,
Medieval Political Ideas, I (London, 195#$, p. 179.

 

54

This chapter can be summed up be referring to its central theme,
natural law, and its various relations to God, the individual, human law,
and authority. Natural law is the supreme standard for all human acts.
Every human authority is subject to it. No human authority can demand
obedience against it, All human authority remains such only so far as
its commands do not contradict natural law. This is the moral guarantee
of liberty. An absolute authority whose will and act would be right
simply because it wills this or that would destroy liberty. The dignity
of the human person demands the subordination of authority to natural
law, because this itself is the basis and reason of human dignity.

An authority freed from natural law and following only political
expediency is no authority at all. The commands of authority must justify
themselves before the bar of reason and law. Never can mere actual will
give these qualities of law. Experience and history demonstrate that
freedom and dignity of the human being cannot be preserved when the
conviction vanishes that both the subject and the human authority are
subjected to the same paramount law. This paramount law is an empty
phrase if it is not synonomous with natural law. In natural law any
possible conflict between power and authority, will and reason, truth
and expediency, is abolished because natural law originates from God,

who is at once perfect reason and omnipotent will.

55

CHAPTER.III

In the previous chapter we examined Thomas Aquinas' political
theory, centering in his discussion of law, in order to demonstrate the
limited nature of political authority in its relation to law. It was
noted that political authority which has the character of law is in
harmony with the universe, because God orders the universe by means of
law. Political authority is ultimately responsible to God and must conform
to those general principles which have been devised by Him for the proper
ordering of the universe. The ruler is not only responsible to God but
also to the people. This is so because certain principles of God's law
have been etched on the conscience of men, and he will express these
principles both by action and by word. Thus, the custom of the
community is the main source of positive law. Human or positive law is
the expression of the will and reason of the legislator. Political
authority which is in opposition to higher and customary law is without
legitimate basis and legally can be resisted by the citizen body. It
was Aquinas' intention to try and harmonize the various elements of divine
and human law in order to construct a rational scheme of God, nature, and
man within which society and civil authority find their due place.

Aquinas' conception of law was being modified by anothermathat
is that law is the expression of the conscious determination of the people's
will. The person primarily responsible for this new emphasis in the
definition of law was Marsilio of Padua° Law implies a legislator which
Marsilio considered to be composed of the people or its prevailing parto
Human law arises by the corporate action of a people setting up rulers

to govern the acts of its members. Political authority is ultimately

56
responsible to the legislator or the people. Its function is to execute
the laws as prescribed by the legislator. The Marsilian concept of the
legislative sovereignty of the people is very important in an examination
of the medieval concept of the nature of political authority.

Marsilio, unlike Aquinas, made a sharp distinction between reason
and faith, the character of divine and human law, and the nature of political
and religious authority. His treatment of law is in the sharpest contrast
to that of Aquinas, which presented divine and human law as all of a
piece and stressed the rational derivation of human law from the law of
nature. Marsilio distinguishes human from divine law by giving to the
former earthly coercive power while reserving coercive power for the latter
in the future life. Human law, therefore, is not derived from divine
law but is contrasted to it. Any rule that involves an earthly penalty
for its violation belongs exclusively to human law and has its authority
from human enactment. Marsilio did not deny the means of faith as a
means of eternal salvation, but rejected its relevance to secular matters.
His distinction between the nature of religious and political authority
played a decisive part in producing a purely secular theory of the state.
In the process of making the distinction, he places both the political
and religious authority under the sovereignty of the people's will.
Perhaps no other document of the Middle Ages has raised such a storm of
controversy among modern scholars as the Defensor Pacis of Marsilio of
Padua. Most critics find it difficult to be perfectly nonpartisan in
the treatment of Marsilio. This is so because of the many diverse themes
treated in the Defensor Pacis which reach into the political, religious,

and social relationships of man. At the same time it is regrettable that

57
so many writers on Marsilian thought have all too often taken the
opportunity to interpret it in the light of their own convictions for or
against the Roman Catholic Church, the lay state, democracy, liberalism,
and totalitarianism. The result has been that Marsilio has been made
a proponent of many ideas and movements for which he is not directly
responsible. We need to discover not so much what the Defensor Pacis
means for the twentieth century but what it meant for the fourteenth.

The Qefensor Pacis is first and foremost an attempt to destroy
the doctrine of papal supremacy and to undermine the whole structure of
ecclesiastical jurisdiction as set forth in the canon law. Marsilio
felt that the abuse of papal power and ecclesiastical jurisdiction did
incalculable harm to the unity and peace of the Latin world. He attempted
to correct this situation by asserting the supremacy of the temporal
power, and by drastically limiting the bounds of clerical jurisdiction.
This involved the proving of two thesis, one positive and the other
negative. Positively, he sought to establish the legitimate basis for
all human authority with the purpose of trying to untangle the complexities
of churchestate relations. This included an examination of the nature,
structure, and ideal of the state, and of the community in which men
live and by which they regulate their mutual relations. This Marsilio
does in Discourse One of the Defensor Pacis.

Negatively, Marsilio attempts to refute the basis of papal
supremacy. The great majority of the people in medieval Europe in his
time accepted papal supremacy and independent ecclesiastical jurisdiction
as of divine appointment; this being the case, their abolition was

believed to be against God's will and against the natural order. It

58
was necessary then to show that no special divine revelation created
papal supremacy and independent ecclesiastical jurisdiction. In
Discourse Two Marsilio not only refutes the basis of papal supremacy
from scripture, but asserts what government and powers were really laid
down by divine revelation for the Christian church and clergy.

Discourse Three is merely a review of the principal aims and conclusions
of Discourse One and Two.

There are other distinguishing characteristics between the two
discourses. Both discourses are concerned with the causes of civil
peace and strife. The first discourse treats of the "usual" and
"general" causes, while the second treats of the more particular cause,
namely, the acts and pretensions of the papacy deriving from its claim to
plenitude of power. The first discourse applies to any period in
history or to any race, while the second deals more particularly with
the intrusion of the papacy and its hierarchy into temporal affairs.
Discourse Two also contains the practical program.to end this disastrous
state of affairs. There is yet another distinction between the two
discourses. The first presents demonstration based on human reason,
supported by Aristotle, while the second discourse confirms the first
by the authority of the New Testament. Reason and revelation,

Aristotle and the New Testament, are in complete agreement that no part
of the state must interfere with the functioning of the ruling part.

The purpose of this chapter does not involve the entirety of
Marsilian political thought, but only that aspect which pertains to his
doctrine of the legislative sovereignty of the people. The first section

of this chapter will be concerned with defining the term "legislator."

59
A proper understanding of the meaning of this term is absolutely necessary
before proceeding to the various implications of the term. The second
section of this chapter will consider the function of the legislator in
its relation to law, to government, and to the church.
Marsilio defines the legislator as "the people or the whole body

95

of citizens, or the weightier part thereof." The terms needing
clarification are "people," "citizen," and "weightier part." An unders
standing of the terms "citizen” and "weightier part" is necessary in
order to discern the meaning of the comprehensive term "people." The
whole can be better understood after defining the parts.

Marsilio defines a citizen as one who participates in the civil
community in the government or the deliberative or judicial function
according to his rank.96 He categorically excludes children, slaves,
aliens, and women, although the sons of citizens are citizens in "proximate
potentiality."97 There is little regard for the rational capabilities
of women. They are rather easily "misled." Children are not citizens
by reason of their age and aliens by reason of their nationality. Slaves
are distinguished from citizens in two ways: in that they do not "have
leisure for liberal functions,"98 and that they do not "wish the polity
to endure."99 The slave does not desire the basic conditions making

95Marsilius of Padua, The Defensor Pacis, trans. Alan Gewirth,
in Marsilius of Padua: The Defender of Peace, Records of Civilization,
Sources and Studies, No. XLVI (New Yorkz Columbia University Press, 1956),
II, Discourse I, Chapter XII, paragraph Beehereafter cited as Defegggg
with the appropriate Discourse,Chapter, and paragraph.

96Defensor, I. XII. 4.

97Defensor, I. XII. 4.

98Defensor, I. IV. I.

99Defensor, I. XIII. 2.

60

possible men's social life. It would seem that Marsilio would include
the Slaves in that group of persons who have a defermed nature, because
"all men not deformed or otherwise impeded naturally desire a sufficient

100 This natural desire is similar to St. Thomas' natural

life."
inclination, but is related more to the will than to the reason. There
are certain natural desires common to all men, namely, sufficiency of
life and the objects which are necessary for such life. Deformity is
an abnormality in man‘s will causing him to act contrary to his own
natural desires, thereby impeding the functioning of the various parts
of the state whose purpose it is to fulfill these desires.

However, there are those who do not have leisure for liberal
functions and yet who are citizens, such as the artisans and farmers.101
Likewise, not all those who have a deformed nature are slaves. Marsilio
says that the difference between the whole body of citizens and the
weightier part is the few relatively ”deformed" persons.102 Neither
nondeformity nor leisure can be an exact criterion for citizenship.
Whether the relatively few deformed persons of the citizen body have the
same defermity as the slaves is not clearly explained. If so, the slaves
could not logically be excluded from citizenship purely on the basis of

a deformed nature, because certain of the citizen body are also deformed.

Narsilio excluded the slaves from citizenship no doubt because he

1OODerensor, I. Iv. 2.
101Defensor, I. XIII. 4.

102Defensor, I. XII. 5.

61
realized the potential danger of increasing the deformed part until the
existence of the state would be threatened. This is especially evident
in his discussion of the "weightier part" in which he seeks to get a
proper proportioning both qualitatively and quantitatively between the
various classes in the polity. If those who did not wish the polity to
endure gained control then doubtless the polity would be abolished. It
would almost seem that Marsilio considers slavery volitional rather than
natural. He speaks in one place of certain inhabitants of Asia who
endure the rule of despots "without protest" because of their barbaric
and slavish nature.103 His definition of a slave as one who does not
desire the polity to endure would seem to indicate the same thing. Howe
ever, there is a strain of natural slavery in his statement that "those
who live in a state do not only live, which beast or slaves do, but live
‘well, having leisure for the liberal functions . . . ."104

Narsilio defines the "weightier part" both in terms of quantity
and quality. He states "by the weightier part I mean to take into
consideration the quantity and the quality of the persons in that
community over which the law is made."105 Most scholars in the past
interpreted the "weightier part" simply as "the majority." Quite
recently, however, examination of the manuscripts disclosed conclusively

for the first time that Marsilio had specified the "weightier part"

103Defensor, I. IX. 4.

104Defensor, I. IV. 1.

1O5Defensor, I. XIII. I.

62

by quality as well as by quantity.106 The translation "weightier"
was originally suggested by C. W. Previte~Orton and seems to best embody
the complexities of the qualitative and quantitative features.107

There seems to be little distinction made by Marsilio between
the "weightier part" and the "whole body of citizens." As has already
been noticed there are those relatively few "deformed persons" within
the citizen body who refuse to agree to the common judgment. These
relatively few deformed persons are the quantitative difference between
the whole body of citizens and the weightier part. That this is the
quantitative meaning is also shown by the expression that Marsilio uses
as synonyms for the weightier part. Such expressions are used as "the
exceeding majority,"108 the "greater number,"109 or "the more ample
part"110 of the citizens. It would seem from this that the weightier
part means the great bulk of the citizens rather than a small aristocratic
group. When Marsilio used the expression "the whole body of citizens"
and "the weightier part thereof" in the same sentence, he follows with
such expressions as "which is assumed to be the same thing,"111 and

"112

"which must be taken from the same thing. This would seem to indicate

106C. W; PrevitenOrton, "Marsiglio of Padua, Doctrines," English
Historical Review, XXXVIII (1923), p. 8.

107Alan Gewirth, "Introduction," Narsilius of Padua: The LBfender
of Peace, II (New Yerk, 1956), p. XVI.

108Defensor, I. XIII. I.
109Defensor, I. XII. 5.
110Defensor, I. XII. 6.
111Defensor, I. XII. 5-

112Defensor, I. XIII. 2.

63
that he does not think of the weightier part as being distinct from the
whole; rather, they are almost identical.

Marsilio attempts to get a preper balance or proportion in the
polity between quantity and quality. He condemned "democracy" as the rule
of the masses alone and not "according to proper proportion.”13 The
common class would numerically outweigh the honorable class; it is flnr
this reason that qualitative considerations are invoked. The prOper
proportion would operate both against oligarchy or aristocracy and against
democracy. Marsilio upholds a polity "in which every citizen participates
in some way in the government or in the deliberative function in turn
according to his rank and ability or condition, for the common benefit
and with the will or consent of the citizens."114 The degree of participation
of each citizen will depend upon his rank, and the rank, in turn is
determined by the functional group to which he belongs. There are three
general functional groups which participate in government: the "council"
or the "common mass," the honorable class, and the judiciary.”5 The
members of the honorable class are elected by the citizens to fill the
highest offices of the state. The judicial body assists the ruler in
matters concerning law and government. The "council" participates in
electing the ruler and judging as to the practical worth of certain laws.
It is this ranking of various groups of peOple in the polity into lower
and higher divisions that Marsilio fits most closely to the whole

orientation of medieval thought.

113Defensor, I. VIII. 3.

114Defensor, I. VIII. 3.

115Defensor, I. V. I.

64
There are certain characteristic features that qualitatively
differentiate the groups within the polity. It has already been noticed
that it is leisure for liberal functions which distinguishes the citizen

from the slave;116

but it is also leisure which distinguishes that group
of citizens which devote a great deal of time to deliberative functions
from the mechanics and artisans who are so preoccupied with making a
living that they do not have time for such activities.117 Marsilio
thus divides society into a small leisure class and a large body of men
involved in common labor. However, the line of demarcation is not
strictly'drawn between the leisured and the nonleisured as to participation
in government. He insists that those who do not have "leisure for liberal
functions” should share in political power, for they "participate in the
understanding and judgment of practical affairs, although not equally
with those who have leisure."118
Another quality concomitant with leisure is prudence. Prudence
belongs primarily to those men who have leisure, and who are "older and
experienced in practical affairs."119 Prudence is also one of the
important qualities of a "perfect ruler." The nonleisured have prudence
but not in the same respect as the leisured class. The mechanics and

artisans lack that quality of prudence which is necessary for the discovery

of truth and justice, but they do have prudence in the sense of being able

11oDefensor, I. IV. I.
117Defensor, I. XII. 2.
118Defensor, I. XIII. L».

119Defensor, I. XII. 2.

65
to judge the practical worth and the common utility of that which has
been originated and discovered. Marsilio says that "most of the citizens
are neither vicious nor undiscerning in most cases and most of the time;
for all or most are of sound mind and reason . . ."3120 but he says that
what is just and beneficial is "better" and more "appropriately" carried
out by those who are able to have leisure and who are called "prudent

n."121 This does not mean that this particular group of "prudent men"

me
are wiser than the whole body of citizens. Marsilio states "the
assembled multitude of all these can discern and desire the common
justice and benefit to a greater extent than any part of the multitude

taken separately however prudent that part may be."122

That particular
group of "prudent men" may have a greater quality of prudence than any
other particular part of the polity, but not greater than the whole taken
together.

Marsilio does not indicate the exact proportion in which the mass
of nonleisured citizen laborers are to be weighed against the leisured
and more prudent. It should be kept in mind that the quantity or quality
spoken of by Marsilio is not that of equal individual units but rather
of groups. The quality of the group can be increased by increasing the
quantity. He says that if we assume that the less learned cannot judge

as accurately on some practical political matter as do the learned, "still

the number of the less learned could be increased to such an extent that

120Defensor, I. XIII. 3.

121Defensor, I. XII. 2.

2
1 2Defensor, I. XIII. 6.

66
they would judge about these matters equally as well as, or even better
than, the few who are more learned."123 However, there are some
limitations to this quantitative determination of quality. One limitation
that is mentioned is that of particularism where one class such as the
nonleisured will get out of proper proportion and dominate the other
parts of the polity.124 He seeks to leaven quantity with quality to
avoid such particularism. The other limitation on the quantitative
determination of quality relates to primitive communities where there is
a lack of prudence and experience.125 In such a situation quality does
not always accompany quantity.

After examining these several aspects of Marsilian thought perhaps
some conclusion can be drawn as to what the author meant by the term
"legislator" or "people." The people are composed not of individual units
as such, but of groups or classes: namely, the common class which
includes the farmers, mechanics, artisans, and suchlike; the judiciary
or those officials such as lawyers and notaries who assist the ruler in
judicial functions; and the "honorable class," that is, the group of the
best men, who are few, and who alone are appropriately elected to the
highest governmental offices.126 These groups share in political authority,
the share being determined both by quantitative and qualitative standards
in order to prevent a disproportioning of political power. The people

or the legislator was believed to be the allminclusive body of the state

123Defensor, I. XIII. 4.
12”Defensor, I. VIII. 3.
125Defensor, I. III. 4.

126Derensor, I. XIII. 4.

67
which could act as one.

It has been our purpose so far to define what is meant by the term
"legislator." The remainder of this chapter will consider the function
of the legislator in relation to law, to government, and to the church.
The relation of the legislator to law will consider primarily the three
arguments proposed by Marsilio to defend the legislative sovereignty
of the people. The function of the legislator in relation to government
will be concerned primarily with the election and correction of the ruling
part. The function of the legislator in relation to the church will be
considered from the viewpoint of the strong distinction made by Marsilio
between the character of authority which belongs to the legislator and
that which belongs to the church.

Law is defined by the author as a principle of right supported
by the force necessary to put it into execution.127 Some scholars have
emphasized the point that Marsilio establishes his philosophy of law on
force and coercion instead of conformity to a moral code as, for example,
does St. Thomas Aquinas. Yet Aquinas himself defines the power of compulsion
as one of the essential characteristics of law.128 Nor is it true to say
that Narsilio disregards entirely the moral factor in lawmaking. He
follows up his definition of law as coercive with a statement that a
knowledge of the principles of morality is essential if a law is to be

perfect.129 The difference between Marsilioss concept of law and that of

127Defensor, I. X. 4.

1285. Th., Pt. I-II. q. 90. a. 4.

129Derensor. I. XI. 5.

68
Aquinas is one of emphasis. The former places the greater emphasis upon
will, the latter upon reason. But to say that Marsilio's conception of
law is purely voluntaristic would be as false as to say that St. Thomas'
conception is entirely rationalistic. However, St. Thomas would not agree
with Marsilio in saying that a law is not a law unless it has the element
of coercion.

The efficient cause of the law is the people. The author says
that the "best" laws are made by the weightier part of the people.130 The
term best does not mean primarily the content of the law, but rather its
coercive element. He states "law in its last and more preper sense
concerns the coercive command as to its obedience."131 This is so because
the end of law is not some rational goal, but the principle end of law

is "civil justice" and the "common benefit."132

The secondary end of
law is the "security of the ruler and the duration of government."133
It can readily be seen that the primary emphasis of Marsilio is not upon
rational ends but upon efficient means. The laws under which men live
are derived from their own will and consent and can be justified on this
basis without any conformity to any higher or natural law.

Marsilio does not explicitly state the exact form of government
which should characterize the polity. Whether the will of the people is

expressed directly in the general assembly or through chosen representatives

is not of utmost importance. It is, however, very important that any

130Defensor, I. XII. 5.
131Defensor, II. XII. 5.
132Defensor, I. XI. 10

1”Defensor, I. XI. 1.

69
addition, subtraction, complete change, interpretation, or suspension of
law has the final sanctions and approval of the legislator.134 It is
also important that the promulgation and the ultimate power of enforcement
of law rest in the legislator. Hence, the source of coercion is collectively
the same as the individuals who severally undergo it. The Marsilian
legislator exercises a threefold control over the law. It is responsible
for the election of the law making body of deliberative experts who will
propose certain rules of justice and civil benefit for possible enactment
into law;135 it is the final judge as to the adequacy of these proposals;136
and finalily by its sanction it determines the coercive command which makes
the actual law.137 ‘

The basis for these controls is examined in the three arguments
of Marsilio upholding the legislative sovereignty of the people. First,
he argues that the majority of the people desire the common benefit and
laws embodying it; second, that the whole body of people are capable
of rationally understanding what is the common good; third, that self.-
legislation is essential to freedom. Let us consider each of these
arguments in turn.

The first argument is based on certain natural desires which the
author considers are common to all the nondeformed people in the polity.

It has already been noted that all men desire sufficiency of life. Marsilio

134Defensor, I. XII. 3.
135Defensor, I. XIII. - 8.
136Defensor, I. XIII. 8.

137Defenggr, I. XIII. 3.

7O
proceeds further on this principle. If all men naturally desire sufficiency
of life, they must also desire the means by which that sufficiency is
obtained or else there would be a deficiency in nature.138 Sufficiency
of life can only be attained properly in a civil community. Hence, there
is in man a natural desire for a civil community. It follows from this
that "the part of the state which wishes the polity to endure must be
weightier than that part which does not wish it."139 In other words, it
is impossible that, while all the members of the human species have a
natural desire to live in the state, most of the members of that same
species should at the same time desire the destruction of the state.

From this Marsilio deduces that, if the weightier part desires the endurance
of the state, they must desire the laws necessary for this endurance.
These laws are for the common benefit; consequently, the majority of the
people desire the common benefit and the laws embodying it.

The achievement of the common benefit through the rule of one or
a few is impossible. Marsilio considers two things necessary in judgment:
right emotion of the judge, and a true knowledge of matters to be judged.140
A few men, either through "perverted emotion" or through "ignorance" would
be more likely to make an erroneous judgment than would the entire body
of citizens. If one or a few men were entrusted with supreme authority,

they would in all probability pervert it to their own interest. EVen the

138Defensor, I. XIII. 3.

139Derensor, I. XIII. 3.

140Defensor, I. XI. 1.

71

"141

best man sometimes has a "vicious emotion. Original sin is not

considered as leading to a necessity for law, but instead Marsilio speaks
of impartial law as needful because of the emotional factor in all men.“+2
It is this emotional factor which makes it necessary for the legislator
or the weightier part to be the final and ultimate authority, because "the
entire body of citizens can intellectually and emotionally determine
truth and the common utility better than any part.“143

It would seem that if every human soul is characterized by this
"vicious emotion" that the whole body of citizens would be characterized
by the same. However, "no man knowingly harms or wishes injustice to
himself" and "all or most of the citizens want a law conducive to the
common benefit."M4 The common benefit is simply the sum of the private
benefits, either of all or at least of the "weightier part" of the citizens
of the state. Marsilio distinguishes between the will of all together
and the will of each taken separately. All or most taken together have
characteristics which do not pertain to each taken alone. The fact that
the whole is greater than its part means that "the assembled multitude
of all can discern and desire the common justice and benefit to a greater
degree than can any part of that multitude taken separately."m5 Equality
holds not between individuals but between classes; each member of the

common class is inferior to each member of the honorable class, but the

1MDefensor, I. XI. 6.
1uzDefensor, I. XI. 2.

143Defensor, I. XII. 5.
144Defensor, I. XIII. 8.

1”5Derensor. I. XIII. 6.

72
whole of the common class is equal or superior to the whole of the honorable.
Marsilio says that many who are less learned "can judge equally as well
or better than the few who are more learned.“46

This leads to the second argument that not only does the majority
of the people naturally desire the common good, but that the whole body
of citizens is capable of rationally understanding what is the common good.
Marsilio states that "Every whole is greater than its part which is true
with respect both to magnitude of mass and to practical virtue and action."147
In this second argument the distinction must be made between discovery
and judgment. Not all men are capable of discovering the law, but all or
most can judge it and discern what must be changed, because they live

under it and are sensitive to its effects.148

Marsilio illustrates by
showing that many men are capable of judging concerning the quality of a
picture, a house, a ship, and other works of art even though they are
incapable of producing them.149 The law embodies the collective wisdom
and experience of the whole community and this is why it is preferable to
that of any one man, however good.

The third argument that self-legislation is essential to freedom
emphasizes the necessity of a free people controlling its own destiny.

The consent of the subjects is the primary criterion of good government.

The subjects will voluntarily obey a law that they have imposed upon themselves.

146Derensor, I. XIII. 4.
11+7Defensor, I. XIII. 2.
1LI'BDefensor, I. XIII. 3.
149Defensor, I. XIII. 3.

73

"That law is better observed by everyone of the citizens which each is
seen to have imposed upon himself."150 But the reason for this is that
every citizen must be "free," and if one or a few men by their own
authority made law over all the rest, the former would be "despots," and
such a law, "no matter how good it would be," would be obeyed either
unwillingly or not at all by the other citizens. On the other hand,
when the law is made by the hearing or consent of the entire multitude,
then "even if less useful," it is readily obeyed by each citizen, "because
is seen to have imposed it upon himself."151

The function of the legislator in its relation to government is
tied directly to the preceding discussion of law. The law which has been
sanctioned by the legislator is the standard by which the ruler is to
govern. He is not to govern on the basis of his prudence and experience,
but is to depend on the impartiality of the law. One or a few men can be
led astray either through "perverted emotion" or "ignorance," but the
law is without emotion and the impartial judge of all men.152 The
primary responsibility of the ruling part is to execute the decrees which
have been established and received the final approval of the legislator.
When the ruler acts the entire community does because the ruler acts
in accordance with the legal determination of the community.

One of the primary responsibilities of the legislator is the

election of the ruling part of the state. The ruling part may be one man

150Defensor, I. XII. 6.
151Defensor, I. XII. 6.

152Defensor, I. XI. 1.

74
or several men depending upon the particular locality. The means of
election also may vary "according to the variety of the province." But
Marsilio hastens to add that "whatever ways it may differ this must be
observed in each case, that such election or establishment is always to
be made by the authority of the legislator."153 He argues this from the
proposition that "to whomever it pertains to generate some form, it also
pertains to determine the subject of that form."154 The legislator is
compared to a builder who knows both the form of the house and the matter,
that is, wood and bricks. Since the legislator is to determine the
form, that is, the law, it pertains to the legislator also to determine
the formjs matter, that is, the ruler.155

Marsilio considers that there are three definite advantages of
election over hereditary succession. First, the best possible ruler is
more likely to be obtained by e1eotion.156 It is important to see what
he meant by the best ruler. The qualities which are necessary for a
perfect ruler are prudence, virtue, and benevolence for the polity and the
citizens. The ruler must have prudence in order to judge concerning
practical affairs which cannot always be determined by law.157 Also
necessary to the ruler is moral virtue, especially justice; "for if the

ruler is perverted in moral character, the polity will be greatly harmed."158

153Defensor, I. XV. 2.
15”Defensor, I. XV. 3.
155Defensor, I. XV. 3.
156Defensor, I. XVI. 2.
157Defensor, I. XIV. 4.
158Defensor, I. XIV. 6.

75
Finally, the ruler is to be characterized by "benevolence for the polity,"
for love will direct the ruler's actions for the common benefit of the
citizens.159 These qualities are necessary in a ruler in order that the
common benefit might be realized. The ruler with these qualities is best
obtained through election by the legislator; "by the election of the human
legislator the common benefit of the citizens is almost always aimed at
and attained, rarely failing";160 "election is always done fer the common
benefit, which the human legislator almost always wishes and attains";161
"the legislator aims in most cases at what is just."162 The certainty
of these qualities is less likely in a hereditary ruler because it depends
"upon birth and is often fortuitous."163

The second advantage of an elected ruler over a hereditary one

is that an elected ruler will be more careful as to how he rules and more
diligent in his guardianship of the persons and welfare of the community.
This is for three reasons: first, because he is virtuous due to his
being elected; second, because he will fear correction by the next ruler;
and third, because he will want his children to be deserving of election

164

in the future. The third advantage of an elected ruler over a hereditary

one is his novelty which will give rise to a greater admiration and respect

159Defensor, I. XIV. 7.
160Defensor, I. XVI. 11.
161Defensor, I. XVI. 19.
16ZDefensor, I. XVI. 21.
163Defensor, I. XVI. 11.
161+Defensor, I. XVI. 13.

76

for him; and this respect results in greater obedience.165

The legislator is the "primary efficient cause" of the establishment
of the various offices of the state, and the ruling part the "instrumental
or executive cause."166 The legislator follows the procedure of establishing
the various offices by law and then designates the ruler to fill the
offices with the appropriate officials. An example of this procedure
is illustrated in Marsilio's discussion of the formation of an armed force
in the state. The ruler needs this armed ferce to "execute his civil
sentences upon rebellious and disobedient men by coercive force."167
The general structure of this armed force is to be determined by the
legislator. It is to be large enough to exceed the power of any individual
citizen or several taken together, but not to exceed that of all or the
majority of the citizens taken together. If the ruler had an armed force
larger than the majority of the citizens, he would be in a position to
violate the laws and to rule "despotically." The more specific structure
of this armed force is left to the determination of the ruling part. The
ruler is not to have the coercive force before the election, but it is to
be bestowed upon him at the same time as the rulership.

If the legislator has the authority to elect the ruler, it also
has the power to correct him. "For the authority to approve or disapprove
rests with those who have the primary authority to elect, or with those

to whom they have granted this authority."168 Otherwise, if the part

165Defensor, I. XVI. 16.
166Defensor, I.‘ XV. 4.

167Defensgr, I. XIV. 8.
168Defensor, I. XIII. 9.

77
could dissolve that which had been established by the whole, the part
would be greater than the whole. While the ruler is under correction he
should be suspended from office, otherwise there would be a plurality
of governments in the community which would result in schism, agitation,
and fighting. He should also be suspended because he is not corrected as
a ruler*but as a subject who has transgressed the law.

The correction of the ruler depends upon the gravity and frequency
of the offense.169 A grave offense is one that will result in scandal or
disunity in the community. If the offense be slight and occurs rarely,
it should be passed over, otherwise, the ruler will become an object of
contempt and the citizen will pay less respect and obedience to the law
and to the ruler. If the offense is slight and yet occurs often, it
should be administered the proper punishment. The punishment should always
be determined by law whenever possible, but if the correction cannot be
determined by law, then it must be determined by the sentence of the
legislator. The legislator has the power to depose the ruler "if this
be expedient for the common benefit."170 This would seem to be the
ultimate corrective measures to be taken by the legislator.

So far this chapter has been centered around the first discourse
setting forth certain basic principles concerning the nature, structure,
and ideals of the state. The second discourse takes these principles and
applies them to the internal structure and to the external relations of
the church. Many of these principles are not reiterated again but are

assumed. For instance, the arguments upholding the legislative sovereignty

169Defensor, I. XIX. 4.

170Defensor, I. XII. 3.

78
of the people are not repeated in the second discourse when Marsilio speaks
of the faithful legislator as the governing body of the church. He
merely says that the assertions are the same as in Discourse One.171
Many new arguments based on scripture and the church fathers are presented
as additional proof to the first. principles. His primary concern in the
second discourse is not with the church as a whole, but more specifically
with the institutionalized or hierarchical part of the church and its
claim to power.

Marsilio conceives of the church as the whole body of the faithful
who believe in and invoke the name of Christ.172 The church is thus a
corporate body made up of individuals whose claim to membership is based
on belief in the name of Christ. By this definition he makes the basis
for the claim to membership in the whole body of the faithful rest, not
in belonging to a visible institutional church, but rather a belief in
Christ, making one a member of a universal mystical body. He de-emphasizes
the earthly institutional characteristics of the church and emphasizes
the universal mystical aspects. His purpose is twofold: to tear down the
basis of the papal claim to plenitude of power, and to erect a new basis
of authority within the church, that of the whole body of the faithful.
Marsilio refutes the contention of the papacy that, because of the
special nature of the function of the priesthood, the priests are exempted
from the demands of human law and authority. Instead he positively asserts

that it is because the priesthood is a part of the state that it is subject

171Defensor, II. XVII. 2.

172Defensor, II. II. 3.

79

to all laws and authority of the state. The proof can readily be seen
from his argument in Discourse One that "every whole is greater than its
part." However, he offers additional proof by citing the deeds and words
of Christ as found in the gospels. Christ left an example for his
disciples to follow when he voluntarily subjected himself both in property
and in person to the authority of this world. He wished to exclude
himself from all worldly rulership or governance, judgment, or coercive
power. Marsilio also cites many utterances of the Apostles and church
fathers as further proof of the subjection of the priesthood to secular
authority. He is very emphatic that the bishop or the priest who
transgresses human law must be brought to justice and punished "by the a
judge who has coercive power over transgressors*of human law in this world."173
He makes one exception to this, where divine law and human law disagree,
the fermer is to be obeyed.174 However, the divine law has no coercive
power in this world, and, furthermore, it is not determined by any
individual believer or*group, but by'a general council composed of laymen
and priests who are elected or appointed by the human legislator. The
exception, then places no limitation upon the authority of human law°

‘ The essential function of the priesthood consists only in the
performance of the sacraments and the teaching of the means to salvation,
and these can involve no coercive authority. Marsilio makes certain

distinctions between religious obligation which is voluntary and political

173Derensor, II. VIII. 7.

17“Defensor, II. V. 4.

80
obligation which is coercive, between human law and divine law, political
authority and priestly authority, the sufficient life of this world and
the eternal salvation in the next. He sharply separates political
authority from ecclesiastical authority by emphasizing the specifically
coercive quality which he assigned to the former. Coerciveness is the
distinguishing characteristic of human law and authority, the end being
the provision of sufficiency of life for all citizens. All citizens can
be coerced into obeying the law in order that the common benefit might be
maintained. The distinguishing characteristics of divine law and priestly
authority in this world are teaching, admonition, warning, and the
administration of the sacraments, in order to prepare the individual for
the life to comer Religious obligation is purely voluntary in this world;
the coercive aspect is reserved until the next life, when Christ, the
only religious judge, shall execute the divine law.

Marsilio distinguishes the priests "essential" sacramental
authority which is from God and equal in all priests, and their "accidental"
institutional authority, which is from man.175 The former is concerned
with.administering the sacrament of the Eucharist or of consecrating
Christ's body and blood, and the power of binding and loosing men from
sin. The "accidental" institutional character of the church resulted
from.the marked increase of church officials after the days of the

176

Apostles. They elected one of their number to guide and direct the

others in the exercise of the ecclesiastical office and service in order

175Defensor, II. XVI. 10.

176Defensor, II. XV. 6.

81
to avoid conflicting desires, scandal, and schism. This election or
appointment does not give to the elected person any greater essential merit
or priestly authority, but merely gives him power to direct and regulate
the other priests in matters pertaining to divine worship. Marsilio
undermines the whole basis of the divinely appointed institutional aspects
of the church and places all priests on an equal basis as far as their
divinely appointed function is concerned. This leveling process brings
Marsilio back to his original contention in the first discourse that all
power and authority rest in the people or the weightier part thereof.
The "faithful legislator" replaces the papal hierarchy as the source of
authority in the church.

One of the difficulties in the second discourse is to define
exactly what Marsilio meant by the term "faithful legislator." It is
important to resolve the difficulty in order to determine if the church
is controlled by the human legislator or just by the members of the
church body. Marsilio assumes that for his own particular era the great
majority of'people are Christians. He differentiates the conditions as
they existed during the era of the primitive church and as they exist
presently. Then the great majority of‘people were without the fbld of
the church and were under the rule of infidels, whereas at present the
great majority are within the church and are governed by Christian
rulers.177 The difference between the "faithful legislator" and "human
legislator" is slight, if any, and, for all practical purposes, they

are almost identical. In some places the two terms are combined into

177Defensor, II. XVII. 15.

82

"faithful human legislator. "178

Marsilio takes all power of appointment, approval, correction,
and removal of all ecclesiastical officials from the control of the church
hierarchy and places this power in the control of the legislator. He
states "in the perfect communities of believers, the election, assignments,
and presentation of persons to be promoted to ecclesiastic orders pertains
only to the human legislator or the multitude of believers in that place
where the minister is to care."179 This was not so in the primitive
church because of the infidelity of the rulers and the legislator, but a
difference in condition demands a difference in procedure. Whereas in
the primitive church ecclesiastical offices were to be appointed by
church officials because of the infidelity of the ruler and legislator,
under the present conditions, with a Christian legislator and rulers,
all appointments and approvals rest in the control of the faithful human
legislator.180 The responsibility also rests with the legislator to
make sure that the appointed and approved officials function properly.
For example, a priest can be compelled to administer the sacraments by the
legislator "if, being vicious, he refused to do this."181 Otherwise many
of the people, by the priest's perversity might "incur the peril of

eternal death, through lack of baptism or some other sacrament."182

178Defensor, II. XXII. 9.
179Defensor, II. XVII. 9.
180Defensor, II. XVII. 15.
181Defensor, II. XVIL 12°

182Defensgr, II. XVII. 15.

83
If the priest proves unfit for his position, he is to be removed by the
legislator.

All matters of church discipline are placed under the control of
the legislator. This is so because human law is the only standard of
judgment in this world, divine law having no coercive power until the
future life. All matters of the church that demand coercive action must
necessarily be judged on the basis of human law by the legislator. No
one can be punished in this world for "sinning against theoretic or
practical disciplines precisely as such, however much he may sin against
them, but only for sinning against a command of human law."183 This
permits the teaching of any heretical doctrine as long as it is not
prohibited by human law. Any judgment or condemnation of heretics must
be based on human law and executed by the legislator. Likewise the
power of excommunication belongs only to the legislator in the community
in which it is to occur. The priests are to occupy the position of an
advisory body, but they have no coercive power to acquit or condemn.

A medium through which the legislator works is the general council
which is composed of ecclesiastical officials, persons especially versed

184 These men are

in divine law, and laymen for the common utility.
appointed by the human legislator from that particular community where they
reside and they can be compelled to attend. A general council can only
be called by the human legislator. It has no coercive authority, but is

similar to the law experts in Discourse One who gather for the purpose of

183Defensor, II. X. 4.
18”Defensor, II. XX. 2.

84
defining law. The general council is called usually for the purpose of
settling disputes concerning divine law or matters of church ritual and
ordinances. The decrees made by the general council are subject to the
approval of the primary human legislator who alone can execute these
decrees.

Marsilio's purpose, to tear down the institituionalized structure
of the medieval church and to erect a new foundation, is based on his
doctrine of the legislative sovereignty of the people. He strips from
the papal hierarchy all its pretensions to plenitude of power and places
it under the law and direction of the state. Politically, it participates
only as a part of the state. Religiously, it performs sacramental functions
necessary for salvation; admonishes, teaches, and warns people concerning
their religious state; and serves in an advisory capacity on matters of
divine law. These functions require no coercive power or authority. By
establishing the sovereignty of the whole body of citizens, Marsilio
leaves the papacy no jurisdiction and authority of itself. His church:
state is more state than it is church.

The significance of this chapter lies in the Marsilian doctrine
that the people's will is the unchallenged possessor of supreme authority.
The final authority does not rest in the pope as the vicar of Christ or
in some higher law embodying ultimate values or final causes, but rather
in a positive human agency called the legislator. It is from the legislator
that the laws derive their authority, and it is the laws, in turn, which
regulate the functioning of the government. The people make the laws,
elect and correct the government, establish the other parts of the state,

including the priesthood, control excommunication and church discipline,

85
define articles of faith through the elected general council, and make
binding all the council's enactments. The superior trustworthiness of
the people's will, the greater intelligence of the whole than the part,
and the necessity that a free people control its own destiny are principles
which are given decisive affirmation by Marsilio, and which have been

invoked by the defenders of republicanism and democracy in all ages.

CONCLUSION

‘We have endeavored in the previous three chapters to discuss
the major political concepts of three medieval theorists whose concepts
resulted in certain far-reaching limitations on royal power and authority.
we took note of restrictions placed on royal authority by certain claims
of the papacy for supremacy, directly in spiritual matters and indirectly
in temporal'affairs. Considerable attention was given to the supremacy
of law and its relation to political authority. Political authority
in order to be legitimate must remain within the bounds of law. Finally,
it was noted that political authority was.answerable in certain respects
to the people, fer they were responsible for the establishment of law and
government. The ultimate authority rested in the legislator or the people.
From theSe major'political principles can be drawn certain general
conclusions concerning the nature and extent of political authority in
medieval thought.

)

/éirst and foremost political authority was limited by its nature.
There was no question in the minds of the political theorist of the
eleventh, twelfth, and thirteenth centuries as to the divine nature of
political authority, and the moral end and purpose for which it exists.
In the patristic tradition society was a conventional institution brought
into being in order to curb the evil instincts of man. The institutions
of human society were the results of sin and the divine remedies for sin.
However, with the reintroduction of.Aristotelian philosophy in the thirteenth
century, political society began to be thought of as a natural institution

or one which was based on the very nature of man. Man is by nature a

87
political and social animal and his association in the political community
‘will result in an enlargement and enrichment of his personality. The
political community was to be the framework within which the individual
was to enjoy the life of virtue. Whether political society was considered
as a conventional or a natural institution, its origin and purpose was
related to God.

Political authority was to fit into God's means of governing the
universe. God governs the universe through his divinely appointed
representatives, namely the officials of the church. The church is
responsible for the spiritual welfare of its members, which includes
moral discipline over every member of the Christian community. The secular
ruler, as a member of the Christian community, is subject to the church
in moral and spiritual matters. Gregory VII claimed the same right of
discipline over an emperor as he had over every Christian. The effect
of this discipline upon the ruler meant more than mere social isolation;
it meant loss of his position and the allegiance of his subjects. By
implication the Gelasian doctrine of the two equal authorities disappeared,
not in the sense that the church would itself take over the functions of
secular government, but in the sense that the pope would become a court
of last resort on whose judgment a ruler's legitimacy would depend.

God also governs the universe by means of law. Law ultimately
was not of human origin, but emanated from the divine reason, regulating
the relationships between all creatures, animate and inanimate, animal and
human. St. Thomas conceived of certain fundamental principles of right
and justice rooted in the very nature of the universe. Law in a narrower

sense was merely one aspect of a cosmic and universal system of law. This

88
is important to keep in mind in order to realize the magnitude of an
unlawful ruler's offense. He was not primarily a violator of human rights
and institutions, though he was that, but a rebel against the whole divine
eystem by which God rules the world. Political authority could not be
absolute because it is always limited by principles which are even more
sacred than itself, the principles of the divine reason and the moral
order.

The higher law theory expresses the dignity and worth of the
individual. Man is different from all other created beings in that he
alone participates actively in the rational order of the universe. The
individual is tied directly to the supernatural which means that there is
a part of man reserved for a higher end and cannot be absorbed by the
state. The natural law theory prevents the encroachment of political
authority upon the conscience of the individual. If the ruler commands
that which is contrary to Christian conscience, Christian men are not
bound to obey. This cannot in any way be taken as referring to any inherent
individual rights. The emphasis is upon the duties of the individual,
whether he be ruler or subject, to God and to the community. The ruler
(is as definitely bound by reason and justice as his subjects, and his
power over the positive law arises from the need of keeping it in agreement
with natural law.

There are two concepts as to the derivation of human law in the
twelfth, thirteenth, and fourteenth centuries. There was the concept
of law'as custom, and the concept of law as conscious will and determination.
The former was being modified by the latter during this period. This

modification was the beginning of the modern theory of sovereigntyeethat

89
is the conception that there is in every political society the power of
making and unmaking laws, that there is some final authority which knows
no legal limits, and from which there is no legal appeal. This is the
essence of Marsilio's legislative sovereignty of the people. It was
normally held during this period that law was established not by the princes
alone, but by the prince with the counsel and consent of the great men,
and, in some general sense, the approval of the whole community. This
is the principle of legislation which the Middle Ages left to the modern
world.173i

There was not only certain restrictions placed on the ruler by
natural and human law, but there was a legal method of enfbrcing these
restrictions. The refusal of obedience was the first aspect of what may
be called the legitimate method of enforcing the limitation of the authority
of the ruler. The release of the subjects from their oaths of allegiance
was a means employed by the church to restrict the ruler. In some cases
direct resistance to the arbitrary and illegal action of the ruler was
itself legal. Deposition was resorted to only when it became clear that
moderate means had failed to correct the situation. Unity and order was
of utmost importance, and Christian subjects were to consider the total
effects upon the welfare of all the citizens before taking action against
a ruler.

Political authority was not only limited by its nature but also
by its purpose. Political authority had as its object to attain and
secure the common good. The common good was of far greater significance
than the good of the individual, because any whole is greater than its

part. Society was conceived as being composed not of individual units,

90
but rather of classes and orders. Like all nature society is a system of
ends and purposes in which the lower serves the higher and the higher
guides and directs the lower. Following Aristotle, Aquinas described
society as a mutual exchange of services for the sake of a good life to
‘which many callings contribute, the farmer and the artisan by supplying
material goods, the priest by prayer and religious observance, and each
class by doing its own proper work. Marsilio considered the state as a
kind of "living being" composed of'parts which perform the functions
necessary to its life. The ruler is necessary in order to maintain the
proper interaction between the various functional elements within the
state and hereby to secure the common good.

Hence rulership is an office or'trust for the whole community.
The ruler's power is a ministry or service to the community of which he
is the head. The office of rulership is a trust and service to the
community because its derivation, both as a position and power, originated
from the people. Though Aquinas and Marsilio both agreed as to the
representative character of the ruler's office, yet there was a different
emphasis as to the ultimate source of'political power. Aquinas considered
that ultimately the ruler's power is derived from God for the happy
ordering of human life in order that people may realize the virtuous
life. The moral purpose of government is paramount. Finally, this
ordering must lead to a good beyond earthly society, to a heavenly life,
but this is beyond human power and is in the keeping of priests rather
than rulers. Marsilio felt that the ruler's power is derived from the
people, and the ruler is to so direct and regulate temporal affairs that

people might realize the sufficient life. The primary responsibility

91
of the ruling part is to execute the decrees which have been established
by the legislator. The ruler acts with the legal determination of the
community. Aquinas emphasized the limitations placed upon the ruler
because of his moral responsibilities, whereas Marsilio stressed the
legal responsibility of the ruler to the peopleAJ/l

Aquinas and Marsilio are in basic agreement that it is necessary,
if the common good is to be realized, that the ruler not have absolute
authority. There must be redress against tyrants and unlawful rulers who
are seeking their own private benefit rather than the common good.

- Aquinas so closely aligned the common good and natural law that any

ruler who was not governing for the former was acting contrary to the.
latter. He was morally irresponsible and on this basis the people were
not obliged to obey him, andcould take the proper action to have him
removed if the circumstances warranted such action. Marsilio considered
that the achievement of the common benefit through the rule of one or a
few was impossible. One or a few men through ignorance or a vicious
emotion would pervert supreme authority to their own interest ahd desires.
They must, therefore, be subject to the impartiality of law which has
been determined by the legislator.

It is from the Middle Ages that the modern world has inherited
the representative system, and this system was the natural development
of the fundamental political conception of medieval societymuthat is, that
the community is the source of all political authority. The executive
power is only the agent of the community to put into effect whatever
decrees are issued by custom or directly by the community; and because of

this unity there is no.room for differences of jurisdiction or dispersion

92
of power. The ruler is to represent the common benefit and good of the
whole community, and this can best be done by his working within the
framework of the law and reflecting the will of the people in his every
action.

One of the important political concepts that arises out of this
period is the doctrine of the contracthetween the ruler and the ruled,
because upon this were built the principles of the nature and limitations
of the authority of the prince. The ruler contracts to seek in all his
acts the good of the community by assuming the government of the state.
If he breaks his part of the contract the people remain free to break
theirs. If the ruler proves unfit for his position, he can with justice
be removed. When Marsilio laid speCial stress upon the principle that it
was the community which was the source of all positive law, that it was
from the community that the ruler received his authority, and that the
community which had given the authority could also withdraw it, if he
violated the law, he was implicitly asserting the doctrine of the contract.

Political authority was not only limited by its nature and purpose
but also by its structure. The exact form that the constitution should
take was never definitely stated. The form of the constitution would
vary according to time and place. However, both Aquinas and Marsilio
felt that the best form of government was one in whic} all the citizens
participated. Aquinas considered that this best could be accomplished
by combining the principles of monarchy, aristocracy, and democracy in
a mixed form of government. Marsilio upheld a system of government in
which all the citizens participate according to their rank and ability.

He sought to achieve the proper proportion between the various functional

93
groups of society which would best advance the welfare of the entire
citizen body. This type of government in which the various political
orders and functional groups are properly mixed and proportioned prevents
the ruler from exercising any undue authority.

The structure of the state limited the ruler in his function.

The ruler's primary purpose was to provide the directive force necessary
to preserve and maintain order and unity in the realm. But even in the
provision of a military force necessary for the maintenance of order,
Marsilio would have its size determined by the legislator in order to
prevent any usurpation of authority. The ruler was to have the

necessary coercive force to execute the laws prescribed by the legislator,
but not enough power to exceed that of the entire or the majority of
people. Aquinas' conception of the function of’the ruler is not nearly
as definable and specific as that of Marsilio. This is so because Aquinas
conceived of the ruler operating within the framework of not only human
law but also moral and divine law.. Thus the ruler functions within the
divine direction of the world which gives government moral and religious
significance. But whatever the framework of government, the function of
the ruling part was to provide the means necessary for the virtuous

and sufficient life.

Finally. political authority was limited by its character. There
were certain qualities which were to characterize the ruler in the exercise
of his office. The most important quality befitting a ruler was justice.
An unjust ruler was a usurper and a tyrant who ruled for private benefit
and personal gain rather than for the common good; whereas, a just ruler

executed the law with impartiality for the common benefit of all the citizens.

94
A quality concomitant with justice was prudence. Prudence was necessary
in order that the ruler might judge properly concerning practical affairs
indeterminable by law. The ruler should render obedience to the church
so that he might secure the eternal welfare of himself and his subjects.
However, Marsilio considered obedience to the church purely voluntary.'
Another quality which should characterize the ruler was benevolencei///
Without love for the polity and its citizens, the ruler would lack the
proper motivation to secure the good of all.

Election is the means by which these qualities are most easily
obtained. The qualities can be easily erased if there is a long extension
of monarchical rule by hereditary succession. Whereas election presents
the opportunity to secure new leadership with the accompanying desirable
qualities. Furthermore, new restrictions on the ruler's authority‘can
accompany an election; if these restrictions are deemed necessary. An
elected ruler by virtue of receiving his office from the people will be
more sensitive to their needs and more diligent to their welfare. The
people who make up the citizen body are rational beings capable of knowing
and judging the common good. They would, therefore, select a ruler with
the qualities of character which would further the common good. Thus
the expectation of the people as to those qualities which should characterize
the ruler serves as a reminder to him to exemplify those characteristics.

The political order of the Middle Ages was built upon certain

T
religious, moral, and legal principles which resulted in a system of
limited and constitutional government. The culmination of this develop-
ment was in the creation of a system of government which could be conceived

of as representing the whole community. The proper character of the

95
of the political society of the Middle Ages is to be found in the principle
that all political authority, whether of the law or the ruler, is derived
from the whole community. ;It is the community which invests the ruler
with legitimate authority, and only the ruler, in the last analysis, has
the right to depose him. Justice can only be accomplished when the ruler
and the ruled live together under the supremacy of law. The medieval
period was one of conflict, controversy, turbulence, and sometimes
violence, but a remedy was found for this condition, not in a monarchical
absolutism, but in the recognition of the supreme authority of law and

justice.

96
BIBLIOGRAPHICAL ESSAY

Primary Sources

The primary source materials used in the writing of this thesis
are editions and translations of original works. The important source
for a study of the papal theories and ideas of Pope Gregory VII are
contained in The Correspondence of Pope Gregory VII, tr. Ephraim Emerton
(New York, 1932). The letters are arranged chronologically and cover
the period from 1073e1083. They are extracts from a much larger group
of letters from the Registrum of Pope Gregory VII in Bibliotheca Rerum
Garmanicarum, ed. Philip Jarre‘,’ II (Berolini, 1865), 1-519. Some of the
more important letters were taken from the istolae Collectae in
Bibliothoeca Rerum,Germanicarum, ed. Philip Jaffél II (Berolini, 1865),
528-576. The Summa Theologica of St.‘Thomas Aguinas, tr. the Fathers
of the English Dominican Republic, 22 vols. (London, 191hu1942) is the
primary source used for Thomas Aquinas' political thought. Especially
important are Vols. 8 and 10 concerning law and justice. Appended to
the translation is added information concerning scriptural references,
ecclesiastical authorities, popes, general councils, synods, and philosophers
referred to by Aquinas in the Summa Theologica. Marsilius of Padua: The
Defender 9f Peace, tr. Alan Gewirth, Vol. II (New Ybrk, 1951) is the
,first English edition of Marsilio's work and a very important one for
the student of political theory.

A Other primary sources are A. P. d"entreves, Aquinas Selected
(Political writings, tr. J. G. Dawson (Oxford, 19A8), which consist of

selected translated sections of Aquinas' political thought; The Political

Ideas of St. Thomas Aquinas, ed. Dino Bigongiari (New Ybrk, 1957), which

'0

97

presents the ideas of Thomas Aquinas on politics, justice, and social
problems as set forth in the Summa Theologica, and on forms of government
as presented in De Regimine Principum.

An important source for a knowledge of the basis of papal claims
is contained in The See of Peter, ed. James T. Shotwell and Louis Roper
Loomis (New York, 1927). This book is an anthology of quotations tracing
by documentary outline the Petrine tradition and the rise of the Roman
See for three hundred years after Peter's death. Alongside the translation
of texts are brief editorial comments by the editors. This volume is an
invaluable source of texts upon which the papacy rested its claims and
asserts its great prerogatives. A work which is significant for'medieval
political theorists is Ewart Lewis, Medieval Political Ideas, 2 Vbls.
(London, 1954). The importance of this work is the translation of
important medieval political ideas which otherwise would not be available
ot nonspecialists. The book follows a topical organization with a

running commentary and a list of footnotes at the end of the book.

Secondary Sources
A survey of canonist political thinking from the second half of

the twelfth to the end of the fourteenth century is contained in Walter
Ullmann, Medieval Papalism (London, 1949). His contention is that the
main medieval canonist tradition supported the theory of direct papal
power in temporal affairs. With this should be compared a review of
Ullmann's book by A. M. Stickler under the title "Concerning the Political
Theories of the Medieval Canonists" in Tradito, VII (1951), 450-463, in

which Ullmann's interpretation is strongly criticized as one-sided. In

98

a later book, The Growth of Papal Government in the Middle Ages
(London, 1955L,Ullmann attempts to trace the hierocratic papalist
ideology of later medieval times back into the Dark Ages and even the
patristic period. His most striking contention is that a theory of
dualism in the relationship of the early medieval church and the secular
power was the exception rather than the rule. The Gelasian theory itself
was not an assertion of dualism but a claim for the papacy of monastic
supremacy, even in the temporal sphere. The theme of the whole book is
the conflict between this claim and the rival Caesaro-papist claim of the
secular Christian authority.

A very valuable book for an examination of the philosophy of
Thomas Aquinas is Hans Meyer, The Philosophy of St. Thomas Aguinas,
tr. Rev. Frederic Eckhoff (London, 1944). This work contains a thorough
but not extensive examination of Aquinas' theory of law; it also contains
useful articles on the historical influences on Aquinas, and his contribution
to philosophical thought. The author demenstrates a good understanding
of the scope<uTThomistic philoSOphy. Thomas Gilby, The Political
Thought of Thomas Aquinas (Chicago, 1958), gives insight into the various
influences on the political thinking of Aquinas. This book is divided
into two sections. The first is introductory, containing events and
ideas which Aquinas had to reckon with, arranged under four chapter
headings on theology, law, social history and philosophy. What Aquinas
made of these sometimes conflicting elements is discussed in the four
corresponding chapters of the second part, and recapitulated in the
concluding summary. Geral Vann, St Thomas uinas (London, 1940) is

'written primarily for the non~Catholic reader "who finds himself attracted

99
to the breadth and depth of his wisdom." The author, not being an historian,
leans heavily on Christopher Dawson and Etienne Gilson.

Alan Gewirth, Marsilius of Padua: The Defender of Peace, Vol. I
(New Yerk, 1957), believes that Marsilio's idea of the state embodies
genuine democratic elements and that Marsilio‘s community retains a
right of ultimate control over the ruling part. Gewirth holds that
the Marsilian disassociation of politics from ethics was assisted partly
by an emphasis on the biological rather than the teleological aspect of
Aristotle's approach and partly from the ulitization of St. Augustine's
political pessimism. A brief summary of Marsilio's political philosophy
is contained in Ephraim Emerton. The Defensor Pacis of Marsiglio of Padua
(New York, 1951). The author takes the position that Marsiglio was the
predecessor’of certain modern political ideas such as majority rule.

C. Kenneth Brampton, "Marsiglio of Padua, Life," English
Historical figview, XXXVII (1922), 5014516, contains some pertinent facts
and events of the life of Marsilio. Alan Gewirth, "John of Jandum and the
Defensor Pacis." Speculum, XXIII (1948), 267-272, adduces new evidence
with respect to the question of the authorship of the Defensor Pacis.

. Gewirth contends that the Defensor Pacis was not of joint authorship but
was written by Marsilio exclusively. He examines John of Jandum's
Qgestions on Metaphysics in order to point out the difference in viewpoint
between him and Marsilio. - ’

Certain general works on political theory have been useful in
,preparing this study. Charles HowaranCIlwain, The Growth oprolitical
Thought in the West from the Greeks to the End of the giggle Ages

(New Ybrk, 1932) traces European speculation on politics from its beginnings

100
in classical times to the transition from medieval to modern thought at
the close of the fifteenth century. The main theme of the book is the
combination of Graeco-Roman, Germanic and Christian concepts by medieval
tradition to bring about a society in which central government was
limited, not by specific constitutional checks, but by rights conceived
as belonging in general and in particular to the members of the community.
A book especially valuable for its extensive use of original sources is
R. w. and A. J. Carlyle, Medieval Political Theory in the West, 6 Vols.
(London, 1903-36). In general the earlier Middle Ages up to the thirteenth
century are treated more satisfactorily than are the fourteenth and fifteenth
centuries, which are dealt with more sketchily. The six volumes deal
respectively with: 'classical and early Christian thought; the Canonists
and Civilians; feudal and Germanic ideas; the Investiture Contest; the

thirteenth century; the fourteenth, fifteenth, and sixteenth centuries.

Otto Gierke, Political Theories of the Middle Ages, tr. Frederic

William Maitland (Cambridge, 1951) has as its main thesis that the men of
the Middle Ages did not follow up the logical implications of their own
political thought. Gierke holds that this thought, embodied in the ideals
of unity and organic arrangement of society, necessarily implies the
concept of "group personality." He attributes the failure to evolve such
a concept to the intrusion Of what he describes as "antiqueumodern"
conceptions of politics, which tended to regard all legal entities other
than the state and the individual as "fictitious." Maitland's introduction
to his translation is a good exposition for English readers of Gierke's

theory. An example of the stringent criticism to which Gierke's outlook

101

has been subjected in recent years in Ewart Lewis, "Organic Tendencies
in Medieval Political Thought," Amegipan Political_§pience Review, XXXII
(1938), 849-876.

Another book written to prove a thesis was Ernst Troeltsch,
The Social Teachipgyof the Chrietiap_Churches, 2 Vols. (London, 1931).
Troeltsch maintains that primitive and Patristic Christianity had no
interest outside the spiritual life of its own fellowship, took no trouble
to work out a political philosophy, but contented itself with taking over
the already existing classical concepts, such as the Law of Nature.
Medieval Catholicism, on the other hand, forced by circumstances into
more intimate contact with civil society, sought to control the whole of
social life. In practice, however, the church made little change in the
classical idea of Natural Law, upon which it superimposed the sanctions
and graces of revealed religion. Thus there was no attempt in the Middle
Ages to create a distinctively Christian social or political ethic; the
church was content to act as the interpreter and enforcer of rational
natural law. Other general works are George H. Sabine, A History of
Pplitical Theopy (New Yerk, 1958), Chapters XII, XIII, XV being especially
helpful; Sidney Painter, "Church and State in the Middle Ages," ed.
HeppethnM._Setton and Henry R.‘Winkler,/Great Problems in European Civilization
(New York, 1954), 135-172 is significant for its presentation of the
church-state controversy by means of original writings and editorial

comments.