Bartolus of Sassoferrato

Front matter

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Preface

THAVE to thank the Adjudicators of the Thirl wall Prize for kindly allowing me to make all such additions and alterations, as I thought necessary to my essay before publication. I have accordingly added a few pages to the introductory Chapter I ; the pages in Chapter III dealing with Dante, Petrarch and other Italian thinkers ; and the short cone] uding Chapter. The material for these additions had been almost entirely collected before the essay was submitted to the Adjudicators, though lack of time had then prevented me from working it up. On the other hand, as a result of some further research, I have recast the end of Chapter III and made one or two small additions to Appendix A.

Next year will be the six-hundredth anniversary of the birth of Bartolus, and the history of his posthumous fame, which is written in the catalogues of most large libraries, is instructive. For two centuries after his death he was recognised as "the prince of jurists"; from the invention of printing to the close of the sixteenth century, one edition of his works followed another. But Humanism, slowly, it is true, and not without protest, shattered his reputation. His works ceased to be printed, and the old editions were consigned

Vlll PREFACE

to the dust and cobwebs, which were for long thought the proper hiding-place of such " Gothic " authors. It was only the last century which restored Bartolus to "polite" learning.

Bartolus has returned, not merely as a great lawyer, but as a political thinker — an important, if not a great, one. Of course, there must always be a large tract of debatable border-land between Law and Politics, however rigidly we separate one science from another. But this does not alter the fact that, to call Bartolus a political thinker, is to give him a title to which he himself made no claim, and which would, I think, have rather surprised him. This has seemed to me a distinction of great importance. I have referred to it more than once in the essay itself, the form and scope of which it has necessarily affected.

I may refer here to a topic, which I have considered outside the range of this essay. The authenticity of many of the works of Bartolus was already doubted at the Renaissance, and even earlier. Clearly, this is a question of some importance; and Savigny 1 , who is, so far as I know, the only modern authority who has handled it, does not pretend to have done so exhaustively. But the material for deciding the question finally was not to be found in England, even supposing I had been competent to decide it. The obvious course was, therefore, to follow Savigny — and this I have done with one or two exceptions. I have followed him in accepting the authenticity of the Commentaries on the Digestum Veins (with the exception of two " Repetitiones ") and on the Infortiatum ; I have also followed him in

1 Geschichte des rom. Rechts im Mittelalter, vol. vi. c. liii.

PREFACE IX

rejecting the Commentary on the Institutes. But I have accepted the Commentary on the Authenticum as genuine, as to which Savigny does not seem decided; and I have similarly accepted the whole of the Commentary on the Tres Libri. The evidence against this latter is merely the very decided statement of Jason and Diplovatacius, two famous fifteenth century lawyers of the Bartolist tradition, that the share of Bartolus in the work ends at the " Lectura " on C. xi. tit. 34, the rest having for author one Contes de Perusio. Now as this division corresponds with no ostensible difference ; as the " Lectura " on C. xn. 1. 1 is admittedly genuine ; as many of the " Lecturae " after, as before, the " Lectura " on C. xi. tit. 34 are signed, as being by Bartolus, in the one MS. 1 of the Commentary on the Tres Libri, which I have seen; and, finally, as the author of the " Lectura " on C. xi. 71. 1 expressly refers to a certain opinion of his, as held by him in the Tractatus Minoritarum 2 , which is admittedly by Bartolus, I can see no reason to reject the latter part of this work. The Commentary on the Digestum Novum has never been suspected (though it will be found in Appendix A of this essay that the " Repetitio " on D. xxxix. 4. 15 has been shown not to be by Bartolus). The Consilia, Quaestiones and Tractatus, referred to in this essay, present no difficulty.

A word of explanation is also necessary, I think, with regard to Chapter III. It will be remarked that

1 Venice, Bibl. Naz. CI. v. Cod. m.

2 P. 113, § 5 of the Bale ed. (1588-9): "Per hoe patet quod si legatum relinquitur ecclesiae S. Francisci, quod illud legatum est nullum... licet tenuerim contrarium in libello Minoritarum."

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X PREFACE

the political thinkers and publicists examined in that chapter are, with a few exceptions, all of a date anterior to that of Bartolus himself, and that the four political thinkers of prime importance, who were his contemporaries — Marsiglio of Padua, William of Occam, Lupoid of Bebenburg, and the author of the Somnium Viridarii — receive only incidental notice. My apology must be that this is a work which has had to be finished within a given time, and that though, had the time and space at my disposal been unlimited, I should have attempted to continue my survey of political thought down to the close of the period with which this essay is concerned — and the proper close seems to me to be the return of the Popes from Avignon — to do so was not essential to my thesis. My aim in Chapter III was to demonstrate the existence of what I have called the Problem of the Empire, in the period which followed the fall of the Hohenstaufen, and to show that, while the problem faced the political thinker and publicist no less than the lawyer, the answers given to the problem by the former were very deeply affected by two causes, which operated hardly at all, or at least very little, on the answers given by the latter. Thus, to take an example, if I have succeeded in demonstrating the German answer to this problem by my analysis of the Be Praerogativa Romani fonperii of Jordan of Osnaburg and the Notitia Saeculi, it was not necessary, however interesting it would have been, to compare these earlier treatises with the treatise written some sixty years later by Lupoid of Bebenburg, De Jure Regni et Imperii. The earlier treatises can, of course, bear no comparison with the brilliant and acute treatise of

PKEFACE XI

Lupoid; but, as regards this problem, the answers of all three are, in essentials, the same — German. Similarly, to demonstrate the French answer, it was not necessary, after my analysis of the Be Potestate Regia et Papali of John of Paris and other contemporary treatises, to analyse the Somnium Viridarii. Where the later treatise in. one very important regard has advanced beyond the earlier treatises, I have noted it ; but, this point apart, the answer of the Somnium may be fuller than the earlier answers, but it is not a new answer. Neither in the German nor in the French answers to this problem was there the sort of development, which, I have attempted to show, took place in the Italian answer.

Whether any apology is necessary for the amount of Latin which I have quoted in the text of this essay, I do not know. The practice is clearly disadvantageous from the point of view of literary form ; but I think that there is a more than balancing compensation in having before one, as often as possible, the actual words of the thinker, with whom one is concerned. What men say is not the only important thing : often it is equally important to know how they have said it. Besides, the works of Bartolus, despite innumerable editions, are not always accessible; and, in all cases to have put his own words into footnotes, and to have translated, or given the sense of the passages quoted, in the text, would have been to expand the essay to an unwieldy size.

In addition to my thanks to the Adjudicators of the Thirlwall Prize for their permission to alter or add to my essay, I owe a great debt of gratitude to Dr Figgis.

Xll PREFACE

It was he who set me on the subject of Bartolus, and — to leave out of account what this essay owes to his published books, to which my footnotes bear testimony — my thanks here can be no adequate acknowledgment of all I owe to the advice, which he has always been ready to give me. By reading the proofs, as the essay went through the press, he has honoured it in a way which only makes me wish the more that it were somewhat worthy of his notice. I have also to thank Mr Morant, of the India Office, for his kindness in reading the proofs, and my brother, Philip Sidney Woolf, who has helped me with the Index — but that is the least of the obligations which this essay owes him, but which neither he nor I would number or repay with public thanks.

C. N. S. W.

London,

October 1913.

NOTE ON AUTHOKITIES

Throughout this essay, unless the contrary is specially stated, I quote from, and refer to, the works of Bartolus in the edition published at Bale 1 in 1588-9, in eleven volumes folio (including a volume of index). In making my references or quotations, I have referred to the title of the volume in the Bale edition. Thus Commentary on Digestum Vetus

Part II. (i.e. Dig. xn. — xxiv. tit. 2) = „ „ „ II. Commentary on Infortiatum

Parti, (i.e. Dig. xxiv. tit. 3 — xxix.)= „ „ „ III.

Part II. (i.e. Dig. xxx. — xxxviii.) = „ „ „ IV. Commentary on Digestum Novum

Part I. (i.e. Dig. xxxix. — xliv.) = „ „ „ V.

Part II. (i.e. Dig. xlv. — l.) = „ „ „ VI.

Commentary on Codex

Part I. (i.e. Cod. i.— v.) = „ „ „ VII.

Part II. (i.e. Cod. vi.— ix.) \ _

Tres libri (i.e. Cod. x.— xn.) J ~ " "

Commentary on Authenticum

(i.e. Novels) = „ „ „ IX.

Consilia, Quaestiones, Tractatus = ,, „ „ X.

1 The references are to this Bale ed., but as I was not always able to obtain it, when writing this essay, the actual wording of some of the quotations has been taken from other editions, chiefly a Turin ed. (1577) and a Venice ed. (1596). The texts differ occasionally in the different editions, but the differences are purely verbal and do not affect the sense of the passages in any way.

2 The Comment, on the Tres Libri has separate pagination.

VIII 2 .

XIV NOTE ON AUTHORITIES

Of the other authorities referred to, or quoted, in this essay I have used the following editions (works which are referred to in this essay as existing in periodical publications, the proceedings of societies, collections of treatises or monographs, being included in the general heading of the work containing them) : Abhandlungen der kbnigl. Gesellschaft der Wissenschaften zu

Gottingen, vol. xiv. Gottingen, 1869.

Acton (Lord), Letters... to Mary, daughter of Rt Hon. W. E.

Gladstone. London, 1904.

Albericus (de Rosate), Commentarium in Codicem. Lyons, 1545. Andreas (de Iserina), Super usibus Feudorum. Venice, 1514. Aquinas (S. Thomas), Summa Theologica. Paris, 1638.

explanatione. . . .His accessere D. Thomae de regimine principum libri quatuor.... Venice, 1568.

De Adventu et Statu et Vita Antichristi (ed. F. H. de

Ferrari). Rome, 1840.

Archivio Giuridico, vol. xxviii. Bologna, 1881. Aristotle, Politics, (ed. Newman). Oxford, 1887-92. Augustinus (Triumphus), Summa de Ecclesiastica Potestate.

Lyons, 1489 (?), without pagination.

Baumann (J. J.), Die Staatslehre des h. Thomas von Aquino.

Leipzic, 1873.

Bernabei (C), Bartolo da Sassoferrato e la Scienza delle Leggi.

Rome, 1881.

Bethmann-Hollweg (M. A. von), Der Givilprozess des Gemeinen

Bini (V.), Memorie Istoriche della Perugina Universita. Perugia,

1816.

Blondel (G.), Etude sur la Politique de VEmpereur Frederic II en

Allemagne Paris, 1892.

Bodin (J.), De la Republique. Paris, 1578.

Boehmer (J.), Fontes Rerum Germanicarum, vol. I. Stuttgart, 1843.

Bollettino della R. Deputazione di Storia Patria per V TJmbria,

vol. ii. Perugia, 1896.

Brandi (B.), Notizie intorno a Guillelmus de Cunio.... Rome,

1892.

Bryce (J.), The Holy Roman Empire. London, 1907.

NOTE ON AUTHORITIES XV

Bury (J. B.), The Constitution of the Later Roman Empire.

Cambridge, 1910.

Butler (A. J.), Forerunners of Dante.... Oxford, 1910. Buttrigarius (J.), Commentarium in Codicem. Paris, 1516. Carducci (G.-), Rim.e di M. Gino da Pistoia e oV altri del secolo XIV.

Florence, 1862..

Carlyle (R. W. and A. J.), History of Medieval Political Thought

in the West. Edinburgh and London, 1903-9. 'Chiapelli (L.), Vita e Opere Giuridiche di Cino da Pistoia.

Pistoia, 1881.

Cino (da Pistoia), Commentarium in Codicem. Frankfort, 1578.

Rime di Messer Cino da Pistoia, (ed. Bindi and Fanfani)-

Pistoia^ 1878.

Constitutiones et Acta Publica Pmperatorum et Regum, vol. I. (in

"Monumenta Germaniae Historica"). Hanover, 1893. Corpus Juris Canonici (ed. Friedberg). Leipzic, 1879-81. Corpus Juris Civilis (ed. Krueger, Mommsen, etc.). Berlin,

1889-95.

D'Ancona (A.), II Concetto della Unitd Politica nei Poeti Italiani

(Discorso).- Pisa, 1876.

Dante, Tutte le Opere (ed. Moore). Oxford, 1904. Denkschriften der haiserl. Akademie der W issenschaf ten, phil. -hist.

Classe, vol. u. Vienna, 1851.

Dollinger (I. von), Historical and Literary Addresses (transl. . Warre). London, 1894.

Fables respecting the Popes of the Middle Ages (transl.

Plummer). London, etc. 1871.

Dupuy (P.), Histoire du differ end Centre le Pape Boniface VIII et

Philippes le Bel, Roy de France. Paris, 1655. Durandus (G.), Speculum Juris. Frankfort, 1668. . Egidius (Romanus), Be Regimine Principum. Rome, 1607. English Historical Review, vols. ix. and x. London, 1894 and

1895.

Epistolae Saeculi XIII, vol. I. (in " Monumenta Germaniae

Historica"). Berlin, 1883.

Faber (J.), Breviarium super Codice. Louvain,. 1475 (?). Feret (P.), La Faculte de Theologie de Paris. et ses Docteursles

plus celebres. Paris, 1894-7.

XVI NOTE ON AUTHORITIES

Ficker (J.), Forschungen zur Reichs- und Rechtsgeschichte Italiens.

Innsbruck, 1868-74.

Figgis (J. N.), Studies of Political Thought from Gerson to Grotius.

Cambridge, 1907.

Finke (H.), Aus den Tagen Bonifaz VIII (no. 2 of "Vorre-

formationsgeschichtliche Forschungen"). Minister in W.,

1902.

Fisher (H. A. L.), The Medieval Empire. London, 1898. Gentilis (Albericus), Be Juris Interpretibus Dialogi Sex. London,

1582.

Gierke (0. von), Das Deutsche Genossenschaftsrecht. Berlin,

1868-81.

Political Theories of the Middle Age (transl. Maitland).

Cambridge, 1900.

Johannes Althusius...(no. 7 of Gierke : s "Untersuchungen").

Breslau, 1880.

Giornale di Erudizione Artistica, vols. v. and VI. Perugia, 1876

and 1877.

Glossa Magna (to the Digest). Venice, 1584. Goldast (M.), Monarchia S. Romani Imperii.... Frankfort,

1611-14.

— — Politica Imperialia Frankfort, 1614.

Graf (A.), Roma nella Memoria e nelle Immaginazioni del Medio

Evo. Turin, 1882-3.

Gregorovius (F.), History of the City of Rome in the Middle Ages

(transl. Hamilton). London, 1900-9.

Grotius (J.), De Jure Belli ac Pads. Amsterdam, 1631. Hardegen (F.), Die Imperial politik Konig Heinrichs II von

England (no. 12 of " Heidelberger Abhandlungen"). Heidelberg, 1905.

Heller (J.), Deutschland und Frankreich in ihren politiscken

Beziehungen vom Ende des Interregnums bis zum Tode Rudolfs

von Habsburg Gottingen, 1874.

Munich, 1892.

Hugelmann (C), Die deutsche Kbnigswahl im Corpus Juris

Canonici (no. 98 of Gierke's " Untersuchungen "). Breslau,

NOTE ON AUTHORITIES XV11

Huillard-Breholles (J. L.), Vie et Correspondance de Pierre de la

Vigne. Paris, 1865.

Igneus (J.), Commentarii in Aliquot Constitutiones Principum

itemque in aliquot Responsa Juris consultorum. Lyons, 1541. Innocent IV (Pope), Commentaria super Libros quinque Decre-

talium. Frankfort, 1570.

Jafte (P.), Monumenta Gregoriana. Berlin, 1865. Journal of the Society of Comparative Legislation, vol. v., new

series. London, 1905.

Kampers (F.), Kaiserprophetieen und Kaisersagen im Mittelalter

(no. 8 of Heigel and Grauert's "Historische Abhandlungen").

Munich, 1895.

Knecht (A.), Die Religionspolitik Kaiser Justinians I. Wiirzburg,

1896.

"/Krammer (M.), Die Reichsgeddnke des staufschen Kaiserhaus (no.

95 of Gierke's " Untersuchungen "). Breslau, 1908. Kraus (F. X.), Dante. Sein Leben und sein Werk. Berlin, 1897. Lancellotti (J. P.), Vita Bartoli.... Perugia, 1576. Lattes (A.), Un Punto Controverso nella Biografia di Bartolo.

Turin, 1898.

Libelli de Lite (in "Monumenta Germaniae Historica"). Hanover,

1891-7.

Lucas (de Penna), Commentarium in Tres Libros Codicis. Lyons,

1591.

Maitland (F. W.), English Law and the Renaissance. Cambridge,

1901.

Marquardsen (P.), Handbuch des oeffentlichen Rechts der Gegen-

ivart. Freiburg im B., 1887.

Mazzuchelli (Conte), Gli Scrittori d) Italia.... Brescia, 1753 — 63. " Meili (F.), Bartolus als Haupt der ersten Schule des intemationalen

Strafrechts. Zurich, 1908.

Melanges Fitting. Montpellier, 1907-8.

Melanges Paul Fabre. Paris, 1902.

Migne (J.), Patrologia Latina, vol. xli. Paris, 1841. Mirbt (C), Die Stellung Augustinbs in der Publizistik der Gre-

gorianischen Kirchenstreits. Leipzic, 1888. Mittheilungen des Institutsfilr oesterreichische Geschichtsforschung,

vols, vii., xvi., and xix. Innsbruck, 1886, 1895 and 1898.

XVlli NOTE ON AUTHORITIES

Muratori (J.), Rerum Italicarum Scriptores, vol. xi. Milan,

1727.

Negroni (C), Dante Alighieri e Bartolo da Sassoferrato. Lonigo,

1890.

Niemeier (A.), Untersuchungen ilber die Beziehungen Albrechts I

zu Bonifaz VIII (no. 19 of Ebering's "Historische Studien").

Berlin, 1900.

Notices et Extraits des Manuscrits de la Bibliotheque Imperiale,

vol. xx. part 2. Paris, 1862.

Nouvelle Revue Historique de Droit Francais et Etranger, vol. xiv.

Paris, 1890.

Nuova Antologia, vols. iv. and vi. Florence, 1867. Ohr (W.), Der karolingische Gottesstaat in Theorie und Praxis

(Dissertation). Leipzic, 1902.

Oldradus (de Ponte), Consilia et Quaestiones. Rome 1472, without

pagination.

Padaletti (G.),- Contribute alia Storia dello Studio di Perugia nei

secoli XIV e X V. Bologna, 1872.

Pertile (A.), Storia del Diritto Italiano.... Turin, 1891 — 1903. Petrarch, Epistolae de Rebus Familiaribus et Va?-iae...(ed. Fraca-

setti). Florence, 1859-63.

Opera quae extant omnia. Bale, 1554.

Petrus (de Bella Pertica), Repetitiones in aliquot... Codicis Leges.

Frankfort, 1571.

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1910.

Pom tow (M.), Ueber der Einfluss der altrbmischen Vorstellungen

vom Staat auf die Politik Kaiser Friedrichs I und die An-

schauungen seiner Zeit (Dissertation). Halle, 1885. Poole (R. L.), Elustrations of the History of Medieval Thought.

London, 1884.

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1884.

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1893.

Renan (E.), Averroes et V Averro'isme. Paris, 1852.

NOTE ON AUTHORITIES XIX

Revue Ristorique, vol. xlix. Paris, 1892.

Biezler (S.), Die liter arische Wider sache der Pdpste zur Zeit

Ludwig des Baiers. Leipzic, 1874.

Robertson, (A. bishop of Exeter), Regnum Dei (Bampton Lectures).

London, 1901.

Salvemini (G.), La Teoria del Bartolo da Sassoferrato sidle

Gostituzioni Politiche (in " Studi Storici "). Florence,

1901.

Sandys (Sir E.), Europae Speculum.... London, 1687. Savigny (F. C. von), Geschichte des romischen Rechts inn Mittelalter.

Heidelberg, 1834-51.

Scholz (R.), Die Publizistik zur Zeit Philipps des schonen und

Bonifa£ VIII (nos. 6 — 8 of Stutz's " Kirchenrechtliche

Abhandlungen "). Stuttgart, 1903.

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(no. 26 of " Heidelberger Abhandlungen"). Heidelberg,

1910.

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Sitzungsberichte der phil.-hist. Classe der kaiserl. Akademie der

Wissenschaften, vol. lxxxviii. Vienna, 1878. Stintzing (R. von), Geschichte der populdren Literatur des romisch-

kanonischen Rechts in Deutschland Leipzic, 1867.

Textes pour servir a Vetude de Vhistoire. Paris, 1891.

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Rome, 1861-2.

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Ravanis).... Paris, 1899.

Transactions of the Royal Historical Society 1 , vols. xix. (2nd

series) and v. (3rd series). London, 1905 and 1911. Witte (J. H. F. C), De Bartolo a Saxoferrato, Dantis Alligherii

1 The paper in vol. xix. "Bartolus and European Political Ideas," by Dr Figgis is reprinted in the new ed. of his Divine Right of Kings ; his paper in vol. v., " Respublica Christiana," will be reprinted, he tells me, in a new book on the Churches in the Modern State.

CHAPTER I INTRODUCTION (pp. 1 — 20)

Outline of the life of Bartolus (p. 1). Bartolus a lawyer, not a political philosopher (4). Bartolus and the Gloss (5). His independence (7). Practical character of his work (9). His conception of Civil Law (12) and of the civilian's task (19).

Chapter II The Political Theories Of Bartolus (21 — 207)

The Roman Emperor de jure lord of the world, though de facto not universally obeyed (21). The Empire conterminous with western Christendom (25). The Roman Emperor a German (28). The rights of the Emperor before coronation (30). The Empire a delegation from the People (34). The delegation irrevocable. The Emperor alone can now make general laws (36). His laws universally valid (40). The Emperor, though not bound by his own laws, is bound by the higher laws of God, Nature and Nations (45). He cannot deprive anyone of his property without cause (46). He cannot permit usury, though the Civil Law does permit it. Importance of the fact that the Civil Law was in great part of pre-Christian origin (47). But though the Emperor's, as all human, laws cannot contradict, they can amplify, the higher laws (48).

Relations of this de jure universal Empire with the powers, which de facto do not recognise it :

I. The Empire and the Papacy. Early history of their relations. The ' ' Gelasian ' ' theory of coordination and equality and the practical superiority of the temporal power in the early Middle Ages (53). The Investiture struggle recast both theory and practice. Primarily the

CONTENTS XXI

Papalists were combating the supremacy of the temporal power within the Church (57). Only when driven to it by the course of the conflict, did they maintain the human or sinful origin of the temporal power (61). In so doing they reverted to S. Augustine's distinction between the holy "Civitas Dei" and the sinful " Civitas terrena." Inapplicability of this distinction, when the Empire was no longer Pagan (64). The Imperialists in the main on the defensive (67). The entry of Eoman Law into medieval political thought. The " Gelasian " theory of the coordination and equality of the two powers became the typical standpoint of the lawyers (70) . This is illustrated by Bartolus himself (72). He extends the coordination of the two powers from their jurisdictions to their territories (75), though this does not exclude the conception of the Empire and Papacy as the two supreme rulingpowers of the universe (79). This is further illustrated by his treatment of Canon Law (80) . Importance of his attitude towards Canon Law and the canonists (85). But Bartolus, when compelled to consider the Papal claims to superiority over the temporal power, throws over the theory of the coordination and equality of the two powers in favour of the Papacy (86), and accepts the Donation of Constantine as valid (94) . ' ' Plane ludit ' ' (98) . Summary (99) . His thought on this topic of no great value in itself, but very valuable as illustrating the course of medieval thought (100). Criticism of the Respublica Christiana of Dr Figgis (101).

II. The Empire and the Regna. Bartolus was concerned with the cities of Italy, not with the kingdoms (107), though the problems presented by both were for the most part identical (108). Bartolus recognises the royal power as "de jure gentium," and the kings as independent, though within the Populus Romanus or Roman Empire (110).

III. The Empire and the Civitates. Difference between the conception of the Civitas in the political thought of the civilians and that of the Aristotelians (112). For the civilian the Civitas was merely a corporation (113). Thus the problem was to secure for the Civitas rights properly belonging only to higher political units (115). Bartolus establishes (1) the right of the Civitas to be considered a Respublica (116) ; (2) the right of the Civitas to be considered its own Fiscus (119) ; (3) the right of the Civitas to exercise Merum et Mixtum Imperium (122). This right is the distinguishing mark between the Provincia or Regnum and the Civitas (126). History of the terms (127). The Civitas, which owns no superior, can exercise Merum et Mixtum Imperium by concession, prescription or mere usurpation (134) ; (4) the right of the Civitas to legislate (144). History of the medieval Italian statutes and customs (145). The Civitas, as a licit corporation, can

XX11 CONTENTS

legislate on its own internal affairs (146). But the question at issue was, less the abstract right to legislate, than the limits within which the legislation was valid (147). The "collisio statutorum" (148). The collision of statutes or customs with the "jus commune" or the higher laws (149). The Civitas, which owns no superior, can legislate, as it wills, within its own boundaries (153). In fact, it is, within its own boundaries, the Empire in miniature — "sibi princeps" (154). Importance of this phrase, (160). The Civitas can now be considered a "State," and Bartolus regarded the fact that the majority of these Civitates were actually in the hands of tyrants, as a non-normal episode in their existence (162). Analysis of his Tractatus de Tyrannia (163). It now remains to consider the Civitas, as a State, with regard to (i) internal government (174) . While refusing to be dogmatic, Bartolus considers democracy the best form of government for the ordinary Civitas (175). The people is sovereign, the government dependent upon the people for its authority (181). This is illustrated by his treatment of the ' ' ambitiosa decreta ' ' of the Decuriones (182) . Significance of this democratic theory of the Civitas (188). The Tractatus de Guelphis et Gebellinis (189); (ii) external relations (195). The de jure universal Empire remains intact, in spite of de facto disobedience to the Emperor. The Emperor's place' is taken by Law (197). This is illustrated by the views of Bartolus on war, as between independent Civitates (198), and by his views on the Banniti (exiles) (200). Bartolus bases his scheme of international relations on the unity of western Christendom in one Populus Bomanus or Roman Empire, and on the universal validity of Roman Law (201). His Tractatus Reprae$alia,rum (203).

CHAPTER II [

THE PROBLEM OF THE EMPIRE (208 — 383)

The Empire again to be the centre of our inquiries (208). The problem of the Empire after the fall of the Hohenstaufen (209). Political conditions at the opening of the period (1) in southern Italy (212) ; (2) in northern Italy (213) ; (3) in western Europe generally. The growth of nationalism (214). Attempts of Charles of Anjou to secure the election of French Popes and a French Emperor (215). Radical reforms projected by Urban IV (218) and Clement IV (219). Proposals of Humbert de Romanis (220). Plans of Nicholas III (221). Significance of these projects (222). The treatise De Praerogativa Bomani Imperii of Jordan of Osnaburg. Question of its authorship

CONTENTS xxill

^227). Analysis of Chapter I (231). In spite of differences, the standpoint both of Chapter I and of the remaining chapters is essentially the same. They give us the German answer to the Problem of the Empire (234). Analysis of the remaining chapters (236) and of the Notitia Saeculi (251). Neither of these treatises shows any trace of being influenced by the new political theories based on Aristotle's Politics (266). The Aristotelians had to account for two great institutions foreign to the world of Aristotle himself — the Papacy (267) and the Empire (272) . The attempt of the continuation of the Be Regimine Principum of Aquinas to account for the Empire (275). The similar attempt of Engelbert of Admont (278). Analysis of his treatise Be Ortu et Fine Romani Imperii (281) . Its significance (289) . The Italian answer to the problem of the Empire as given by Dante (303), by Cino da Pistoia (308), and by Petrarch (309). The German and Italian answers illustrated by a comparison between poems of Lupoid of Bebenburg and Fazzio degli Uberti (312). The struggle between Boniface VIII and Philip the Fair produced the French answer to the problem of the Empire. The Papal claims to superiority over France. The Donation of Constantine (315). The Pope "verus imperator" (322). Importance of the "Imperial" claims of the Popes in the present struggle (328). The alliance of Boniface VIII and Albert, king of the Bomans (332). Boniface recognises the universality of the Empire (333), nor is he unique among the Papalists in doing so (335). Such recognition is not inconsistent with the doctrines of Papal supremacy (337). The French position — its aggressive side (341). Its defensive side (342). The Papal claims, so far as they were based on the Donation of Constantine, easily refuted (343). As Aristotelians, the French publicists could almost ignore the Empire (350) . At other times, they allow that the Empire may be subject to the Papacy, but deny that the same is true of France (353). But this line of argument was dangerous (355), and in fact we find them compelled to link the cause of the Empire to their own (358). We even find John of Paris more than once recognising the universality of the Empire (364). The real solution of the problem was contained in the phrase, current by the middle of the fourteenth century — " Bex in regno suo est Imperator regni sui" (368). The phrase is not to be found in the literature of the present struggle, except in the Quaestio in Utramque Partem (369), the date of which is disputed (370). History of the phrase (372). Bartolus was not the author of the phrase — the author was possibly Oldradus — but his ' ' Civitas sibi Princeps ' ' is the exact counterpart of the "Bex Imperator regni sui" (380), and he was the first to adopt the solution of the problem of the Empire, which these phrases imply, fearlessly, consistently and regularly (381).