the appeal to the passages of Scripture which enjoin obedi- CHAP. XV. ence to the powers that be, because they are ordained of God. Some thinkers conceived the delegation by the people to the Emperor to have been final and irrevocable. Some held it compatible with a fresh action by the people, and pointed out that when the Empire was transferred from the Easterns to the Franks by the election of Charles the Great, Rome (or the West generally) had resumed its ancient rights, and the Pope did no more than act as the spokesman of the people. Some, again, went so far as to argue that an Emperor who palpably transgressed the Law of Nature - it was agreed that both Emperor and Pope were subject to the Law of Nature, which was practically the Law of God - might be deposed by his subjects. An avowed heretic, for instance, could not demand obedience; indeed, an heretical or, let us say, anti-Christian Emperor like Julian would be a contradiction in terms. It was even held by some that not only the right of election, but also supreme legislative power, remained always in the people, though no one could say how the people were to exercise it, for there were no organs for popular legislation. A further and indeed an insoluble question was: Who were the people? The followers of Arnold of Brescia saw in the inhabitants of Rome the same populus Romanus which had of old exerted universal dominion. But such a claim was too bold even for the Middle Ages, and the better accepted view understood by 'the people' either the whole of the Emperor's actual subjects (totus populus imperio Romano subiectus), or all Christians, or mankind as a whole,'

d See esp. Romans xiii. 1-5; 1 Peter ii. 13-15.

Lupold of Bebenburg, De Iure Regni et Imperii Romani, cc. 12 and 17; and so William of Ockham, Octo Quaestiones.

f Cf. Ockham, Octo Quaestiones (quoted by Gierke, Iohannes Althusius), p. 85, note 30.

CHAP. XV.

i.e. all nations, acting, as Ockham suggests, by a majority. Widely as opinions differed upon these matters there was on two points a general agreement. Power originally belonged to the people, and was conferred by them upon the Emperor. Even St. Thomas of Aquinum recognizes this, though some later writers held that Christ when He came took all power to Himself and bestowed it upon Peter. This doctrine of popular sovereignty, partly founded on the Politics of Aristotle, embodied ideas that belonged to Greek republican theory as well as traditions that had descended from Roman republican law. It contained, in germ, the principles of the English, American, and French revolutions: it is one of the most curious links between the ancient and the modern world. The other point touched the nature of the power which the Emperor exercised. Being exercised under direct responsibility to God that power came from God, though it had come through the gift of the people. It was all the more conformable to divine and natural law because it did not pass by descent, but was conferred by electors who, like the cardinals when choosing a Pope, were only instruments in the hand of God, their function having been entrusted to them by God and the people." Being thus derived from the Law of God and of Nature, the rights of the Emperor are eternal

* See on this subject Gierke, ut supra, chap. iii.

h Populus Romanus habet potestatem eligendi imperatorem per ipsum ius divinum et naturale . . . unde electores qui communi consensu omnium Alemannorum et aliorum qui imperatori subiecti erant tempore Henrici II constituti sunt, radicalem vim habent ab ipso omnium consensu, qui sibi naturali iure imperatorem constituere poterant.' — Nicholas of Cues (afterwards Cardinal), De Concordantia Catholica, iii. c. 4, ap. Schard. Syntagma, p. 360. The views of the anti-Papal writers in and after the time of Lewis IV are usually tinged by their wish to find a remedy for the evils of papal autocracy in a General Council which it would be the function of the Emperor to convoke. Their eyes are fixed quite as much on the needs of the Church herself as on the constitutional rights of the Empire against the Papacy.

and imprescriptible. They exist irrespective of their actual CHAP. XV. exercise, and no voluntary abandonment, not even an express grant, can impair them. Pope Boniface the Eighth1 reminds the king of France, and imperialist lawyers till the seventeenth century repeated the claim, that he, like other princes, is of right and must ever remain subject to the Roman Emperor. And the sovereigns of Europe long continued to address the Emperor in language, and yield to him a precedence, which admitted the inferiority of their own position.

It is easy to see how it was to the Roman Emperor, and to him only, that the international duties and privileges above mentioned could be attributed. Being Roman, he was of no nation, and therefore fittest to judge between contending states, and appease the animosities of race. His was the imperial tongue of Rome, not only the vehicle of religion and law, but also, since no other was understood everywhere in Europe, the necessary medium of diplomatic

iVicarius Iesu Christi et successor Petri transtulit potestatem imperii a Graecis in Germanos ut ipsi Germani . . . possint eligere regem Romanorum qui est promovendus in Imperatorem et monarcham omnium regum et principum terrenorum. Nec insurgat superbia Gallicorum quae dicat quod non recognoscit superiorem: mentiuntur, quia de iure sunt et esse debent sub rege Romanorum et Imperatore.' - Speech of Boniface VIII, April 30, 1303 (Pfeffinger, Corp. iur. publ. i. 377). It is curious to compare with this the words addressed nearly five centuries earlier by Pope John VIII to Lewis, king of Bavaria: 'Si sumpseritis Romanum imperium, omnia regna vobis subiecta existent.'- Jaffé, Reg. Pont. p. 281.

j So Alfonso, king of Naples, writes to Frederick III: 'Nos reges omnes debemus reverentiam Imperatori, tanquam summo regi, qui est Caput et Dux regum.'-Quoted by Pfeffinger, i. 379. And Francis I (of France), speaking of a proposed combined expedition against the Turks, says, 'Caesari nihilominus principem ea in expeditione locum non gravarer ex officio cedere! Marquard Freher, Script. rer. Germ. iii. 425. For a long time no European sovereign save the Emperor ventured to use the title of 'Majesty.' The imperial chancery conceded it in 1633 to the kings of England and Sweden; in 1641 to the king of France. Zedler, Universal Lexicon, s. v. Majestät.

Roman Empire, why an power.

international

CHAP. XV.

k

intercourse. As there was no Church but the Holy Roman Church, and he its temporal head, it was by him that the communion of the saints in its outward form and on its secular side was represented, and to his keeping that the sanctity of peace must be entrusted. As direct heir of those who from Julius to Justinian had shaped the legal principles generally recognized through Europe, he was, so to speak, legality personified (animata lex in terris); the only sovereign on earth who, being possessed of power by an unimpeachable title, could by his grant confer upon others rights equally valid. And as he claimed to perpetuate the greatest political system the world had known, a system which still moves the wonder of those who see before their eyes empires as much wider than the Roman as they are less symmetrical, and whose vast and complex machinery far surpassed anything the fourteenth century possessed or could hope to establish, it was not strange that he and his government (assuming them to receive the obedience to which they were entitled) should be taken as the ideal of a perfect monarch and a perfect

state.

There was in this theory nothing that was absurd, though much that was impracticable. The ideas on which it rested are still unapproached in grandeur and simplicity, still as far in advance of the average thought of Europe, and as unlikely to find men or nations fit to apply them, as when they were promulgated five hundred years ago. The practical evil which the establishment of such a universal monarchy was intended to meet, that of wars and hardly less ruinous preparations for war between the states of Europe, remains what it was then. The remedy

* With the progress of society and the growth of commerce the local customs were, through the greater part of Western and Central Europe, beginning either to give way to or to be remodelled and supplemented by the Civil Law.

which mediaeval theory proposed has been in some CHAP. XV. measure applied by the construction and reception of the rules we call international law; the greater difficulty of erecting a tribunal which can decide with the power of enforcing its decisions, remains unsolved.1

kings.

Of the many applications and illustrations of these Illustrations doctrines which mediaeval documents furnish, it will suffice to adduce two or three. No imperial privilege was Right of prized more highly than the power of creating kings, for creating there was none which raised the Emperor so much above the rulers of the various nations. In this, as in other international concerns, the Pope soon began to claim a jurisdiction, at first concurrent, then separate and independent. But the older and more consistent view assigned it, as flowing from the possession of supreme secular authority, to the Emperor; and it was from him that the rulers of Burgundy, Bohemia, Hungary, apparently Poland also, received the regal title. The prerogative was his in the same manner in which that of conferring titles is still held to belong to the sovereign in every modern kingdom. And so when Charles the Bold, last duke of French Burgundy, proposed

m

1 The recently created Hague Tribunal can render decisions in cases submitted to it, but cannot enforce its judgements.

m Thus we are told of the Emperor Charles the Bald, that he confirmed the election of Boso, king of Burgundy and Provence, 'Dedit Bosoni Provinciam (sc. Carolus Calvus), et corona in vertice capitis imposita, eum regem appellari iussit, ut more priscorum imperatorum regibus videretur dominari.'Regin. Chron., ad ann. 877 (M. G. H., Script. i. p. 589). This statement is in fact incorrect, but it evidences the views of the time. Frederick II made his son Enzio (that famous Enzio whose romantic history every one who has seen Bologna will remember) king of Sardinia, and also erected the duchy of Austria into a kingdom, although for some reason the title seems never to have been used; and Lewis IV gave to Humbert of Dauphiné the title of king of Vienne, A.D. 1336. Otto III is said to have conferred the title of king on Boleslas of Poland, and when the Elector Frederick of Brandenburg sought to make himself king of Prussia in A.D. 1700, he was obliged to obtain the Emperor's consent.