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Political Studies
(19 5), X X X I I I , 73 100
om n um in
Thirteenth
and Fourteenth
Century Political Thought and its
Seventeenth Century Heirs:John of Paris
and Locke
J A N E T C O L E M A N *
University
of
Exeter
Dominium, the notion of lord ship, underw ent impo rtant changes during the
thirteenth and fourteenth centuries. An examination of the de potestate regia et
papali
genre, especially the tract by the Dominican John of Paris (1302), i l lustrates
not only a radical att i tude to property rights, private ownership and the defence of
one's own in theory, but reflects important evolutions in contemporary property law
and its conseq uences for secular sovereignty. John of P aris 's analysis of the origins of
property prior to government, based on natural law, is directly related to early
fourteenth-century justifications of the profit economy, reflecting the passage of
dominium from being a relative, interde pen den t, feudal thing, to indepe ndent
property. Other theorists also justified the proliferation of active rights to property,
responding not only to theory but also to current economic and legal practices. Such
arguments were known and used by seventeenth-century writers, especially Locke,
whose library holdings and own tract 'on civil and ecclesiastical power' as well as his
Second Treatise, express a debt to the de potestate regia et papali genre of the late
scholastics.
Thenotion of lordship,
dominium,
in thethirteenth and fourteenth centuries
wasdiscussed in awide variety oftexts that representedaspectrumof literary
genres. These texts attracted different audiences and readerships, defined in
partby the genre:some texts were distinctly literaryin themodernsense,others
werelegal, philosophical, theological.'
ominium
is atheme that has had an
An earlier version of this paper was presented to the Oxford conference on P olitical Th ou ght,
New College, January 1981 and then at the PSA conference, section: medieval poli t ical thought,
Hu ll , April 1981. 1 should l ike to thank A ntony Black, Jam es Burn s, Alan H ard ing , Quentin
Skinne r, D iana P erry , the Oxford University series of seminars on the History of Polit ical Th ou ght,
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74
Dominium
in
13th
an d
14th-Century Political Thou ght
enormous significance for the history of political ideas, for the practice of a
transformation of legal theory, for the attitudes expressed by a varied public
their daily transactions at a variety of levels with government and ecclesiastic
representatives. Furthermore, medievaldominium may be directly linked w
seventeenth-century discussions and it is particularly important for Lock
Second Treatise of Governm ent. Dom inium with its related notions
proprietas
possessio
and
usus
sa complicated and shifting series of concep
we shall see, and to affirm that the idea ofdom inium has a history is not to s
it necessarily has a fixed conceptual shape and is used in the same way b
subsequent generations.^ Our set pieces are Latin tracts of the de potestatere
et papali
genre by John of Paris (Ouiddort)his
De Potestate egiaet Pa p
and the anonymous
Rex Pacificus;^
to a lesser extent William of Ockha
Breviloquium
and the
Opus Nonaginta Dierum.
Each of these works w
written quickly, as a scholarly publicist argument in favour of one side, that
the monarchy, in a battle that was a continuous part of the current politic
scenario during the fourteenth century. We shall be brief about what we ma
take to be methodological problems and possible solutions in studyin
fourteenth-century political ideas in general, and thereby indicate ways
which the 'factu al' historian whom Skinner wants to enlist in the 'theory' cau
can be enticed into examining the lesser and greater political theory tracts
gain further insight either into the actual political workings of the age in whic
his author lived, or at least into the mentality that wrote theory, even whe
practice was consciously distinct from the 'ought' implied in the theory text.
will be suggested that a schism between historians of political ideas an
historians of 'facts' and events may be healed by following a
via media
betwe
the internalist and externalist approach to texts and what they were taken
mean in their own time, so far as we can tell.' The method in this study is
suggest that one's approach sdependent first on recognizing the formal chara
teristics of specific genres of political writing and thereafter to discover the rol
of certain genres in the period under consideration.
The attempt to organize fourteenth-century political theorizing by locatin
literary genres is not an artificial organization of chaotic material although
sounds as though it might be. Any student of the written text in the middle ag
is struck by the outstanding degree of imitation involved in putting a te
together: there were explicit/oz-mo for writing kinds of tracts, ranging from
- See Keith Tribe,
Land
Labour and Economic Discourse {London Routledge and Kegan Pau
1978), p. 22, for a differing view on fixed terms of discourse having fixed 'sound' histories but
'meaning' histories. See R. Schlatter, Private Property (London, Allen and Unwin, 1951) for t
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JANET COLEMAN 75
to aforma for conveyanc ing, to a topical/or/nc r for satire,
ars dictaminis.
Originality was not particularly
v^ as
admired and composition was
often no m ore tha n a scis sor s-an d-p aste affair, culling quo tes from
ticula r ex am ple of a genre is a successful on e, that is, wh ether it was seen to
. N or d oes a list of genres tell us what a rea de rsh ip s criteria for success
imitative, structured enterprise by which a particular m essage might be
In fact, on e can date texts by know ing the evo lution of a gen re. We
s gen re. Qu ite often, the au th or s aim was not originality of message so much
pro and then sed contra often obscures the au th or s own position: it
forma of the deb ate and thereby know
conclusio, particularly if the
Here we shall focus on one genre:
the publicist pieces d occasion ,
the
forma
(and this directs the con tent) reg arding
versus monarchist debate, a subject and a forma that
Coleman,Medieval Readers
and Writers,
Ch, 4,
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76 Dom inium in
13th
and
14th Century Political
Thought
II
Jean Ouiddort of Paris wrote the De Potestate Regia et Papali in 1302 a
contribution to the debate between Philippe IV, the Fair , of France and P
Boniface VIII .oOstensibly the issue was to determ ine sphe res of sovereignty
the parts of secular and ecclesiastical p o w er s, and Jo hn has often been ta
to be something of a moderate because he was careful to maintain a via me
that recognized tw o pow ers but com pletely separated ecclesiastical from secu
jurisdiction, firstly with regards to the respective internal structures, secon
with regard to their respective powers over property, and thirdly, with regard
the moral influence of each power. His moderation lay in his not having cho
the road of M arsilius of Pa d ua , a few years later, for w hom th e church was o
an organ of the state where the state alone possessed real power.'-
The
sacerdotium-regnum
dis pu te ha d, in effect, been going on for cen tur
During the thirteenth century it had been brought to a head by the assertion
the relatively newly founded mendicant orders, particularly the Francisca
' J . Co lem an, 'Me dieval Discussions of Pro per ty: Ratio and Dominium according to Joh
Paris and Marsil ius of Padua' , History of Potiticai Thought, IV (1983), 20 9- 28 for a fuller an a
of the texts of John of Paris, Aegidius Romanus and the Roman law influences on the theory
practice of dominium. Th e edition of the De Potestate Regia and Papati cited in this study is
Bleienstein (ed.), in Johannes Quidort von Paris. Uber Konigliche undpapstliche Gew alt. Fr
furter Studien zur Wissenschaft von der Poiitik (Stuttgart, 1969). An earlier important study,
with a less accurate text, is Jean Leclercq, Jean de Paris et L Ecctesiologie du XIW siecte (P
Vrin, 1942).
' ' The problem of nationa l sovereignty especially in France is much m ore complicated than J
of P aris 's tract implies because there was a tendency toward s the formation of auton om ous pri
palities generally in fourteenth-century France: Aquitaine, Brittany, Flanders, etc., each sou
autonomy so that poli t ical developments in France were more than the progress of the monar
such duchies or principalities having characteristics of states in miniature. Their counts, dukes
princes were coming to look upon their lands as units of property with the interests of polit
entities in their own rights. See John Le Patourel, 'The King and the Princes in Fourteenth Cen
France', in J. R. Hale, R. Highfield, and B. Smalley (eds), Europe in the Late Middle A
(London, Faber , 1965), pp. 155-83.
'Sov ereig nty' in medieval trac ts (fourteen th century ) is expres.sed in the following way s: pote
constituend i, instituere et iudicare; auctoritas habet in tempo ralibus; positus est super gentes:
consensum electi et eiigentium et secundum hoc per consensum humanum potest desinere esse; s
isto corpore cooperatur natura disponendo et organizando; potestas jurisdictionis inforo exter
(coercive, governmental power, pertaining to a public authority, directed to the common go
dominatio de jure naturati. According to Ullmann, there is a personal and impersonal sense
which the term 'sovereignty' is used, developing from the Roman concept of Jurisdictio. Se
Cos ta , lurisdictio: Sem antica del potere politico nelta pubb licistica medioevale (Mai l
Pubblicazioni della Facolta di Giurisprudenza, Universita di Firenze, 1969). The earlier, perso
notion is equal to 'he who has the power ius dicere . Rex omne imperium habet in regno suo q
imperaior habet tn imperio {\3lh cen tury) . Th e personal side of sovereignty was amplified by He
Vll and Clement V's Pastoralis Cura, the latter using Roman law principles, canon law
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JANE T COLEMAN 77
,
those not in the new orders of friars and not monks, argued biblically that
loculos, a
money bag, and
dominium and usus, and in particular over
dominium
over prop erty mea n? Ho w was it distinct
rtied an d p ossessionate papacy was being asked to judg e whether the most
properxyless, and furthermo re, was a voluntarily
What is the structure of John of Paris 's tract, D e Potestate regia et papali?
he 5chap ters hang together loosely, group s of chap ters having imposed upon
by which such subjects were trad itiona lly discussed. The wo rk does not
disputatio
or
whe re this was developed from que stions taken from the floor,
potestas, in
lordship over
material property
is to be discussed, i.e.
dominium in rebus.
'- This
arrowed understanding
of potestas
is one of the mo st significant co ntrib utio ns
o our conception of the theme of dominium in fourteenth-ce ntury texts.
However, John's most unusual and influential statements on potestas as
ominium in rebus, found in chapters 6 and 7, those to which his argument
leads and on which its development hinges, are lifted virtually word for word
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78
Dom inium in13th and14th Century Political Thought
from someone else.
John of Paris begins as would a true Dominican and disciple of Thom
Aquinas, by displaying a sophisticated and subtle, if eclectic, understanding
Aristotle's
Politics:
it is necessary and advantageous for man to live in soc
such as a city or kingdom which is self-sufficient in everything that pertains
the whole of life and under the government of one who rules for the comm
good. Implicitly he rejects the polity and the mixed constitution in favour of
one truly superior man of books seven and eight of Aristotle's Politics who
called monarch or king. It is also clear, he says, that this kind of governme
derives from natural law in that man is naturally a civil or political and soc
animal, and the kind of government we have been discussing, he says, com
from natural law and the law of nations.''' There is, of course, also a sup
natural end of man and rulership here belongs to Jesus. Thus far, we have
parallel between the human king and Jesus the king for the parallel realms
nature and supernature. The pope is nowhere, as yet. It was necessary, becau
of mankind's original sin against God, to establish certain remedies throu
which Christ's sacrifice could benefit man, and thus the church's sacramen
were instituted and the minister as an intermediary between God and man.
In chapter 3 he compares the structure of the church and that of the secu
realm. He argues, in sum, that man is instinctively and naturally a creature w
lives in society and this instinct can lead him, depending on contingencies,
The arrangement
of the
25
chapters.
Parti
1.
The nature and the origin of royal, civil government.
2. The nature and origin of the priesthood.
3. Com parison between thestruc tureo f the hierarchy in the church and the structure of the st
ecclesiastical ministers are ordered to one head (Pyramid); the various states, however, do
need such a hierarchical ordering to one single, universal m onarch.
4.
Compares kingship and the priesthood (no true priesthood until Christ comes as mediator
to which comes first, historically. Kingship is first.
5.
Which comes first in dignity?
6. Which is first in causality; the priesthood is not first. Discussion of the kinds of power
pope has over church property.
7.
The power of the papacy in the sphere of property-ownership, over layman's property.
papacy has no
dominium
over their property.
8. Nor has the papacy jurisdiction over lay property. Christ had none.
9. Opposing arguments that Christ did have jurisdiction over lay property and replies.
10.
Christ had ojurisdiction and did not transmit the power or capacity of proprietary owners
Objections and replies.
Part//(Leclercq division of thetext).Discussion of adversaries' arguments: chapters
11-13,
of Paris's solutions (especially chapters 12-15). The six powers in the sense of capacities, of
priesthood and the rights they confer in the sphere of temporal jurisdiction. Chapters 14
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JANET COLEMAN 79
n an exemplary way. What is also important here is John's
e a universal unifier, i.e. an emperor; it is a general argument justifying the
Next he argues that men are distinct from one another regarding their bodies,
ically distinct.^ This may well be a view influenced by the current
ses, it has other significant consequences. He says secular powers are
se because of the diversity of climates and differing physical constitutions
f men: one man cannot possibly rule the world's
temporalia
because his
the universal language of spirituality, the pope's word is universal.'' In this
s own property as it was acquired through his own industry; thus there is no
temporalia in common for each man is his own
John means that there is an apportionment of things to individuals prior
He goes on to argue that although it is true that faith requires one
ter, all the faithful need not be united in one/?o////cfl/community.
ey are united in one religious community of the faithful but not in one
'* Bleienstein (ed,),pp, 81-2 ,
Walter Ullman n, Principles of Government
and
Politics in
the
Middle Ages,
2nd ed,
(London ,
1966) an d/ I
History of Political Thought
in the
Middle Ages Havmondsv/orih,
Penguin,
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80 Dom inium in I3th and Uth-Century
olitical
Thought
political grouping. It
is
significant that he describes the heads of communiti
whether one or diverseas arbiters. The parallel hereisthat just as the fait
an arbiter so does the state: the king or political ruler of whatever constitu
acts as arbiter, adjudicating in matters of private property, just as the p
adjudicates in m atters of orthodox faith and heresy. He says there are diffe
ways of life, and constitutions are adapted to different climates, langua
conditions of people. Thus the philosopher Aristotle shows that indivi
states are natural, but not that of an empire or one-man universal rule.
ln chapters 4 and he shows in what ways the power of the state and th
the church are related: the state is chronologically prior but the priestly is p
in dignity. Each power has its separate dom ain, each justifying its jurisdic
immediately from the one superior power above themGod. This is his
power schema. But when we turn to chapter 6 and his discussion of the rela
superiority of royalty in the order of causality, he says that the pope has no
potestas,
that is,
dominium
over exterior goods, i.e. property.^'' And sinc
pope is not truly dominus of exterior material goods but, rather, is
administrator and dispenser both in principle and practice, he then
whether the pope has at least the original and primary authority as superior
as one who exercises jurisdiction. This he denies as well. All of this is Ro
legal terminology: bona exteriora, dominium in rebus and jurisdictio.
argument itself is lifted, as is the major section of this chapter and chapte
from another scholastic, Godefroid of Fontaines, whose academic quodl
date from the 1290s.^5 What is interesting in the extensive use of Roman
canon law concepts is an assumption that these legal terms will be unders
by an audience for publicist polemic.
Ecclesiastical property as ecclesiastical has been given to communities
not to individual persons according to John and so regarding ecclesias
goods no single person has proprietas et dominium, proprietary rights
lordship, but only the community has these.2* A single person, not a
individual but as part and member of the community has a ius utendi,h
right of usage for his maintenance, judged according to his needs and s tatu
congregatio
or religious order is only unified by its head and principal me
and he not only has use of the community's goods but also has gen
administration and dispensation of all the goods of the community, alloca
according to proportional justice, dispensing in good faith for the com
good of the group as seems to him expedient; this is the position of the bi
2^ Ubi primo ostendetur quodmod o se habeat summ us pontifex ad bona exteriora q
dominium in rebus, et secundo, dato quod non sit verus dominus exteriorum bonorum
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JANET COLEMAN 81
n whatever cathedral church. Since there is a general unity among all
the pope-on whom it is incumbent to care for the general
dispensator of all spiritual and
dominus lord of them, for only the
est et proprielaria illorum bonorum generaliter individual
dominium
in the goods allocated to them. In
he church community individual persons, whoever they may be, do not have
ominiutn;
principal members have only stewardship,
dispensationem habeant
except where they draw their recompense from service, and then only according
to need and status. .
Thus the pope is a steward of communal property; but kmgs are not in like
manner to be taken as mere guardians of communal property. Yet another
relationship amongst property as
dominium
ownership as possession and use,
and jurisdiction, obtains in the secular world. He returns to this later. Clergy as
clergy and monks as monks are not precluded from having
domtntum
of
exterior goods at least in common, because their vow does not incapacitate
them from holding property as it does some religious persons, i.e. Franciscans.
Since the founders of churches intended to transfer
dominium et proprtetatem
bonorum directly to the community of the church, so the community has
immediate and true
dominium
in these goods and not the pope or any inferior
prelates. Others, quite wrongly, he says, do not distinguish between the
modus
Vivendiof clergy and that of the minorites whose vow incapacitates them from
lordship over and ownership of goods, be they their own or goods held
communally. The minorites have only
ususfacti
as pope Nicholas
111)
said. He
therefore argues that the pope is only a steward of the property given to the
ecclesiastical community; he has a relationship to these things only as
administrator in the interests of the community; and if he betrays the
community's trust by not acting in good faith he must do penance by restoring
the property. Such betrayal of trust can and must lead to deposition because the
misuse is of dominium and property rights.^* Such betrayal by abbots of
monastic communities or by a bishop regarding his church also must lead to
deposition. If the pope knows of persons, be they ecclesiastical or lay, who
claim against him on the grounds of unjust dispensations or misused steward-
ship modo quo possunt et debent as they are able and indeed, must do, are
obliged to do, he cannot dejure legally, remove them or dispossess them from
what is theirs, for he has no authority from God to do so and the pope cannot
act against God's will. Deposition may be, in the first instance, an obligation,
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82 Dom inium in I3th and 14th-centuryP olitical Thought
acknowledges to be prior chronologically to spiritual power and institutions,
acquired by the individual's skill, labour and own industry and individuals
individuals have in these things
ius et
potestatem et
verum
dominium,right
power and valid lordship.^' Each person may order his own, dispose o
administer, hold or alienate as he wills without injury to any other since he
dominus.In the lay world propertyisdistributed discretely through a process
acquisition characterized by individual labour. One acquires rights over t
goods for which one has laboured and therefore one can use or alienate suc
goods. Such goods or property acquired through individual labour have neith
interconnections with other men in society of whatever status, nor are th
mutually interordered,-^ nor is there a common head who may dispose of
administer such property since whose ever they are may arrange for his ow
property as he wishes.Neitherprince nor pope hasdominium or stewardship
the lay world,e tideoneeprincepsnee papahabetdominium vel dispensatio
in talibus. Individual property rights are inalienable. The purpose of ci
government is to preserve and protect private property. They are one's own
the social state of natu re, and property rights exist prior to government and a
natural. But sometimes the peace of everyoneisdisturbed because of suchbo
exteriora, when someone usurps what is another's and also because at tim
some men, through excessive love of their own do not communicate the
property to others or place it at the service ofthecommon need or welfare of t
community. Then a ruler or prince is established by the people who is to ta
charge of such situations actingasjudge and discerning between just and unj
and as a punisher of injustices or injuries, a measurer of the just proporti
owed by each to the common need and welfare.^' The rulerisestablished by
people to prevent the discomforts of not having an impartial arbiter wh
rightful owners' property is usurped; he also is established to enforce altruis
when some will not provide voluntarily from their wealth that which t
community needs for the survival of the whole. Some men do not obey what
according to AquinasJohn's fellow Dominican and teachera natur
instinct to help preserve the lives of others in addition to their own.
There are some extraordinarily Lockean moments here.
In chapter
John defines the distinction between dominium
an
jurisdict
jurisdiction is the right to decide what is just or unjust in matters pertaining
property . The prince hasthis power of jurisdiction although he does not himse
2 ' /Irf quod declarandum considerandum est quod exteriora bona taicorum non sunt colt
comm unitati sicut bona ecciesiastica, sed sunt a cquisita a singulis personis arte, labore vel indus
propria, et persona e singuiares, ut singulares sunt, habent in ipsis ius et potestatem et ver
dominium, et potest quilibet de suo ordinare, disponere, dispensare, retinere alienare pro lib
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Dom inium in13th and14th Century Political Thought
deposable m onarch acting on trust to keep order but to whom neither prop
nor property rights is alienated. The
Rex Pacificus
as Ullmann presents
summary, argues that because the state is prior, and is by analogy the h
whereas the church is the mind of the body politic, a cessation of ecclesiast
jurisdiction would not entail a destruction of the state. The state is
foundation of the church's existence and therefore the church is dependen
the state , whilst the state is morally and physically self-sufficient. The au
does not then follow John of Paris's
viamedia
in establishing two indepe
powers; he is, rather, closer to Marsilius of Padua.^ ^ His view of potestasl
to two distinct jurisdictionsspiritual and temporal;potestas in the poli
world is linked directly to jurisdiction regarding property and is the concer
the monarch 'without whose laws there can be no property', but such hum
laws are not arbitrary expressions of a ruler's will but are God's will expre
through the medium of kings and they are therefore natural. Secular law
jurisdiction are the foundations of 'private' property for this author, and t
is no property unless the king safeguards it through human law. This is
argument for property as an artificial division of originally common goods
is supported by the auth or 's frequent citation of Augustine for whom the
law was a necessary, artificial and arbitrary ordering principle resulting f
man's disorderly, fallen nature. Apportionments and divisions of property
the prerogatives of the civil government according to Augustine and
author of
Rex Pacificus.
The author is, of course, at pains to show how C
declined to interfere with apportionments and divisions of property, and
he advised the apostles against the desire for temporal possessions because
leads to the ambition to be judge amongst parties contesting property righ
Like John of Paris, who argues point for point against the papal hiero
Aegidius Romanus when Aegidius compares church and state in term
priority in time and then in dignity,^^ the author of Rex Pacificusar
against Aegidius's thesis of the pope's universal property: bishops are
owners of ecclesiastical goods and estates but are onlydispensatores;havi
dominium
over ecclesiastical goods, the bishop has even less
dominium
ove
property. He has a right of administration over church property but no r
whatsoever over temporal goods. Like John , he argues for the autonom y o
French monarchy in secular matters, and by this is meant matters of pri
property and the exercise of rights in the legal sphere of inheritance
alienation. Unlike John (and Locke), the author ofRex
Pacificus
does no
private property as possible no less a right, prior to the people's consen
establish an arbiter with jurisdictio.
John of Paris's unusual and 'Lockean ideas before their time' are not un
to his
D e Potestateregia etpapali
however; they are almost word for wor
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JANET COLEMAN 85
forma of anothe r
1
have argued elsewhere, ' the
de potestate
genre seems to have
deierminationes
section of the ma gisterial
quodlibet
by the
IV
. . the medieval writer had to spend his time in libraries. *^ So begins L asle tt 's
s and H arriso n 's The Library offohn Locke. To some extent
dominium.
on law by these theorists;' '- ' such use was freque nt, som etimes also extensive
gh labo ur: the development of the practice and the justificatory theory of
ary law in France and En gland during the thirteenth centu ry. Surely it is
y a matter of pro perty theo ry reflecting socioeconom ic pattern s of the
property theory also simultaneously reflected the control exercised on
(pace
Alan MacFarlane and his
^ ' Colem an, 'Medieval Discussions of Prop erty ' , p . 213.
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Dom iniutn in13th and14th Century Political Thought
First, we shall say something about John of Paris's use of customary
then about the more general situation in thirteenth-century Europe, and la
deal with an extraordinary development in English common law whic
reflected in theory, in sta tute , in the written specific examples of change, tha
in the general verdicts handed down in specific cases in late thirteenth-cen
royal courts.
First, John's use of customary law: Leclercq in his commentary and edi
of
theDe Potestate regiaetpapaliwas
surely correct when he noted that R
law was used both by the early fourteenth-century papacy as much as
monarchs, each twisting its sense to favour their own causes.''- Amongst
services Roman law was asked to provide was the formulaic expression to fit
particular exigencies of the times. Monarchists as well as papal hieroc
quoted Roman law when they required a formula, e.g. 'what pleases the pr
is law', but French law (like English) rested on custom rather than on wri
Roman principles. Fidelity to customary law remained the sign and guaran
of royal autonomy in France. Precisely because customary law va
regionally and was imprecise on many points, new practices could be in
duced, sanctioned by later prescription. 'Pour toutes ces raisons, il etait
precieux aux yeux de Philippe le Bel et de ses ministres pour qu'ils
prefereassent le droit romain'. ** Ancestral custom s, examples of predecess
were not only manifestations of a national tradition but also were taken to
manifestations of natural law. The translation of Aristotle's
Ethics
Politics, and Aquinas's and other theologians' commentaries, provided
scholastic, formal, educated, justification of the
ius
gentium et
civiti
wher
latter was seen to be the natural, instinctive, customs of a people develo
from historical and geographical exigencies but in accord with the divine
and the divine will. Roman civil law, however, does seem to have contribu
some fundamental concepts and certainly formulaic expressions
categories, and the philosophy of the schools elaborated on them . Natural
was one ofthese.John of Paris responded as did Godefroid of Fontaines in
quodlibetal determinations, to contemporary 'questions from the floor' of
debating chamber. And it is especially clear that John of Paris's interests lay
the contingent applications of the natural law as determined by custom, and
resulting interpretations
o
positive hum an laws adjusted the laws themselve
situations of fact.
Such an attitude was becoming more and more usual throughout
thirteenth century: institutions were seen as modifiable, notions of autho
were changeable. Nature was seen to develop, to be in motion tow ards an e
its fulfilment, and so too concepts like responsible authority and
domin
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JANE T COLHMAN 87
Natura,id est deus, was a frequent tag in the
tractatus de legibus.*^
This theore tical justification for legal change
ecting cu stom ary e volutio n is, I believe, just th is: a justification of wha t, in
We should observe what v >as happening as the focus of much medieval life
with the con com m itant growth in aggressiveness regarding lending m oney
nsh ips. L ittle notes that 'it is with the form ation of the com pan y (in Italy
essential element of the capitalist econom y mad e its ap p ea ra n ce . ' ' It took
It is a commonplace of medieval textbook history that the keystone of feudal
po rt. By the early twelfth century on the con tinen t, early thirteenth century
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88
Dominium
in
13th
and
14th-Century Political Thou ght
countryside you adopt a single function as a means to earn your way; and
concommitant moral problem raised by the urban setting has to do with
moral probity of the urban professions. Like money, the professions of lawy
doctor, administratorthe bourgeoisie, are pursued and scorned. Satire is
of the major literary genres of this experience. If the city was the centre
increasing financial transaction it was also the butt of high-minded morali
the city's origins were traced back to Cain and it was pointed out that the ma
sin had once been pride but from the eleventh century onwards itwasjoine
avarice (Peter Damiani).'' A series of exceedingly strict monastic orders
established to serve as refuges, flights from rather than confrontations with
new moneyed economy. In an age of finance emerged the voluntary pauper
the involuntary poor became visible and an object of conscious and of
ostentatious charity. To combat the heretical groups that rejected the chur
adoption of the moneyed ways of the world, the voluntarily poor Francisc
and Dominicans emerged in the thirteenth century. The unique contribution
the friars was their involvement
in
urban society, creating new forms
religious expression for a pious laity that needed to be reassured that mak
money was a Christian activity. The early thirteenth-century discussions of
legitimacy of the activities of judges, notaries, merchants, teachers, prepa
the way for the justification of these professions by the end of the centur
The friars arrived on an already established scene of higher education in ur
centres, centring round cathedral schools, and helped to develop the univers
They became some of the major voices in scholasticism, and it is hig
significant that some of the primary issues treated by the intellectuals of th
mendicant orders included the role of private property, the just price,
nature of money, the morality of professional fees, commercial pro
business partnerships and u su ry . Private property and the moral
intellectual problem of its legitimacy had not been raised since the patri
period during the heights of the Roman empire. With Europe having develo
out of a barter/feudal economy to a moneyed/profit economy in a little ov
century, arguments were sought to justify private property for the convenie
and utility of men. And then Aristotle was also seen to justify private prop
as natural. When his
olitics
was translated
(c.
1260 it was plundered as a
for the times. Aquinas shows how Aristotle agrees that private property
necessary instrument of the good life and the ordered society.' Again, p
phrasing Little: when property changed hands not by a grant of a lord t
vassal in return for acknowledged services but for money, and where the st
of the buyer or seller was of no consequence in the transaction, then the iss
to be discussed by moralists concerned the just price, the notion of lords
dominium
the various forms ofuseof property that one might rent or lease
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JANET COLEMAN 89
By the early fourteenth century the logical extension of the moral justifica-
Summa for confessors, called the
This an no un ced that there is a Ch ristian life for
Regula
or rule as do the
himself
the founder of the Franciscans,
all prope rty, whether it was to be held privately or com m unally,
' the merch ants ' sain t ' . ' -
have just summarized from Lester Little as the reason for
curia regis
rolls, from Glanvill to Br acto n, tha t is,
He tries to reconstruct the feudal component in the structure of English
d and did to ma ke out w hat did not need saying and wh at it was not thin ka ble
ls of Rich ard I and Jo h n . These source s reflect at least the formal framew ork
eft cop ious re cords of its litigation? His answer is that we ask the w rong ,
anac hron istic que stions of them . Early law suits did not work as m odern
the defendent, the court 's general and blanket verdict. '* As
began
its distinct genres, so too we confront the formulaic, the rule-bound
on of a cu sto m ary , feudal and rule-b oun d practice of twelfth-century
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90 Dom inium in 3th and 14th-centuryPolitical Thought
usually recorded, not because they were not discussed but because cle
methods of recording and the formulaic relationships between vassals and
regarding land and services that they described further screened out
vidualisms. Only when a contemporary writer is discussing some gen
principle and how various law courts work and he gives some ficti
example based on something that may have happened in a real case; or whe
clerk is inexperienced and takes too copious minutes of court proceed
elaborating on the formulae, do we see by accident the facts we want. W
this formal expression in writing of the society s formulaic universalisms
produced in us is an assumption that the disputes we are observing are a
equals, about individualistic Englishmen, and their ownership of propert
rights to services. But in the twelfth-century cases the unspoken relation
behind court cases is seignorial; the underlying question has to do with en
ment: is so-and-so entitled to hold land, to expect services etc. The formu
presentation of cases does not remind us, as we need to be reminded, tha
feudal property arrangement was a contract, a relationship. And wha
particularly interesting in the apparent development of central royal gov
ment through the writ of novel disseisin for instance, and through the r
assizes in the late twelfth and thirteenth centuries, is that the lord is not m
an onlooker. His court still exists, as does the king s court, and Milsom ar
that instead of the king s court going over the lord s head jurisdictionally,
the king through royal justice was trying to do was to reinforce the fe
system and make certain that lords were not abusing their side of the fe
bargain. The bargain was not meant to be eliminated although royal justice
by accident, have this effect. The con tractual dialectic ofth feudal relation
was to be maintained into the mid-thirteenth century and the king s jus
Milsom argues, was enlisted in this conservative cause. The assize was
supposed to replace seignorial jurisdiction but provide a sanction agains
abuse. The phrase that is used of the lord is whether he has acted injuste
e
judicio regarding his vassal. In the early period, form was more significant
substance in m en s relations as they were recorded before the law and in t
of the contract that involved land and services. Through the recordsw see
see the piecemeal waning of this dialectical situation, this assumed contra
relationship, where homage is only one side of the gift-giving paternalism o
lord. What has been described is more or less the situation obtaining during
twelfth and early thirteenth centuries. By the end of the thirteenth cen
tenure in land had been drained of the mutuality, the interdependence o
feudal relationship, that had previously been kept in balance by the lord s c
and then the king s. By the end of the thirteenth century tenements and
appear to be independent properties in most regions, fixed by an exte
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JANET COLEMAN 91
Tenures in the earlier courts were the
property rights;
court cases in the
lfth and early thirteenth centuries dealt with arra ng em ents , mutua l relation-
possession the lord mak ing his right to his due sdominium
each as independ ent prop erties, each passing from hand to hand
de
owns his land whilst the lord has only an od d kind of 'se rvi tud e' over the
jus in re aliena.
The fact of
dominium
has passed in on e
Thus the period in which Godefroid of Fontaines and John of Paris wrote
ther is ackno wledg ed, a role that is not depe ndent on the simple exchange of
ive go ods, but in add ition and that is what was lost the exchange of
ary respect, acknowledged rank ing; the feudal co ntract had been a wide,
Quia Etnptores
of 1290. In short, what
on of his lands by his tenan ts who became 'ow ne rs ' of the prop erty; b ut
ah en ator was forced out of the relationship and the grantee was substituted
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92
Dom inium in I3th and 14th-century olitical Thought
comm on law are the result of great change in the legal framework the ch
from a feudal to a national, a common law about land. He says that in
thirteenth century freehold land became what it is to us, an object of prope
capable of passing from hand to hand rightfully or wrongfully; and the lo
rights became merely economic, a sort of 'servitude' attached to the land
irrelevant to its conveyance and, except for the rights of wardship and the
irrelevant to its devolution. As between the lord and tenant, the tenant
clearly the 'owner'.*'
This happened not only in England but also on the continent, and
analysis leads us to conclude that instead of the change occurring first in
legal framew ork, John of Paris is describing the results of changes brou
about by the success of a profit economy along the lines outlined by Li
where Europe was no longer primarily feudal. The idea of ownership had
place in a truly feudal framework, certainly not on the part of the ten
Without the reality of the feudal relationship,
seisin
became a one-s
possessio in rem
and defensible before the law. This is what John of
described, not a feudal, customary birthright but property laboured for
justly acquired.
Another way of putting this is to say, as Alan Harding has recently done,
by the end of the thirteenth century the notion of liberty had changed. It
been 'freedom from', that is, liberty was equated with immunities from fe
services. But it became 'freedom to', that is liberty to alienate, to ac
exercising positive freedoms. This liberty is not to be found in formu
universal lawbooks, Roman or canonistic, or indeed in
summas
like Bra
but in charters where 'liberty' normally appears in the sense of a privi
granted to a landowner.^^ By the end of the thirteenth century such lib
included rights of independent action; liberty was a matter of the exercis
power rather than the passive possession of status. In England, if the cur
approach to Magna Carta is accepted and we see it as 'the greatest charte
territorial immunity and communal privilege (of the barons as a class) ra
than as a bill of rights for individu als ' then a glance at mid-thirteenth-cen
plea rolls tells another story of developing individual, independent libertie
citizens. Such plea rolls show the replacement of feudal principalities
by
nat
monarchies in both France and England, an increase in royal jurisdic
whereby, as Milsom noted, individual liberties inadvertantly became ri
defended at law. Harding has argued that the crucial change from a socie
*i S. F. C. Milsom, Historical Foundations of the Com mon Law (London, But terworth ,
p . 104. This is a purely lay relationship. Barton notes that in England, ecclesiastical
succeeded in acquiring without struggle, exclusive jurisdiction over the testaments of the lait
even Glanvill speaks only of a special writ that can be used where the will and conten
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JANET COLEMAN 93
lords and vassals to one of kings and subjects canie in the thirteenth century
with the acceptance as a proper concern of the royal courts of the whole field of
torts.*** Iron ica lly, lib erty , wh en co nside red as an aspe ct of lo rd sh ip , suffered a
decline from au to no m ou s pow er to legal right w ith th e grow th in royal justice,*-^
and this, we suggest, is what is being reflected in Godefroid of Frontaines and
John of Paris. Theirs is ultimately an argument for the growth of liberty as
freedo m to for the individu al citizen and his pro pe rty rights rathe r tha n for
the rights or liberties of monarchs.
V I
It is not surprising therefore, to find in the political thought of the nominalist
William of Ockham (who wrote polemical works in an extension of the
argum ent we confro nted in exam ining Jo hn of Paris versus Boniface VIII) what
is metaphysically, logically, linguistically and economically the contemporary
concern for the individual . As M cGrade has recently pointed o u t^ O ck ha m s
concern for the notion of
po wer/potentia
is no t simply for the politica l or
juristic na ture of powe r, but its location.* Oc kh am a nd m ost of the writers
from the later thirteenth century through the mid-fourteenth century, when
writing about power and its relation to
dominium,
wan t to define wha t sort of
entity could have pow er. O ck ha m s logical and philosophical individualism
merely serves the political individualism of so many of his less nominalist but
none the less politically and legally involved fellow polemicists.
O ck ha m s a pp roac h to the logic of langu age was an individualizing one :
universals are not real; only individuals are real. But this does not mean that
universal terms are not related to universal concepts and classes of being which
serve as mental counters. Rather, his individualizing approach to propositions
with general terms in them had a political ramification of great significance,
especially in the field of property and
dominium.
Oc kham as a suppo rter of the
Franciscan O rd er s in terpretation of its relation to prope rty and dominium
would want to un dersta nd the general prop osition all Franciscans wear grey as
equivalent to this Franciscan w ears grey and that Fran ciscan wears grey and
the o ther Franc iscan we ars grey . . . . T hu s, th e reality of th e Orde r as a
conceptual generality has not been done away with, but has nominalistically
been shown to be identified with the reality of its individual members.*^ And
this should be taken to be the logical and linguistic extension of what John of
Paris , earlier in the cen tury, depending on Godefroid of Fon taine s analysis
** Hard ing, Polit ical Liberty in the M iddle A ge s , p . 434. .
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JANET COLEMAN 95
ration of the notion of rights. Tuck has argued, is the proliferation of sub-
Quia Emptores
dominium
but not
possessio
of the land.
iura to iura ad rem to dominia, came about
theorists
arguing about the naturalness or otherwise of
ow n polem ic ends ra the r tha n be cause of the need to fit a legal termin ology
dominium,
inds of relationship between man and material objects:
proprietas, possessio,
sufructus, ius utendi
and
simplex ususfacti,
he was not merely developing a
heoretical
vocabulary in 1279 to describe a systematic doctrine or theory for
he Fran cisca ns ' relation to material goo ds. He was responding to an attitude to
roperty, its varieties of ownerships and uses, that had grown up in a profit
conomy. Franciscans only wanted to claim simplex ususfacti, the power to
onsu me a com mo dity but not to trad e it, alienate it , involve it in the mo netary
world; they were thereby able to preserve themselves from the non-feudal,
profit economy and were, in effect, doing what radical but earlier monastic
groups had done: run from the current economy rather than cope with it . They
were content to be seen in the urban environment rejecting dominium an d living
like Christ.
The theoretical heart of the problem resulting from the economic realities of
late thirteenth and fourteenth-cen tury Eu rop e reflected in the com m on law, i .e.
in legal practice, and responded to by the Franciscan apostolic poverty
movement, became centred more generally on whether property was natural to
m an . Joh n of Paris and Godefroid of Fon taines, we saw, believed property was
at least prior to government, and man, labouring for his own, acted thus from
natural law. According to Ockham, a bit later, men had two kinds of
dominium, each specific, respectively, to the situation befo re an d after the
Richard Tu ck, National Rights Theories: their origin and deveiopment (Cambridge,
Cambridge University Press, 1979), p. 17.
^2 Tuck. Natural Rights Theories, p. 17. Th e 'rea lities ' of this so-called 'feu dal society were
material indeed and individually possessionate. The knight in The Dispute Between a Clerk and a
Knight (D isputatio inter clericum et militem) written in defence of Philippe IV, says he laughed on
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96 Dom inium in
13th
and
14th-Century Political
Thought
Fall.''' Each
dominium
was possessed in common by the species and natural
Man's nature was improved after the Fall by God giving fallen men natur
common powers to appropriate temporal things as individualappropriat
and the power to set up government. This was the second kind of natu
dominium for Ockham, prior to governmentitself Other theorists argued th
civil, human law does not originate in nature but in utility. Still others d
tinguished between natural possession of the earth and its fruits and
dominiu
over it, between natural and civil rights. Others saw a natural evolution
dominium;this is clear from the texts we have examined by John of Paris a
Godefroid of Fontaines w ho, in fact, developed a labour theory of acquisitio
Aquinas had argued that natural law was neutral regarding property rights
that it did not assign specificpossessions to particular men, but there was
precept of the natural law which
forbade
private property. Rather, individ
ownership was not contrary to natura l law but was an addition to it devised
human reason.'''' Recently, Tully has argued that this view was known and us
by Locke.''- We want to go further than this and say Locke's views are closer
those of John of Paris. John of Paris, as a Dominican, is traditionally held
be a staunch defender and follower of Aquinas, but he
is
doing something m
radical than Aquinas and more akin to the Locke this author reads, at any ra
in arguing for the
positive
support of property rights from the natural law.
Recently Tierney has pointed to another fourteenth-century
Tractatus
Legibus,
possibly by Durandus de St Pourcain, which also says that individ
property rights exist in natural law.''* Durandus (?) also noted that natu
reason urged tha t, o ther things being equal, a man could claim as his own wh
he acquired by his own labour.'''' Clearly, there is more work to be done he
but
we
may summarize John of Paris and Godefroid as at least representing
aspect of the dominium theme in the early fourteenth century by saying:
them, to have property as an individual is not necessarily a feature of politi
life,
and this argument is also true of Ockham's position
pace
Tuck).' * O
again, Ockham, like John of Paris, does not try to give property rights to m
but attempts to describe the kinds of powers men have as individuals prior
government in the realm of power over discrete things, and subsequently,
analyse the role of government in preserving or augmenting such power.
In the end, men were described in fourteenth-century political theory, in le
'3 Will iam of Ockham.
Breviloquium de principatu tyrannico
(ed. R. Scholz) (Stuttg
Hiersemann, 1944/52),
111,
7 -1 1 , p p . 1 2 5 -32 ;
OpusNonagintaDierum,
Ch . 88, in
Opera Poii
II (ed. H. S. Offler and R. F. Bennett) (Manchester, Manchester University Press, 1963). In his
O
Questiones, Q .ll C h.V I, Ockham says originally, God gave the world to ma nkind in comm
Deus de derit humano generi in comm uni dominium temporalium rerum \ see J. G. Sikes (e
Opera Poiitica, (Manchester, Manchester University Press, 1940), p. 79, lines - 2 and p. 80,
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JANET COLEMAN 97
in political poetry andprose, polemic and ephemera, as individuals
their lives by being in some way responsible for their material
Dominium
in a variety ofinterpretationswas taken to be the basic fact
their individualism. Tuck has pointed out that this needed only a few
to blossom forth as the classic rights theories of the seventeenth
Tierney has said more recently, even more emphatically, that the
seventeenth-century debate echoed strangely, as it were in a different
a theme that had already been clearly enunciated in western political theory
the years around 1300.^'Tully has recently made similar remarks regarding
and seventeenth-century natural law writing. We have seen that this
debate like the later one, concerned not only political authority but also
rights, dominium, sometimes understood to mean both jurisdiction
ownership, sometimes distinguishing these. After an examination of the
listing of books for Locke s library, we would suggest that the
between early fourteenth-century discussions and those of the
seventeenth century are not coincidental. ^
John of Paris was printed under his own name or read unnamed into the
*
Coleman. Medieval Readers and Uriters, Ch. 5 and conclusion.
so Tuck.
Natural Rights Theories,
pp. 28 f.
*i Tierney, Public expediency , p. 168.
Coleman, Medieval Discussions of Property , pp. 209-10. In a communication to me Mark
kind of popery from the late scholastics albeit an antipapal form of it as
John of Paris s work. See Robert Brady,An Introduction to the Old English History
4). Also now see Goldie, John Locke and Anglican Royalism ,Political Studies, XXXI (1983),
especially p. 75. .
Information on Locke s reading of Catholic authors and Catholic debates and history when in
tes, see John Lough, Locke s Reading during his stay in France
The Library, 5th series, Vlll (1953), 229-58, from which I have chosen notes of
1677, MS Locke f.2. p. 2Bishop of Worcester Stillingneet s answer to Catholiques no
(London, 1676); p. 3Stillingfleet, p. 730: Petrus Picherellus an excellent critick and
1 ,Mercure Jesuite Gene\3i, 1631), p. 850, Deposeingof
ngs ;p. 103FulgenzioMicanzio, k /wrfe/PodrePflo/o(1658), p. 55: II Cardinal di Perrone . . .
modo irritativa. (Cardinal Du Perron: in a harangue to the third estate on the occasion of the
John s support of the pope s releasing subjects from their obedience to an heretical
ing. See Harrison and Laslett, Library of John Locke, n. 1003b, p. 127 for a copy of Perroniana
Excerpta ex ore Cardinalis Perronii. . .(Geneva, 1667).] Further textual references made on
is French journey: to Bodin, Bellarmine, Inote that Bellarmine s De Romano Ponrifice \5i6).
Book V ch 1 has references to John of Paris: Locke refers to Bel larmindegrat.e t lib. arbit. Lib. I
C.14I, and to Cardinal di Perronne. 1678MS Lockef.3\ p. iiOLa corruption de TEglise Romatne
1679 MS Locke c. J3. 2f. 20: Hist, del Inquisitione, p. Fra. Paolo(Sarpi);/.22v:Catalogue de
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98
Dom inium in 3th and I4th-CenturyPolitical Thought
seventeenth century, particularly by Calvinists and for the Gallican ca
Although the author can find no direct reference to John of Paris's
Potestate regia et papali
in Locke's listings, Locke did possess the comp
works of the conciliarist Pierre d'Ailly, in du Pin's edition of Gerson's
Op
Omnia.Pierre d'A illy's own works, in true 'scissors-and-paste' fashion, 'lif
John of Paris's Prologue and, yes, chapters 6 and 7 of the D e Potestate,
included them in his own and as his own.*' other works in Locke's library
known to mention John of Paris at least as a hero of the Gallican cause or
conciliarism, or else he is recognized as having favoured avia
media
in sup
of a separation of the two powers, church and state. It clearly would not h
been wise for the politically astu te Whig Locke to cite a Catholic and schola
in support of his own ideas on property.* As Goldie has recently argued,
Royalists accused the Whigs of popery with a true historical sense; Br
The credit for discovering d'A illy's use of Joh n of Pa ris must go to J. A lm ain . D'Ailly
ecclesiae et cardinalium auctoritate. III (Constance, 1416) transmits completely without givin
source, John of Paris 's
Ekpo testate,
chs 6 and 7. Also d 'Ailly 's prologue reproduces word for
John of P aris 's prolog ue and also parts of ch. 13. See the edit ion, E. du Pin of Ge rson 's O
Omnia, I, col. 980 and 1011; in the 1706 editio n, vo l. I. col. 91 4- 17 ; the prolog ue, col. 89
Gerson also wrote a
De jurisdictione spirituali et temp orali
now edited by G. H. M . P osthu
Meyjes (Leiden, Brill, 1978) on the respective rights and powers of the two jurisdictions wit
adopting the extreme doctrines of the papal hierocrats, and drawing upon the via media of Joh
Paris. Also see, G. H. M. Posthumus Meyjes, Jean Gerson et L Assemblee de Vincennes (1
(Leiden, Brill, 1981). In Locke's library, the du Pin edition (Nouvelles Bibliotheque de Aut
Ecclesiastiques) is no. 2306, in Harrison and Laslett (eds), p. 209.
For information on early texts used for the Gallican cause see K. Schleyer,
Anfanger
Gallikanismus im 13. Jahrhundert
(Berlin, 1937). Also see the discussion an d bibliogra ph
Francis Oakley, 'Natural Law, the Corpus Mysticum, and consent in Co nciliar Tho ugh t from J
of Paris to Matthias Ugonis ' ,
Speculum,
56 (1981), 786 -81 0. On Pierre d 'Ailly, Gerson, J
Major and Jacques Almain; their concern with jurisdiction of the church and i ts public, coerc
nonsacramental anjd poli t ical subdivision: potestas jurisdictionis inforo exteriori, pp. 795 f;
On John of Paris and the power of coercive jurisdiction in the external forum: the governme
power, pp.
799f
805. Al lof these phi losop her- theo logians , Oakley argues , 'comp rise an imp or
subgro up of conciliar thinkers wh o treated the church less as a unique and m ysterious com mu nit
salvation than as one of a class of rightly ordained societies, focusing attention on ecclesiast
power under its most unambiguous political guise, by disengaging their essentially constitution
theories from the particularizing elements of ecclesiastical, national and regional law or cus
and by bringing them into connection with the more universal mandates of the natural law. T
they formulated theoretical principles underlying medieval constitutionalism that reverberate
the mid-seventeenth cen tury amon g Protestan t resistance theorists and Parliam entary o ppo nen t
Ch arles I of England durin g the first civil war .' (p. 805.) For later seventeenth-c entury 'reverb
tions ' see Henry Foulis 's tract . The History of the Wicked Plots and Conspiracies of our Preten
Saints (1662)
and the encyclopaedic
The History of Rom ish Treasons and Usurpations
(16
Oakley is correct when he says: 'a heightened interest must attach to the formulations of John
Paris, Pierre d 'Ailly, Jean Gerson, Nicholas of Cusa, Jacques Almain and John Major. Altho
by so doing they left themselves open to the charg e of having drawn their tenets not from the so
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J A N E T C O L E M A N 99
attacked not Aquinas but the late Sorbonne philosophers, John of Paris and
Jacques Almain.**-^ Tully has cited but not fully discussed a tract by Locke 'on
civil and ecclesiastical power' dated 1673-4.** It is clear that the
de potestate
regia et papali genre was alive and well in the seventeenth century.
This is not the place to trace the history of later medieval political theories
that suited, for instance, the Gallican cause, into the sixteenth and seventeenth
centuries. Kelley^' has shown how lawyers took over the ideological leadership
from late medieval theologians where lawyers were regarded, especially in
France, as champions of legitimacy and royalism but were soon drawn into the
service of the Protestant resistance and hence adapted their professional
heritage to this new cau se. Charles Du M ou lin's
Contraabususpaparum
(Paris
1609) was only one of many texts that cited John of Paris, Ockham and Gerson
to suit their positions. The Calvinist Goldast collected together most of the
relevant late medieval texts we have discussed in his
Monarchia Sancti Romani
Imperii (H ano ver and Fra nk furt, 161 1-14 ). Th e literature dealing with the
papa l schism of the late fou rteen th-fiftee nth centuries and the subsequent
conciliarist discussions used John of Paris extensively, and one might cite
Nicholas de Clamanges
[De ruina et de reparatione ecclesie
(1400)] *' who was
only one of many who used John of Paris for his own views on the origins of
ecclesiastical p rope rty. A s we have already note d, Pierre d'Ailly 's De Ecclesiae
et cardinalium autoritale. III (C ons tanc e, 1416) transm itted u nackno wledg ed
John of Paris ' chapters 6 and 7, and Cardinal T urrecre m ata, the D ominican
(d. 1468), wrote a
Summa de Ecclesia
(II c. 89) in which he absorbed John of
Paris's doctrine on lay and ecclesiastical property. This was published in
Salamanca, 1560. The Franciscan Delafino wrote a
De Ecclesia
(Venice, 1552)
where he used John of Paris 's terms regarding property. Gallican historians are
aware of these borrowings as Leclercq has shown; (one need only cite here the
works of Pierre Dupuy in Locke's library, numbers 2893-4), and the sixteenth
and seventeenth centuries saw several editions of John's
D e Polestate regia et
papali
John being considered a hero of the Sorbonne theologians and the
university of Paris tradition in the debate between Henri IV and Louis XIII.
Locke was not only acquainted with many of these tracts but more generally
with European men of letters, in France and the Netherlands. He was able to
write his
Essay concerning hum ane understanding Letters of Toleration
and
Thoughts concerning Education
when he was abroad and without his own
library to hand, and it is known that during his years in the Netherlands friends
lent him bo ok s. O ne of the great virtues of Tully 's study is his dem ons tration of
the living tradition of the question of dominium and the consequen t generation
of obligations and rights in part deriving from an understanding of God as
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100 Dominium in
3th
and 14th century
Political
Thought
maker with a special r ight in man as His workmanship, and the analog
concept of m an as maker with rights and co rrelative duties. Lo cke s property
right in common with all of mankind is, like that of the medievals we h
discussed, a subjective right. It is only by seeing the late medieval theolog
arguments as developments of what is rightfully common to all to wha
rightfully on e s ow n, that we can un der stan d how they determ ined the limits
individual property as inclusive and exclusive, defensible in courts of law, a
with a legacy that was actively reasserted th rou gh ou t the next several centu r
Locke and his peers, as Tuck has shown, drew on a living tradition of thou
which h e, like all co ntr ibu tors to the tradit ion , turn ed to his own pu rpose s in
later seventeenth century.
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