Private Law Models for Public Law Concepts: The Roman Law Theory of Dominium in the Monarchomach Doctrine of Popular Sovereignty
Published online by Cambridge University Press: 21 July 2008
The essay traces the juridical origins of the modern doctrine of popular sovereignty as developed by the monarchomach jurists of the late sixteenth century. Particularly, the use of doctrines from the Roman law of property explains the sovereign right of the people to resist and reconstitute the commonwealth. Reviving the civilian concept of dominium during the French Wars of Religion and dynastic royal politics, these radical jurists articulated the claim that the people, not kings, have property rights over the commonwealth. By conceptualizing the people corporately as property-owners in this way, they were able to draw on legal arguments from Roman law to justify popular resistance as an assertion of a corporate property right. In doing so, the monarchomachs expressed an elaborate theory of state and sovereignty within the grammar of the Roman private law.
- Research Article
- Copyright © University of Notre Dame 2008
1 The following abbreviations are used for references to monarchomach and Roman law sources:
Codex, ed. Gottfried Härtel, Frank-Michael Kauffman (Leipzig: Reclam, 1991).
The Digest of Justinian, 2 vols., trans. Alan Watson (Philadelphia: University of Pennsylvania, 1985).
Hotman, François, Francogallia, ed. Giesey, Ralph, trans. Salmon, J.H.M. (New York: Cambridge University Press, 1972)Google Scholar, cited by page number.
The Institutes of Gaius, ed. Francis de Zulueta (Oxford: Clarendon Press, 1953).
Vindiciae Contra Tyrannos, ed. and trans. George Garnett (New York: Cambridge University Press, 1994), cited by page number.
- Vindiciae 1579
Vindiciae Contra Tyrannos (Edinburgh, 1579), cited by page number.
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7 Especially in the Vindiciae, Quaestiones 1 and 2.
8 Kelley, Donald, François Hotman: A Revolutionary's Ordeal (Princeton: Princeton University Press, 1973), 240Google Scholar. One historian has recently criticized the tendency to focus on the juridical framework of the Roman law in the monarchomach tracts such as the Vindiciae, such as in the work of Quentin Skinner and George Garnett, and accuses them of “privileging the reading experience and ideological presuppositions of twentieth-century intellectual historians.” McLaren, Anne, “Rethinking Republicanism: Vindiciae, Contra Tyrannos in Context,” Historical Journal 49 (2006): 31CrossRefGoogle Scholar. However, I find McLaren's criticism unpersuasive, for reasons discussed in George Garnett's reply to McLaren, : “Law in the Vindiciae, Contra Tyrannos: A Vindication,” Historical Journal 49 (2006): 877–91Google Scholar.
9 Giesey, Ralph, “The Monarchomach Triumvirs: Hotman, Beza and Mornay,” Bibliothèque d'Humanisme et Renaissance 29 (1967): 52Google Scholar.
10 Dig., 1.4.1. See also Gierke, Otto von, Political Theories of the Middle Ages, trans. Maitland, F.W. (Cambridge: Cambridge University Press, 1922)Google Scholar; Gierke, Otto von, Natural Law and the Theory of Society, 1500–1800, trans. Barker, Ernest (Cambridge: Cambridge University Press, 1934)Google Scholar. Especially noteworthy are the introductory essays by the Cambridge translators of von Gierke.
11 Skinner, Quentin, The Foundations of Modern Political Thought vol. 2, The Age of Reformation (New York: Cambridge University Press, 1978), 321Google Scholar. This thesis has been expanded and restated most recently in Skinner, Quentin, “Humanism, Scholasticism and Popular Sovereignty,” and “From the State of the Princes to the Person of the State,” in Visions of Politics, vol. 2, Renaissance Virtues (New York: Cambridge University Press, 2002)Google Scholar.
12 Figgis, John Neville, From Gerson to Grotius, 1414–1625 (Cambridge: Cambridge University Press, 1907), 12Google Scholar.
13 Indeed, as Skinner observes, the theory of popular imperium in the lex regia is ideologically ambiguous. As much as it is a support for populist doctrines, it is just as much a defense of imperial absolutism, and it is this attachment to princely absolutism that should raise doubts concerning the “populist” or “democratic” credentials of lex regia-type arguments. See also Gilmore, Myron Piper, Argument from Roman Law in Political Thought, 1200–1600 (Cambridge, MA: Harvard University Press, 1941)Google Scholar, which treats legal dicta on the meaning of merum imperium and absolutist interpretations in the sixteenth century. In the conclusion to this study, Gilmore himself raises doubts on the absolutist credentials of the Roman law in sixteenth-century thought.
14 See, for example, the Vindiciae, in which Mornay speaks of the “corporation of the people” (universitas populi), the “whole people” (populus universus), and the people as the “true proprietor” of the commonwealth (populus … vere proprietarius). The identification of the people as a universitas connects the early modern monarchomach populist doctrines with the medieval legal theory of corporatism and corporate representation, which Otto von Gierke has underscored as a central link between medieval legal theory and modern contractarian thought. Otto von Gierke, Das Deutsche Genossenschaftsrecht, 4 vols. (Berlin: Weidmann, 1913), especially vol. 4. Gierke's thesis, however, has been criticized as being “vitiated … by ahistorical dogma.” Harro Höpfl and Thompson, Martyn, “The History of Contract as a Motif in Political Thought,” American Historical Review 84 (1979): 919Google Scholar.
15 As I will argue below, this proprietary and legalistic claim of the people's corporate supremacy over the commonwealth and the regalian rights attached to the crown was a commonplace in the Huguenot monarchomach literature and could be found in the political writings of Hotman, Beza, and Mornay.
16 This usage of res publica, to be sure, was typically a reference to the fiscus, the Roman public treasury. But see Dig., 50.16.15 (Ulpian): “The goods of a community are wrongly called ‘public’; for only those things are public [publica] that belong to the people.” (Bona civitatis abusive “publica” dicta sunt: sola enim ea publica sunt, quae populi Romani sunt.) Here, Ulpian clarifies that even things which public choice economists today would call public goods, or res publica, have an owner, the populus Romanus.
17 On this point, the following may be consulted. Ullman, Walter, Law and Politics in the Middle Ages (Ithaca: Cornell University Press, 1975)Google Scholar; Black, Antony, Monarchy and Community: Political Ideas in the Later Conciliar Controversy, 1430–1450 (New York: Cambridge University Press, 1970)Google Scholar; Kantorowicz, Ernst, The King's Two Bodies (Princeton: Princeton University Press, 1985)Google Scholar.
18 Vindiciae 1579, 86.
19 For many years, authorship of the Vindiciae was a principal matter of scholarly debate, narrowing down the list of candidates to Philippe du Plessis Mornay and Hubert Languet. The consensus now appears to favor Mornay, and so, I shall refer to him for shorthand references to the Vindiciae. Skinner, Foundations, 2: 305, note 3: “The best modern scholars … have always been inclined to accept Mornay's scholarship.” For the background literature on the authorship debate, see Figgis, From Gerson to Grotius, 153; Franklin, Constitutionalism and Resistance, 138–40; Armstrong, E., “The Political Theory of the Huguenots,” English Historical Review 9 (1889): 18–19Google Scholar; Waddington, A., “La France et les Protestants Allemands sous Charles IX et Henri III: Hubert Languet et Gaspard de Schomberg,” Révue Historique 42 (1890): 243Google Scholar; Weill, Georges, Les Théories sur le Pouvoir Royal en France pendant les Guerres de Religion (New York: Burt Franklin, 1967), 109Google Scholar.
20 This reliance on the Roman law, in my view, distinguishes the monarchomachs from other Calvinist resistance theorists within the general context of the Reformation, such as the theories of Knox and Goodman. The monarchomachs did not operate within a distinctively Calvinist or Huguenot framework, as defended in Walzer in Revolution of the Saints. Nor were they merely reconstructing a Renaissance version of a radical scholastic theory of such writers as Ockham, Gerson, and Mair, as defended by Skinner in Foundations vol. 2 and, more recently, in “Humanism, Scholasticism and Popular Sovereignty,” in Visions of Politics, vol. 2, Renaissance Virtues (New York: Cambridge University Press, 2002). There is a profoundly juridical framework that is unique to the monarchomachs, a thesis most persuasively made by Julian Franklin, Ralph Giesey, Donald Kelley, and J.H.M. Salmon at various places.
21 Kelley, Donald, “Civil Science in the Renaissance: Jurisprudence in the French Manner,” History of European Ideas 2 (Oxford, 1981)Google Scholar.
22 Kelley, Donald, Foundations of Modern Historical Scholarship (New York: Columbia University Press, 1970)Google Scholar; Kelley, “Civil Science in the Renaissance: Jurisprudence in the French Manner”; Franklin, Julian, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (New York: Columbia University Press, 1963)Google Scholar. Strauss, Gerald, Law, Resistance and the State: The Opposition to Roman Law in Reformation Germany (Princeton: Princeton University Press, 1986)CrossRefGoogle Scholar.
23 Kelley, “Civil Science in the Renaissance,” 269. See more generally Bellomo, Manlio, Common Legal Past of Europe: 1000–1800, trans. Cochrane, Lydia (Washington: Catholic University of American Press, 1995)CrossRefGoogle Scholar. See Pocock's, J.G.A. essay in The Languages of Political Theory in Early-Modern Europe, ed. Pagden, Anthony (New York: Cambridge University Press, 1987)Google Scholar.
24 Burns, J.H., Lordship, Kingship and Empire: The Idea of Monarchy, 1400–1525 (New York: Oxford University Press, 1992), 7CrossRefGoogle Scholar. Mornay's marginal citations, in Vindiciae 1579, referred almost exclusively to Bartolus's treatise, De Tyranno, which made a peculiar distinction between tyrants by exercise and tyrants by usurpation.
25 Res in its juristic sense simply indicates the “general name for anything which is the object of a legal act.” Smith, William, ed., Dictionary of Greek and Roman Antiquities (1870), 421Google Scholar. Cf. with this: “Institutionally a res is some element of wealth, an asset with a legally guaranteed value; it is an economic conception” (Coleman, Janet, “Property and Poverty,” in Cambridge History of Medieval Political Thought, c. 350–c.1450, ed. Burns, J. H. [New York: Cambridge University Press, 1988], 611Google Scholar). See also Dig., 1.8.1 et seq. for classical treatment of res.
27 Buckland, W.W., A Text-book of Roman Law from Augustus to Justinian, 3rd ed., rev. Peter Stein (Cambridge: Cambridge University Press, 1963), 188Google Scholar.
28 Dig., 22.214.171.124 (Ulpian): “Ownership has nothing in common with possession.”
29 Jolowicz, H. F., Historical Introduction to the Study of Roman Law (Cambridge: Cambridge University Press, 1952), 142–43Google Scholar; Borkowski, Andrew and Plessis, Paul du, Textbook on Roman Law, 3rd ed. (New York: Oxford University Press, 2005), 157Google Scholar, however, suggest that dominium might be compared favorably with the fee simple in common law.
30 Dig., 41.2.12. As Smith explains at 422 of the Dictionary of Antiquities, “Every dominus has a right to the possession of the thing of which he is dominus, but possession alone, which is a bare fact without any legal character neither makes a man a dominus, nor does the want of possession deprive him of dominium.”
31 Dig., 41.2.13.pr (Ulpian): “Pomponius discusses the question whether, when stones had been sunk in the Tiber in a shipwreck and some time later salvaged, the ownership of them remained intact throughout the time that they were submerged. My view is that I remain owner of them but I do not possess them.”
32 Cod., 2.12.10. Cp. Tuck's discussion on 18ff. in Natural Rights Theories.
33 This remains valid for the Roman law of property, but legal practice provided protections of de facto possession without reference to Quiritarian right through the use of devices called possessory interdicts, institutionalized in the late Republic and the Principate.
34 But this statement needs to be carefully qualified, since, in practice, owners under the Roman law could attach various kinds of incidents on ownership. Moreover, later Roman law under the Empire recognized inferior modes of ownership, such as “bonitary ownership.” Jolowicz, Historical Introduction, chap. 10. Buckland, Text-Book on Roman Law, 188–89, Borkowski and du Plessis, Textbook on Roman Law, 159–60.
35 To be sure, dominium was not the only civilian concept used in the royal politics of the French Wars of Religion. The jurists drew from a wide range of legal sources such as the law of persons, the law of obligations, the law of delicts, the law of debt, not to mention feudal law. The law was a common fund of ideas and concepts which could be tailored toward advancing a particular political doctrine, in this case, royal power.
36 The Salic Law, which regulated royal inheritance by agnatic succession, was considered one of the fundamental laws of the realm which, according to the early sixteenth-century writer, Claude de Seyssel, was one of the basic “bridles” or limitations on absolute personal rulership of the king. de Seyssel, Claude, The Monarchy of France, trans. Hexter, J. H., ed. Kelley, Donald (New Haven: Yale University Press, 1981)Google Scholar. Hotman approvingly cites Seyssel on this point in Francogallia, 293.
37 Strauss, Law, Resistance and the State.
38 These included such maxims as Dig., 1.3.31 (Ulpian), “princeps legibus solutus” (the prince is unbound by the law), Dig., 1.4.1 (Ulpian), “quod principii placuit legis vigorem habet” (what pleases the prince has the force of law), the view that the prince is lex animata (living law) and the thesis that the prince holds all law in his person, lex in scrinio pectoris.
39 Figgis, From Gerson to Grotius, 10: “[T]he king's rights were the rights of landed proprietors.” This complicated overlapping of proprietary rights and sovereign rights has been analyzed under the heading of “proprietary dynasticism” in Rowen, Herbert, The King's State: Proprietary Dynasticism in Early Modern France (New Brunswick: Rutgers University Press, 1980)Google Scholar.
40 In the Roman law, rights were considered res incorporeales and thought to be objects of property. Gaius 2.14. Borkowski and du Plessis, Textbook on Roman Law, 153.
41 Some examples in this genre, discussed by Skinner in Foundations, 2: 259ff. and Church, W.F. in Constitutional Thought in Sixteenth-Century France: A Study in the Evolution of Ideas (Cambridge, MA: Harvard University Press, 1941)Google Scholar include Barthelemy de Chasseneuz, Catalogus Gloriae Mundi (Lyon, 1529); Etienne de Bourg, Solium Regis Christianissimi Franciae in Suprema Curia Parlamenti Parisiensis, Tribunal Iudicum et Cathedra Doctorum (Lyon, 1550); Charles Du Moulin, “Commentarii in Consuetudines Parienses,” in Opera Omnia, 5 vols. (Paris, 1681); Jean Ferrault, Tractatus Iura Seu Privilegia Aliqua Regni Franciae Continens, in Du Moulin, Opera Omnia, vol. 2; Charles de Grassaille, Regalium Franciae (Lyon, 1538). This practice of enumerating regalia was not restricted to Renaissance France, but it was a common exercise of lawyers attached to courts. For example, see Kenneth Pennington's discussion of the Bolognese Doctors at the Diet of Roncaglia on whether Frederick was dominus mundi in The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993) and the common lawyers' dicta on the Prerogativa Regis in the Inns of Court in McGlynn, Margaret, The Royal Prerogative and the Learning of the Inns of Court (New York: Cambridge University Press, 2003)CrossRefGoogle Scholar.
42 Church, W.F., Constitutional Thought in Sixteenth-Century France (Cambridge, MA: Harvard University Press, 1941), 188Google Scholar.
43 Brissaud, Jean, A History of French Public Law, trans. Garner, James (New York: August M. Kelley, 1969), 333Google Scholar.
44 Brissaud, French Public Law, 78–81 (§§435–36).
45 The king could not disinherit natural heirs, by the rule, “non habent ab ipso patre, sed a consuetudine regni” (royal heirs succeed not by their fathers, but by the custom of the realm). Brissaud, French Public Law, 342.
46 Respectively, Vindiciae 124 (in Latin, Vindiciae 1579, 150: universi domini regni) and Vindiciae 90 (in Latin, Vindiciae 1579, 10: vere proprietarius).
47 Hotman, Francogallia, 255 (in Latin, Francogallia, 254): [earum possessionum proprietas penes populum manet].
48 Dig., 3.4.1 et seq., Dig., 5.1.76, Dig., 126.96.36.199, Dig., 188.8.131.52. Although it was not a part of classical Roman law, the law of corporations was a product of medieval jurisprudence developed by scholastic glossators such as Azo and Accursius who relied on the Roman texts. The comparison of legal corporations to the people was a staple of medieval public jurisprudence, especially in the thought of Bartolus and Baldus. See Canning, J.P., The Political Thought of Baldus de Ubaldis (New York: Cambridge University Press, 1987)CrossRefGoogle Scholar.
49 Buchanan, George, A Dialogue on the Law of Kingship among the Scots (De Jure Regni apud Scotos Dialogus), trans. Mason, Roger and Smith, Martin (Burlington: Ashgate, 2004), 55Google Scholar.
50 Borkowski and du Plessis, Textbook on Roman Law, 88–89.
51 Hotman, Francogallia, 247 (in Latin, Francogallia, 246): [regnum Francogalliae antiquitus non hereditatis jure, ut private patrimonia, sed ordinum ac Populi judicio et suffragiis deferri solitum fuisse].
52 For an extensive discussion of Renaissance theories of French kingship, see Mellet, Les Traités Monarchomaques, 364–400.
53 Vindiciae, 78 (in Latin, Vindiciae 1579, 89): [Ut vero Populus universus Rege superior est; ita etiam hi etsi singuli Rege inferiores sint, universi tamen superiores censendi sunt].
54 Respectively, Francogallia, 335; Francogallia, 399 and Vindiciae, 75; Vindiciae, 74; Vindiciae, 89; Vindiciae, 104; Vindiciae, 104; Francogallia, 205, 399 and Vindiciae, 104; Vindiciae, 119; Vindiciae, 130; Francogallia, 205, 399; and Vindiciae, 158.
55 Vindiciae, 113 (In Latin, Vindiciae 1579, 137–38): [At certe fisci, patrimonii regalis, quod domaniu vulgate vocabulo nucupatur, proprietarii domini nulla ratione censeri possunt]. Cp. Vindiciae 119: “In all legitimate realms the king is not the proprietary lord of the royal patrimony” (in Latin, Vindiciae 1579, 145): [Quod autem rex in omnibus legitimiis imperiis, patrimonii regii proprietarius dominus non sit].
56 Vindiciae, 119 (In Latin, Vindiciae 1579, 144): [verum regem, ut publicorum negotiorum curatorem, it et publicarum opum administratorem, non autem proprietarium dominium esse, qui quidem domanium regium non magis, quam regnum ipsum, alienare, aut dissipare possit].
57 J.W. Allen, History of Political Thought in the Sixteenth Century; Church, Constitutional Thought, chap. 4; Giesey, Ralph, “State-building in Early Modern France: The Role of Royal Officialdom,” Journal of Modern History 55 (1983): 191–207CrossRefGoogle Scholar; Strauss, Law, Resistance, and the State; Tuck, Richard, Philosophy and Government, 1572–1651 (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar; Viroli, Maurizio, From Politics to Reason of State: The Acquisition and Transformation of the Language of Politics, 1250–1600 (New York: Cambridge University Press, 1992)CrossRefGoogle Scholar.
58 Francogallia, 255 (In Latin, 254): [Huius nuda proprietas est penes universitatem populi, sive Rempublicam, ususfructus autem penes Regem]. The seventeenth-century Tübingen jurist, Christopher Besoldus, appeals to this principle to articulate a German public law theory of double sovereignty. Besoldus, Christopher, Dissertatio Politica-Juridica, de Majestate in Genere (Tübingen, 1625), 9Google Scholar. Mornay goes even further in the Vindiciae, by denying that kings are not even usufructs of the kingdom. Vindiciae 127: “Kings are only administrators of the royal patrimony, not proprietors or usufructuaries.”
59 Hotman, Francogallia, 253 (In Latin, Francogallia, 252): [Principis esse dicuntur, sed … imperio, non dominio; ditione, non proprietate]. This appears to be a direct quotation from the Politique Chancellor Michel de l'Hôpital who asserted, in a very different context, that kings have the right to tax because “the wealth of their subjects belongs to them [kings]…as the rulers, not as the lord and proprietors [imperio, non dominio et proprietate].” Church, Constitutional Thought, 166, note 32.
60 Roughly, this is the notion that, while the king may be superior to individual members of the commonwealth, the commonwealth as a whole is always superior to the king. Skinner, Foundations, 2: 334. Mornay expresses this conciliarist commonplace at various points in the Vindiciae: Vindiciae 78: “Thus as the whole people is superior to the king, so also these—although as individuals taken to be inferior to the king—must altogether as a whole be considered to be superiors” (in Latin, Vindiciae 1579, 89): [Ut vero Populus universus Rege superior est; ita etiam hi etsi singuli Rege inferiores sint, universi tamen superiores censendi sunt]; Vindiciae, 156: “For the superior is the whole people, or those who represent it—the electors, palatines, patricians, the assembly of the estates, and the rest” (in Latin, Vindiciae 1579, 194): [Superior vero, universus populus est, quive eum representant electors, palatine, patricii, ordinum conventus, et ceteri].
61 Vindiciae, 72. Harold Laski's edition of the 1689 edition of the Vindiciae uses the term “seised” at 123. (A Defence of Liberty Against Tyrants: A Translation of the Vindiciae Contra Tyrannos by Junius Brutus, ed. Harold Laski [London: G. Bell and Sons, 1924]).
62 It is interesting to note, moreover, that monarchomachs are not alone in making this claim. Even the greatest theorist of absolute sovereignty, Jean Bodin, certainly no friend of radical populism, was pressed to conclude that kings cannot hold property in the commonwealth: “For kings and great princes have not the property of the public domains, nay not so much as the whole use and profit . . . bare use, the rest belongeth unto the commonwealth” Six Bookes of a Commonweale, trans. Richard Knolles, ed. Kenneth McRae (Cambridge, MA: Harvard University Press, 1962), 130. Likewise Hugo Grotius, following these theories, would later claim that kings “have no more than a tenant's right” to the royal dignity and power which are properly the patrimonium . . . populi and not a dominium. De Jure Belli ac Pacis (Paris, 1625) at 2.6.11: “Nam et in hoc jus majus fructuario non habent” [For an English translation, see Grotius, Hugo, The Rights of War and Peace, ed. Tuck, Richard (Indianapolis: Liberty Fund: 2005) 576Google Scholar: “For they have no more than a tenant's right to it.”]
63 These were sometimes called imaginaria venditio, or imaginary sales. Jolowicz, Historical Introduction, 145; Gaius, 1.119.
64 XII Tables at Table 6.5; Gaius, 2.42–2.44. As with many features of the Roman law, usucapion had a fundamentally practical aspect, i.e., to ensure that “ownership of things should not remain uncertain for too long a time.” Peregrini, or foreigners, who were unable to acquire property through usucapion, could, nevertheless, acquire property through a roughly similar procedure that the praetors developed for noncitizens, praescriptio, or prescription. Since the principle is largely the same, I treat both usucapion and prescription as a single category.
65 On the Researches of these royalist legal historiographers, see Church, Constitutional Thought, 84, and, more generally, Kelley, “Civil Science in the Renaissance.”
66 Allen, History of Political Thought in the Sixteenth Century, 312: “La prescription contre les droits du peuple est invalide” and in the Vindiciae 1579, 103: “Nihilominus tamen adversus Populu neque prescriptio, neque praevaricatio ista quidquam facit.” More generally, see Cod. 41.3.18 and Dig. 7.33.1.
67 Vindiciae, 90 (In Latin, Vindiciae 1579, 104): [etsi moriuntur reges, populus interim, ut neque ulla alia Universitas, nunquam moritur]. See also Dig. 5.1.76; Dig. 184.108.40.206; Dig. 220.127.116.11.
68 Vindiciae, 90 (In Latin, Vindiciae 1579, 104): [Ut enim perennem fluvium fluxus, ita et populum immortalem ortus et interitus vicissitudo facit]. Cf. Aristotle Politics III.3, 1276a.
69 XII Tables at Table 6.5; Gaius 2.45: In order for usucapion to be effected, the possessor had to meet what was called a justus titulus requirement, a precondition designed to show that the possessor who was about to usucape had a just title to original acquisition of the thing possessed. Jolowicz, Historical Introduction, 156. Here, the monarchomachs, especially Mornay, are claiming that tyrants are without title, absque titulo, and, in effect, robbers of the people's property (Vindiciae 1579, 171). The legal remedies for theft in the Roman law directly become the normative principles of resistance.
70 Vindiciae, 140 (In Latin, Vindiciae 1579, 171): [qui aut vi malique artibus imperium invasit].
71 This was a common form of political argument in Renaissance France, particularly in disputes concerning jurisdiction. For example, Du Moulin, who wrote his Commentarii to consolidate the rights and powers of the French Crown and its royal jurisdiction against the particularistic jurisdictions of nobles, called the seigneurs “usurpers” on the royal sovereignty (Gilmore, Argument from Roman Law, 69).
72 Respectively, Vindiciae, 140 (in Latin, Vindiciae 1579, 171): [tyrannus absque titulo] and Vindiciae, 141 (in Latin, Vindiciae 1579, 172): [injustus possessor est].
74 Vindiciae, 150.
76 Allen, History of Political Thought in the Sixteenth Century, 309.
77 Skinner, Foundations, 2: 310. Skinner, in turn, identifies Hotman's argument as part of a larger discourse on ancient constitutionalism discussed in J.G.A. Pocock's seminal work on the subject.
78 Francogallia, 214–15. Even before the formation of Francogallia, Hotman noted that the Gallic and the Frankish peoples antecedently and independently had the custom of electing kings for themselves, [totius Gentis concilio communis] (Francogallia, 149), a custom which was observed by the classical authors such as Caesar and Tacitus.
79 Francogallia, 155 (in Latin, Francogallia, 154): [a populo propter justitiae opinionem deferebantur].
80 Francogallia, 377 (in Latin, 376): [qui cum remoto herede legitimo regnum occupasset].
81 Francogallia, 411 (in Latin, Francogallia, 410, 412): [constituitque ut qui eas obtinebant, patrimonii iure retinerent, atque ad suos liberos poterosque, cum reliqua hereditate, transferrent].
82 Hotman called the lawyers of the Parlements “pettifoggers” whose power was almost like a royal power (Francogallia, 497). In this context when the estates were being called for the first time in about a century, Hotman took direct aim at the Parlements, calling them a “plague” which infected France and usurpers of powers which rightfully belonged to the people assembled in their estates (Francogallia, 519).
83 Figgis, Divine Right of Kings; Giesey, Ralph, The Juristic Basis of Dynastic Right to the French Throne (Philadelphia: Transactions of the American Philosophical Society, 1961)Google Scholar.
84 Vindiciae 1579, 144.
85 Gaius, 1.9 et seq.
86 Dig., 26.1.1 et seq., especially Dig. 26.10 on untrustworthy tutors and curators.
87 Jolowicz, Historical Introduction, 175.
88 Ibid., 249. Mornay has this sort of action in mind when he writes in Vindiciae, 119: “[I]t is clearly much more equitable that a curator of the commonwealth [1579: curator Reipublicae] who diverts public resources to the public ruin, or who completely overturns them, could be deprived of all administration by those whose concern and office this is, if he failed to desist after a reproof.”
89 Cicero, , Letters to Atticus, trans. Winstedt, E.O. (New York: Macmillan, 1912), 1: 17 (Letter 1.5)Google Scholar.
90 Skinner, Foundations, 2: 312.
91 Vindiciae, 125.
92 Dig., 6.1.1, et seq. For this reason, the vindicatio was only rarely used, in the most exceptional circumstances. One of the founders of the German historical school of jurisprudence, von Savigny, had long ago suggested that the effect of vindicatio was to unsettle the “public peace” by raising directly questions of ultimate right. It is to the credit of the Romans, he suggests, that they developed the various rules which avoided the occasions on which ultimate or final right had to be adjudicated.
93 Vindiciae 1579, 211.
94 Vindiciae, 167 (in Latin, Vindiciae 1579, 207–8): [Et illi quidem universum regnu a tyrannide vindicare debent, si possunt]. Cp. Vindiciae 168 (in Latin, Vindiciae 1579, 210): [a tyrannide vindicare …]. and Vindiciae, 170 (in Latin, Vindiciae 1579, 213: [repub. Regnuq. a tyrannide vindicare conetur].
95 Francogallia, 311 (in Latin, Francogallia, 310): [a supremo dominatu vindicandae atque tuendae commune perfugium atque praesidium esset]. Cp. Francogallia, 215, in a discussion about the constitutional origins of Francogallia, liberty itself is “vindicated”: “Childeric … finally won freedom for Gaul from Roman servitude” (in Latin, Francogallia, 214): [Galliam e Romanorum servitute in libertatem vindicasse].
96 Skinner, Foundations, 2: 313.
97 As is well known, Mornay makes one exception for private acts of resistance, in the case of a “tyrant without title.” But such tyrants are not technically rulers to whom obedience is due. Thus, resistance is a justifiable act of self-defense, because “one may repel force with force”[vim vi repellere licet], Dig., 43.16.3. On self-defense, see Parrow, Kathleen, From Defense to Resistance: Justification of Violence during the French Wars of Religion (Philadelphia: American Philosophical Society, 1993)Google Scholar.
98 Cf. Tuck, Natural Rights Theories, 42–44.
99 Skinner, Foundations, 2: 335.
100 Perhaps the most important statement of the Politique position against the monarchomachs is Bodin in the Commonweale, 1.8 at 137–38, where he speaks out against “those who have written on the duty of magistrates and other such books … holding that the Estates of the people are greater than the prince.”
101 Giesey, “The Monarchomach Triumvirs,” 53.
102 Some excellent studies of this are Salmon, J.H.M., “The Legacy of Jean Bodin: Absolutism, Populism, or Constitutionalism?” History of Political Thought 17 (1996)Google Scholar; Van Gelderen, Martin, The Political Thought of the Dutch Revolt, 1555–1590 (New York: Cambridge University Press, 1992)CrossRefGoogle Scholar; Van Gelderen, Martin, “Aristotelians, Monarchomachs and Republicanism: Sovereignty and Respublica Mixta in Dutch and German Political Thought, 1580–1650,” in Republicanism: A Shared European Heritage, vol. 1 (New York: Cambridge University Press, 2002)Google Scholar.
103 Skinner, Foundations, 2: 338ff, especially 344, concerning the phrase “proprie pertinet” in Buchanan's text indicating a relationship between popular possession and ultimate control.
104 Salmon, “Legacy of Jean Bodin.”
105 Althusius, Johannes, Politica Methodice Digesta, ed. Friedrich, Carl (Cambridge, MA: Harvard University Press, 1932), 83 (chap. 8, §55)Google Scholar.
106 This is a central reason why Barclay has no hesitation in regarding the Catholic Ligeur writers such as Jean Boucher to be monarchomachs as much as Mornay and Beza. Catholic resistance theorists were to be condemned equally as Huguenot resistance theorists.
107 Figgis, From Gerson to Grotius, 159; Salmon, J.H.M., “Catholic Resistance Theory, Ultramontanism, and the Royalist Response, 1580–1620,” in Cambridge History of Political Thought, 1450–1700, ed. Burns, J.H. and Mark, Mark (New York: Cambridge University Press, 1991)Google Scholar.
108 On this point, see McMillan, Ken, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (New York: Cambridge University Press, 2006)Google Scholar.