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Dominium, the notion of lordship, underwent important 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), illustrates
not only a radical attitude to property rights, private ownership and the defence of
one's own in theory, but reflects important evolutions in contemporary property law
and its consequences for secular sovereignty. John of Paris'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, interdependent, feudal thing, to independent
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.
74
enormous significance for the history of political ideas, for the practice of and
transformation of legal theory, for the attitudes expressed by a varied public in
their daily transactions at a variety of levels with government and ecclesiastical
representatives. Furthermore, medieval dominium may be directly linked with
seventeenth-century discussions and it is particularly important for Locke's
Second Treatise of Government. Dominium, with its related notions of
proprietas, possessio and usus is a complicated and shifting series of concepts as
we shall see, and to affirm that the idea of dominium has a history is not to say
it necessarily has a fixed conceptual shape and is used in the same way by
subsequent generations.^ Our set pieces are Latin tracts of the depotestate regia
et papali genre by John of Paris (Ouiddort)his De Potestate Regia et Papali,
and the anonymous Rex Pacificus;^ to a lesser extent William of Ockham's
Breviloquium and the Opus Nonaginta Dierum. Each of these works was
written quickly, as a scholarly publicist argument in favour of one side, that of
the monarchy, in a battle that was a continuous part of the current political
scenario during the fourteenth century. We shall be brief about what we may
take to be methodological problems and possible solutions in studying
fourteenth-century political ideas in general, and thereby indicate ways in
which the 'factual' historian whom Skinner wants to enlist in the 'theory' cause
can be enticed into examining the lesser and greater political theory tracts to
gain further insight either into the actual political workings of the age in which
his author lived, or at least into the mentality that wrote theory, even when
practice was consciously distinct from the 'ought' implied in the theory text." It
will be suggested that a schism between historians of political ideas and
historians of 'facts' and events may be healed by following a via media between
the internalist and externalist approach to texts and what they were taken to
mean in their own time, so far as we can tell.' The method in this study is to
suggest that one's approach is dependent first on recognizing the formal characteristics of specific genres of political writing and thereafter to discover the roles
of certain genres in the period under consideration.
JANET COLEMAN
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JANET COLEMAN
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that poverty was to be equated with evangelical perfection. Secular clergy, that
is, those not in the new orders of friars and not monks, argued biblically that
Christ and the apostles had, in fact, carried a loculos, a money bag, and
therefore had worldly possessions; if the mendicants thought they were living
apostolically they were mistaken. This turned into a legal battle over the
meaning of and distinction between dominium and usus, and in particular over
the role of the papacy (ecclesiastical authority) in deciding the following issue:
what did having lordship or dominium over property mean? How was it distinct
from rights over material goods or merely using material goods and collecting
them? The irony of it all, in short, lay in the situation that the by-now wealthy,
propertied and possessionate papacy was being asked to judge whether the most
perfect life men could live was properxyless, and furthermore, was a voluntarily
poor life. Was this propertylessness in imitation of the life of Christ and the
apostles who may have owned nothing?'^ What is of significance for John of
Paris and for us as his readers, is the language in which this debate was carried
outa language that theologians, administrators, and publicists of all kinds
shared and used with evident ease: a language of property rights and legal
potentials.'" We shall come back to this later and try to explain the artificially
separated conceptual, linguistic and factual realms that spawned the property
problem in this particular way.
What is the structure of John of Paris's tract, De Potestate regia et papali?
The 25 chapters hang together loosely, groups of chapters having imposed upon
them a unity found by categorizing similar subjects through the use of the
forma by which such subjects were traditionally discussed. The work does not
develop; the organization is similar to the quodlibetal questions disputatio or
determinatio where this was developed from questions taken from the floor,
prior to the written presentation of the formal version of a scholastic tract. The
tract comprises a series of more or less related issues argued in usually recognizable fashion, put together in a typically 'scissors-and-paste' medieval
manner, plagiarizing uncited contemporary sources and authoritative texts,
scriptural and legal, the latter covering canon, civil and customary law. In the
Prologue, the middle position of the current argument over sacerdotal and
royal power is put and it is immediately made clear that power, potestas, in
temporal affairs, is to be taken specifically in the narrow sense, meaning that
lordship over material property is to be discussed, i.e. dominium in rebus.'- This
narrowed understanding of potestas is one of the most significant contributions
to our conception of the theme of dominium in fourteenth-century texts.
However, John's most unusual and influential statements on potestas as
dominium 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
1' Malcolm Lambert, Franciscan Poverty: the Doctrine of the Absolute Poverty of Christ and
the Apostles in the Franciscan Order, 1210-1323 (London, SPCK, Church Historical Society,
1961); and Rosalind Brooke, Early Franciscan Government, Elias to Bonaventure (Cambridge,
Cambridge University Press, 1959); Y, Congar, 'Aspects ecclesiologiques de la querelle entre
mendiants et seculiers dans la seconde moitie du xiii"^ siecle et le debut du xiv'' siecle'. Archives
d'Histoire Doctrinal et Litteraire du Moyen Age, 28 (1961),
! Coleman, 'Medieval Discussions of Property: Ratio and Dominium', p. 213,
15 Bleienstein (ed,), p, 71,
78
JANET COLEMAN
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choose a ruler who best benefits the ruled.'^ Walter Ullmann has for years been
explaining how medieval European government vacillated between justifying
power according to the ascending/descending theses of government;'^ John of
Paris presents the ascending theory of civil government from the natural man as
initiating power in an exemplary way. What is also important here is John's
argument that within the secular realm there is no divine or natural reason to
have a universal unifier, i.e. an emperor; it is a general argument justifying the
individual monarch, France's King Philippe.
Next he argues that men are distinct from one another regarding their bodies,
but their souls are one, that is, men are essentially alike but attributionally and
physically distinct.^" This may well be a view influenced by the current
Averroistic Aristotelianism in the arts faculty of Paris, but for our political
purposes, it has other significant consequences. He says secular powers are
diverse because of the diversity of climates and differing physical constitutions
of men: one man cannot possibly rule the world's temporalia, because his
authority is his sword and he cannot be everywhere at once. But one man can
rule spiritually since spiritual sanction is verbal and, by implication, since Latin
is the universal language of spirituality, the pope's word is universal.'' In this
chapter (3), John is busy comparing the structure of the church with that of the
secular state and he then says something quite extraordinary to reinforce the
respective distinctiveness of the internal structuring of church and state. He
argues that it is important to recall that temporalities of laymen are not
communal as,^- he says, will be stated below, and therefore each man is master
of his own property as it was acquired through his own industry; thus there is no
need for administration of temporalia in common, for each man is his own
administrator.23 Ecclesiastical property, on the other hand, was given to the
community as a whole and it therefore requires a president, someone who
presides over the community to hold and dispose goods on the community's
behalf. John means that there is an apportionment of things to individuals prior
to governments, that lay property, discretely apportioned, results from
individual labour alone in natural society. He has told us that society is natural
and that particularization of common property is also natural. He will say more
on this later. He goes on to argue that although it is true that faith requires one
spiritual arbiter, all the faithful need not be united in one/?o////cfl/community.
They are united in one religious community of the faithful but not in one
'* Bleienstein (ed,), pp, 81-2,
" Walter Ullmann, Principles of Government and Politics in the Middle Ages, 2nd ed, (London,
Methuen, 1966) and/I History of Political Thought in the Middle Ages (Havmondsv/orih, Penguin,
1%5). Also see Ullmann, 'Boniface Vlll and his contemporary scholarship'. Journal of Theological Studies, 27 (1976), 58-87,
2" Compare Albritton's discussion of Locke's demonstration of morality from the idea of God as
Supreme Being creating man as a rational being capable of living in harmony (Essay Concerning
Human Understanding): 'As created by God and as passive perceivers of simple ideas men are likeminded,' Robert Albritton, 'The Politics of Locke's Philosophy', Political Studies, XXIV (1976),
253-67; pp, 261-2,
' ' Is this where Pierre Flotte, King Philippe's emissary to Pope Boniface VlII got his devastating
reply to Boniface's: nos habemus utramquepotestatem, Pierre replying: utique domine, sed vestra
est verbalis, nostra autem realist
-2 Bleienstein (ed,), p, 82,
^^ , , , cum quilibet rei suae sit ad libitum dispensator.
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2^ Ubi primo ostendetur quodmodo se habeat summus pontifex ad bona exteriora quoad
dominium in rebus, et secundo, dato quod non sit verus dominus exteriorum bonorum sed
dispensator simpliciter vei in casu, an saitem habeat radicalem et primariam auctoritatem ul
superior et ut iurisdictionem exercens. Bleienstein (ed.), pp. 9 0 - 1 . Brian Tierney argues that here
John of Paris is merely restating the canonistic theories on church property of the thirteenth century
Huguccio and Innocent IV, for whom dominium rested only with the congregatio fideiium and all
prelates including the pope were dispensatores to whom was entrusted the duty of administration.
Brian Tierney, Foundations of the Conciiiar Theory (Cambridge, Cambridge University Press,
1955; reprint 1968), p. 167.
25 Coleman, 'Medieval Discussions of Property: Ratio and Dominium', p. 217; Godefroid de
Fontaines, Quodlibets X1,XII,XIV\}.
Hoffmans (ed.)), Phitosophes Beiges, V (1932).
" Proprietas and dominium should be taken as distinct legal terms rather than as synonymous as
Leclercq interprets them.
JANET COLEMAN
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82
Dominium'.
31 Bleienstein (ed.), p. 97.
JANET COLEMAN
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84
deposable monarch acting on trust to keep order but to whom neither property
nor property rights is alienated. The Rex Pacificus as Ullmann presents it in
summary, argues that because the state is prior, and is by analogy the heart
whereas the church is the mind of the body politic, a cessation of ecclesiastical
jurisdiction would not entail a destruction of the state. The state is the
foundation of the church's existence and therefore the church is dependent on
the state, whilst the state is morally and physically self-sufficient. The author
does not then follow John of Paris's via media in establishing two independent
powers; he is, rather, closer to Marsilius of Padua.^"^ His view of potestas leads
to two distinct jurisdictionsspiritual and temporal; potestas in the political
world is linked directly to jurisdiction regarding property and is the concern of
the monarch 'without whose laws there can be no property', but such human
laws are not arbitrary expressions of a ruler's will but are God's will expressed
through the medium of kings and they are therefore natural. Secular law and
jurisdiction are the foundations of 'private' property for this author, and there
is no property unless the king safeguards it through human law. This is an
argument for property as an artificial division of originally common goods and
is supported by the author's frequent citation of Augustine for whom the civil
law was a necessary, artificial and arbitrary ordering principle resulting from
man's disorderly, fallen nature. Apportionments and divisions of property are
the prerogatives of the civil government according to Augustine and the
author of Rex Pacificus. The author is, of course, at pains to show how Christ
declined to interfere with apportionments and divisions of property, and that
he advised the apostles against the desire for temporal possessions because this
leads to the ambition to be a judge amongst parties contesting property rights.^^
Like John of Paris, who argues point for point against the papal hierocrat
Aegidius Romanus when Aegidius compares church and state in terms of
priority in time and then in dignity,^^ the author of Rex Pacificus argues
against Aegidius's thesis of the pope's universal property: bishops are not
owners of ecclesiastical goods and estates but are only dispensatores; having no
dominium over ecclesiastical goods, the bishop has even less dominium over lay
property. He has a right of administration over church property but no right
whatsoever over temporal goods. Like John, he argues for the autonomy of the
French monarchy in secular matters, and by this is meant matters of private
property and the exercise of rights in the legal sphere of inheritance and
alienation. Unlike John (and Locke), the author of Rex Pacificus does not see
private property as possible no less a right, prior to the people's consent to
establish an arbiter with jurisdictio.
John of Paris's unusual and 'Lockean ideas before their time' are not unique
to his De Potestate regia et papali, however; they are almost word for word out
of a formal theological quodlibetal debate held by Godefroid of Fontaines in
1295-6, held at the university of Paris, where questions from the floor in this
public session were discussed by Godefroid as magister.*" John's wholesale
borrowing from Godefroid are typical of the 'scissors-and-paste' mode of
'''
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JANET COLEMAN
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First, we shall say something about John of Paris's use of customary law,
then about the more general situation in thirteenth-century Europe, and lastly,
deal with an extraordinary development in English common law which is
reflected in theory, in statute, in the written specific examples of change, that is,
in the general verdicts handed down in specific cases in late thirteenth-century
royal courts.
First, John's use of customary law: Leclercq in his commentary and edition
of the De Potestate regia etpapali was surely correct when he noted that Roman
law was used both by the early fourteenth-century papacy as much as by
monarchs, each twisting its sense to favour their own causes.''- Amongst the
services Roman law was asked to provide was the formulaic expression to fit the
particular exigencies of the times. Monarchists as well as papal hierocrats
quoted Roman law when they required a formula, e.g. 'what pleases the prince
is law', but French law (like English) rested on custom rather than on written
Roman principles. Fidelity to customary law remained the sign and guarantee
of royal autonomy in France. Precisely because customary law varied
regionally and was imprecise on many points, new practices could be introduced, sanctioned by later prescription. 'Pour toutes ces raisons, il etait trop
precieux aux yeux de Philippe le Bel et de ses ministres pour qu'ils lui
prefereassent le droit romain'."** Ancestral customs, examples of predecessors,
were not only manifestations of a national tradition but also were taken to be
manifestations of natural law. The translation of Aristotle's Ethics and
Politics, and Aquinas's and other theologians' commentaries, provided the
scholastic, formal, educated, justification of the ius gentium et civiti where the
latter was seen to be the natural, instinctive, customs of a people developed
from historical and geographical exigencies but in accord with the divine law
and the divine will. Roman civil law, however, does seem to have contributed
some fundamental concepts and certainly formulaic expressions and
categories, and the philosophy of the schools elaborated on them. Natural law
was one of these. John of Paris responded as did Godefroid of Fontaines in his
quodlibetal determinations, to contemporary 'questions from the floor' of the
debating chamber. And it is especially clear that John of Paris's interests lay in
the contingent applications of the natural law as determined by custom, and the
resulting interpretations oT positive human laws adjusted the laws themselves to
situations of fact.
Such an attitude was becoming more and more usual throughout the
thirteenth century: institutions were seen as modifiable, notions of authority
were changeable. Nature was seen to develop, to be in motion towards an end,
its fulfilment, and so too concepts like responsible authority and dominium
''5 Jean Leclercq, Jean de Paris et L 'Ecclesiologie, Ch. IV.
" Leclercq, Jean de Paris et L'Ecclesiologie, pp. 6 0 - 1 . On the English use of Roman law
categories from Glanvill onwards see John L. Barton, Roman Law in England, in Ius Romanum
Merf/;/4ev;{societed'histoire des droitsdel'antiquite) pars V, 13, a(Milan. Giuffre, 1971). Barton
sees Bracton's \The Laws and Customs of England (c. 1250-57)1 arrangement of remedies and
forms of procedure in the king's court as a compromise between Justinian (Roman, civil law) and
Glanvill (pp. 14-15). But by the fourteenth century in England, common lawyers became
increasingly insular and as the age of the text-book (Glanvill, Bracton) gave way to the age of
reports of cases, common lawyers turned to Roman civil law only as a useful source of supplementary principles to the common law (Barton, p. 28).
JANET COLHMAN
87
were seen to alter and develop.'*' Natura,id est deus, was a frequent tag in the
theoretical tractatus de legibus.*^ This theoretical justification for legal change
reflecting customary evolution is, I believe, just this: a justification of what, in
fact, was happening.
We should observe what v(>as happening as the focus of much medieval life
moved into urban environments. To paraphrase the recent evaluation by Lester
Little:"' European commerce came to maturity well in advance of the state. By
the 1060s the impulse to hoard treasure had decisively shifted to a minting of
coins with the concommitant growth in aggressiveness regarding lending money
at interest, profit seeking, the development of stable and lasting business
relationships. Little notes that 'it is with the formation of the company (in Italy
in the twelfth century, north of the Alps in the thirteenth century) which
amassed money in order to invest it for profit and which did not disperse it
impulsively in fits of generosity as individual merchants were wont to do, that
an essential element of the capitalist economy made its appearance.''" It took
Europe a long time to use money as a widespread, international instrument of
exchange and the relative lateness of the event (eleventh-twelfth centuries) is
startling when one thinks that Locke was not necessarily referring to the
agreement to use money as a quasi-prehistoric event but one which he could
have read about in his library's numerous books describing English law and
customs at the time of the Norman invasion.
It is a commonplace of medieval textbook history that the keystone of feudal
government was the personal agreement between a lord and a vassal to
exchange, mutually, protection of a gift of land for counsel and military
support. By the early twelfth century on the continent, early thirteenth century
in England, the personal agreement between two consenting parties to the
feudal contract was beginning to be replaced by money payment. The
encroachment of a moneyed, profit economy particularly on government, is
apparent in the development of its salaried bureaucracy of skilled lawyers,
administrators, publicists. This is the age of relative peace after centuries of
invasions, the period in which society with money relations is increasingly
urban. According to Little, if you move into the city from the surrounding
<^ Gaines Post, Studies in Medieval Legal Thought: Public Law and the State 1100-1322
(Princeton, Princeton University Press, 1964), pp. 241-309.
'"' 'The Law of Nature, we must accept, is higher than any merely positive law. The Digest tells us
that in the days before there was a civil law, the kings of Rome settled the disputes of their people
manu regia and it must clearly have been the Law of Nature that they applied (D 1,2,2,1). If princes
in the state of nature (or a condition near enough to it to make no matter) were under a duty to
intervene and enforce the Law of Nature on the petition of their subjects, they must be under such a
duty still, for the Law of Nature cannot be abrogated. Actions may or may not be given upon
natural obligations, for actions are matters of positive law, but if no action be given, then the prince
is obliged on the petition of his subject, to intervene and compel performance manu regia and if he
fails in his duty, the Church may intervene for him.' This principle is first formulated so explicitly
by Antonius de Butrio (1338-1401) at X l . 2-7 nos 26 and 27, edition (Venice, 1578). See Barton,
Roman Law in England, pp. 64-5, 67.
''' Lester Little, Religious Poverty and the Profit Economy in Medievai Europe (Ithaca, Cornell
University Press, 1978).
'" Little, Reiigious Poverty, pp. 17-18. Also see Thomas Bisson, Conservation of Comage:
Monetary Exploitation and its Restraint in France, Catalonia and Aragon (c. A.D. 1000- c. 1225)
(Oxford, Oxford University Press, 1979) on the relation of people to money and the role of coinage
as a factor in the political and institutional development of this period.
88
countryside you adopt a single function as a means to earn your way; and the
concommitant moral problem raised by the urban setting has to do with the
moral probity of the urban professions. Like money, the professions of lawyer,
doctor, administratorthe bourgeoisie, are pursued and scorned. Satire is one
of the major literary genres of this experience. If the city was the centre of
increasing financial transaction it was also the butt of high-minded moralists:
the city's origins were traced back to Cain and it was pointed out that the major
sin had once been pride but from the eleventh century onwards it was joined by
avarice (Peter Damiani).'' A series of exceedingly strict monastic orders was
established to serve as refuges, flights from rather than confrontations with this
new moneyed economy. In an age of finance emerged the voluntary pauper and
the involuntary poor became visible and an object of conscious and often
ostentatious charity. To combat the heretical groups that rejected the church's
adoption of the moneyed ways of the world, the voluntarily poor Franciscans
and Dominicans emerged in the thirteenth century. The unique contribution of
the friars was their involvement in urban society, creating new forms of
religious expression for a pious laity that needed to be reassured that making
money was a Christian activity. The early thirteenth-century discussions of the
legitimacy of the activities of judges, notaries, merchants, teachers, prepared
the way for the justification of these professions by the end of the century.'^
The friars arrived on an already established scene of higher education in urban
centres, centring round cathedral schools, and helped to develop the university.
They became some of the major voices in scholasticism, and it is highly
significant that some of the primary issues treated by the intellectuals of these
mendicant orders included the role of private property, the just price, the
nature of money, the morality of professional fees, commercial profits,
business partnerships and usury." Private property and the moral and
intellectual problem of its legitimacy had not been raised since the patristic
period during the heights of the Roman empire. With Europe having developed
out of a barter/feudal economy to a moneyed/profit economy in a little over a
century, arguments were sought to justify private property for the convenience
and utility of men. And then Aristotle was also seen to justify private property
as natural. When his Politics was translated (c. 1260) it was plundered as a tract
for the times. Aquinas shows how Aristotle agrees that private property is a
necessary instrument of the good life and the ordered society.'" Again, paraphrasing Little: when property changed hands not by a grant of a lord to a
vassal in return for acknowledged services but for money, and where the status
of the buyer or seller was of no consequence in the transaction, then the issues
to be discussed by moralists concerned the just price, the notion of lordship/
dominium, the various forms of use of property that one might rent or lease for
" Marvin Becker, Medieval Italy, Constraints and Creativity (Bloomington, Indiana University
Press, 1981), ch. 2 on Damiani and eleventh-century attitudes.
52 See Charles Lohr's contribution to The Cambridge History of Later Medieval Phiiosophy.
Also John Baldwin, 'The Medieval Theories of the Just Price', Transactions of the American
Philosophical Society, XLIV, part 4 (1959) and Baldwin, Masters, Princes and Merchants: the
Social Views of Peter the Chanter and His Circle, 1, 11 (Princeton, Princeton University Press,
1970).
i^ Linle, Religious Poverty, p. \16.
^ Thomas Aquinas, Summa Theologiae, Ua llae, Q. 66 a.2.
JANET COLEMAN
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usually recorded, not because they were not discussed but because clerkly
methods of recording and the formulaic relationships between vassals and lords
regarding land and services that they described further screened out individualisms. Only when a contemporary writer is discussing some general
principle and how various law courts work and he gives some 'fictional'
example based on something that may have happened in a real case; or when the
clerk is inexperienced and takes too copious minutes of court proceedings,
elaborating on the formulae, do we see 'by accident' the 'facts' we want. What
this formal expression in writing of the society's formulaic universalisms has
produced in us is an assumption that the disputes we are observing are about
equals, about individualistic Englishmen, and their ownership of property or
rights to services. But in the twelfth-century cases the unspoken relationship
behind court cases is seignorial; the underlying question has to do with entitlement: is so-and-so entitled to hold land, to expect services etc. The formulaic
presentation of cases does not remind us, as we need to be reminded, that the
feudal property arrangement was a contract, a relationship. And what is
particularly interesting in the apparent development of central royal government through the writ of novel disseisin, for instance, and through the royal
assizes in the late twelfth and thirteenth centuries, is that the lord is not merely
an onlooker. His court still exists, as does the king's court, and Milsom argues
that instead of the king's court going over the lord's head jurisdictionally, what
the king through royal justice was trying to do was to reinforce the feudal
system and make certain that lords were not abusing their side of the feudal
bargain. The bargain was not meant to be eliminated although royal justice did,
by accident, have this effect. The contractual dialectic of the feudal relationship
was to be maintained into the mid-thirteenth century and the king's justice,
Milsom argues, was enlisted in this conservative cause. The assize was not
supposed to replace seignorial jurisdiction but provide a sanction against its
abuse. The phrase that is used of the lord is whether he has acted injuste et sine
judicio regarding his vassal. In the early period, form was more significant than
substance in men's relations as they were recorded before the law and in terms
of the contract that involved land and services. Through the records we seem to
see the piecemeal waning of this dialectical situation, this assumed contractual
relationship, where homage is only one side of the gift-giving paternalism of the
lord. What has been described is more or less the situation obtaining during the
twelfth and early thirteenth centuries. By the end of the thirteenth century
tenure in land had been drained of the mutuality, the interdependence of the
feudal relationship, that had previously been kept in balance by the lord's court
and then the king's. By the end of the thirteenth century tenements and dues
appear to be independent properties in most regions, fixed by an external,
centralized legal system. What had been lost by the end of the century was the
different distribution of power and the different, earlier, framework of ideas
based on mutuality.
The seignorial order was destroyed, amazingly rapidly, as one result of this
juristic accident; but it alone cannot account for the change in attitude whereby
at the end of the thirteenth century courts dealt with rights in rem, rights good
against the world. Milsom has pointed out that in the seignorial world rights as
individual possessions are a nonsense and this despite the voice of the free
tenant or 'peasant', where either can be found to speak in the twelfth century.
JANET COLEMAN
91
speaking as though the land were his. Tenures in the earlier courts were the
items that were being protected rather than property rights; court cases in the
twelfth and early thirteenth centuries dealt with arrangements, mutual relationships and their relative fulfilments by which land was held for a return. NOT
SO BY 1290. By then, external, objective enforcement was to override
customary lordship and the obverse mutual service. By the end of the thirteenth
century seignorial courts had indeed become agents of the king's law, had
indeed begun to drop out of the legal system altogether, and the picture is now
distinctly two-sided rather than mutual: the tenant making a claim to his right
to his tenementpossession the lord making his right to his duesdominium,
jus in re; each as independent properties, each passing from hand to hand
without reference to the other. The situation is described whereby a tenant de
facto owns his land whilst the lord has only an odd kind of 'servitude' over the
land, what is called jus in re aliena. The fact of dominium has passed in one
hundred years from being a relative, interdependent thing, to independent
property.
Thus the period in which Godefroid of Fontaines and John of Paris wrote
the end of the thirteenth and early fourteenth centuries, could no longer be
described accurately by the statement that 'lordship is not a right that can be
claimed; it can only be exercised'. Such a statement depends on, assumes, a
mutual relationship of tenant and lord where the role of each in relation to one
another is acknowledged, a role that is not dependent on the simple exchange of
objective goods, but in additionand that is what was lostthe exchange of
customary respect, acknowledged ranking; the feudal contract had been a wide,
unquestioned and obligatory dialectical formula. But by the time of Edward I
in England, Philippe the Fair (in fact even earlier) in France, the picture, the
formula, had changed. One had a society of equal owners disputing about
abstract rights and property as Maitland described, where lords have equally
just rights of property. Their dues are charged on the land but the land belongs
to the tenant.'^ The lords were left with fixed economic rights over property but
without customary mutuality. What was once the right to hold land of a lord
had turned into the right of ownership acquired by money. Milsom describes
the crucial turning point as enshrined in Quia Etnptores of 1290. In short, what
this meant was that by 1290, if not earlier, the lord could not actually prevent
alienation of his lands by his tenants who became 'owners' of the property; but
the ahenator was forced out of the relationship and the grantee was substituted
for him and the new owner now owed nominal duties to the lord. This reflects
the fact that economic realities, the buying of land, supplanted customary
relationships. 'The fee simple became an estate and its ownership was itself an
article of commerce. Feudal services by the end of the thirteenth century were
seen largely in terms of income, and feudal incidents were capital gains.'^
Milsom has suggested that these basic proprietary concepts of the classical
'" Milsom, Legai Framework, ch. 3. For parallel events in Aquitaine where disputes over French
and English jurisdiction led to war (1294) and where Gascony was described by- English lawyers as
an altod (not held of the King of France), leading to property disputes over jurisdiction concerning
the nature of the dominus and his rights as opposed to use without mutuality, see John Le Patourel,
'The King and the Princes in Fourteenth Century France', in J. Hale, R. Highfield, B. Smalley
(eds), Europe in the Late Middle Ages (London, Faber, 1965), pp. 155-83.
*" Milsom, Legal Framework, p. 99.
92
common law are the result of a great change in the legal framework, the change
from a feudal to a national, a common law about land. He says that in the
thirteenth century freehold land became what it is to us, an object of property,
capable of passing from hand to hand rightfully or wrongfully; and the lord's
rights became merely economic, a sort of 'servitude' attached to the land but
irrelevant to its conveyance and, except for the rights of wardship and the like,
irrelevant to its devolution. As between the lord and tenant, the tenant was
clearly the 'owner'.*'
This happened not only in England but also on the continent, and our
analysis leads us to conclude that instead of the change occurring first in the
legal framework, John of Paris is describing the results of changes brought
about by the success of a profit economy along the lines outlined by Little,
where Europe was no longer primarily feudal. The idea of ownership had no
place in a truly feudal framework, certainly not on the part of the tenant.
Without the reality of the feudal relationship, seisin became a one-sided
possessio in rem and defensible before the law. This is what John of Paris
described, not a feudal, customary birthright but property laboured for and
justly acquired.
Another way of putting this is to say, as Alan Harding has recently done, that
by the end of the thirteenth century the notion of liberty had changed. It had
been 'freedom from', that is, liberty was equated with immunities from feudal
services. But it became 'freedom to', that is liberty to alienate, to act by
exercising positive freedoms. This liberty is not to be found in formulaic
universal lawbooks, Roman or canonistic, or indeed in summas like Bracton,
but in charters where 'liberty' normally appears in the sense of a privilege
granted to a landowner.^^ By the end of the thirteenth century such liberty
included rights of independent action; liberty was a matter of the exercise of
power rather than the passive possession of status. In England, if the current
approach to Magna Carta is accepted and we see it as 'the greatest charter of
territorial immunity and communal privilege (of the barons as a class) rather
than as a bill of rights for individuals'" then a glance at mid-thirteenth-century
plea rolls tells another story of developing individual, independent liberties of
citizens. Such plea rolls show the replacement of feudal principalities by national
monarchies in both France and England, an increase in royal jurisdiction
whereby, as Milsom noted, individual liberties inadvertantly became rights
defended at law. Harding has argued that the crucial change from a society of
*i S. F. C. Milsom, Historical Foundations of the Common Law (London, Butterworth, 1%9),
p. 104. This is a purely lay relationship. Barton notes that in England, ecclesiastical courts
succeeded in acquiring without struggle, exclusive jurisdiction over the testaments of the laity and
even Glanvill speaks only of a special writ that can be used where the will and contents are
uncontested. Any denial or controversy brings the case to Court Christian. But the establishment of
the church's jurisdiction was rendered easier by the fact that it was settled at an early but uncertain
date. Freehold land would not pass by will unless by special custom, so that ecclesiastical jurisdiction over wills did not entail a power to meddle with lay fee. Barton, Roman Law in England,
p. 81. It was chiefly by writs of prohibition that the crown was able to move cases from ecclesiastical
jurisdiction to that of the state. By the early fourteenth century in England cases relating to chattels
and debts were increasingly claimed by secular jurisdiction: royal prohibitions de catallis et debitis.
See J. Robert Wright, The Church and the English Crown, 1305-1334 (Toronto, Pontifical
Institute of Mediaeval Studies, 1980), pp. 177-81.
62 Alan Harding, 'Political Liberty in the Middle Ages', Speculum, 55 (1980), 423-443; p. 424.
" Harding, 'Political Liberty in the Middle Ages', p. 434.
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.*** Ironically, liberty, when considered as an aspect of lordship, suffered a
decline from autonomous power to legal right with the growth 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
'freedom to' for the individual citizen and his property rights rather than for
the rights or liberties of monarchs.
VI
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
argument we confronted in examining John of Paris versus Boniface VIII) what
is metaphysically, logically, linguistically and economically the contemporary
concern for the individual. As McGrade has recently pointed out^ Ockham's
concern for the notion of po'wer/potentia is not simply for the political or
juristic nature of power, but its location.*'' Ockham and most of the writers
from the later thirteenth century through the mid-fourteenth century, when
writing about power and its relation to dominium, want to define what sort of
entity could have power. Ockham'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.
Ockham's approach to the logic of language 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. Ockham as a supporter of the
Franciscan Order's interpretation of its relation to property and dominium
would want to understand the general proposition 'all Franciscans wear grey' as
equivalent to 'this Franciscan wears grey and that Franciscan wears grey and
the other Franciscan wears grey . . .'. Thus, the reality of the Order 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 century, depending on Godefroid of Fontaines' analysis
94
of the 1290s, was doing when he spoke of dominium as equivalent to the labour
of the individual.
Rather than see Ockham's nominalist logic having necessary consequences in
the political realm, one might see his concern for a closed system of logic,
where the individual alone is real, to be indirectly inspired by current
discussions of private property and the individualization of the location of
potestas, discussions that were so important to his Franciscan Order. Such legal
discussion, reflecting economic realities, focused on legal definitions, themselves dependent on private, individual property and the active exercise of an
individual 'freedom to', defensible in courts. Ockham argued, as did others,
for the communal and political life made up of interactions among concrete
individuals. If this is the essence of his nominalism, manifested politically, then
it was as much a consequence of his system of logic as it was of the language that
described legal and economic realities. If some jurists were arguing for
individual freedoms as found only through participation in some supraindividualistic corporate whole,^' Ockham and the tradition represented by
Godefroid of Fontaines and John of Paris were talking in terms of corporate
wholes as the very individuals comprising them. For Ockham as for John of
Paris, the individual is responsible for alienation of property, exercise of rights,
freedoms, resistance to breakers of trust, be they pope or king. Ockham would
express this in the form of the general proposition: the church must resist papal
heresy, and this is equivalent to: this individual Christian must resist and this
Christian must resist and this Christian must resist. . . .
Ultimately, if there is a major theme related to dominium in the fourteenth
century no matter how discussed, through whatever genre or via whatever
logico-linguistic or metaphysical formulation, it is the responsibility of the
individual over his own. And for Ockham, as McGrade has pointed out, just as
for John of Paris, the individualism expressed in his political works is less
concerned to give individuals power; nor does John of Paris want to give
anyone dominium. Rather, like Ockham, the concern is to demonstrate that
individuals have powers of various kinds before anyone or any political
structure or arrangement gives it to them. All this reflects an understanding of
dominium, possessio, usus, that is, active rights, in terms of customary practice
rather than school or formal legal categories alone, be they Roman or feudal.
VII
By the end of the thirteenth century dominium was indeed any ius in re, any
right to some material thing like land defensible against all other men,
transferable and capable of alienation by the possessor. The reason for this
*^ Antony Black, 'Society and the Individual from the Middle Ages to Rousseau: Philosophy,
Jurisprudence and Constitutional Theory', History of Political Thought, 1 (1980), 145-66; and
J. P. Canning, 'The Corporation in the Political Thought of the Italian Jurists of the Thirteenth and
Fourteenth Centuries', History of Political Thought, 1 (1980), pp. 9-32.
'c McGrade, 'Ockham and the birth of individual rights', p. 159. Furthermore, Ockham in An
rex Angliaepro succursu guerraepossit recipere bona ecclesiarium (c. 1339) provided a theoretical
justification for the crown's seizures of properties of alien ecclesiastics and that church possessions
could be confiscated by the crown when needed for public defence. See J. Robert Wright, The
Church and the English Crown, BOS-1334, p. 242.
JANET COLEMAN
95
elaboration of the notion of rights. Tuck has argued, is the proliferation of subinfeudations,''' and this, of course, follows Milsom's argument that lords were
no longer able to prevent alienation of property by vassals. Quia Emptores
accepted this but required a substitution of one owner for another to fulfil
services owed to the lord with (mere) dominium but not possessio of the land.
Tuck wants to argue further, however, that the reason for the proliferation of
active definitions of property: iura to iura ad rem to dominia, came about
because of political theorists arguing about the naturalness or otherwise of
poverty, that is, propertylessness, and thereby exploiting the terminology for
their own polemic ends rather than because of the need to fit a legal terminology
to what Tuck calls the realities of feudal society.''^ This is quite wrong, largely
because the end of the thirteenth century, when judged in terms of dominium,
was no longer predominantly feudal. When Pope Nicholas enumerated the five
kinds of relationship between man and material objects: proprietas, possessio,
usufructus, ius utendi and simplex ususfacti, he was not merely developing a
theoretical vocabulary in 1279 to describe a systematic doctrine or theory for
the Franciscans' relation to material goods. He was responding to an attitude to
property, its varieties of ownerships and uses, that had grown up in a profit
economy. Franciscans only wanted to claim simplex ususfacti, the power to
consume a commodity but not to trade it, alienate it, involve it in the monetary
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 and living
like Christ.
The theoretical heart of the problem resulting from the economic realities of
late thirteenth and fourteenth-century Europe reflected in the common 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
man. John of Paris and Godefroid of Fontaines, 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 before and after the
" Richard Tuck, National Rights Theories: their origin and deveiopment (Cambridge,
Cambridge University Press, 1979), p. 17.
^2 Tuck. Natural Rights Theories, p. 17. The 'realities' of this so-called 'feudal society were
material indeed and individually possessionate. The knight in The Dispute Between a Clerk and a
Knight (Disputatio inter clericum et militem) written in defence of Philippe IV, says he laughed on
hearing that Pope Boniface's new statute (Unum Sanctam) claimed the pope is and ought to be
above principalities and kingdoms. 'To want is to have: he has only to write it down"I will that
this should be law" when he wants my castle, my house, or my money.' Text in M. Goldast (the
Calvinist), Monarchiae Sancti Romani Imperii, sive tractatus de iurisdictione imperiali seu regia
(Hanover, 1612), pp. 62-3 (and Frankfurt, 1614); John of Pms's De potestate is in volume II,
pp. 108-47. The two volumes of Goldast are a mine of important tracts representing late scholastic
attitudes to church and state power.
I disagree with Tuck's interpretation: usufructuary and indeterminate claims in things are not
abstract medieval theories developed by accident and/or theoretically in Roman law commentaries
but are verbal descriptions of the breakdown of an earlier gift society into one in which individual
material items are valued for a universal counter, money. Rights-as-claims theory comes from
current economic practice.
96
Fall.''' Each dominium was possessed in common by the species and naturally.
Man's nature was improved after the Fall by God giving fallen men natural
common powers to appropriate temporal things as individual appropriators
and the power to set up government. This was the second kind of natural
dominium for Ockham, prior to government itself. Other theorists argued that
civil, human law does not originate in nature but in utility. Still others distinguished between natural possession of the earth and its fruits and dominium
over it, between natural and civil rights. Others saw a natural evolution of
dominium; this is clear from the texts we have examined by John of Paris and
Godefroid of Fontaines who, in fact, developed a labour theory of acquisition.
Aquinas had argued that natural law was neutral regarding property rights in
that it did not assign specific possessions to particular men, but there was no
precept of the natural law which forbade private property. Rather, individual
ownership was not contrary to natural law but was an addition to it devised by
human reason.'''' Recently, Tully has argued that this view was known and used
by Locke.''- We want to go further than this and say Locke's views are closer to
those of John of Paris. John of Paris, as a Dominican, is traditionally held to
be a staunch defender and follower of Aquinas, but he is doing something more
radical than Aquinas and more akin to the Locke this author reads, at any rate,
in arguing for the positive support of property rights from the natural law.
Recently Tierney has pointed to another fourteenth-century Tractatus de
Legibus, possibly by Durandus de St Pourcain, which also says that individual
property rights exist in natural law.''* Durandus (?) also noted that natural
reason urged that, other things being equal, a man could claim as his own what
he acquired by his own labour.'''' Clearly, there is more work to be done here,
but we may summarize John of Paris and Godefroid as at least representing one
aspect of the dominium theme in the early fourteenth century by saying: for
them, to have property as an individual is not necessarily a feature of political
life, and this argument is also true of Ockham's position (pace Tuck).'"* Once
again, Ockham, like John of Paris, does not try to give property rights to men
but attempts to describe the kinds of powers men have as individuals prior to
government in the realm of power over discrete things, and subsequently, to
analyse the role of government in preserving or augmenting such power.
In the end, men were described in fourteenth-century political theory, in legal
'3 William of Ockham. Breviloquium de principatu tyrannico (ed. R. Scholz) (Stuttgart,
Hiersemann, 1944/52), 111, 7-11, pp. 125-32; OpusNonagintaDierum, Ch. 88, in Opera Poiitica,
II (ed. H. S. Offler and R. F. Bennett) (Manchester, Manchester University Press, 1963). In his Octo
Questiones, Q.ll Ch.VI, Ockham says originally, God gave the world to mankind in common:
'Deus dederit humano generi in communi dominium temporalium rerum'\ see J. G. Sikes (ed.).
Opera Poiitica, 1 (Manchester, Manchester University Press, 1940), p. 79, lines 1 - 2 and p. 80, lines
29-31; p. 81, lines 12-15.
7" Thomas Aquinas, Summa Theologiae, 11a Ilae Q.66, a.2; 11a llaeQ.57, a.3; Ia llae Q.94, a.5.
" Tully, A Discourse on Property, p. 41. Tully focuses attention on the Thomist Suarez: The
Laws and God the Lawgiver (1612): 'The act of making gives rise to the right in the product and this,
in turn, confers a right over the product to use it in certain ways.' Also see Cumberland's A Treatise
on the Laws of Nature. Tully on Aquinas's Summo 7>ieo/og/Qe(llaIlaeQ.66, a.l), pp. 64f. There
is no definite proof Locke read Suarez, although Filmer did.
" Brian Tierney, 'Public expediency and natural law: a fourteenth century discussion on the
origins of government and property', in Authority and Power, pp. 167-82; p. 177.
" Tierney,'Public expediency', p. 177.
"f* Tuck, Natural Rights Theories, p. H.
JANET COLEMAN
97
98
JANET COLEMAN
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 cause. Charles Du Moulin'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 (Hanover and Frankfurt, 1611-14). The literature dealing with the
papal schism of the late fourteenth-fifteenth 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 property. As we have already noted, Pierre d'Ailly's De Ecclesiae
et cardinalium autoritale. III (Constance, 1416) transmitted unacknowledged
John of Paris' chapters 6 and 7, and Cardinal Turrecremata, the Dominican
(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 De 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 humane 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 books. One of the great virtues of Tully's study is his demonstration of
the living tradition of the question of dominium and the consequent generation
of obligations and rights in part deriving from an understanding of God as
*' Goldie, 'John Locke and Anglican Royalism', p. 75. Brady attacked John of Paris's De
potestate regia et papali precisely as being the first to assert directly the subjects' right and power to
depose kings.
^ Tully's reference is inaccurate. The tract is MS Locke c. 27 e fol. 29a and not MS. Locke c. 29
fo. 29. Tully,/I Discourse on Property, p. 175. For some interesting remarks on the development of
definitions of 'property' during the seventeenth century see G. Aylmer, 'The meaning and
definition of "property" in seventeenth century England', Past and Present, 86 (1980), 87-97.
i*^ D. Kelley, The Foundations of Modern History Scholarship (New York, Columbia University
Press, 1970).
88 A. Colville, Le traite de la ruine de i'^glise de Nicholas de Clamanges (Paris, Vrin, 1936),
100
maker with a special right in man as His workmanship, and the analogous
concept of man as maker with rights and correlative duties. Locke's property or
right in common with all of mankind is, like that of the medievals we have
discussed, a subjective right. It is only by seeing the late medieval theological
arguments as developments of what is rightfully common to all to what is
rightfully one's own, that we can understand how they determined the limits of
individual property as inclusive and exclusive, defensible in courts of law, and
with a legacy that was actively reasserted throughout the next several centuries.
Locke and his peers, as Tuck has shown, drew on a living tradition of thought
which he, like all contributors to the tradition, turned to his own purposes in the
later seventeenth century.