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Jus Gladii and Jurisdictio: Jacques Almain and John Locke

Published online by Cambridge University Press:  11 February 2009

J. H. Burns
J. H. Burns
Affiliation:
University College, London
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Type
Communications
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The Historical Journal , Volume 26 , Issue 2 , June 1983 , pp. 369 - 374
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Copyright © Cambridge University Press 1983

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References

1 The foundations of modem political thought (Cambridge, 1978), vol. ii, The age of Reformation, p. 119.Google Scholar

2 Skinner refers to this work as A Reconsideration of the Question of Natural Civil and Ecclesiastical Power - a translation of the title (Quaestio Resumptive… de Dominio Naturali, Civili & Ecclesiastico) used when it was reprinted in the 1606 and 1706 editions of the works of Jean Gerson. The early editions of Almain's works however refer to it as Questio in vesperiis habita, or some variant of that title. It is not clear why Skinner (p. 43 and n.) says that the Questio ‘later formed the conclusion of [Almain's] Expositio of “the views of William of Ockham concerning the power of the Pope”’, and diat ‘Almain's Reconsideration thus forms the final section of his Exposition’. It is true that the Questio is, on its first appearance in print, in the 1518 Paris edition of Almain's Aurea… opuscula, paginated together with the Expositio circa questionum desiciones M. Guillermi de Occam, super potestate Summi Pontificis; but so is the reprint in that edition of the 1512 Libellus de auctoritate ecclesie, which in fact stands between the Expositio and the Questio. Moreover the Questio is not printed with the first separate edition of the Expositio in 1526 (cited by Skinner, p. 43 and n.); and it is reprinted, without the Expositio, in several editions of Almain's Moralia published during the 1520s. There is thus no ‘peculiarity’ in its having been treated by Gerson's editors ‘as a separate tract’: that is what it was. The bibliography (largely posthumous) of Almain's writings is a complex matter, needing fuller treatment than would be appropriate here.

3 Two treatises of government, ed. Peter, Laslett (2nd edn, Cambridge, 1967), p. 343.Google Scholar

4 Two treatises, p. 298.

5 Two treatises, pp. 290–2: Second treatise, paras 8–11. There is some ambiguity as to whether reparation is or is not to be regarded as an aspect of, or element in, punishment, or as something distinct from it. Locke seems clearly to take the former position in para. 8, but to move to the latter in para. 10.

6 ‘The origins of the Calvinist theory of revolution’, in Malament, B. C. (ed.). After the Reformation: essays in honour of J. H. Hexter (Manchester, 1980), p. 323.CrossRefGoogle Scholar

7 Cf. Foundations of modem political thought, ii, 119, where Skinner attributes to Almain the argument ‘that “the right of the sword” which a community grants to its ruler in the act of forming apolitical society must be a right originally possessed by the community itself’ (my italics). Such a distinction seems to be drawn by, e.g. George Lawson in An Examination of the Political Part of Mr Hobbs his Leviathan (1657). Cf.Franklin, Julian H., John Locke and the theory of sovereignty (Cambridge, 1978), p. 71 and n. 49, citing pp. 26–7 of Lawson's Examination: ‘Despite the absence of an order of subjection, the community is a corporate entity which can bind its members by its vote, and it is by this power that it institutes a commonwealth’ (my italics). No such distinction seems to be made by Almain. He uses the word populus less frequently than might perhaps be expected; the term respublica is only occasionally employed; and the word politia in its general sense (apart from its use in such compound terms aspolitia regalis) is very rare. All these terms, however, when they do occur, seem to figure as straightforward synonyms for communitas, which is overwhelmingly the commonest word in this part of Almain's vocabulary.Google Scholar

8 Cf., e.g. Libellus de auctoritate ecclesie, cap. I: …auctoritas regis secularis…est alicui commissa & non videtur cum non sit a Deo immediate commissa a quo sit principi collata, nisi ab ipsa communitate… Aurea… opuscula, 1518, fo. xlvi, sig. ff. [vi] r°; in J. Gerson, Opera Omnia (Antwerp, 1706), 11, col. 978 A. It is perhaps worth noting that Almain makes no distinction of meaning among the various terms he uses to refer to the transaction by which the ruler's power is established. In particular he does not follow the important distinction drawn by some commentators on the civil law between ‘conceding’ and ‘transferring’ power: cf., for example, Paulus de Castro as cited by , R. W. & Carlyle, A. J., History of medieval political theory in the West, vi (Edinburgh & London, 1936), 147, n. 2. In substance Almain might well have agreed with Paulus that the lex regia ‘fuit magis concessio quam translatio’; but he does not himself use that terminology.Google Scholar

9 Cf. Aurea…opuscula, fo. lxii, sig. hh [vii] r°; Gerson, ii, cols. 961–2. A full analysis of Almain's theory of dominium naturale is not possible here: such an analysis would have, it may be noted, to take full account of his most extended discussion of the matter, in his commentary on some questions in Book IV of Peter Lombard's Sentences (Aurea… opuscula, fos. xxvi-xxix, sigs. d ii-d v). This work was not included in any of the 17th and 18th-century reprints from Almain's writings.

10 Cf. Expositio circa decisiones questiones M.Guillermi Ockham..., q. I, cap. i ad init. Aurea…opuscula, fo. i, sig. aa i; Gerson, 11, col. 1013. As for Locke, there may be some litde ambiguity as to his use of the term ‘jurisdiction’ in regard to the state of nature: he says both ‘all the Power and Jurisdiction is reciprocal’ Two treatises, p. 287, and that ‘there is no superiority or jurisdiction of one over another’ (p. 290). This however does not affect what is said above about the generally ‘jurisdictional’ character of Locke's account.

11 The ‘sword’ metaphor is not in fact particularly prominent in Almain's writing; but when it does occur (referring to the ‘material’ as distinct from the ‘spiritual sword’) it seems to refer consistently to the punitive power conferred by a community upon its ruler or rulers.

12 Cf. Questio in vesperiis, in Aurea… opuscula, fo. lxii, sig. hh [vii] r°, v°; Gerson, ii, cols. 961, 963.

13 Questio, in Aurea… opuscula, fo. lxii, sig. hh [vii] v°; Gerson, 11, cols. 963–4. The corresponding passage in the Libellus de auctoritate ecclesie, by adding the word civiliter before conversantium, underlines the point that Almain is referring at once to a political society: cf. Aurea… opuscula, fo. xlvi, sig. ff [vi] r°; Gerson, 11, col. 977.

14 Questio, in Aurea… opuscula, fo. lxii, sig. hh [vii] v°; Gerson, ii, 964. The Aquinas reference is to Summa theologiae, iia iiae, 65,1. In this passage (Blackfriars Latin/English edn, vol. 38, 1977, pp. 48–51), Aquinas is directly concerned with the question of mutilation, whether for penal or medical purposes; but he himself explicitly refers back to iia iiae, 61, 1; 64, 2 and 3, for the analogous argument that the body politic may legitimately remove a harmful member.

15 Questio, as cited in nn. 13, 14; and cf. Libellus de auctoritate ecclesie, in Aurea… opuscula, fo. xlvi, sig. ff[vi] r°; Gerson, 11, col. 977.

16 Questio, in Aurea… opuscula, fos. lxii, sig. hh [vii] vo-lxxiii, sig. ii i r°; Gerson, 11, cols. 964–5. It may be worth noting that, in the third of Almain's corollaries, the Gerson text (in both the 1606 and the 1706 edition) reads: Princeps non occidit potestate propria, nee illam potestatem potest ei conferre Respublica. All the early editions have sibi for ei. The emendation doubtless clarifies Almain's meaning, but it is important to stress what that meaning is. He is not, of course, arguing that the commonwealth cannot confer upon its ruler a power to kill malefactors; but that the power has the public, ‘ministerial’ character referred to above and illustrated by the parallel with the role of the priest in the remission of sins. It is God who forgives; it is the community that punishes.

17 … potest esse difficultas, & arguitur sic: Persona publica non habet auctoritatem nisi a personis privatis, & precipue quando fit per electionem; ergo persone private habent auctoritatem quam dant isti; ergo licet privatis personis maleficos interficere (Expositio, in Aurea… opuscula, fo. xxxv v°, sig. cc iii; Gerson, 11, col. 1096).

18 Dico quod sic, si nullus esset rex, sicut quilibet abscindere membrum putridum a corpore suo, quando non est alius qui abscindat; ita similiter tota communitas potest, &c. sed ista persona singularis vel ilia non potest. Vnde, sicut rex potest, ita communitas a qua rex habet auctoritatem; sed particularis persona non potest (Expositio, in Aurca… opuscula, fo. xxxvi r°, sig. cc iiii; Gerson, ii, col. 1097).

19 Cf.Tuck, Richard, Natural rights theories: their origin and development (Cambridge, 1979), pp. 28–9 and n., 30CrossRefGoogle Scholar. In regard to the general theme developed above, it may also be apposite to refer to Francis, Oakley, ‘Conciliarism in the sixteenth century: Jacques Almain again’, in Archiv für Reformationsgeschichte, LXVIII (1977), 111–32. Oakley is primarily concerned with Almain's application of his argument to the polity of the church; but cf. p. 123:‘… the coercive civil power is present in a political body as a whole before it is wielded by any of its members…’.Google Scholar