Political Studies (19&5), XXXIII, 73-100

Dominium in Thirteenth and FourteenthCentury Political Thought and its

Seventeenth-Century Heirs: John of Paris
and Locke
JANET COLEMAN*

University of Exeter
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.

The notion of lordship, dominium, in the thirteenth and fourteenth centuries

was discussed in a wide variety of texts that represented a spectrum of literary
genres. These texts attracted different audiences and readerships, defined in
part by the genre: some texts were distinctly literary in the modern sense, others
were legal, philosophical, theological.' Dominium is a theme that has had an
An earlier version of this paper was presented to the Oxford conference on Political Thought,
New College, January 1981 and then at the PSA conference, section: medieval political thought,
Hull, April 1981. 1 should like to thank Antony Black, James Burns, Alan Harding, Quentin
Skinner, Diana Perry, the Oxford University series of seminars on the History of Political Thought,
February 1982, the Paris Coltoque held in honour of Professor Paul Vignaux, November 1981 and
the Paris Colloque at Creteil, Paris Xll, September 1982, directed by Jeannine Quillet, for
comments on various aspects of this study. A shortened version was read at the Congres Internationale pour I'etude de la Philosophie MMevate, Louvain-la-Neuve, Belgium, August 1982.
1 See J. Coleman, Fnglish Literature in History, I350-i400: Medieval Readers and Writers
(London, Hutchinson, 1981) for a discussion of literacy and the audience for political verse and
prose, especially Chs 3, 4, 5. A literate laity in the upper strata of society and the growth of
vernacular cultures undermined the status of 'clergy', especially regarding property relations and
dominium.
0032-3217/85/01/0O73-28/$O3.0O 1965 Poiitcai Studies

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Dominium in 13th and 14th-Century Political Thought

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.

The attempt to organize fourteenth-century political theorizing by locating

literary genres is not an artificial organization of chaotic material although it
sounds as though it might be. Any student of the written text in the middle ages
is struck by the outstanding degree of imitation involved in putting a text
together: there were explicit/oz-mo for writing kinds of tracts, ranging from a
- See Keith Tribe, Land, Labour and Economic Discourse {London, Routledge and Kegan Paul,
1978), p. 22, for a differing view on fixed terms of discourse having fixed 'sound' histories but no
'meaning' histories. See R. Schlatter, Private Property (London, Allen and Unwin, 1951) for the
general importance of the theme of dominium and possession, ownership and use.
' Paul Saenger, 'John of Paris, Principal Author of the Quaestio de potestate papae {Rex
PacificusY, Speculum, 56 (1981), 41-55 has not to my mind proved this text to be by John of Paris
largely as a result of the dominium/jurisdictio distinction in John of Paris's De Potestate regia et
papali which is not distinct in the Rex Pacificus. See below. I continue to refer to this text as
anonymous.
" Quentin Skinner, The Foundations of Modern Potiticai Thought, Vol. I (Cambridge,
Cambridge University Press, 1978), Preface.
5 See my review of Skinner's The Foundations of Modern Political Thought in The Cambridge
Review, 1980-81, 'Reasonings of State'.

JANET COLEMAN

75

forma praedicandi^ to a forma for conveyancing, to a topical/or/ncr for satire,

the scholastic debate, the ars dictaminis. Originality was not particularly
admired in and of itself (at least it was not for this that you got your degree).
Imitation in form and content of authorities v^/as admired and composition was
quite often no more than a 'scissors-and-paste' affair, culling quotes from
handbooks, repeating standard glosses from standard works. That one can list
separate genres, however, does not tell us immediately of the contemporary
significance that differing genres had in relation to one another, nor whether a
particular example of a genre is a successful one, that is, whether it was seen to
be an unconscious failure on the part of the author to achieve his intentions or
whether the audience or readership took it to be a successful example of its
kind. Nor does a list of genres tell us what a readership's criteria for success
might be. A list of genres is meant to be merely a recognition of fixed literary
structures, and literary genres for this period are extraordinarily formal, strict,
formulaic, and in this sense alone are very recognizably products of their age
and the way that composition itself was, from the purely mechanical side, a
formal, imitative, structured enterprise by which a particular message might be
relayed. In fact, one can date texts by knowing the evolution of a genre.'' We
must remember that education was highly structured, based on strict imitation
and formulaic rigidity in logic, rhetoric, religious and doctrinal orthodoxy and
polemic. And it is the manipulation and combination of fixed and familiar
genres, and the accepted formulae for a genre, that enable us to identify a
writer and testify to his skill, A talented thinker was able to use and transcend
his genre. Quite often, the author's aim was not originality of message so much
as displayed competence in rhetorical conventions, scholastic disputational
technique, and dialectical neatness. The scholastic debate, for example, can
present modern readers with special difficulties because the neatness of the
argument pro and then sed contra often obscures the author's own position: it
is exceedingly important to grasp the forma of the debate and thereby know
where to look for and how to interpret the conclusio, particularly if the
scholastic debate has been used as a genre to present a political point of view.*
Here we shall focus on one genre: the publicist 'pieces d'occasion', the
treatises which follow a certain forma (and this directs the content) regarding
the papal hierocratic versus monarchist debate, a subject and a forma that
received extensive attention from the middle of the thirteenth century into the
fourteenth century, creating for itself and reflecting a wider, critical readership.^
' Coleman, Medieval Readers and Writers, Ch, 4,
' P, Glorieux, La Litterature Quodlibetique. I (Kain, Le Saulchbir, 1925), Introduction; and J,
Pinborg's and A, Kenny's contributions to The Cambridge History of Later Medieval Philosophy
(Cambridge, Cambridge University Press, 1981) for a discussion of the disputational genres in the
schools and the nature of medieval higher education,
* On disputatio and determinatio in the quodlibetal debate, see Glorieux, La Littirature
Quodiibetique.
' This category would include works like: Pierre Dubois, De Recuperatione terrae sanctae (to
Edward I); Dante, De Monarchia\ Marsilius of Padua, Defensor Pads and Defensor Minor,
Anon,, Disputatio inter clericum et militem. De Potestate genre. Giles of Rome's De Ecclesiastica
potestate (AegidiusRomanus); James of Vherbo's DePotestate. . . . , Anon., Rex Pacificus (aho
known as Questio de potestate papey, John of Paris (Quiddon), De potestate regia etpapali\ Anon.,
Antiquam essent clerici; Anon,, Quaestio in utramquepartem.

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Dominium in 13th and 14th-Century Political Thought

II

Jean Ouiddort of Paris wrote the De Potestate Regia et Papali in 1302 as a

contribution to the debate between Philippe IV, the Fair, of France and Pope
Boniface VIII. 'o Ostensibly the issue was to determine spheres of sovereignty on
the parts of secular and ecclesiastical powers," and John has often been taken
to be something of a moderate because he was careful to maintain a via media
that recognized two powers but completely separated ecclesiastical from secular
jurisdiction, firstly with regards to the respective internal structures, secondly
with regard to their respective powers over property, and thirdly, with regard to
the moral influence of each power. His moderation lay in his not having chosen
the road of Marsilius of Padua, a few years later, for whom the church was only
an organ of the state where the state alone possessed real power.'The sacerdotium-regnum dispute had, in effect, been going on for centuries.
During the thirteenth century it had been brought to a head by the assertion of
the relatively newly founded mendicant orders, particularly the Franciscans,
'" J. Coleman, 'Medieval Discussions of Property: Ratio and Dominium according to John of
Paris and Marsilius of Padua', History of Potiticai Thought, IV (1983), 209-28 for a fuller analysis
of the texts of John of Paris, Aegidius Romanus and the Roman law influences on the theory and
practice of dominium. The edition of the De Potestate Regia and Papati cited in this study is Fritz
Bleienstein (ed.), in Johannes Quidort von Paris. Uber Konigliche undpapstliche Gewalt. Frankfurter Studien zur Wissenschaft von der Poiitik (Stuttgart, 1969). An earlier important study, but
with a less accurate text, is Jean Leclercq, Jean de Paris et L 'Ecctesiologie du XIW siecte (Paris,
Vrin, 1942).
'' The problem of national sovereignty especially in France is much more complicated than John
of Paris's tract implies because there was a tendency towards the formation of autonomous principalities generally in fourteenth-century France: Aquitaine, Brittany, Flanders, etc., each sought
autonomy so that political developments in France were more than the progress of the monarchy,
such duchies or principalities having characteristics of states in miniature. Their counts, dukes and
princes were coming to look upon their lands as units of property with the interests of political
entities in their own rights. See John Le Patourel, 'The King and the Princes in Fourteenth Century
France', in J. R. Hale, R. Highfield, and B. Smalley (eds), Europe in the Late Middle Ages
(London, Faber, 1965), pp. 155-83.
'Sovereignty' in medieval tracts (fourteenth century) is expres.sed in the following ways: potestas
constituendi, instituere et iudicare; auctoritas habet in temporalibus; positus est super gentes: per
consensum electi et eiigentium et secundum hoc per consensum humanum potest desinere esse; sil in
isto corpore cooperatur natura disponendo et organizando; potestas jurisdictionis inforo exteriori
(coercive, governmental power, pertaining to a public authority, directed to the common good);
dominatio de jure naturati. According to Ullmann, there is a personal and impersonal sense in
which the term 'sovereignty' is used, developing from the Roman concept of Jurisdictio. See P.
Costa, lurisdictio: Semantica del potere politico nelta pubblicistica medioevale (Mailand,
Pubblicazioni della Facolta di Giurisprudenza, Universita di Firenze, 1969). The earlier, personal
notion is equal to 'he who has the power ius dicere'. Rex omne imperium habet in regno suo quod
imperaior habet tn imperio {\3lh century). The personal side of sovereignty was amplified by Henry
Vll and Clement V's Pastoralis Cura, the latter using Roman law principles, canon law and
ecclesiastical practice to place the secular ruler juristically on the level of a diocesan bishop with
territorially restricted jurisdiction. Territory acquired juristic personality, during the early
fourteenth century, requiring of the sovereign the maintenance of tranquility. See Walter Ullmann,
'Zur Entwicklung des Souveranitat.sbegriffs im SpStmittelalter', in Festschrift fur Nikolaus Grass, I
(Innsbruck, 1975), pp. 9-27.
'2 Coleman, 'Medieval Discussions of Property: Ratio and Dominium'. See the introductory
essay by J. A. Watt to his translation of John of Paris, On Royai and Papal Power (Toronto,
Pontifical Institute of Mediaeval Studies, 1971). This is a useful but sometimes unsubtle
translation, not as clear as it might be in its choice of English equivalents for technical legal terms,
especially regarding rights, kinds of property relations and lordship.

JANET COLEMAN

77

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,

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Dominium in 13th and 14th-Century Political Thought

from someone else.""

John of Paris begins as would a true Dominican and disciple of Thomas
Aquinas, by displaying a sophisticated and subtle, if eclectic, understanding of
Aristotle's Politics: it is necessary and advantageous for man to live in society
such as a city or kingdom which is self-sufficient in everything that pertains to
the whole of life and under the government of one who rules for the common
good. Implicitly he rejects the polity and the mixed constitution in favour of the
one truly superior man of books seven and eight of Aristotle's Politics, who is
called monarch or king. It is also clear, he says, that this kind of government
derives from natural law in that man is naturally a civil or political and social
animal, and the kind of government we have been discussing, he says, comes
from natural law and the law of nations.''' There is, of course, also a supernatural end of man and rulership here belongs to Jesus. Thus far, we have a
parallel between the human king and Jesus the king for the parallel realms of
nature and supernature. The pope is nowhere, as yet. It was necessary, because
of mankind's original sin against God, to establish certain remedies through
which Christ's sacrifice could benefit man, and thus the church's sacraments
were instituted and the minister as an intermediary between God and man.
In chapter 3 he compares the structure of the church and that of the secular
realm. He argues, in sum, that man is instinctively and naturally a creature who
lives in society and this instinct can lead him, depending on contingencies, to

"" The arrangement of the 25 chapters.

Parti
1. The nature and the origin of royal, civil government.
2. The nature and origin of the priesthood.
3. Comparison between thestructureof the hierarchy in the church and the structure of the state;
ecclesiastical ministers are ordered to one head (Pyramid); the various states, however, do not
need such a hierarchical ordering to one single, universal monarch.
4. Compares kingship and the priesthood (no true priesthood until Christ comes as mediator) as
to which comes first, historically. Kingship is first.
5. Which comes first in dignity?
6. Which is first in causality; the priesthood is not first. Discussion of the kinds of power the
pope has over church property.
7. The power of the papacy in the sphere of property-ownership, over layman's property. The
papacy has no dominium over their property.
8. Nor has the papacy jurisdiction over lay property. Christ had none.
9. Opposing arguments that Christ did have jurisdiction over lay property and replies.
10. Christ had no jurisdiction and did not transmit the power or capacity of proprietary ownership.
Objections and replies.
Part //(Leclercq division of the text). Discussion of adversaries' arguments: chapters 11-13, John
of Paris's solutions (especially chapters 12-15). The six powers in the sense of capacities, of the
priesthood and the rights they confer in the sphere of temporal jurisdiction. Chapters 14-20,
particular responses to objections and opinions mainly against papal hierocrats.
Part in, particular problems especially regarding: ch. 21, the donation of Constantine; ch. 22,
whether it is licit to discuss such matters at all. IGodefroid de Fontaines, Quodtibet XII q.6 (1295)
asks if theologians should deal with issues that may offend the powerful. Ut liceat doctoripraecipue
theologico, recusare quaestionem sibi propositam, cuius veritas manifesta per determinationem
doctoris offenderet aliquos divites et potentes. MS Paris, Bibi. Nat. Lat. 14311, fo. 199. In the
thirteenth century Innocent IV wrote that it was a sacrilege to dispute concerning the pope's
plenitudo potestatis.] Chs 23-5 on the renunciation and deposition of a pope. (Note that these
deposition issues constitute only a small proportion of the topics discussed in the text and are not
unduly emphasized by John of Paris.)
'' Bleienstein (ed.), p. 77; quod hoc regimen derivatur a iure naturali.

JANET COLEMAN

79

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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Dominium in I3th and Uth-Century Political Thought

political grouping. It is significant that he describes the heads of communities

whether one or diverseas arbiters. The parallel here is that just as the faith has
an arbiter so does the state: the king or political ruler of whatever constitution
acts as arbiter, adjudicating in matters of private property, just as the pope
adjudicates in matters of orthodox faith and heresy. He says there are different
ways of life, and constitutions are adapted to different climates, languages,
conditions of people. Thus the philosopher Aristotle shows that individual
states are natural, but not that of an empire or one-man universal rule.
ln chapters 4 and 5 he shows in what ways the power of the state and that in
the church are related: the state is chronologically prior but the priestly is prior
in dignity. Each power has its separate domain, each justifying its jurisdiction
immediately from the one superior power above themGod. This is his twopower schema. But when we turn to chapter 6 and his discussion of the relative
superiority of royalty in the order of causality, he says that the pope has not got
potestas, that is, dominium over exterior goods, i.e. property.^'' And since the
pope is not truly dominus of exterior material goods but, rather, is the
administrator and dispenser both in principle and practice, he then asks
whether the pope has at least the original and primary authority as superior and
as one who exercises jurisdiction. This he denies as well. All of this is Roman
legal terminology: bona exteriora, dominium in rebus and jurisdictio. The
argument itself is lifted, as is the major section of this chapter and chapter 7,
from another scholastic, Godefroid of Fontaines, whose academic quodlibets
date from the 1290s.^5 What is interesting in the extensive use of Roman and
canon law concepts is an assumption that these legal terms will be understood
by an audience for publicist polemic.
Ecclesiastical property as ecclesiastical has been given to communities and
not to individual persons according to John and so regarding ecclesiastical
goods no single person has proprietas et dominium, proprietary rights and
lordship, but only the community has these.2* A single person, not as an
individual but as part and member of the community has a ius utendi, has a
right of usage for his maintenance, judged according to his needs and status. A
congregatio or religious order is only unified by its head and principal member,
and he not only has use of the community's goods but also has general
administration and dispensation of all the goods of the community, allocating
according to proportional justice, dispensing in good faith for the common
good of the group as seems to him expedient; this is the position of the bishop

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

81

in whatever cathedral church." Since there is a general unity among all

ecclesiastical congregations of men, all making up one church united to one
principal memberthe pope-on whom it is incumbent to care for the general
church, it is the pope who is the universal dispensator of all spiritual and
temporal ecclesiastical goods. He is not dominus, lord of them, for only the
universal church community is lord, and proprietor of their goods generally,
domina est et proprielaria illorum bonorum generaliter, individual
communities and churches have dominium in the goods allocated to them. In
the church community individual persons, whoever they may be, do not have
dominiutn; principal members have only stewardship, dispensationem habeant,
except where they draw their recompense from service, and then only according
to need and status.
.
Thus the pope is a steward of communal property; but kmgs are not in like
manner to be taken as mere guardians of communal property. Yet another
relationship amongst property as dominium, ownership as possession and use,
and jurisdiction, obtains in the secular world. He returns to this later. Clergy as
clergy and monks as monks are not precluded from having domtntum of
exterior goods at least in common, because their vow does not incapacitate
them from holding property as it does some religious persons, i.e. Franciscans.
Since the founders of churches intended to transfer dominium et proprtetatem
bonorum directly to the community of the church, so the community has
immediate and true dominium in these goods and not the pope or any inferior
prelates. Others, quite wrongly, he says, do not distinguish between the modus
Vivendi of clergy and that of the minorites whose vow incapacitates them from
lordship over and ownership of goods, be they their own or goods held
communally. The minorites have only ususfacti as pope Nicholas (111) said. He
therefore argues that the pope is only a steward of the property given to the
ecclesiastical community; he has a relationship to these things only as
administrator in the interests of the community; and if he betrays the
community's trust by not acting in good faith he must do penance by restoring
the property. Such betrayal of trust can and must lead to deposition because the
misuse is of dominium and property rights.^* Such betrayal by abbots of
monastic communities or by a bishop regarding his church also must lead to
deposition. If the pope knows of persons, be they ecclesiastical or lay, who
claim against him on the grounds of unjust dispensations or misused stewardship modo quo possunt et debent, as they are able and indeed, must do, are
obliged to do, he cannot dejure, legally, remove them or dispossess them from
what is theirs, for he has no authority from God to do so and the pope cannot
act against God's will. Deposition may be, in the first instance, an obligation,
but it is also a capacity, from the subjective notion of ius, and therefore a
xxghipossunt et debent, deriving from the property rights of the individual or
the community as owner.
.
It is clear that this presentation of the papal potestas is about material
propertythat held commonly by the whole ecclesiastical community. Chapter
7 explains the papal polestas regarding lay property. But here property or goods
are not granted to the secular community as a whole. Lay property which he
27 Bleienslein (ed.), p . 9 1 .
28 Bleienstein (ed.), pp. 94-5.

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Dominium in I3th and 14th-century Political Thought

acknowledges to be prior chronologically to spiritual power and institutions, is

acquired by the individual's skill, labour and own industry and individuals as
individuals have in these things ius et potestatem et verum dominium, right and
power and valid lordship.^' Each person may order his own, dispose of,
administer, hold or alienate as he wills without injury to any other since he is
dominus. In the lay world property is distributed discretely through a process of
acquisition characterized by individual labour. One acquires rights over the
goods for which one has laboured and therefore one can use or alienate such
goods. Such goods or property acquired through individual labour have neither
interconnections with other men in society of whatever status, nor are they
mutually interordered,-^" nor is there a common head who may dispose of or
administer such property since whose ever they are may arrange for his own
property as he wishes. Neither prince nor pope has dominium or stewardship in
the lay world, et ideo nee princeps nee papa habet dominium vel dispensationem
in talibus. Individual property rights are inalienable. The purpose of civil
government is to preserve and protect private property. They are one's own in
the social state of nature, and property rights exist prior to government and are
natural. But sometimes the peace of everyone is disturbed because of such bona
exteriora, when someone usurps what is another's and also because at times,
some men, through excessive love of their own do not communicate their
property to others or place it at the service of the common need or welfare of the
community. Then a ruler or prince is established by the people who is to take
charge of such situations acting as judge and discerning between just and unjust
and as a punisher of injustices or injuries, a measurer of the just proportion
owed by each to the common need and welfare.^' The ruler is established by the
people to prevent the discomforts of not having an impartial arbiter when
rightful owners' property is usurped; he also is established to enforce altruism
when some will not provide voluntarily from their wealth that which the
community needs for the survival of the whole. Some men do not obey what is,
according to AquinasJohn's fellow Dominican and teachera natural
instinct to help preserve the lives of others in addition to their own.
There are some extraordinarily Lockean moments here.
In chapter 8 John defines the distinction between dominium anA jurisdictio:
jurisdiction is the right to decide what is just or unjust in matters pertaining to
property. The prince hasthis power of jurisdiction although he does not himself
2' /Irf quod declarandum considerandum est quod exteriora bona taicorum non sunt coltato
communitati sicut bona ecciesiastica, sed sunt acquisita a singulis personis arte, labore vel industria
propria, et personae singuiares, ut singulares sunt, habent in ipsis ius et potestatem et verum
dominium, et potest quilibet de suo ordinare, disponere, dispensare, retinere, alienare pro libita
sine aiterius iniuria, cum sit dominus (Bleienstein (ed.), p. 96.
w This is a direct refutation of Aegidius Romanus's position in his De Ecciesiastica Potestate
that property ownership is valid only because of interconnections and contracts made possible
through the prior communicacio established between men by the church. This is a well-known text
by Aegidius, but there is a major problem for Aegidian scholarship in that several texts have been
attributed to him which are not so systematically pro-papal. He was often a defender of Thomistic
theses. See Walter Ullmann, 'Boniface VIII and his contemporary scholarship' on the De
Ecciesiastica potestate. An edition of the text is R. Scholz, Aegidius Romanus: De Ecciesiastica
protestate (Leipzig, 1929). Also see Coleman, 'Medieval Discussions of Property: Ratio and

Dominium'.
31 Bleienstein (ed.), p. 97.

JANET COLEMAN

83

possess the property.^^ In sum we have a distinction between proprielas/

dominium and furisdictio. We have an argument for exclusive, private property
as natural for each individual whose skill and industry enable him to acquire his
own; the acquisition of one's own is prior to the establishment of government.
We have a notion that rulers are fiduciary powers, elected by the consent of the
people to act as arbiters in property disputes. Rulers are given jurisdiction
without the individual alienating his rights to or in property or his substantially
discrete property to the government. The secular state keeps order and order is
disturbed by disputes over property. Rulers, here including the pope, may tax
the community (of the faithful) in extremis, for defence, but this ought to be
calculated according to one's meansa taxation by property qualification.
Deposition is not only possible but obligatory when the relation of faith or trust
is destroyed by the ruler not representing the common welfare but his own."
Ill
This extraordinary tract is perhaps a bit less extraordinary when we compare it
with other publicist and theological works composed at the same time, e.g. the
quesiio de polestate papae, otherwise known by its incipit as Rex Pacificus,
dated by Ullmann at 1302.3'* This tract also identifies real potestas as somehow
related to private property but here potestas is also equated with jurisdictio
which, in turn, is equated with dominium in re. 'The true criterion of temporal
overlordship is the power to decide feudal litigation and litigation concerning
inheritance and possessions'; this is how Ullmann describes the arguments of
the Rex Pacificus.^^ If this Jurisdictio on the part of the monarch is the true
criterion of temporal overlordship or dominium, then the author of Rex
Pacificus is not in agreement with John of Paris.'*' For John, dominium and
jurisdictio are separate, the former is a characteristic of the individual who
acquires property through labour, the latter, a characteristic of an elected and
" Bleienstein (ed.), p. 98: Et quia non est idem habere proprietatem et dominium in bonis
exterioribus et habere iurisdictionem, id est ius discernendi quid sit iustum vel iniustum in ipsis,
sicut habent principes potestatem iudicandi et discernendi in bonis subditorum licet non habeant
dominium in re ipsa . . .
" The parallels with Locke are interesting. Tully argues (unconvincingly to me) that Locke is
not, in fact, talking of private property but about what is man's right of use of that which is and
remains God's. James Tully, A Discourse on Property: John Locke and his adversaries
(Cambridge. Cambridge University Press, 1980), p. 72. If the following distinction Tully makes is
accurate, that 'the private proprietor's right to refers to what is his own, the common proprietor's
right is to what is his due' (p. 77), then John of Paris is speaking of the private proprietor, after
man's right of use in God-given common property has been altered through man's labours.
M Walter Ullmann, 'A Medieval Document on Papal Theories of Government', English
Historical Review, LXl (1946), 180-201. The treatise Rex Pacificus, was published in Acta inter
Bonifacium Vllt, Benedictum Xt, Clementem V et Philippum Pulchrum (s.l, 1614), pp. 49-93.
The treatise was printed for the first time by Jean Petit, 1506. It is also as a fragment in Pierre
Dupuy, Histoire du differend d'entre le Pape Boniface VIII et Philippe le Bel roi de France (Pans,
1655), the last tract, pp. 663-83. A MS of the/Jex/'aci/icMS is MS Paris, B.N. Lat. 3184. A MS of
great importance is Paris B.N. Lat. 15004 (originally St Victor, Paris, 895) which indudes John of
Paris's De potestate. The Diaiogue between a Cleric and a Knight, a quaestio of Aegidius Romanus
(Quaestio in utramquepartem) and various tracts by Gerson.
35 Ullmann, 'Medieval Document', p. 189.
" This is the reason for my unwillingness to attribute the Rex Pacificus to John of Paris contra
Saenger, n. 3 above.

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Dominium in 13th and 14th-Century Political Thought

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
'''
'S
w
*"

Coleman, 'Medieval
Ullmann, 'Medieval
Coleman,'Medieval
Coleman, 'Medieval

Discussions
Document',
Discussions
Discussions

of
p.
of
of

Property', pp. 209-28.

198.
Property', pp. 214-15.
Property', p. 218.

JANET COLEMAN

85

composition, a slotting of ideas as originally phrased, into & forma of another

genre. In fact, as 1 have argued elsewhere,'" the de potestate genre seems to have
developed from the deierminationes section of the magisterial quodlibet by the
early fourteenth century. At any rate, this 'scissors-and-paste' mode of
composition of a tract neither begins at the turn of the fourteenth century nor
ends there.
IV
'The works which gave birth to our intellectual world were written in the study
. . . the medieval writer had to spend his time in libraries."*^ So begins Laslett's
introduction to his and Harrison's The Library offohn Locke. To some extent
this is, of course, true, but if this is taken to be a manifesto of a hermeneutic,
internalist approach to theory, texts alone influencing texts, then it is not true
for much of the political theory of the later thirteenth and fourteenth centuries.
It is not generally true, especially of the works we have been considering.
Instead of seeing Godefroid of Fontaines and then John of Paris as voices
crying in a wilderness comprised of theoretical tracts, perhaps speaking only to
one another or where no one could truly understand them until the later
sixteenth and seventeenth centuries, let us turn to some of the events which may
be taken to have been significant in the interlinked development of linguistic,
conceptual and material conditions which enabled Godefroid and John to
speak formally as well as informally in the legal terminology of dominium.
There is no time to develop an argument here for the use made of Roman and
canon law by these theorists;''-' such use was frequent, sometimes also extensive
and sophisticated. Rather let us emphasize one initial underlying impetus for
their arguments in favour of the naturalness of acquiring private property
through labour: the development of the practice and the justificatory theory of
customary law in France and England during the thirteenth century. Surely it is
not simply a matter of property theory reflecting socioeconomic patterns of the
time; property theory also simultaneously reflected the control exercised on
political theories by the available traditions of thought and the genres in which
these were expressed. The case of England is suitable for examination here
because English customary law is well documented, more familiar to the
author, and in many ways that have become clear during the past decade, very
similar to continental customary practices (pace Alan MacFarlane and his
exclusive notion of English individualism based on the ability to alienate
property).'*^
^' Coleman, 'Medieval Discussions of Property', p. 213.
^ John Harrison and Peter Laslett (eds). The Library of John'Locke (second edition) (Oxford,
Basil Black well, 1971).
" Coleman, 'Medieval Discussions of Property", pp. 211-12. At the Council of Vienne, 1311,
prelates presented a list of grievances enumerating the wrongs currently suffered by the clergy at the
hands of the temporal lords who claimed superiority of civil law over canon law in matters of
property, jurisdiction and privilege. See F. Ehrle, 'Ein Bruchstuck der Akten des Concils von
Vienne', Archivfur Literatur und Kirchengeschichte, IV (1888), 361-470.
" Alan MacFarlane, The Origins of English Individuaiism (Oxford, Basil Blackwell, 1978). His
hypothesis: '. . , the majority of ordinary people in England from at least the thirteenth century
were rampant individualists, highly mobile, both geographically and socially, economically
"rational", market-oriented and acquisitive, ego-centred in kinship and social life' (p. 163), see
also p. 103 ff.

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Dominiutn in 13th and 14th-Century Political Thought

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

Dominium in 13th and 14th-Century Political Thought

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

89

cash. The development of the reality of private property as a distinguishing

characteristic of the individual brought with it reflections on the political status
and power of the moral, rational individual.
By the early fourteenth century the logical extension of the moral justification of money-making and a profit economy, as Little shows, was the
handbook culled from John of Freiburg's Summa for confessors, called the
Regula Mercatorum. This announced that there is a Christian life for
merchants and one might even say they live by a Regula or rule as do the
numerous religious orders. St Francis himself, the founder of the Franciscans,
who renounced all property, whether it was to be held privately or communally,
was remembered ironically enough by a thirteenth-century Archbishop of Pisa
as 'the merchants' saint'.'-

Another way to focus on the extraordinary economic and consequent legal

changes effected in the thirteenth century is to do as Milsom did in his 1972
Maitland Lectures.'^ He too focuses on the thirteenth century as a period of
extraordinary change, particularly in the attitudes to customary feudal obligations and notions of holding land and alienating it. He does not give the
economic argument 1 have just summarized from Lester Little as the reason for
this change, but asserts the change by examining plea rolls, select cases of legal
procedure without writs, curia regis rolls, from Glanvill to Bracton, that is,
from the mid-twelfth to the end of the thirteenth centuries. He tells the
following story about property.
He tries to reconstruct the feudal component in the structure of English
society around 1200 which is the earliest time 'we know enough of what people
said and did to make out what did not need saying and what it was not thinkable
to do' as he puts it.'' The 'things said and done' come from Glanvill and plea
rolls of Richard I and John. These sources reflect at least the formal framework
of society, but, he asks, why is it that we do not see the daily life of a society
which left copious records of its litigation? His answer is that we ask the wrong,
that is, anachronistic questions of them. Early law suits did not work as modern
ones do, by ascertaining the facts; everything was squeezed into formulae: the
plaintiff, the defendent, the court's general and blanket verdict.'* As 1 began
with a general reference to the formulaic character of medieval literature of all
sorts, its distinct genres, so too we confront the formulaic, the rule-bound
expression of a customary, feudal and rule-bound practice of twelfth-century
human relationships between diverse ranks. The odd details of cases are not
" Un\e, Religious Poverty, pp. \11, 195.
5* S. F. C. Milsom, The Legal Framework of English Feudaiism, the Maitland Lectures, 1972
(Cambridge, Cambridge University Press, 1976).
5^ Milsom, Legal Framework, p. I.
'* Milsom, Legal Framework, pp. 45. Even as early as Glanvill we can see that his discussion of
the sale of property is a very un-Roman transaction disguised in Roman legal terminology. It is not
consensual. Glanvill's tract ends with a note that contracts made by the consent of private persons
are not treated at length because he is only interested in cases normally treated in the king's court
which does not deal with private agreements. Glanvill also assumes that the twelfth-century English
law of debt is, or ought to be, expressible in terms which a civilian (Roman) lawyer would understand and be able to classify. See Barton, Roman Law in Engiand.

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Dominium in 13th and 14th-century Political Thought

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.

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Dominium in I3th and 14th-century Political Thought

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

** Harding, 'Political Liberty in the Middle Ages', p. 434. .

'5 Harding, 'Political Liberty in the Middle Ages', p. 436.
** A. S. McGrade, 'Ockham and the birth of individual rights', in Brian Tierney and Peter
Lineham (eds). Authority and Power, Studies on Medievai Law and Government presented to
Waiter Uiimann on his Seventieth Birthday (Cambridge, Cambridge University Press, 1980),
pp. 149-65.
*' Compare Locke: 'The great question which in all Ages has disturbed Mankind, and brought
on them the greatest part of those mischiefs which have ruined cities, depopulated countries, and
disordered the peace of the world, has been, not whether there be power in the world, nor whence it
came, but who should have it.' P. Laslett (ed.). Two Treatises of Government (Cambridge,
Cambridge University Press, 1960), pp. 1, 11, 106.
** McGrade, 'Ockham and the birth of individual rights', p. 157.

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Dominium in 13th and 14th-century Political Thought

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.

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Dominium in 13th and 14th-Century Political Thought

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

treatises, in political poetry and prose,"" polemic and ephemera, as individuals

controlling their lives by being in some way responsible for their material
welfare. Dominium in a variety of interpretations was taken to be the basic fact
of their individualism. Tuck has pointed out that this needed only a few
modifications to blossom forth as the classic rights theories of the seventeenth
century.*" Tierney has said more recently, even more emphatically, that the
English seventeenth-century debate echoed strangely, as it were in a different
key, a theme that had already been clearly enunciated in western political theory
in the years around 1300.^' Tully has recently made similar remarks regarding
Aquinas and seventeenth-century natural law writing. We have seen that this
earlier debate like the later one, concerned not only political authority but also
property rights, dominium, sometimes understood to mean both jurisdiction
and ownership, sometimes distinguishing these. After an examination of the
published listing of books for Locke's library, we would suggest that the
resemblances between early fourteenth-century discussions and those of the
later seventeenth century are not coincidental.^^
John of Paris was printed under his own name or read unnamed into the
"* Coleman. Medieval Readers and Uriters, Ch. 5 and conclusion.
so Tuck. Natural Rights Theories, pp. 28 f.
*i Tierney,'Public expediency', p. 168.
" Coleman, 'Medieval Discussions of Property', pp. 209-10. In a communication to me Mark
Goldie noted that the Royalists developed a sophisticated claim that the Whig ideology was derived
from Catholic theology. They were, of course, correct, and revolutionary Calvinism and
Gallicanism did inherit a kind of 'popery' from the late scholastics albeit an antipapal form of it as
presented in John of Paris's work. See Robert Brady, An Introduction to the Old English History
(1684). Also now see Goldie, 'John Locke and Anglican Royalism', Political Studies, XXXI (1983),
61-85, especially p. 75.
.
Information on Locke's reading of Catholic authors and Catholic debates and history when in
France: his books and notes, see John Lough, 'Locke's Reading during his stay in France
(1675-79)', The Library, 5th series, Vlll (1953), 229-58, from which I have chosen notes of
interest. 1677, MS Locke f.2. p. 2Bishop of Worcester Stillingneet's answer to Catholiques no
Idolaters (London, 1676); p. 3Stillingfleet, p. 730: Petrus Picherellus an excellent critick and
learned divine in the Roman church: p. 1(,Mercure Jesuite(Gene\3i, 1631), p. 850, 'Deposeingof
kings';p. 103FulgenzioMicanzio, k'/wrfe/PodrePflo/o(1658), p. 55:'II Cardinal di Perrone . . .
di modo irritativa.' (Cardinal Du Perron: in a harangue to the third estate on the occasion of the
consacration of Louis XUl du Perron rendered homage to John of Paris regarding his two powers,
referring to John's support of the pope's releasing subjects from their obedience to an heretical
king. See Harrison and Laslett, Library of John Locke, n. 1003b, p. 127 for a copy of Perroniana
sive Excerpta ex ore Cardinalis Perronii. . . (Geneva, 1667).] Further textual references made on
his French journey: to Bodin, Bellarmine, Inote that Bellarmine's De Romano Ponrifice (\5i6).
Book V ch 1 has references to John of Paris: Locke refers to'Bellarmindegrat.et lib. arbit. Lib. I
C.14I, and to Cardinal di Perronne. 1678 MS Lockef.3\ p. iiOLa corruption de TEglise Romatne
1679 MS Locke c. J3. 2f. 20: Hist, del Inquisitione, p. Fra. Paolo (Sarpi);/. 22v: Catalogue de
Barbier. (John of Paris's De potestate regia et papali was first printed in Paris, 1506 for Johannes
Barbier by Jean Petit. This is the editioprinceps and Durandus's tract is also printed here, as is Rex
Pacificus.
Also see Peter King, The Life of John Locke with Extracts from hts correspondence, journais and
commonplace books (new edition) (London, 1830), //. misceilaneous papers. Also see 'On the
difference between civil and ecclesiastical power, indorsed excommunication', dated 1673-4. This
is MS Locke c. 27 e fol. 29a and not as Tully has cited it. The tract is written partly in Locke's hand,
and printed, with alterations in King, 11 (1830), pp. 300-6. Also see MS Locke c. 27 h fol. 32.
Queries about the infallibility of the pope or the catholic church, 1675. Note that on Locke's French
journey, 1675-79, he kept cases of his books, only some of which he carried back with him, leavmg
many with his friend Brisbane in Paris, to be sent on later to London.

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Dominium in 13th and I4th-Century Political Thought

seventeenth century, particularly by Calvinists and for the Gallican cause.

Although the author can find no direct reference to John of Paris's De
Potestate regia et papali in Locke's listings, Locke did possess the complete
works of the conciliarist Pierre d'Ailly, in du Pin's edition of Gerson's Opera
Omnia. Pierre d'Ailly's own works, in true 'scissors-and-paste' fashion, 'lifted'
John of Paris's Prologue and, yes, chapters 6 and 7 of the De Potestate, and
included them in his own and as his own.*' other works in Locke's library are
known to mention John of Paris at least as a hero of the Gallican cause or for
conciliarism, or else he is recognized as having favoured a via media in support
of a separation of the two powers, church and state. It clearly would not have
been wise for the politically astute Whig Locke to cite a Catholic and scholastic
in support of his own ideas on property.*" As Goldie has recently argued, the
Royalists accused the Whigs of popery with a true historical sense; Brady
" The credit for discovering d'Ailly's use of John of Paris must go to J. Almain. D'Ailly's De
ecclesiae et cardinalium auctoritate. III (Constance, 1416) transmits completely without giving the
source, John of Paris's Ekpotestate, chs 6 and 7. Also d'Ailly's prologue reproduces word for word
John of Paris's prologue and also parts of ch. 13. See the edition, E. du Pin of Gerson's Opera
Omnia, I, col. 980 and 1011; in the 1706 edition, vol. I. col. 914-17; the prologue, col. 896-7.
Gerson also wrote a De jurisdictione spirituali et temporali now edited by G. H. M. Posthumus
Meyjes (Leiden, Brill, 1978) on the respective rights and powers of the two jurisdictions without
adopting the extreme doctrines of the papal hierocrats, and drawing upon the via media of John of
Paris. Also see, G. H. M. Posthumus Meyjes, Jean Gerson et L'Assemblee de Vincennes (1329)
(Leiden, Brill, 1981). In Locke's library, the du Pin edition (Nouvelles Bibliotheque de Auteurs
Ecclesiastiques) is no. 2306, in Harrison and Laslett (eds), p. 209.
For information on early texts used for the Gallican cause see K. Schleyer, Anfanger des
Gallikanismus im 13. Jahrhundert (Berlin, 1937). Also see the discussion and bibliography in
Francis Oakley, 'Natural Law, the Corpus Mysticum, and consent in Conciliar Thought from John
of Paris to Matthias Ugonis', Speculum, 56 (1981), 786-810. On Pierre d'Ailly, Gerson, John
Major and Jacques Almain; their concern with jurisdiction of the church and its public, coercive,
nonsacramental anjd political subdivision: potestas jurisdictionis inforo exteriori, pp. 795 f; 805.
On John of Paris and the power of coercive jurisdiction in the external forum: the governmental
power, pp. 799f, 805. Allof these philosopher-theologians, Oakley argues, 'comprise an important
subgroup of conciliar thinkers who treated the church less as a unique and mysterious community of
salvation than as one of a class of rightly ordained societies, focusing attention on ecclesiastical
power under its most unambiguous political guise, by disengaging their essentially constitutionalist
theories from the particularizing elements of ecclesiastical, national and regional law or custom,
and by bringing them into connection with the more universal mandates of the natural law. Thus
they formulated theoretical principles underlying medieval constitutionalism that reverberated to
the mid-seventeenth century among Protestant resistance theorists and Parliamentary opponents of
Charles I of England during the first civil war.' (p. 805.) For later seventeenth-century 'reverberations' see Henry Foulis's tract. The History of the Wicked Plots and Conspiracies of our Pretended
Saints (1662) and the encyclopaedic The History of Romish Treasons and Usurpations (1671).
Oakley is correct when he says: 'a heightened interest must attach to the formulations of John of
Paris, Pierre d'Ailly, Jean Gerson, Nicholas of Cusa, Jacques Almain and John Major. Although
by so doing they left themselves open to the charge of having drawn their tenets not from the sound
doctrine of the Protestant Reformers but from 'the polluted cisterns' of the 'Sorbonists' and other
papists, the English political w riters of the early seventeenth century cited all of these men, some of
them with considerable frequency.' (p. 805.)
^ An interesting letter to Mr John Strachy, Sutton Court, Bristol, sent from 'Cleve', 1664-5 by
Locke and printed in King, I (1830), p. 28: On Christmas day at 1 AM Locke went to the Catholic
church at Cleves: . . . 'but to be serious with you, the Catholic religion is a different thing from
what we believe it in England. 1 have other thoughts of it than when 1 was in a place that is filled with
prejudices and things are known only by hearsay. 1 have not met with any so good-natured people or
so civil as the Catholic priests, and I have received many courtesies from them which 1 shall always
gratefully acknowledge.'

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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),

Ch. I, pp. 112-3.

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Dominium in 13th and 14th-century Political Thought

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.