Let us begin with the question of origins. Among the
treatises written in the late thirteenth and early fourteenth centuries one
encounters tides such as On the Origin of Jurisdiction, On the Cause of
Ecclesiastical Power, On the Birth of Empire. The problem they addressed was
bequeathed to political theory by the canonists, and especially by Pope
Innocent IV, a hard and unscrupulous man but a great lawyer. At one point in
his commentary on the Decretales (c. 1250) he raised his eyes from the dusty
technicalities of canon law to glance over the whole history of human
government. Addressing specifically the problem whether licit government could
exist among infidels, he wrote:
By nature all men are free ... I read of just and
rightful jurisdiction where the sword given for vengeance is mentioned . . .
But how this jurisdiction first began I do not know unless perhaps God assigned
some person to do justice ... or unless in the beginning the father of a family
had complete jurisdiction over his family by the law of nature though now he
has it only in a few minor matters . . . Or again, a people could have princes
by election as they had Saul and many others ... I maintain therefore that
lordship, possession and jurisdiction can belong to infidels licitly ... for
these things were made not only for the faithful but every rational creature .
. . For God makes his sun to shine on the wicked, and he feeds the birds of the
air.
It is a very good passage for such a very bad pope. Also it
had a great future. Innocent’s doctrine was repeated in the fifteenth-century
debates about the activities of the Teutonic Knights in pagan Lithuania, and it
was transmitted by late medieval jurists to Spanish authors of the sixteenth
century. They applied it in a quite novel context, to defend the rights of
American Indians. The Indies debates in turn influenced the work of Grotius and
the subsequent growth of seventeenth-century doctrines on international law. If
we were pursuing that particular theme Innocent’s text would seem of major
importance in the evolution of thought from the medieval canonists to the early
modem world. For our present purpose we may note that Innocent posed very
clearly the problem of origins and hit neady on the three possible sources of
legitimacy that would be discussed for centuries - patriarchal authority,
direct divine right, or government by election and consent.
Of course, the problem of origins goes back further.
Classical authors too had sometimes discussed the beginnings of government.
Aristotle described a natural evolution from the family to the clan to the
perfect society of the polis. Cicero offered an alternative Stoic version, a
less naturalistic, more conventional account of the origin of the state, based
on a coming together of people who had formerly lived solitary lives. Both
accounts were well known in the Middle Ages. John of Paris began his treatise On
Royal and Papal Power with Aristotle’s version and followed it immediately with
Cicero’s. He seems to have regarded the two as complementary to one another.
‘Since man is by nature created a political and civil animal, as is said in
Book I of the Politics ... he must of necessity live in a community5, John
wrote. Then he added: ‘Since these men could not . . . bring themselves to live
the common life natural to them . . . others . . . tried to bring them by more
persuasive arguments to an ordered life in common under one ruler, as Cicero
says.’ The coexistence of these two points of view has sometimes been
regarded as a characteristic of sixteenth-century political theory; but the
combination of Aristotelian naturalism with Stoic conventionalism was common
enough from around 1300 onward.
The note above concerning the native population in Spanish conquests asserts that the indigenous peoples had rights pari passu with the Spanish themselves. This devolved from Catholic teachings as was prevalent in Spain. In contrast the Dutch and English in their slave trade considered no such rights and thus felt that the capture of other humans allowed them to strip the rights that the 13th century pope asserted and were followed to some degree in Spanish territories.
History has a strange way of retelling tales.
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