Bartolus of Saxoferrato On Guelfs and Ghibellines, Seeking Remedy

Bartolus of Saxoferrato On Guelfs and Ghibellines, Seeking Remedy

12 April 2020

Leaders today have moved to desertion, tyranny and the enforcement of servitude. Do we have remedy in the following principles?

Regarding the third, namely whether having these inclinations is licit, say: if [110] many people are of one inclination, or someone adheres to one inclination not because of some public good, but because of his own utility, or so that he oppresses others, this is simply illicit. And if they resort to this, it will be punishable just like those entering into a partnership for the punishment of innocents, as ff. ad legem Iuliam de vi private, l. ex senatusconsulto,[19] and de concussione, l. i[i].[20]

Yet, sometimes there is one faction in the city tending principally to the public good, so the city is rightly and peacefully governed; and even so it cannot  resist adversaries unless under one label of preference. And, then, I think such an inclination and preference is licit. For, just as it is licit for friends to gather [120] for the protection of their things, so is it much more licit for public protection, as in ff. de vi et vi armada, l. iii, §. eum igitur..

Dig. 26.8.15. 17. Cod. 8.41.28. 18. Dig. 45.2.11. 19. Dig. 48.7.6. 20. Dig. 47.13.2.

Sometimes one faction wishes not only to resist, but wishes even [138] to depose from government those who govern others. Then, if indeed they rise up against a just government, it would be unqualifiedly illicit, as in C. de [125] seditious, l. i;[22] and note there about the one who wishes to depose the authorities (potestatem). But if the government that they wished to depose was tyrannical and extremely wicked, then for this it was licit to be of one preference and label, with the two ⟦following things⟧ co-existing :

[1.] first,that the tyrant cannot be disposed by having recourse to a superior [130] without great difficulty;

[2.] second, that they do this for the sake of public utility, so that the status of the city be restored. Otherwise, they did this in order to initiate a new tyranny once the others had been expelled.[23]

The first is proved because it is licit to declare a law (jus) for one’s self by [135] one’s own authority when access to a judge is not available, as in C. de Iudeis,

l. nulls,[24] and the notes there; ff. que in fraudem creditorum, l. ait pretor, §. si debitofem;[25] and xxiii, q. ii, c. Dominus.[26] Therefore, if this is licit for individual advantage, all are admitted that much more for liberating the commonwealth, ⟦or⟧ for defending it, as in ff. de novi operas nunciatione, l. de pupil, §. finali,[27]

[140] and the following lex.[28] Moreover, if this is permitted for anyone against a plunderer of fields or a deserter from military service, it ought be permitted that much more against those who plunder a commonwealth and its state, and place it under the yoke of servitude.

The second is proved, that it is not licit for personal (proprium) utility because [145] those who hold the commonwealth through tyranny, [139] possess it by force from that commonwealth or a superior lord, not from some private person.



Further Study
Bartolus of Saxoferrato
Law of Heraldic Arms
The Laws Of Nation Are Not The Laws Of State

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