To The Uttermost Parts Of The Earth Legal

Imagination And International Power 13001870

Martti Koskenniemi download

https://ebookbell.com/product/to-the-uttermost-parts-of-the-
earth-legal-imagination-and-international-power-13001870-martti-
koskenniemi-34203340

Explore and download more ebooks at ebookbell.com

Here are some recommended products that we believe you will be
interested in. You can click the link to download.

To The Uttermost Ends Of The Earth The Epic Hunt For The Souths Most
Feared Ship And The Greatest Sea Battle Of The Civil War Phil Keith

https://ebookbell.com/product/to-the-uttermost-ends-of-the-earth-the-
epic-hunt-for-the-souths-most-feared-ship-and-the-greatest-sea-battle-
of-the-civil-war-phil-keith-42742918

To The Uttermost Ends Of The Earth The Epic Hunt For The Souths Most
Feared Shipand The Greatest Sea Battle Of The Civil War 1st Edition
Phil Keith

https://ebookbell.com/product/to-the-uttermost-ends-of-the-earth-the-
epic-hunt-for-the-souths-most-feared-shipand-the-greatest-sea-battle-
of-the-civil-war-1st-edition-phil-keith-43157010

Love To The Uttermost Devotional Readings For Holy Week John Piper

https://ebookbell.com/product/love-to-the-uttermost-devotional-
readings-for-holy-week-john-piper-10874682

To The Moon Investing Visually Mapping Your Winning Stock Market

Portfolio Wiley Finance 1st Edition Kelly J Frank

https://ebookbell.com/product/to-the-moon-investing-visually-mapping-
your-winning-stock-market-portfolio-wiley-finance-1st-edition-kelly-j-
frank-48711080
To The Madbar And Back Again Nehm Lala

https://ebookbell.com/product/to-the-madbar-and-back-again-nehm-
lala-49192850

To The West Of Spanish Cantabria The Palaeolithic Settlement Of

Galicia Arturo Lombera Hermida

https://ebookbell.com/product/to-the-west-of-spanish-cantabria-the-
palaeolithic-settlement-of-galicia-arturo-lombera-hermida-49994082

To The Stars Women Spacefarers Legacy 2nd Edition Umberto Cavallaro

https://ebookbell.com/product/to-the-stars-women-spacefarers-
legacy-2nd-edition-umberto-cavallaro-50365124

To The Collector Belong The Spoils Modernism And The Art Of

Appropriation 1st Edition Annie Pfeifer

https://ebookbell.com/product/to-the-collector-belong-the-spoils-
modernism-and-the-art-of-appropriation-1st-edition-annie-
pfeifer-50558494

To The Last Drop Affective Economies Of Extraction And Sentimentality

Axelle Germanaz

https://ebookbell.com/product/to-the-last-drop-affective-economies-of-
extraction-and-sentimentality-axelle-germanaz-51032318
 To the Uttermost Parts of the Earth

This volume presents the key role played by law for Europe’s
global hegemony during 1300–1870. By connecting public sover-
eignty with property rights, it demonstrates how law enabled the
concurrent development of political statehood and capitalism in
Europe and beyond. Europe’s global power has not been the
power of princes or capital alone, but always a specific configur-
ation of the two. To understand this power, the book shows how
the relationship of sovereignty and property has its basis in local
legal cultures – French, Spanish, British and German. The
employment of law in foreign lands has not been a monopoly of
lawyers, however, but has been practiced by theologians, political
commentators, philosophers and economists. The specific relation-
ship between public and private power has depended greatly on
which type of expertise has been regarded as authoritative in the
relevant context.

Professor Martti Koskenniemi is a leading critical scholar in the

theory and history of international law. His works engage with
themes discussed by lawyers, historians and international relations
scholars across the world. He has held visiting professorships at
many of world’s leading universities. He is a Corresponding Fellow
of the British Academy and a Member of American Academy of
Arts and Sciences.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms
of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 To the Uttermost Parts
of the Earth
Legal Imagination and International Power,
1300–1870

MARTTI KOSKENNIEMI

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India
103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9780521768597
DOI: 10.1017/9781139019774
© Martti Koskenniemi 2021
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2021
Printed in the United Kingdom by TJ Books Ltd, Padstow Cornwall
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Koskenniemi, Martti, author.
Title: To the uttermost parts of the earth : legal imagination and international power, 1300-1870 /
Martti Koskenniemi, University of Helsinki.
Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2021. |
Includes bibliographical references and index.
Identifiers: LCCN 2020039508 (print) | LCCN 2020039509 (ebook) | ISBN 9780521768597
(hardback) | ISBN 9780521745345 (paperback) | ISBN 9781139019774 (epub)
Subjects: LCSH: International law–History. | Rule of law–History. | Religion and law–History. |
Natural law–History. | Grotius, Hugo, 1583-1645.
Classification: LCC KZ1242 .K678 2021 (print) | LCC KZ1242 (ebook) | DDC 341.01–dc23
LC record available at https://lccn.loc.gov/2020039508
LC ebook record available at https://lccn.loc.gov/2020039509

ISBN 978-0-521-76859-7 Hardback

ISBN 978-0-521-74534-5 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 You are to be witnesses unto me both in Jerusalem, and in all
Judea, and in Samaria, and unto the uttermost parts of the earth.
John Donne, Sermon to the Virginia Company,
13 November 1622. In Donne, Works, VI, 241,
quoting Acts: 1:8 (King James version)

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms
of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

Acknowledgements page xiv

Introduction 1
The Legal Imagination 1
Legal Imagination in Action 4
Imagining Starts at Home 8
A World of White Men 12
A Note on Textual Conventions 14

part i towards the rule of law 17

1 Legal Imagination in a Christian World:

Ruling France c. 1300 19
Clericos laicos and Unam sanctam 25
“Ecclesia habet universale dominium . . .” 31
Roi très Chrétien 35
Rex Franciae in regno suo princeps est 40
Philip in Context 1: “Feudalism” 52
Philip in Context 2: The Economy 59
Ruling Humans and Owning Land 66
Ius gentium As Christian Authority 1: Systemic Aspects 72
Example: Ius gentium in Aquinas 78
Ius gentium As Christian Authority 2: Universal History 83
Ius gentium and Christian Authority 3: Property 88
Towards Economic Justice? 94
Common Good As the “Higher Law” 98
Reconciling Jurisdiction and Property 107

vii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

A Human Dominium: John of Paris 111

Conclusion: Legal Imagination in the King’s Service 114

2 The Political Theology of Ius gentium:

The Expansion of Spain 1526–1559 117
The Court of Conscience 118
The View from Salamanca 130
The Salamanca Concept of “Law” 138
Ius gentium As Justice 143
Justice As Dominium 148
Dominium in the Indies 155
The Salamanca Reaction 163
No Universal Dominium 170
Dominium Iurisdictionis 174
An Empire of Private Rights 181
War and Dominium 198
Conclusion 210

3 Italian Lessons: Ius Gentium and

Reason of States 212
An Italian Lesson 215
The Lawyer As Humanist Warrior 221
A New Jurisprudence 228
Sovereignty as the Virtue of Moral Ignorance 234
Domestic Sovereignty: Absolute and Legally Confined 236
Law between History and Philosophy 239
The Work of Ius gentium: Equity, Utility, Necessity 244
The Trouble with Theology 248
Imperial Statecraft 254
Expanding Civilisation and Protecting the Oppressed 258
Imperial Ambivalence 264
The Limits of Gentili’s Jurisprudence 267
Another Italian Lesson – Botero and Counter-
Reformation Statehood 271

4 The Rule of Law: Grotius 280

Interpretative Perspectives 284
A Political Theology of Moderation 287
The Search for Obedience: From Religious to
Legal Obligation 294

viii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

Natural Law As Frame 299

A World of Rights 306
Law As a Moral Science 311
Sovereigns and Subjects: De iure praedae 317
“[T]he Law (especially that of Nations), is in a State,
like the Soul in the Human Body” 326
Public Power and Rights of Commerce: Celebrating the
Dutch Experience 332
The Primacy of Civil Society: Property and Contract 334
A World Seen through Law 343

part ii france: law, sovereignty and revolution 347

5 Governing Sovereignty: Negotiating French

“Absolutism” in Europe 1625–1715 349
Statehood 351
Reasons of Statehood 357
Jean Bodin 1: Towards Universal Jurisprudence 362
Jean Bodin 2: Not Tyranny, Sovereignty 365
Jean Bodin 3: From Sovereignty to “Government” 369
States in the World 372
Ordering Public and Private: Loyseau 374
The State As a “Participatory Enterprise” 377
Thinking about Commerce 384
Europe: Between Security and Dynastic Rights 391
Law for a Broken Humanity: Domat 400
Law of Nations and Moral Regeneration; Fénelon
and D’Aguesseau 404
Utrecht 409
A Profession in Dire Straits 412
A First Diplomatic School 414

6 Reason, Revolution, Restoration: European

Public Law 1715–1804 417
Peace, Rule of Law and Political Science: Saint-Pierre 421
Peace and Commerce: Melon 428
States and War: Rousseau 431
The Link between Statehood and Property 434
Montesquieu: The Natural Laws of Commerce 436
Towards the Brilliant Future 441

ix

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

Commercial Statecraft 444

The Natural Laws of the Economy: The Physiocrats 447
Natural Rights and the Legal Order: Sieyès 455
Revolutions 1: Europe 457
Exporting the Revolution? 463
From Rights to Science 475
European Public Law Restored: Rayneval 480

7 Colonies, Companies, Slaves: French

Dominium in the World 1627–1804 488
Slavery and the Philosophes 491
Colonisation As Struggle of Proprietary Rights:
Early Developments 500
Rule by Company 1: Nouvelle France 508
Rule by Company 2: Caribbean 512
The Return of the State: Colbert 515
Sugar, Slavery and Feudal Rights: Crozat 520
An Empire of Commerce? 526
“Pearl of the Antilles” 530
Revolutions 2: Saint-Domingue 534
Slavery or Independence? 547
Ending . . . and Starting Again 552
Epilogue: A Legal Anomaly 556

part iii britain: laws and markets 559

8 The Law and Economics of State-Building:

England c. 1450–c. 1650 561
Corpus mysticum economicum 564
The Economics of Law and Government: Thomas Smith 569
Two Concepts of the Law of Nations 574
Common Law Views 579
The Structure of Commercial Power: Companies and State 585
Commercial State: Mercantile Law 592
Monopolies As Law of Nations: The East India Company
and Sandys Case 599
Prerogative vs. Property Rights 603
Ship Money; Quis judicabit? 608
From “Opinion” to Authority: Hobbes 611
Natural Law As the Science of Government 616

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

9 “Giving Law to the World”: England

c. 1635–c. 1830 622
Mare Clausum 623
The Dutch Problem 627
1688: Towards a Mercantile State 630
Rule by Property: John Locke 633
Giving Law to the World 640
The “Blue Water Strategy” 643
The Laws of a Commercial World 648
Imagining Commercial Society: David Hume 656
The Benefits of Commerce 660
“Foundation of the Laws of All Nations”: Adam Smith 664
The Unity of Morality, Law and Commerce 667
Diplomacy, War, Empire 671
The Laws of “Utility” 674
“International Law”: Jeremy Bentham 679
“Universal Jurisprudence” As Political Economy 682
“Omission and Neglect of . . . International Law,
As a Science” 687
Governing a Commercial World 695

10 Global Law: Ruling the British Empire 699

The Laws of Improvement 700
The Game of Justifications: From Conquest
to Settlement 712
Locke: Government by Improvement 723
Colonialism As Feudalism: Transformations of
Proprietary Rule 726
Thinking about Native Inhabitants 736
Asserting Sovereignty 1609–1763 744
Sovereignty from Property Rights 1763–1776 751
Into a New Commercial Order: Pownall 754
Another Kind of Property: Slaves 757
Fighting Property: The East India Company 1600–1757 764
The EIC after 1765: “Farmers to the Public” 768
“The Merchant Is Become the Sovereign” 772
Paramountcy 775
The Move to Protection: China 777
A Global Rule of Law 783

xi

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

part iv germany: law, government, freedom 795

11 A Science of State-Machines: Ius naturae

et gentium As a German Discipline c. 1500–1758 797
The Rise of State-Science: From Piety to Utility 801
Empire vs. the Territories 807
Westphalia in Context 811
Reception of Grotius: Setting Up the Frame 816
Rethinking the Empire: Pufendorf 819
A New Science of Society 823
A Natural Law of Sovereign Will 829
A New Law of Nations 832
Ius gentium As Diplomatic Propriety: Thomasius 837
Law As Government of the State-Machine: Gundling 842
“Nobody Trusts Alliances” 848
“In Germany, There Are No Despots” 851
Generating Welfare and Security: Wolff 856
Between Humankind and a System of European
States: Vattel 860
A Law of Security and Welfare 865
Monsters and Hypocrites: Understanding Europe 869

12 The End of Natural Law: German Freedom

1734–1821 873
The Göttingen Project 878
Transformation of Natural Law 1: Into Empirical
Political Science: Schmauss 880
The Many Ways of State-Wisdom: Achenwall 884
Transformation of Natural Law 2: Into Economics: Justi 891
The Rise of the “Economy” 897
Transformations of Natural Law 3: Into
Philosophy: Kant 901
The Laws of Freedom 904
Between Freedom and Nature 909
World-Wide Freedom 915
Freedom and Human Rights 919
The Rights of the “Nation” 924
Transformations of Natural Law 4: Restoration
Diplomacy As Modern Law of Nations: Martens 926
“External Public Law” 930

xii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Contents

Into the Modern World: Hegel 939

The State As Freedom 942
Law and Universal History 946
The Legacy of German Imagination 949

Conclusion and Epilogue 952

Bibliography 968
Index 1070

xiii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Acknowledgements

These chapters have travelled with me for a very long time during
which I have benefited from the intellectual inspiration, assistance and
criticism of a vast number of friends, colleagues and students. It is
utterly impossible for me to mention all of them, or even name all the
events, formal and informal, where these chapters, or parts of them,
have been presented and received an unfailingly sympathetic, including
critical, attention. The standard of critical legal scholarship set by David
Kennedy and Anne Orford remains unsurpassed, and their writings
and friendship have guided me throughout. Entering early modern
political thought as an amateur, I learned enormously from discussions
with Annabel Brett, while Michael Stolleis opened to me the palatial
world of German public law that I still think provides the historical
frame for much of international law as we know it. The respective
chapters could not have been written without my coming to know them
and their work.
My base in Helsinki has continued to offer a rare atmosphere of
friendship and intellectual stimulation. Key interlocutors have included
Jan Klabbers, Nanna Klabbers, Monica García-Salmones, Lauri
Hannikainen, Ville Kari, Päivi Leino-Sandberg, Tommi Lindfors,
Ketino Minashvili, Pekka Niemelä, Jarna Petman, Pamela Slotte,
Ukri Soirila, Immi Tallgren and Taina Tuori. Visitors and graduate
students in Helsinki have included Arnulf Becker-Lorca, Martin
Björklund, Yifeng Cheng, Katja Creutz, Elisabetta Fiocchi Malaspina,
Rotem Giladi, Janis Grzybowski, Miia Halme-Tuomisaari, Daniel
Joyce, Katja Keinänen, Magdalena Kmak, Anne-Charlotte
Martineau, Parvathi Menon, Reut Paz, Alan Tzvika Nissel, Alberto
Rinaldi, Adriane Sanctis, Sahib Singh, Maria Varaki and Kangle

xiv

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Acknowledgements

Zhang. I have an enormous debt of gratitude to the successive coordin-

ators of the Erik Castrén Institute, Åsa Wallendahl, Mari Taskinen,
Sanna Villikka and Anna van der Velde, for the good cheer and skill
with which they have managed the institute during my long periods
of absence.
In the course of these years, I was part of two large Helsinki-based
research projects in history and international law. In the European
Research Council-funded “Europe Between Revolution and
Reaction” (EReRe, 2009–2013) I had the very good fortune of coming
to know my co-director Bo Stråth and having intensive debates, confer-
ences and seminars with Adrian Brisku, Kelly Grotke, Thomas
Hopkins, Liliana Obregón, Francisco Ortega, Markus J. Prutsch and
Minna Vainio as well as a great number of visitors at our many
workshops in Helsinki and elsewhere. The Finnish Academy-financed
“History of International Law: Religion and Empire” (2013–2017)
offered an occasion to cooperate with the imaginative group of
researchers that included Paolo Amorosa, Monica García-Salmones,
Manuel Jimenez Fonseca and Walter Rech, again with many visitors
spending more or less time with our project.
My encounter with new critical work in international law has been
channelled over many years through the Institute of Global Law and
Policy (IGLP), directed by David Kennedy. That association has been a
centre of intellectual fireworks among friends such as Antony Anghie,
Dan Danielsen, Dennis Davis, Justin Desautels-Stein, Karen Engle, Luis
Eslava, Jorge Esquirol, Michael Fakhri, Günter Frankenberg, Chris
Gevers, John Haskell, Janet Halley, Sheila Jasanoff, Duncan Kennedy,
Andrew Lang, Vasuki Nesiah, Rose Parfitt, Ileana Porras, Balakhrisnan
Rajagopal, Nikolas Rajkovic, Teemu Ruskola, Alvaro Santos, Hani
Sayed, Chantal Thomas, Umut Özsu and many others. Another long-
standing connection has been with New York University School of Law
where I have lectured from 1997 to some of the world’s most interesting
students. Co-teaching with the late Thomas M. Franck was both a
privilege and great pleasure. I am grateful for having come to know that
most generous and warm-hearted man. With Benedict Kingsbury we
have long-standing discussions on how to expand international law; in
2014 he opened his home at Salt Lake City for an intensive two-day
seminar on the history of international law. NYU has been a context of
ongoing conversations with Philip Alston, Graínne de Burca, Stefanos
Geroulanos, David Golove, Daniel Hulsebosch, Mattias Kumm, Karin
Loevy and Joseph Weiler. Dinners with Nathaniel Berman nourished

xv

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Acknowledgements

way beyond the food, and getting to know Francesca Iurlaro in

2019 redirected my understanding of Gentili. I am thankful for Noah
Rosenblum for discussions and hospitality on a Thanksgiving. Many
thanks to Colleen Johnson, Theresa Alison and Tafadzwa Pasipanodya
for superb assistance at different stages of the project. Among NYU
students turned into colleagues and friends I should mention Oliver
Barsalou, Megan Donaldson, Sasha Khrebtukova, Doreen Lustig and
Guy Sinclair all of whom have taught me a great deal about how to study
the history of international law critically.
A Professorial Fellowship at Melbourne Law School in 2016–2019
provided another inspirational context for this book; it taught me what
it was to teach a class for eight hours in a row, fortunately sharing that
experience with Frédéric Mégret. Anne Orford’s Laureate Project was
surely the liveliest centre of critical international law in the world. Its
superb group included Fabia Veçoso, Ntina Tzouvala, Luis Bogliolo,
Marnie Lloyd, Sebastian Machado and Anna Saunders. Other
Melbourne friends include Jenny Beard, Hilary Charlesworth,
Maddie Chiam, Bruce Oswald, Sundhya Pahuja, Andrew Roberts
and Margaret Young.
I began this work as Goodhart Professor of Legal Science at the
University of Cambridge in 2008–2009 where my host was James
Crawford, and I found myself running between the Lauterpacht
Centre and the magnificent resources of the University Library.
Chapter 2 received its initial form through an invitation to University
of Toronto where I have continued to benefit from discussions with
Karen Knop, Kerry Rittich, Robert Wai and others. In 2011 I was
appointed to the Peace of Utrecht Chair at the University of Utrecht
with Rosi Braidotti hosting me at her lively Centre of the Humanities.
A Centennial Professorship at the London School of Economics in
2012–2015 allowed me to enjoy cooperating, once again, with Susan
Marks. Nehal Bhuta invited me to the European University Institute in
Florence in 2014 to discuss the early versions of some of these chapters
with Annabel Brett, Regina Grafe, Pablo Kalmanowitz, Duncan Kelly,
Martin Loughlin, Karuna Mantena, Anne Peters and Simone
Zurbruchen. Many of their insights have found their way into this book.
In Germany, the Max Planck Institute for Foreign and International
Law with its duo of directors, Anne Peters and Armin von Bogdandy,
has always provided an excellent forum for debates. These peaked in an
intensive three-day master class in 2015. In the autumn of that same
year I spent a couple of delightful months at the Centrum Geschichte

xvi

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Acknowledgements

des Wissens at ETH University in Zurich where Monika Domman,

Svenja Goltermann and Lutz Wingert offered an intellectually stimu-
lating environment that included a talk on law and force at the Cabaret
Voltaire. Conversations with the French community of scholars over
the years have involved Emmanuelle Jouannet, Julie Saada and Mikhail
Xifarras; the history aspect of those debates peaked in a series of
lectures in 2018 at the École Normale Supérieure where I benefited
from discussions with my host Jean-Louis Halpérin as well as my former
student and now friend and colleague, Anne-Charlotte Martineau.
Other places where these chapters have been presented in talks or
seminars have included (in broadly chronological order) the universities
of Göttingen, Zaragoza, Birzeit, Macerata, Sao Paulo (USP), Graduate
Institute of International Affairs, Geneva, the universities of Madrid,
Belgrade, Harvard Law School, Columbia University Law School, the
universities of Oslo, McGill, Peking, Temple (Philadelphia), Glasgow,
Brasilia (UnB), Queen Mary College London, the universities of Kent
(Canterbury and Brussels), Ghent, Moscow (HSE University), Lisbon,
Gothenburg, Université de Québec à Montréal (UQAM), the univer-
sities of Bologna, Milan, Cambridge, Chicago, Bogota, Tel Aviv, Aix-
en-Provence and Wellington. Lectures and seminars were also given at
the Irish Centre of Human Rights in Galway, the Ludwig Wittgenstein
Society at Kirchberg, the Cluster of Excellence, “Normative Orders”,
at the University of Frankfurt, the Centro internazionale di studi
gentiliani in San Ginesio and the Minerva Centre at Hebrew
University. I am thankful for my hosts Christian Calliess, Yolanda
Gamarra, Luigi Lacchè, Alberto do Amaral and Fabia Veçoso,
Vincent Chetail, Jeffrey Dunoff, Akbar Rasulov and Christian Tams,
Yifeng Chen, George Bandeira Galindo and Marcelo Neves, Quentin
Skinner and Georgios Varouxakis, Harm Schepel, Maria Drakopoulou
and Luis Eslava, Alex Lorite and Rémi Bachand, Trisha Rajput,
Frderick Dhont and Tom Ruys, Vera Rusinova and Maria Issaieva,
Lorenzo Gradoni and Gustavo Gozzi, Pedro de Freitas, Pedro Barbas
Homem and Ana Fouto, Luigi Crema and Francesca Iurlaro, Bill
Schabas, Klaus Günther, Jennifer Pitts, Eyal Benvenisti, Tomer
Broude, Hanoch Dagan, Ludovic Hennebel and Mark Hickford.
A special event was the launch of a book of readings of my texts edited
by Marieke de Hoon, Wouter Werner and Alexis Galán at Bocconi
University in 2017. Other friends and colleagues with whom these
chapters have been discussed include David Armitage, Lauren
Benton, Jochen von Bernstorff, Luca Bonadiman, Katherine

xvii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Acknowledgements

Brölmann, Anthony Carty, Edward Cavanagh, Florian Couveinhes

Matsumoto, Matt Craven, Jean D’Aspremont, Oliver Diggelmann,
Thomas Duve, Andrew Fitzmaurice, Stella Ghervas, Aeyal Gross,
Peter Haggenmacher, Mamadou Hébie, Ivana Isailovic, Harri
Kalimo, Liisi Keedus, Alexandra Kemmerer, Outi Korhonen, Dino
Kritsiotis, Carl Landauer, Randall Lesaffer, Lauri Mälksoo, Paul
McHugh, Samuel Moyn, Janne Nijman, Gregor Noll, Sarah Nouwen,
Luigi Nuzzo, Heikki Pihlajamäki, Surabhi Ranganathan, Ignacio de la
Rasilla del Moral, Love Rönnelid, Nahed Samour, Gerry Simpson,
Benjamin Straumann, Benno Teschke, Grigory Vaypan, Milos Vec and
Pål Wrange.
Despite all such (and many other) contacts, composing a work like
this is a lonely affair. Therefore I am hugely grateful to Maria José
Belmonte Sanchez for having assisted me with the footnotes and col-
lecting the bibliography with skill and enthusiasm. Finola O’Sullivan at
Cambridge University Press was unfailing in her faith in the project and
in her patience with seeing the submission of the manuscript being
delayed over again. What a privilege it has been to have had her as
the editor for this as well as my previous books with CUP! Matthew Seal
deserves thanks for careful copy-editing and Diana Witt for composing
the index with intelligence and care.
I am happy to relieve my family of the burden of having to witness
my mind and body occasionally wander to distant time–space locations
during the preparation of this work. I thank my mother Anna-Maija for
bearing with me as I invaded the balcony in the summer with the
computer and the books, and Lauri and Aino, their partners Anna
and Stefano, and the little Raffa, for constant good-humoured support,
reminding me of those proverbial other things in life. For Tiina Astola,
well, I continue to owe everything.

xviii

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774
 Introduction

The Legal Imagination

This is not a history of international law. Instead, it is a history of the

legal imagination as it operates in relationship to the use of power in
contexts that we would today call international. In an earlier work,
I made the point that “modern” international law arose from an effort
by a group of European lawyers in the last third of the nineteenth
century to spread liberal legislation across Europe and to civilise the
colonies. Although many readers reacted with sympathy to that
account, they also remained puzzled about how to think about the
earlier times – “But what about Vitoria, Grotius and Vattel, theories
of the just war and the Peace of Westphalia?” This book is an
extended response to that question. It is a history of the ways in which
ambitious men, mostly in Europe, used the legal vocabularies avail-
able to them in order to react to important events in the surrounding
world during the five earlier centuries. The book begins in France at
around the year 1300 when a number of well-placed lawyers began to
use the idioms of the Corpus iuris to consolidate the authority of their
king at home and towards foreign rulers. The chapters then move on
to Spain, France, Britain and Germany to expound the ways in which
subsequent generations of theologians, courtiers, professors, legal and
political men employed in addition to Roman law many other legal
vocabularies to address the expansion of authority beyond their
domestic world. These included variants of natural or customary
law, royal prerogative, lex mercatoria, individual rights and the just
war, among others. Sometimes they legalised forms of speech familiar
from religious, philosophical or political texts or had recourse to

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

biology or physics, for example, when they addressed the monarch as

the “head” with respect to a “body” of the nation or contemplated the
techniques of the balance of power. Often they put these idioms
together in larger wholes that they addressed as ius naturae et gentium,
Droit public de l’Europe or äusseres Staatsrecht.
This book is a history of the legal imagination as it sought to capture
actions or policies with consequences outside the domestic sphere
during roughly the period 1300–1870. Owing to their “international”
dimension, the events often involved considerations or experiences that
were felt in some respects to be new and unfamiliar. Old ways of
thinking seemed inadequate, domestic laws and traditional principles
inappropriate. These new matters, or their very novelty, often had great
political, economic and sometimes even spiritual importance. They
challenged earlier preconceptions and attitudes. Who were the inhabit-
ants of the New World whose existence had not previously been
known – were they human at all, or humans of a different species?
How to think about war between rival Christian princes, each claiming
to fight for the right faith? What to do with respect to the spread of the
trade in luxuries that accompanied the expansion of long-distance trade
and undermined old religious moralities?
To produce answers to such questions, lawyers, theologians and
political writers of different description employed old legal vocabularies
in new and imaginative ways. I think of this imagining as bricolage – a
term used by Claude Lévi-Strauss to describe the use of familiar
materials scattered around by the indigenous scientist for novel pur-
poses in order to bridge the gap between what is known and tested and
what is new or otherwise hard to understand.1 In a parallel way, well-
situated lawyers, political actors and intellectuals employed familiar
legal vocabularies lying around to construct responses to new problems
in order to justify, stabilise or critique the uses of power. Although
intellectual ambition was often involved, this work did not arise pre-
dominantly out of an intellectual interest. It was intended to produce an
authoritative statement that would have effects with respect to the
distribution of material and spiritual values. What and whose action
was to be endorsed, and what and whose action rejected as illegal or
unjust?
1
Lévi-Strauss presents bricolage as a type of mythical thinking employed in concrete
problem-solution where the bricoleur is “adept at performing a large number of diverse
of tasks”, making do with “whatever is at hand”, The Savage Mind (The University of
Chicago Press 1966), 16–22.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 The Legal Imagination

That I have tried to produce close descriptions of the worlds of legal

imagining in half a millennium has made this a long book. A lot of
men and much detail traverse these chapters. They do so because
I have wanted to give room for the variety of standpoints from which
legal vocabularies and idioms emerge to address the world outside the
domestic. Not all of my protagonists were lawyers. Some might even
have felt insulted had anybody suggested as much. But they were
united by their recourse to a legal vocabulary. Some had formal
education in Roman law and acted as ministers, ambassadors or
counsel to princes. Others were political men with humanist interests,
theologians learning new ways to manage the sacrament of penance,
colonial administrators worried about intervention from the metropo-
lis or philosophers contemplating the external debt. Some were
employed at courts or ministries, others at universities or trading
companies. They may have composed their works as intellectuals at
home or as merchants living abroad. Their imagination was fed by an
almost limitless range of matters, from the justice of slavery to the
drafting of diplomatic acta, from the rights of neutrality to the permis-
sible interest rates in currency exchange.
None of this is quite as random as the previous remarks may seem
to suggest. Any new imagining takes place within the frame of the
possibilities offered by the vocabularies “lying around” when it com-
mences. The frame is constituted in part of what the lawyer or political
thinker learned during formal education, in part of the accumulated
experience that forms the general sensibility of people in those kinds of
positions, their consciousness of the world and of their place in it.
Legal idioms communicate only part of that experience. Many other
vocabularies – religious, scientific, political – complement them to
provide the totality of materials from which a sensibility emerges
and bricolage proceeds. These larger frames are often addressed by
words such as “imperialism”, “colonialism”, “capitalism”, “liberal-
ism”, “nationalism” and so on, words like the “universal” that aim
to enlighten us about the trajectories through which the past has been
turned into the present. Those words form a useful part of the lawyer’s
and the historian’s craft. They synthesise elements of the past and
make its multiple aspects stand for a limited set of ideas enabling us to
orient our political intuitions and projects today. But they also act as
epistemological obstacles, as Bachelard might have put it, blocking
thinking and simplifying a varied and multiple reality into generalisa-
tions with unsustainable causal relations that produce a bad guide for

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

future.2 So I have largely (though not wholly) refrained from using

such words. The world is a terribly unjust place and its injustices
accumulate as parts of large historical trends. But I address those
trends by staying as close as possible to the standpoints where people
use legal idioms to imagine how to govern and what is just or unjust in
the world outside what they think of as their everyday experience.
This is a history of the uses of the legal imagination in the past but
also in the present. The ideas and events of the approximately half-
millennium treated in this book are connected to the ways in which we
think and act today as lawyers, activists and politicians, inhabitants of a
world we imagine as ours. That continuity cannot be read as a single
tradition. Different ways of imagining a law to be applied abroad or
with respect to foreign peoples arose simultaneously at different places;
they flourished and withered away in the manner that ways of speaking
and thinking do. None of them ever enjoyed universal authority, few
possessed much validity even across Europe. The salons of eighteenth-
century Paris did not think highly of the thick volumes of natural law
produced at German universities. Nor had Germans any sympathy
towards the extension of British Admiralty jurisdiction to German
property. However, many of the ways of imagining dealt with below
left their mark in legal histories and continue to lie around ready for
employment by subsequent generations of legal bricoleurs. They are part
of the historical baggage that limits what it is possible to imagine in a
persuasive fashion today.

Legal Imagination in Action

Legal imagination operates in context. Five contextual considerations

lay out the frame of the work of legal thinking and acting in the chapters
that follow. First, legal work takes place in the context of persuasion.
Law is not about the truth of this or that matter but about persuading
audiences – usually audiences in authoritative positions – to act in some
particular way. Legal persuasion takes place in the context of contro-
versy: out of some number of possible ways of acting law is used to
justify one against others. Imagination is needed to find the winning
justification, to hit at the right vocabulary. The less routine the subject,
the more widely must imagination travel to find a good argument.

2
Gaston Bachelard, The Formation of the Scientific Mind (Mary McAllester Jones intr. &
trans., Manchester, Clinamen Press 2002), 24–32.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Legal Imagination in Action

Persuasion may be directed towards influencing a court, a diplomatic

negotiation or a parliamentary debate. But it may equally well operate
as imagined adversity, a pedagogical lesson or a propaganda tract to
consolidate the ranks of those who agree and to demonstrate the
mistakes of those who do not. Law’s persuasive power differs in different
contexts, but it is striking to notice how widely not only lawyers but
theologians, political philosophers and government advisors of various
sorts have thought it important to have a legal argument available to
persuade their audiences. One of the themes that pass through these
chapters has to do about the way legal authority migrates between
different disciplines. But whoever it is that is speaking must have regard
to their audience in order to sound authoritative. What idiom should
I use to defend my claim or attack that of my adversary? How does my
audience expect me to argue?
Second, legal vocabularies operate in institutional environments. For
Vitoria, that was the University of Salamanca where his teaching was
part of the Counter-Reformation effort to strengthen the Church’s hold
on Christian consciences. While Grotius’ early writings were about
persuading the Amsterdam Admiralty Court, his later work, composed
as a refugee in Paris, participated in a Europe-wide debate on just
government at a violent time. Rousseau and Kant used the legal idiom
to attack the political institutions of the old regime and to undermine its
philosophical justifications while J. H. G. von Justi’s prolific works were
both a critical commentary on the teaching of natural law at German
universities and prefaces to job applications with European princes.
Many of the men considered below wrote as university professors to
academic audiences, while others acted as courtiers, political or legal
activists, philosophers or pamphleteers. Some possessed experience in
domestic or colonial government, or wrote to influence it. Many had
the ambition to assist those in power, but some were critical, though they
had to bear in mind the narrow limits within which critique was tolerated
and often veiled it in irony or sarcasm. Some were staunch advocates of
pre-emptive military action against foreseeable enemies, others favoured
a general turn to pacific policies, trade and diplomacy. Some combined
work for trade companies with advocacy on commerce and colonialism,
others wrote against large monopolies and in favour of expanding free
trade, even giving up colonies as a path for prosperity. Many put their
opinions in the form of pragmatic compromises and humanist models of
virtuous statesmanship. It would be wrong to say that a person’s position
determines their views. But interest in these chapters is less in what people

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

may have believed than how their imagination was confined within the
conventions of authoritative speech and writing.
Third, imagination does not work through deductive inferences or
algorithms. When Grotius wrote of law as a moral science or Pufendorf
suggested that “moral entities” operate like natural facts, they were
tapping into scientific vocabularies at moments when those were
deemed especially powerful. Legal imagination may well present itself
as having to do with Wissenschaft where it addresses an elite trained to
appreciate what academics do. In other contexts, such an effort may
seem odd or even laughable. It may often be more useful to address the
moral or even spiritual worlds of one’s audience. To invoke the rule of
law in the colonies or the Rechtsstaat to deal with class conflict at home
are political projects, not scientific hypotheses. As bricolage, they employ
materials that are felt likely to help in convincing those to whom one
speaks. As will become obvious, the audiences of legal argument are
most receptive to language that is familiar from the domestic world
even when what is being addressed is an activity taking place abroad.
When the settlers in the British American colonies appealed to the
ancient rights of Englishmen rather than universal rights of humanity,
they knew how to address an audience in Westminster. With an audi-
ence of foreigners, this is unlikely to have the same effect. Las Casas
reported that he did not know whether to laugh or cry when he learned
about the Requerimiento that was supposed to inform the native American
peoples of their legal position with respect to Spain. The materials
“lying around” usually emerge from the domestic context and experi-
ence. Only with a truly international elite – for example one formed in
Roman law or with experience in trade or diplomacy – may something
like a ius gentium or “public law of Europe” appear authoritative. It is
also often useful to distinguish arguments in routine problems from
those that address the very frame within which routine takes place. In
routine situations, legal bricolage may turn to formal materials such as
treaties, customary laws, domestic analogies, judicial precedents. In
diplomatic contacts between Europeans or within prize courts, not
much imagination is needed to find the arguments that are persuasive,
although how to argue still requires interpretative skill. But in non-
routine situations such as colonial encounters or domestic upheavals,
imagination may have to expand in space and time, inviting a return to
basic notions about Christianity, decorum, state of nature, or civilisation
to give the appropriate frame within which to set up an argumentative
hierarchy for future routines.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Legal Imagination in Action

Fourth, and relatedly, legal imagining takes place in a normatively

indeterminate terrain where out of binary choices it seeks to construct a
hierarchy most convincing to its intended audience. The available mass
of materials needs to be interpreted in a way that avoids the most
obvious pitfalls while pointing to what appears as a reasonable and
realistic way to act. The success of Emer de Vattel’s Droit des gens
depended greatly on the author’s ability to combine older mirror-of-
princes standpoint with vocabularies from more recent natural law in a
compromise he called “voluntary law”, situated between law that was
fully rational and abstract on the one hand and law that was merely
contingent and voluntary on the other.3 The result avoided ascending
to the high heaven of humankind united by reason while not automatic-
ally subordinated to state policy either. In this way, he was following
what those who had employed the idiom of ius gentium had always been
doing. As we shall see, what unites the bewildering variety of meanings
projected to that expression is that it denoted something “in between”,
not quite as morally rigorous as the divinely originated provisions of
natural law, nor quite as dependent on the shifting priorities of princely
policy as contract or treaty. While theologians might imagine it in a
descending way as pragmatic modifications of the law handed to
humans at creation in order to fit life among sinners, jurists might
develop it into in an ascending way as a kind of proto-sociology
indicating what was natural for historically developed human commu-
nities. Despite their different starting-points, Vitoria and Adam Smith
might find themselves at the same terminus.
Fifth, my use of the term “legal imagination” combines elements of
what have sometimes been discussed as legal culture, legal ideology or
legal consciousness. But as in my previous work, I have refrained from
associating it definitely with such technical terms. Contexts of legal
speech are not always, perhaps only rarely, such that it would be
appropriate to regard them as “legal”. Theologians and merchants,
poets and philosophers, medical doctors and economists may exercise
legal imagination, and have often done so. From whom authoritative
institutions take their legal advice reflects variations in the cultures,
ideologies and forms of consciousness that legal argument enters only
as a more or less welcome guest. It may then need to adapt itself so that
the resulting hybrids (e.g. law in theology, law in raison d’état) may not at

3
Emer de Vattel, The Law of Nations (Indianapolis, Liberty Fund 2008 [1758]), Preface,
15–17.

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

all support the priorities that lawyers in that environment typically have.
Legalism is often felt inappropriate when authority is exercised abroad.
One of the narrative strands woven into these chapters has to do
precisely with the struggle for authority among different types of know-
ledge in Western societies. What Kant called the contest of the faculties
was never merely about intellectual predominance but involved priori-
tising between values and distributive choices. As the idiom of natural
law transforms in the course of the half millennium below, it will lend its
support to cultures, ideologies and forms of consciousness where it is
alternatively theology, history, diplomacy, philosophy, raison d’état or
economic analysis that will frame the moment’s persuasive speech.
What is of interest here is the way biases emerge during such transform-
ations, with some interests upheld, others pushed aside.
Legal imagination is a form of institutional action that takes place in
the context of controversy through the authoritative use of language.
Real stakes are involved to those employing such language but even
more to people who are expected to yield to the authority of the one
who speaks. This book is inspired by the effort, not to say an obsession,
to think about law in the context of power, namely the power of law as
language. Throughout this work, I will survey the twists and turns of
legal language as it traverses the lives and practices of European men
involved in the government of matters situated outside the purely
domestic world. In fact one of the themes addressed by legal language
in its search for authority is that of drawing the line between the
domestic and the foreign. On which side a matter falls will then be
decisive for how it is treated. Another theme has to do with boundary-
drawing inside the law itself. There is no more important convention
in legal speech than the separation between public and private. That
conventional analysis deals almost exclusively with what it imagines as
“public” power, the authority of the sovereign, while liberating that
which it labels “private” to take its natural course somewhere else is
one of the most consequential choices made in the course of this
history. The relationship of sovereignty and property is a recurring
theme in these chapters.

Imagining Starts at Home

Persuasive legal bricolage is about finding a powerful justification for
acting or taking decision in some particular way. The conceptual world
that opens up when the need arises for addressing the world outside the

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Imagining Starts at Home

domestic includes notions such as war, sovereignty, monarch, diplomat,

jurisdiction, prerogative, treaty and so on, words that carry their inter-
national meaning on their sleeve. But it also includes words such as
property, contract, company, slave, family, territory, succession, to
which it is common that although we are familiar with them in the
domestic legal order they are equally applicable and constantly applied
in order to understand and operate beyond it. This book makes a lot of
reference to such notions. It is assumed here that an important part of
the way power is exercised internationally depends on notions whose
primary reference is at home. This includes also the notion of ius gentium
and cognate civil law or natural law expressions that are almost always
understood from the perspective of the domestic legal system and
domestic legal training. The frame within which a Spaniard or a
Frenchman thinks of the law abroad comes from that person’s training
in Spain or France. What they imagine as “law of nations” is what
Spaniards or Frenchmen imagine as such. The chapters in this book
have therefore been organised with the assumption that bricolage begins
at home. This is also why I will nowhere in this book engage in the
interminable discussions about universalism and particularism. The two
cannot be separated: we imagine the universal from our particular
standpoint – but we do it by concepts and categories that define to us
what we think of as “our standpoint” and are in that sense exterior to it.
Bricolage begins at European locations and then extends to “the utter-
most parts of the earth”.
Here is how this book has been organised. Chapter 1 focuses on
men educated in the thirteenth century in law faculties in Bologna,
Montpellier or Orleans where they learned civil law expressions like
dominium and ius gentium that opened the door to high positions in Paris
where they supported their king against his domestic and foreign
rivals. At other locations in the French capital, Thomas Aquinas
employed those very same idioms to address the question of justified
authority in human society generally. His texts were taken up two
centuries later, as discussed in Chapter 2, by Spanish Dominican
theologians who would employ them to discuss Spanish authority in
the New World and to address the concerns of conscience opened up
by the global expansion of the commercial ethic following the exploit-
ation of New World resources. Chapters 3 and 4 discuss, respectively,
the writings of the two Protestant lawyers, Alberico Gentili and Hugo
Grotius, as they tried to detach legal speech from the hands of the
theologians while opposing the expansion of a countervailing idiom of

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

advice to rulers addressed as raison d’état. Explaining obedience to rules

as a specifically human quality as against following one’s interests
would long remain a key theme for defending law as against other
idioms for justifying authority.
Chapters 5–7 trace the ups and downs of legal authority in France
and the French colonial world up to the Haitian Revolution in
1793–1804. Here law first integrated techniques of the reason of state
in what came to be called the Droit public de l’Europe and then, in the run-
up to the Revolution, imagined itself as a science of the natural and
essential order of all political communities. There was a world of
difference, however, between what was imagined by the intellectuals
and how the administration of an absolutist ruler viewed the roles of the
law and lawyers. From the influence law had in ending the religious
wars it descended into quite a secondary aspect of royal rule in the
seventeenth century. It was then reinvented in the eighteenth century as
part of the call for abolishing feudal privileges and creating a world of
equality and rights among Frenchmen. Through most of this time, the
legal status of Caribbean slavery was untouched by developments in
metropolitan France.
Chapters 8–10 begin by tracing the rivalry between the idioms of the
common law and the royal prerogative during British commercial and
colonial expansion. The narrative about the rise of a British Empire is a
story of the cooption of royal sovereignty by the property rights of
landed elites and owners of trading companies and the paradoxical
creation of sovereignty out of the property claims of settlers in the
Atlantic colonies. On the intellectual side, the French and the British
narratives involve a partial conversion in the late eighteenth century of
the language of natural law into that of political economy. That devel-
opment was inspired by the crown’s reliance on private wealth and
private actors who expected commercial privileges and a relatively free
hand in the colonial world, but also sometimes demanded extended
opportunities to trade across the world. Britain’s free trade empire was
based on the combination of ideas about protection and the rule of law
that were less argued in terms of the law of nations than as rules of a
kind of civilisational propriety the contents of which were imagined by
British politicians and colonial officers themselves.
A parallel development unfolds in Chapters 11 and 12, which visit
the transformations of German academic vocabulary of ius naturae et
gentium from a Protestant technique of advice to princes to a rationalist
philosophy of statehood on the one hand and an empirical science of

10

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Imagining Starts at Home

society on the other. The result was an immensely powerful public law
idiom that succeeded in imposing the “German problem” – that is, the
problem of fitting the sovereign equality of individual princes to the
overall structure of an empire – as the principal problem of what
German lawyers at the turn of the nineteenth century began to address
as the modern law of nations. Academic natural law also provided the
frame against which two powerful philosophical histories emerged, one
pointing to an increasingly united world, another to the nation as the
spiritual fulfilment of human association. Most German public lawyers
continued, however, to think of the law of nations as the technique of
European diplomacy, with only later in the century opening their
imagination to a more expansive idea of civilisation that a new gener-
ation of European lawyers would employ as the basis for their reima-
gining what a modern international law could be.
The twelve chapters of this work trace the migration of legal author-
ity between social and professional groups in various European and
colonial contexts. That authority lies sometimes with jurists, at other
times with theologians, courtiers, administrators, philosophers or scien-
tists. Knowing where it lies gives some indication as to which kinds of
interests it will advance. During these centuries we also witness law
remodel itself into a type of domestic and international governance that
is often associated with political economy: law as calculation of an
optimal balance between conflicting rights and principles. But the legal
idiom continues to accomplish two tasks that are independent of its
instrumental role in governance. One is the elaboration of a consti-
tutional architecture that both establishes and limits the sovereignty that
the heads of political communities are assumed to exercise. Another
defines and allocates the rights of property that underlie the structural
hierarchies on which something like sovereignty can manifest itself.
A principal objective of this work is to narrate the formation and
consolidation of the immensely powerful frame that differentiates and
juxtaposes sovereignty with property, that generates a realm of public
authority in contradistinction to private rights and institutions.
Sovereignty and property, public and private, are not only legal idioms
and vocabularies, forms of professional specialisation and institutional
authority, but also structure much of what all of us today can have as
experience of the world and the alternatives for acting within it. For
many people, that experience is deeply problematic and the space
provided for doing something about it is extremely limited. Although
this book ends towards the middle of the nineteenth century and even as

11

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

it insists on situating its protagonists in their context, it is a history “of

the present”. Its principal concern and underlying motivation has been
to work out how it is that we have come to have the experience of the
present that we have.

A World of White Men

More often than not, that experience has been one of injustice. An
embarrassing aspect of the chapters that follow is that practically all the
characters are white European men. I write “practically all” because
when describing the travels of these men outside Europe, or indeed
their professional lives at home, everything about what they had accom-
plished was premised on the presence of and interactions with women
and with non-European, non-white populations. But aside from one or
two exceptions, all of the proper names below belong to white
European men, men with power and privilege, and sometimes with
attitudes we would today call racist and misogynist. Locke’s oblivious-
ness to slavery in Carolina is as well known today as Kant’s racism.4
Almost all of these texts were disparaging of women. Medieval theolo-
gians such as Giles of Rome, for example, did not believe women were
able to govern owing to their lack of prudence. They were therefore
naturally ruled by men.5 Jean Bodin was firmly of the view that a
monarchy should never devolve to women, because:
‘Gyneocracy’ is strictly against the law of nature that has given men the force,
the prudence, the weapons and the power of command that He has denied of
women and the law of God has clearly ordered that women be subject to men
not only in the government of monarchies but at every home and threatened
his enemies by providing them women as their rulers [maîtresses] as a most
terrible malediction.6
Such examples could be repeated endlessly.7 They raise questions
about our attitudes to them. Would it be anachronistic to apply our

4
See e.g. James Farr, ‘Locke, Natural Law and New World Slavery’, 36 Political Theory
(2008), 495–522 and Lucy Allais, ‘Kant’s Racism’, 45 Philosophical Papers (2016), 1–36.
5
“Ergo foemina viro naturaliter debet esse subiecta”. Although Giles accepted that in
rare cases women might be wiser than men, he did not think that deviated from the
rule. Giles of Rome, De regimine principum libri III. Ad francorum regem Philip IIII cognomento
pulchrum (Rome 1556), Part II Bk I Ch VI (40r).
6
Jean Bodin, Six livres de la république (Lyon, Tournes 1579) VI V (698).
7
See further, Anna Becker, Gendering the Renaissance Commonwealth (Cambridge
University Press 2020).

12

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 A World of White Men

present sensibilities – “other times, other manners”? What about

slavery? Or the denial of rights to the infidel, the non-Christian, the
barbarian, the uncivilised, the savage? How should we feel about
Vattel’s invitation to form alliances against “Turks and other
Tartars . . . for the purposes of punishing and even exterminating
those nations”?8 I find the suggestion to feel neutral about such
sentiments – were anyone to make it – utterly objectionable, almost
incomprehensible. Why should we feel any less loyal to our own views
than prior generations have been to theirs? Surely there was room for
argument even at the time when Giles, Bodin or Vattel wrote. People
differed in their opinions. Why should these opinions be accepted as
representative of something we imagine as “the past” merely because
they belonged to a privileged elite that produced books that have
survived? What do we know about what women or non-Christians
thought about such matters? Not much – and not because they
agreed, but because they lived in societies that did not allow them to
be heard, societies in which such silences were produced and main-
tained precisely by these books and these men.
So I think such hierarchies and exclusions are part of the accumula-
tion of tragedies and injustices produced by the will to power of
European men in the course of the centuries covered by this book.
Let me be clear. I neither suggest nor think that everything that
European men have done has been productive of injustice and tragedy.
But much has. A history of how law has been used to justify, support
and occasionally critique power is about shifting perceptions of justice
and injustice and the accumulation of experiences with which we today
form our expectations for the future. This book and these stories may
not appeal to someone who thinks that past injustices and tragedies do
not speak to us, that although there are problems today, our new
vocabularies will enable us to deal with them sufficiently well. But with
what confidence can one speak of a better world if one is unmoved by
the injustices of the past? I do not think making such judgements raises
the present in any way “above” the past. The world today is an
extraordinarily unjust place where massive tragedies are produced on
a daily basis by the products of an imagination that we recognise as
“modern”. If there is reason to be critical about prejudice in the past,
this is to learn about prejudice in the present.

8
Vattel, Law of Nations, III III § 34 (487).

13

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Introduction

A Note on Textual Conventions

This work uses many kinds of technical literatures that employ often
different and not always compatible textual conventions. I have there-
fore had to decide on a few conventions myself. Here are some instruc-
tions regarding the text:
Use of Quotation Marks: Because I follow a linguistic view of law where
separating meaning and form cannot be easily be accomplished, I have
employed a lot of the phrases and expressions taken directly from my
protagonists. According to one convention, one writes “morality” with
quotation marks when the reference is to the expression but morality
(without quotation marks) when it is to the meaning. Because I am
concerned with linguistic expressions throughout, I found myself initially
using such an exorbitant number of quotation marks that comprehension
of the text became hard, not to say anything about the unappealing
aesthetic impression. Therefore, I have minimised the use of quotation
marks around single words or short expressions taken directly from my
source, relying on the reader’s understanding that it is still the source that
speaks, and not myself. So when I write about somebody saying that
sovereignty is this or that, I normally mean that this is the way the person
wants to use the expression “sovereignty”. For example, the normal
(logical) convention would be to write: Rousseau used his theory of
“sovereignty” in order to . . . But I have lifted the quotation marks and
written simply: Rousseau used his theory of sovereignty in order to . . .
But like any linguistic rule, this one (enacted by myself ) comes with
exceptions. I have left quotation marks in place in the following
situations:
(1) where I highlight a special meaning that some person wants to
give to a widely used term, as in the following:
Jean de Blanot used the term “ad iurisdictionem” in order to. . .
(2) where the technical meaning in the original language or in the
English translation is being discussed, as in:
Some would wish to avoid the word “feudalism” altogether
(3) situations where a conversation is being reported – for instance
like this:
To this the king added, “Quant à nous, nous ne tenons notre royaume
que de Dieu seul”.
(4) whenever it’s a longer quotation or part of a discussion.

14

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 A Note on Textual Conventions

Finally, I have followed the usual practice of using quotation marks

whenever I have directly quoted a modern writer commenting on the
substance of the text. The source of the quotation will then appear in
the footnote.
Foreign Words and Italics: There is much non-English language in this
work. Again, this follows from my linguistic approach; people do things
differently in different languages. I acknowledge that some readers may
find this tiresome, and in my last revision I deleted a lot of foreign
words. But I have left some that I thought operated as key words
opening into a larger idiomatic structures specific to the language in
question. I have followed the custom of putting foreign words and titles
of books in the main text (but not in notes) in italics. Often when have
translated a word into English, I have left the original in brackets in
italics as in:
Stein lamented the absence of analyses of society (Gesellschaft).
Note on Sources
Aquinas: For the Secunda of the Summa, I use the extracts in the
Cambridge University Press text Aquinas, Political Writings (R. W. Dyson
ed., 2002). For the parts of the Secunda not included in that work as well as
the texts for the Prima, I use the version available at www.newadvent.org/
summa/index.html.
All translations in this work are mine, unless otherwise indicated.
Versions of some of these chapters have been published in the following
journals: European Journal of International Law; History of the Present; Theoretical
Inquiries in Law; Toronto Law Review, and as chapters in The Oxford Handbook
of International Legal Theory (A Orford & F Hofmann eds., OUP 2016); The
Roots of International Law Liber Amicorum Peter Haggenmacher, (P-M Dupuy &
Vincent Chetail eds., Leiden Nijhoff, 2014); International Law-Making:
Essays in Honour of Jan Klabbers ( J Petman ed., London Routledge 2014);
Alberico Gentili. Giustizia, guerra, impero. Atti del convegno XIV giornata gentiliana
(Milano, Giuffrè 2014), Erzählungen vom Konstitutionalismus (H Lindeman et
al. eds., Baden-Baden, Nomos 2012) and in From Bilateralism to Community
Interest. Essays in Honour of Judge Bruno Simma (U Fastenrath et al eds., OUP
2011).

15

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms
of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.001
 Part I

Towards the Rule of Law

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.002
Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms
of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.002
 1

Legal Imagination in a Christian World

Ruling France c. 1300

They arrived already before sunrise. The three men who rode into the
town of Anagni some 50 kilometres southeast of Rome on Saturday,
7 September 1303 were the king’s principal lawyer, Guillaume de
Nogaret (1260–313), flanked by two companions, Thierry d’Hirson, a
former servant of the king’s cousin and Jacques de Jasseinnes, a royal
clerk, as well as a small armed escort provided by the local podestà,
Rinaldo da Supino. Nogaret had been assigned by his king, Philip IV
(the Fair, 1268–314) to deliver a summons to the pope, Boniface VIII
(Benedetto Caetani, 1221–303) to appear before the council of cardin-
als to respond to charges of misconduct and heresy.1 As Nogaret sat
down with his assistants to prepare the delivery and some townsfolk had
come to greet him, he became witness and participant in a series of
events the course of which is still disputed. Did he collude with the
pope’s old enemies from the clan of the Colonnas? Or did the latter aim
to settle their accounts with the pope independently of the royal legate?
In any case, Nogaret’s small party was thrust aside as the Colonnas
entered the town with 1,600 men and began to storm the fortifications
of the pope’s nephew, the Marquis Pietro Caetani. Somebody rang the
town bells. By 6 am the pope had been able to negotiate a truce with the
attackers that lasted until 3 pm. The conditions laid out by the fierce
1
For the rather open-ended instructions that Nogaret had received, see Robert
Holtzmann, Wilhelm von Nogaret. Rat und Grossiegelbewahrer Philipps des Schönen von
Frankreich (Tübingen, Mohr 1898), 45–8, 215–27. Most accounts claim that
Nogaret went to Anagni to present a summons to the pope to a church council.
However, it is also argued that neither he nor Philip had such power but that Nogaret
went there to extract the convocation from Boniface, and, in case he were to refuse, to
use that refusal as proof of heresy against him. Melville Marion, ‘Guillaume de
Nogaret et Philippe le Bel’, 36 Revue de l’histoire de l’église de France (1950), 58–9.

19

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

Sciarra Colonna under which the life of Boniface would be saved were
so exorbitant that he may actually have wanted to get rid of the old man
once and for all. Unsurprisingly, no agreement was reached and the
attack began again in the afternoon. As the pope’s nephew was given
safe conduct with his sons to leave, Boniface realised that the game was
over. The attackers burnt down the doors and entered the Caetani
palace shouting insults and calling for the pope to lay down his tiara and
give up the papacy. Boniface refused to cooperate and Sciarra drew his
sword ready to slay the pope.
According to his own account, at this point Nogaret intervened and
the old man’s life was saved. The lawyer then delivered his summons
orally at the last moment – the excommunication of the king would
have entered into force the following morning.2 The fleur de lis was
hoisted over the palace to show that the area was under French
protection. The pope was conducted into captivity while the attackers
pursued negotiations about what to do with him. Meanwhile, the
townspeople who had initially welcomed the king’s lawyer had been
taken aback by the unrespectful treatment of the pope whose family
had, after all, such a long time formed the centre of life at Anagni. By
Monday they had organised themselves, turned against the Colonnas
and their party, stormed the palace and liberated the old pope.
Nogaret, who had received a light wound during the skirmish, returned
to Paris to explain to his king what had happened. He realised that
Philip might not be altogether happy with being associated with a
violent attack on the sovereign pontiff. In any case, there would prob-
ably be no need for the council of cardinals, and his sovereign would
surely be rid of this problematic holder of the pontificate rather sooner
than later. This turned out to be true. Boniface died only two weeks
afterwards at his home in Rome.3

2
Boniface had prepared a bull, the Super Petri solis, containing formal excommunica-
tion. Jean Favier, Philippe le Bel (édition revue, Paris, Fayard 1998), 382, 389. The
pope regarded that a de facto excommunication had already taken place when Philip
had blocked the delivery of bullion to Rome. It had had no effect, however.
3
These events are recounted in many places. For the above I have used Robert
Fawtier, ‘Nogaret and the Crime of Anagni’, in Charles T. Wood (ed.), Philip the
Fair and Boniface VIII (2nd edn, New York, Holt, Rinehart & Winston 1971), 72–80;
Favier, Philippe le Bel, 378–93; Dominique Poirel, Philippe le Bel (Paris, Perrin 1991),
247–54; and Guillaume de Thieulloy, Le pape et le roi. 7 septembre 1303 (Paris,
Gallimard 2010), 19–43; most of the documentation relating to the events and their
aftermath is available in Pierre Dupuy, Histoire du différend d’entre le pape Boniface VIII et
Philippe le Bel, Roy de France (Paris, Cramoisy 1655).

20

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

Nogaret was not deterred by the extraordinary nature of his assign-

ment, or of the terms of the summons he was to deliver. On the
contrary, as one of the “legists” who now populated the curia regis, he
was totally committed to his king and determined to crush any papal
challenge to royal authority. A native of Languedoc, Nogaret had
acceded to the position of the king’s principal lawyer only recently after
the death on the battlefield of his predecessor, Pierre Flote (d. 1302). He
had previously served as appellate court judge (juge-mage) and taught
civil law at the University of Montpellier.4 By now he had become the
king’s most trusted counsel, and soon his garde des Sceaux (1307) as well as
prosecutor in that other famous trial in Philip’s reign, the destruction of
the Knights Templar. In his self-justifying writings after the Anagni
affair, Nogaret would over and again stress his unyielding loyalty to his
king and his nation (domini Regis & regni Franciae). If he dared to oppose
the pope, this was because in acting for the rex Christianissimus he was
defending Christendom itself.5 It had been shocking enough that the
pope had a few years earlier questioned the king’s right to tax the
clergy. Even more outrageous was the pope’s more recent claim that
the king was to exercise his temporal authority only “at the will and
sufferance of the priest”.6 To show that the matter touched the very
4
For Nogaret’s early biography, see Holtzmann, Nogaret, 8–17, 30–65. See also many
of the essays in Bernard Moreau (ed.), Guillaume de Nogaret. Un languedocien au service de
la monarchie capétienne (Nimes, Lucie 2012). As to his academic career, Nogaret was
listed among the professors in Montpellier in 1292. As the university was established
only in 1287, he is likely to have received his doctorate elsewhere. Maïté Lesné-
Ferret, ‘Guillaume de Nogaret dans les Olim et l’école juridique languadocienne’,
in Moreau (ed.), Guillaume de Nogaret., 72–3. Nogaret was born in a modest family in
Toulouse around 1260. The view that his father might have been involved in the
Cathar heresy is probably wrong. See Joseph Strayer, The Reign of Philip the Fair
(Princeton Legacy Library 2019), 52; Jean Coste (ed.), Boniface VIII en process. Articles
d’accusation et depositions des témoins (1303–1311) (Rome, L’“Erma” di Bretschneider
1995), 87. After service to the king in Languedoc Nogaret entered the court in
1294 or 1295, received a seat in the Parlement of Paris in 1298 and attained the
titles of “miles” and “chevalier” in 1299, by which time he also sat in the royal
council and took his first embassy to Rome to meet Boniface. By March
1303 Nogaret had become the king’s principal legal advisor. Holtzmann, Nogaret,
8–18. The king’s close relation to Nogaret is evident from the fact that he could
easily have repaired his relations with Rome after Boniface’s death by sacrificing his
counsel. Yet, he chose to protect and reward Nogaret and use him amply in later
years. Holtzmann, Nogaret, 115–35.
5
See Dupuy, Histoire du différend, 309, 249–50. See also Ernst H. Kantorowicz, The
King’s Two Bodies. A Study in Medieval Political Theology (with a new preface by William
Chester Jordan, Princeton University Press 1981), 249–58.
6
Unam sanctam (promulgated 18 November 1302), translation in Internet Medieval
Sourcebook (fordham.edu/halsall/source/b8-unam.html).

21

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

foundations of the royal office, the legists had decided to react by the
greatest publicity, convoking the estates in Paris and launching an
unprecedented propaganda campaign against their clerical adversary.7
The conflict between Philip and Boniface had to do with two types of
lawful authority – dominium proprietatis and dominium iurisdictionis, property
and sovereignty in anachronistic translation. Did the king have the right to
tax the clergy? Would he be entitled to exercise criminal jurisdiction over
a bishop? That the king reacted by legal means was unsurprising. He was
attached to the legal form, having surrounded himself by jurists some of
whom – like Nogaret – had both academic and practical experience.
Recourse to law was also in no way opposed to the theological substance
of the royal attack, the accusation of papal heresy. On the contrary,
Philip’s law-centred regimen grew from and was constantly fertilised by
liturgical practices and theories; civil law was understood to reflect divine
inspiration and its professional interpreters liked to think of themselves as
“Priests of Justice”.8 Moreover, although notions such as dominium, proprie-
tas and iurisdictio were at home in both spiritual and temporal worlds, they
were being subjected to increasingly sophisticated analyses within a grow-
ing cohort of civil lawyers both at the court and in the academy, assigned
to give expression to the complex configuration of “feudal” relations at the
centre of which sat the hallowed figure of the the French king.
The principles of royal government had been recently laid out by one of
Boniface’s future ideologists, the Augustinian friar and professor of theology
at Paris, Giles of Rome (Aegidus Romanus, c. 1247–316). In a path-
breaking and widely read work, De regimine principum (1277–9), which Giles
had once written for the instruction of the young Philip, he united
Christological and legal images by viewing the king as lex animata, “living
law”, whose will was the measure of justice.9 Using Aristotelian texts that
had recently become available in the Latin language, Giles had stressed the
origins of the regnum in natural sociability that was also best governed

7
Standard sources, alongside the above-mentioned collection by Dupuy, are Richard
Scholz, Die Publizistik zur Zeit Philipps des Schönen und Bonifaz VIII (Stuttgart, Enke
1903) and Jean Rivière, Le problème de l’église et de l’État au temps de Philippe le Bel (Paris,
Champion 1926).
8
Kantorowicz, The King’s Two Bodies, 119–20.
9
“princeps vero est quaedam animata lex”, Giles of Rome (Aegidus Romanus), De
regimine principum libri III. Ad francorum regem Philip IIII cognomento pulchrum (Rome 1556),
I 2, xii (48r). For an introduction to his political doctrine, see Roberto Lambertini,
‘Political Thought’, in Charles Briggs & Peter Eardley (eds), A Companion to Giles of
Rome (Leiden, Brill 2016), 255–74. For the pedigree of the lex animata, see
Kantorowicz, The King’s Two Bodies, 127–35.

22

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

through a regimen naturale. This united two objectives: the perpetuation of the
inherited regime and the common good.10 In describing the role of the king
Giles made use of the striking image of the good archer (rex sagittator) who
with intense concentration, relying on nothing but his reason and will, was
able to direct his subjects, like arrows, to the target.11 To the classical
question “whether it was better for the city to be ruled by the best laws or
the best king”, Giles gave the un-Aristotelian response that the “best king”
was better because, as a kind of organ of just law himself (quasi quoddam
organum iuste legis), he was able to apply reason to individual cases.12 Positive
laws cannot take into account circumstances; it was often better to judge by
clemency or rigour, instead of strictly following the legal form.13 This was to
give effect to a higher natural law – one that Giles defined as ius gentium – that
would consolidate the good of the community in the prince’s will itself.14
No doubt, Philip was gratified to read that government was not some
abstract set of principles but a predisposition to rule in the image of God
Himself. Instead of requiring a limitation of the powers of the ruler, it called
for strengthening them and making sure they would by used as God would use
them, not by mechanically “following the law” but by embodying the law in
one’s will.15 This meant, Giles explained to his royal student, working out
what was “adequate and proportionate to the nature of the thing”, namely
“to which we have natural impetus and inclination”.16 Let things take their
natural course. The world had been ordained hierarchically from the
individual to the household and the regnum. Proper government – ars regnandi

10
Giles of Rome, De regimine principum, Pref. (1r).
11
“Rex igitur & quilibet et director populi, est quasi sagittator quidam, populus vero,
est quasi sagitta quaedam dirigenda in finem & in bonum”, ibid., III 2, viii (278v).
12
Ibid., III 2, xxix (314r).
13
“Nam particulares circumstantiae, quae lege determinari non possunt, aliquando
alleviant delictum: & tunc iuste & secundum rationem clementer agitur cum delin-
quente. Aliquando tales circumstantiae aggravant: & tunc est rigidus incedendum”.
Ibid., III 2, xxix (315v).
14
Being free from civil law did not mean that the prince was not bound by natural law
and ius gentium. Otherwise he would become a tyrant and easily face rebellion by his
subjects, as history had shown. Ibid., III 2, xxix (314v–315v), III 2 xxvi (310r), and III
2, xxxi & xiii (318r–319v & 277r–278r). See also Michel Senellart, Les arts de gouverner.
Du regimen médieval au concept du gouvernement (Paris, Seuil 1995), 199.
15
Senellart, Les arts de gouverner, 184, 200. This is why Giles preferred hereditary to
electoral monarchy (the latter tended to be part of a regimen politicum) as well as why
he (in a Machiavellian mode) called for the prince to govern so as to secure his
position, Giles of Rome, De regimine principum, III 2, xv (289–91v).
16
“ad quae habemus naturalem impetum & inclinationem”, ibid., III 2, xxiv (306r).
Or, as he stated in another place, ruling “est enim ars imitatrix naturae”, III 2,
viii (278r).

23

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

et principandi – was to make each perfect in its nature: “like medical science
has the objective of physical health, kings and princes must naturally love
and aim at the good of the regnum and the community”.17 That the king was
to govern by ius gentium meant that he was to enable his subjects not only to
“live” but to “live well” (bene vivere).18 This encompassed buying and selling,
renting and hiring, deposits and loans, which embodied a kind of contract-
ual natural law (quoddam ius naturale contractum) – natural in view of human
inclinations, contractual because set up through reason and agreement.19
In De regimine principum Giles had sketched a wholly temporal (natural)
technique of ruling in which the church would appear to have no
special authority. However, in a later work, De ecclesiastica potestate,
written in support of Boniface at the very height of the conflict with
Philip, Giles took the position that there was no lawful dominium at all
outside baptism and that all rights of property and jurisdiction lay
ultimately with the church.20 By the time this latter work was published,
however, this had become the view of only a small circle of papal
extremists. By now, religious authority in France had become firmly
vested in the crown. This did not free the king’s hands, however. For the
more his authority was understood as a function and an office, the more
the king would find himself tied into the views of his counsel of what it
involved within and beyond the regnum.

*****
This chapter will proceed as follows. After an explanation of the
political theology underlying the papal position in the conflict with
King Philip, it will take up the legists’ retort that the most Christian
king was actually emperor (princeps) in his realm. I will then lay out the
“feudal” context within which Philip would exercise his newly con-
structed “imperial” authority. How were the various feudal rights in
the regnum to be understood in relation to king’s dominium iurisdictionis? In
these debates the ius gentium would play three roles: it would give
systemic expression to the new kingship; it would provide the basis for
17
“Cum ergo in arte regnandi et principandi principaliter et finaliter intendatur salus
regni et principatus, sicut in arte medicandi principaliter intenditur sanitas corporis:
naturaliter decet reges et principes intendere et amare bonum regni et commune”,
ibid., I 3, iv. (98r).
18
Ibid., III 1, ii (238v); 2, viii (278v–279r); 2, xxv (307v–308v).
19
Ibid., III 2, xxv (308r).
20
“Ecclesia in temporalibus omnibus habet ius et dominium universale”, Giles of
Rome, On Ecclesiastical Power. A Medieval Theory of World Government (R. W. Dyson
trans. & ed., Columbia University Press 2004), II X (162/163).

24

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Clericos laicos and Unam sanctam

a political history of statehood; and it would endorse an economic

system based on private property. The chapter will end with an outline
of the operation of the principle of “common good” as the standard for
reconciling the twin forms of Christian authority, dominium iurisdictionis
and dominium proprietatis with reference to a text published in 1302 by
one of the observers of the papal–royal dispute, the Dominican scholar
John Quidort (John of Paris).

Clericos laicos and Unam sanctam

No doubt, Boniface was himself part of the cause of his fall. Well
practised in canon law, he was short-tempered, undiplomatic and
keen to win points of principle at the expense of pragmatic accommo-
dation.21 Although the relations between the papacy and France had
been traditionally good, and even as Boniface himself professed warm
sympathy towards the Capet family (he had sanctified Philip’s grand-
father, Louis IX a couple of years earlier), he had proven quite
unyielding in his relations with Philip.22 The antagonism had its
origins as far back as 1295 when the king had decided to raise money
with the clergy to finance his attack on his most powerful vassal, King
Edward I of England, regarding the latter’s rule over the duchy of
Aquitaine (Guyenne). Edward’s father, Henry III of Plantagenet, had
received Aquitaine as a fief from Louis IX (Saint-Louis, 1214–70) in
1259.23 This had led Edward into humiliating subordination to the
French king. As relations between the suzerain and his vassal deterior-
ated, Philip’s patience ran out. But to wage war, he needed resources
far beyond what the royal domain produced. The church was the
wealthiest institution in his realm. And so he demanded from it a tax
of one tenth (décime).24 The pope responded in the famous encyclical
Clericos laicos (24 February 1296), protesting vehemently against the

21
Although Boniface had spent some time in Bologna, he had no degree and had
learned his law through practice within the Roman curia. Peter Herde, Bonifaz VIII
(Erster Halbband, 43.1 Päpste und Papsttum, Stuttgart, Hiersemann 2015), 20–4.
22
For the “benevolent disregard” with which the French kings had looked upon the
increasing papal ambitions in the thirteenth century, see Robert Fawtier, The
Capetian Kings of France. Monarchy & Nation (987–1328) (L. Butler & R. J. Adam trans.,
London, Macmillan 1960), 88–90.
23
Actually, Louis had refrained from confiscating the fief.
24
The tenth brought in 189,000 livres tournois – almost the same amount as the
annual revenue of the royal domain. It was still just a fraction of what he received
from secular sources. See Favier, Philippe le Bel, 212.

25

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

violation of the immunity of the church. Laymen had always, Boniface

indignantly claimed, wanted to subordinate the clergy, and exact its
funds. This would not do. Any prelate who agreed to pay the tax, and
any secular official, town or castle involved, would be immediately
excommunicated.25 Philip reacted no less decisively, barring any
deliveries of money or gold to Rome, striking hard on papal finances.
The pope was now threatened with bankruptcy.26 Only a fraction of
the French clergy sympathised with Boniface. Nor did many of the
Roman cardinals support him. On the contrary, they had been antag-
onised by papal nepotism. Eventually Boniface capitulated, explaining
in a new missive in late July 1297 that in cases of defensio regni the king
may request from the church “any subsidy or contribution . . . and that
the said prelates and persons can and must pay it, without consulting
the Roman pontiff”.27
The new clash with Philip began with the king’s effort to deal with
problems of the Languedoc Inquisition and the pope’s challenge against
Philip in a dispute over feudal rights in the bishopric of Pamiers.
Boniface had appointed as bishop his friend, Bertrand Saisset, a com-
bative proponent of ecclesiastical independence. The king had
responded by sending a secret inquiry into Pamiers that reported that
a plot against the king was being prepared.28 In July 1301 Saisset was
arrested and brought to appear before the king. As royal prosecutor, the
king’s garde des Sceaux, Pierre Flote, Nogaret’s predecessor, chose to
indict Saisset both for the temporal crime of lesé majesté and for acts of

25
For the bull Clericis laicos, see Dupuy, Histoire du différend, 14–15. For the English text,
see Brian Tierney, The Crisis of Church and State 1050–1300 (University of Toronto
Press 1988), 175–6. For discussion, see e.g. Charles-Victor Langlois, ‘The Power
Politics of France’, in Charles T. Wood (ed.), Philip the Fair and Boniface VIII (2nd edn,
New York, Holt, Rinehart & Winston 1971), 26–31.
26
Money was badly needed to conclude a mediation intended to accentuate the papal
office’s international importance: Thieulloy, Le pape et le roi, 137.
27
For the bull Etsi de statu, see Dupuy, Histoire du différend, 39–40. This translation is
from R. W. Dyson, ‘Introduction’, in R. W. Dyson (ed.), Three Royalist Tracts
1296–1302 (Bristol, Thoemmes 1999), xix.
28
In particular, Saisset had accused the king of being a bastard and a money forger
owing to his recourse in 1295 of the debasing of the value of the coinage. Cf. Marc
Bompaire, ‘La question monétaire. Avis et consultations à l’époque de Philippe le
Bel et de ses fils’, in Jean Kerhervé & Albert Rigaudière (eds), Monnaie, fiscalité et
finances au temps du Philippe le Bel (Paris, Comité pour l’histoire économique et
financière de la France 2007), 113. See further Julien Théry, ‘Le pionnier dela
théocratie royale. Guillaume de Nogaret et les conflits de Philippe le Bel avec la
papauté’, in Bernard Moreau (ed.), Guillaume de Nogaret. Un Languedocien au service de la
monarchie capétienne (Nimes, Lucie 2012), 107–13.

26

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Clericos laicos and Unam sanctam

heresy, including the commission of “manifest simony” (sale of church

offices), and having contested the canonisation of Philip’s grandfather.29
These crimes were even more serious than treason, Flote suggested,
because they had been committed against God and the Roman church
and hence considered by the king to have been committed against
himself.30 Breaking the canon law rule that bishops could be tried only
by the pope himself, Philip thus asserted his supreme jurisdiction over his
realm. For Boniface, this was only the latest in a series of humiliations
imposed on him by Philip and his legists. In a strongly worded letter,
Ausculta fili, in December 1301 he called upon the king to return to the
ways to God from whom he had been distanced by “perverse” manipu-
lations of the royal council, consisting mostly of lawyers. The French
bishops were to travel to Rome immediately to discuss the situation and
decide on further action ad reformationem regni et regis correctionem.31
The royal council was outraged.32 Surely the king could not con-
done the unheard-of proposal of French bishops travelling to Rome to
discuss the conduct of their sovereign – this would be tantamount to
recognising the superiority of the pope in France. Philip decided to
expel Saisset and to allow half of the bishops to travel.33 At the
suggestion of his lawyers, however, he then organised a widely
attended meeting in the Notre Dame in April 1302 to discuss the
pope’s behaviour. For this meeting, Flote produced a summary of
Ausculta fili that sharpened its tone and content considerably.34 The
result was as desired – the hot-blooded Count of Artois arose first to
profess readiness to defend with his blood and sword the supremacy of
29
For the act of accusation against Saisset, see Dupuy, Histoire de différend, 653–6 and
Théry, ‘Le pionnier de la théocratie royale’, 113–14.
30
See further Julien Théry, ‘Philippe le Bel, Le pape en son royaume’, 289 Revue
L’histoire (Dieu et la politique. Le défi laïque) (2004), 14–17.
31
For Ausculta fili, see Dupuy, Histoire du différend, 48–52. See further Holtzmann,
Nogaret, 39; Poirel, Philippe le Bel, 185–9; Thieulloy, Le pape et le roi, 199–203;
Favier, Philippe le Bel, 343–8.
32
The outrage was in part the result of manipulation. Instead of receiving the original
bull, an amended version was prepared by Flote that included a straightforward
claim about the king being inferior to the pope in temporal matters. For the English
text of the original bull, see Tierney, Crisis of Church and State, 181, 185–6.
33
Poirel, Philippe le bel, 221.
34
For the text, which summarises Ausculta fili in six terse paragraphs (“Scire te volumus”),
see Thieulloy, Le pape et le roi, 202 and for another fabricated text, purporting to be
the king’s reply (“Sciat tua maxima fatuitas”), see Tierney, Crisis of Church and State, 187;
see further Dyson, ‘Introduction’, xxx–xxxi; Holtzmann, Nogaret, 42; Jo Ann
McNamara, Gilles Aycelin. The Servant of Two Masters (Syracuse University Press
1971), 113–14, 117–19.

27

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

the French king in his realm. After a brief debate, the participants
united behind their king.35 The clergy representatives decided to
contact Boniface directly while the nobles and the commons sent their
missive to the cardinals instead, thus implying a doubt about the
pope’s legitimacy. To the delegation that arrived in Rome, Boniface
gave the rejoinder that the king and his advisors simply had not
understood the Ausculta fili, that they desired confrontation and that
he was ready for it. After all, his predecessors had excommunicated
three previous French kings, remarking that “as the king now had
committed all the abuses that they had committed, and still more
serious ones, we are prepared to go as far as to dispose of the king
like a valet, even if with real pain and great sorrow”.36
Meanwhile Giles of Rome, Philip’s teacher, now Augustinian prior-
general and professor of theology, had moved to the Roman curia. In
the course of the summer of 1302 he had prepared a large work, De
ecclesiastica potestate (“On Ecclesiastical Power”), which shared Boniface’s
view of the relations between spiritual and temporal authority.
Temporal dominium could only be entirely inferior to the spiritual –
inferior in dignity, in time and scope. It followed that all forms of
dominium – not only political jurisdiction but also rights of property –
derived from the church and were subject to its control:
[T]he church has a universal right and lordship in all temporal things [omnibus
habet ius et dominium universale] . . . the faithful have, or can have, no more than a
particular lordship in such temporal things . . . and unbelievers can have no
lordship with justice at all.37
Because the pope was an absolute monarch over the church, these
rights were for him to dispose; everything the church could do, he could
do. He was the supreme judge.38 This view was expressed by Boniface
in his famous bull Unam sanctam.39 There was little that was completely
35
Poirel, Philippe le Bel, 192–5; Thieulloy, Le pape et le roi, 204–5.
36
Poirel, Philippe le Bel, 198. A good summary is also found in Favier, Philippe le Bel,
354–8.
37
Giles of Rome, On Ecclesiastical Power, II X (162/163).
38
This aspect is highlighted in Jürgen Miethke, De potestate papae (Tübingen, Mohr
Siebeck 2000), 97–9. Of course, Giles was not the only person holding this position.
See further Anthony Black, Political Thought in Europe 1250–1450 (Cambridge
University Press 1992), 49–52.
39
For the text, see Dupuy, Histoire du différend, 54–6. For an English translation and
background, see Tierney, Crisis of Church and State, 188–9 & 172–92. The text can also
be found in Medieval Sourcebook, fordham.edu/halsall/source/b8-unam.html (2/3/09).
Although Unam sanctam was registered on 18 November 1302, it was published only on

28

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Clericos laicos and Unam sanctam

new in this document. It expounded the view according to which both

of the “two swords” were originally given to the church and that the
temporal sword was to administered “at the will and sufferance of the
priest”. The church, Boniface wrote, following Giles verbatim in places,
had “one body and one head, not two heads like a monster”. When
Jesus said to Peter “Feed my sheep” [ John 21:17] he meant “my sheep
in general, not these, nor those in particular, whence we understand
that he entrusted all to him”. Boniface insisted on a single hierarchy of
authority in a Christian world and the superiority of spiritual things
over temporal ones, concluding that “whoever resists this power thus
ordained by God, resists the ordinance of God” [Rom 13:2].40
The pope’s missive took no notice at all of the factual consolidation of
territorial dominium in the hands of kings and the great barons.
Repeating themes and expressions from the old adversity with the
emperor and failing to address the growth of territorial government,
the bull was obsolete as soon as it was issued. It propounded a vision of
universal lordship that had a long pedigree in Christian literatures, but
was blissfully ignorant of the way it had been recently updated by the
church itself.41 By the end of the century, even most canon lawyers had
accepted the view that nobody was entitled to challenge the way the
kings ruled their regna in temporal matters (rex superiorem non recognescens in
temporalibus). Moreover, the pope knew that the royal council was
populated by men who had been trained in civil law – in fact he had
met both Flote and Nogaret – who shared an imperial vision of
kingship. True, the academic jurists of Orleans were still unclear about
whether the king could be addressed as princeps, and whether that would
be de iure or merely de facto. The imperial seat had anyway remained
empty since the mid-thirteenth century and they were keen to integrate

15 August 1303. Boniface had delayed its publication owing to a last-ditch effort to
find a negotiated settlement. After the charge of heresy had been raised, however, in
early summer 1303, there was no reason to delay its publication. See Karl Ubl,
‘Genese der Bulle Unam sanctam. Anlass, Vorlagen, Intention’, in Martin Kaufhold
(ed.), Politischer Reflektion in der Welt des Späten Mittelalters / Political Thought in the Age of
Scholasticism. Essays in Honour of Jürgen Miethke (Leiden, Brill 2004), 142–5.
40
Translations are from Tierney, Crisis of Church and State, 188–9 and 172–92.
41
Per venerabilem, 1202. Text e.g. in Jean-Marie Carbasse & Guillaume Leyte, L’état royal
XIIe–XVIIIe siècles. Une anthologie (Presses Universitaires de France 2004), 23–9 and
Tierney, Crisis of Church and State, 133–4, 136–8 (extracts). The literature on Per
venerabilem is enormous. For brief treatments, see Black, Political Thought, 113–15.
Walter Ullmann, ‘The Development of the Medieval Idea of Sovereignty’, CCL The
English Historical Review (1949), 3–4.

29

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

the territorial power in their laws. Philip was right to think that the pope
was actually trying to change the status quo.
After the contents of Unam sanctam had been made known to the king,
his new principal advisor Nogaret suggested a direct counter-attack,
reading out to the enlarged royal council on 12 March 1303 a state-
ment according to which the pope had not been elected correctly and
was therefore “to be considered a thief”. He added for good measure
that the pope was also a practitioner of simony and had committed an
infinity of manifest heresies. He was therefore to be forthwith disposed
of his office.42 The indictment was extraordinary not only in the length
of the list of heresies it attributed to the pope but also in its suggestion
that a church council was to sit in spiritual judgement of the pope, who
was to be arrested and held in detention in wait for council’s verdict.
According to canon law, a pope could only be deposed by the council.
To the question who was to convene it, Nogaret responded that this task
belonged to the French king.43 No role was to be played by the emperor
or other princes. As stated in his coronation oath (propter iuramentum),
Philip was the first defender of the church.44
By June, Philip had decided to act accordingly. A further meeting
was then arranged in the Louvre where Nogaret’s former student and
close associate Guillaume de Plaisians (d. 1314) read to an audience of
some seventy barons, prelates and other notables an extraordinary
twenty-eight articles of accusation with much detail collected from the
pope’s visceral enemies the Colonnas.45 The indictment repeated the
charges of theft, simony and heresy, and culminated in the call for
the pope’s immediate deposition. The act ended with the signatures of
the king, his barons and all but two of the bishops present. The king

42
For the meeting of the enlarged royal council and the text of the indictment, see
Coste, Boniface VIII en procès, 103–22. The accusation that Boniface had not been
elected correctly referred to the renunciation of the tiara by Boniface’s predecessor,
Celestine V, on 13 December 1294. Celestine had been disillusioned in the position
and felt incapable of responding to its challenges. He thus renounced the papacy
against the objections that even as a pope might be dismissed by a general council,
he could not renounce at his own initiative. Some even suggested that in fact Caetani
had persuaded Celestine to take this (allegedly illegal) action. Most canon lawyers,
however, approved of the procedure. See Poirel, Philippe le Bel, 230, 234–5 and Jean
Leclerc, ‘The Legitimacy of Boniface VIII’, in Charles T. Wood (ed.), Philip the Fair
and Boniface VIII (2nd edn, New York, Holt, Rinehart & Winston 1971), 35–9. For
the very sharply worded accusation, see also Holtzmann, Nogaret, 48–54.
43 44
See also Favier, Philippe le Bel, 369–70. Coste, Boniface VIII en procès, 120.
45
For the report of the meeting as well as the act of accusation, see ibid., 122–85.

30

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 “Ecclesia habet universale dominium. . .”

bound the country to his policy.46 Meanwhile, Nogaret was already on

his way to deliver the summons to the pope.47 He had to proceed
rapidly because the pope was expected to excommunicate the king
shortly and because, according to canon law, the acts of a pope
summoned for heresy before the council of cardinals would no longer
carry effect. This was the summons that Nogaret was bringing to
Anagni as the events took their unexpected course.

“Ecclesia habet universale dominium …”

“. . . super omnibus temporalibus rebus”.48 Giles knew, of course, that in a
Christian world, it would be inconceivable to exercise power without
divine authorisation, expressed in the language of dominium (lordship).49
In its Roman law-inspired meaning dominium covered especially the
right of property, although not necessarily with the kind of absoluteness
that Roman notions of ownership entailed. But it was also used to refer
to the power that people at higher levels of social hierarchy exercised
over those at lower levels – jurisdiction, the authority to determine what
other people should do. The dual meaning highlighted the way relations
of authority between people and between people and things were mixed
in a feudal society, though both originated in God.50
When Boniface quoted the famous statement by St Paul in Romans
13:1 that “[t]here is no power but from God, and those that are
ordained of God”, he understood it to mean the subordination of the
temporal power to the spiritual one. The two swords “would not be
ordained unless one sword was under the other and, being inferior, was
led by the other to the highest things”.51 Like much of the rest of Unam
sanctam, this was likely to have come from Giles’ pen. The principle of
mediation was involved: everything at a lower level “achieves its good
46
Ibid., 125.
47
The mission was also to solicit support for the king. Thieulloy, Le pape et le roi,
218–19.
48
Giles of Rome, On Ecclesiastical Power, I X (176).
49
The literature is truly overwhelming. See especially Marie-France Renoux-Zagamé,
Origines théologiques du concept moderne de propriété (Genève, Droz 1987) and further
Annabel Brett, Liberty, Right and Nature. Individual Rights in Later Scholastic Thought
(Cambridge University Press 1997), 10–48; Janet Coleman, ‘Property and
Poverty’, in J. H. Burns (ed.), The Cambridge History of Medieval Political Thought
c. 350–c. 1450 (Cambridge University Press 1988), 611–25.
50
See Bruno Paradisi, Studi sul medievo giuridico (Rome, Instituto Palazzo Borromini
1987), 329–30.
51
‘Unam sanctam’, Tierney, Crisis of the Church and State, 189.

31

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
 Legal Imagination in a Christian World

by serving and supporting that which is superior to it”.52 Because the

temporal sword was “lower”, Giles wrote, it “must be led by the
spiritual as by a superior and the one must be must be ordained under
the other as inferior under superior”.53 A king who had not been
crowned by the church was as good as a robber. In particular, there
was no divine kingship; all lawful rule was instituted by priesthood.54
That there was no legitimate dominium outside the church at all meant
that property, too, could be disposed of by it. For, Giles argued, nobody
may possess anything with justice “unless he is also spiritually regener-
ated through the church”.55 And of course, “unbelievers [were] all
unworthy of any possession, lordship, and power”.56 They might have
de facto dominion but never de jure.
Unlike most Augustinians, Giles did not think of temporal power as
in itself sinful. On the contrary, as he explained in his commentary to
Peter Lombard’s Sentences, there had been superior/inferior relations
even before the fall. But Adam had exercised his power through charity
and love and not through servitude. In fact, he explained, the fall was
occasioned by Adam’s effort to rule per naturam, through coercion in a
way that “hardens the heart and makes it incapable of charity”.57 His
sin had been to fall in love with power itself. Giles followed old Patristic
theology by stressing that rulership began with one’s own soul,

52
R. W. Dyson, ‘Introduction’, in Giles of Rome, On Ecclesiastical Power, xxi.
53 54
Giles of Rome, On Ecclesiastical Power, I IV (19). Ibid., I V, para 17 (54).
55
Ibid., II VII (131). Or in other words, “for example, this man or that cannot with
justice possess a farm or a vineyard or anything else which he has unless he holds it
under the Church and through the Church”, II VII (137).
56
Ibid., II XI (181). The view that that there could be no lawful power at all outside
Christendom and that the church possessed universal lordship (universale dominium)
was extreme but logical for an Augustinian. See further Michael Wilks, The Problem of
Sovereignty in the Middle Ages (Cambridge University Press 1963), 411–16. Because
Giles had earlier taken an analogous view on the powers of the king Eric Voegelin
branded him as a “totalitarian” thinker, obsessed by power and ready to support any
absolutism if he could only ensure a place in it. Eric Voegelin, History of Political Ideas,
vol. III: The Later Middle Ages (David Walsh ed., Missouri University Press 1998),
46–53. In fact, Voegelin writes, he “was a Fascist by temperament”, 49. But like
many extremists, he was also coherent in drawing what seem like inescapable
conclusions from principles that many people readily accept. The idea of the world
as a single hierarchically organised cosmos where the purpose of lower levels was to
serve higher ones was a deep-rooted part of Christian cosmology. See Otto Gierke,
Political Theories of the Middle Ages (F. W. Maitland trans. & ed., Cambridge University
Press 1900), 7–21.
57
Giles of Rome, Commentary on Sentences, as quoted in Graham McAleer, ‘Giles of
Rome on Political Authority’, 60 Journal of the History of Ideas (1999), 31, and generally
21–36.

32

Downloaded from https://www.cambridge.org/core. , on , subject to the Cambridge Core terms

of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781139019774.003
Discovering Diverse Content Through
Random Scribd Documents
judged, be less likely to alarm, threw himself on the ground at her
feet. She started back in astonishment.

“Lady,” he said, “I see that you are a daughter of Abraham. Can you
help two servants of the Lord that have so far escaped from the
sword of the Greeks?”

She was reassured by a nearer view of the speaker. “Who are you?”
she said. “Speak without fear, for there is no one to harm you.”

Shemaiah told his story.

“And your companion,” said Eglah—for that was the woman’s name
—“where is he?”

The old man called to Joel, who came forth at his bidding from his
hiding-place.

[pg 237]
Eglah stood for a few minutes buried in thought. Then she spoke.

“As I hope that the Lord will have mercy on me and pardon my sin,
so will I help you even to the giving up of my life. But I am not
worthy that you should come under my roof. Now listen to my story.
When Antiochus—the Lord reward him for the evil that he has done
to His people!—came to this city, I was seized and sold for a slave.
And a certain Greek soldier, Glaucus by name, the captain of a
company, bought me in the market. He had compassion on me, and
dealt honourably with me, and made me his wife after the fashion of
his people. And I consented to live with him, though I knew that it
was a sin for a daughter of Abraham to be wife unto a man that was
a heathen. But alas! sirs, what was I to do? for I was a weak
woman, and there was no one to help me. Should I have slain him in
his sleep, as Judith slew Holofernes? Once I thought to do so, and I
took a dagger in my hand, but when I saw him I repented. Whether
it was fear or love that turned me I know not. That I was afraid I
know, for the very sight of the steel made me tremble. And I must
confess that I loved him also, for he had been very kind and gentle
with me; and there is not a goodlier man to look at in all Jerusalem.”

“Be comforted, my daughter,” said Shemaiah, whose years had

taught him a tolerance to which [pg 238]his younger companion
had, perhaps, scarcely attained. “’Tis at least no sin for a wife to
love her husband.”

“Then you do not think me so wicked as to be beyond all hope?”

cried poor Eglah, eagerly.

“Nay, my daughter,” said the old man; “you were in a sore strait, and
all women are not as Judith was.”

“Then you will not refuse to come into my house? I have a large
cellar where you can lie hid. ’Tis under the ground, indeed, but airy
and dry, and you can make shift to live there. And I will feed you as
best I may. My husband has an open hand, and never makes any
question as to the money that I spend upon the house, and he will
not know what I have done. I judge it best to keep the thing from
him, not because I fear that he would betray you—for he is an
honourable man and kindly, but it would go hard with him, being an
officer in the army of the King, if it should be discovered that he
knew it.”

And so for two years Shemaiah and Joel had inhabited the cellar in
Eglah’s house. Glaucus, the husband, was just the kindly, generous
man whom his wife had described. Once or twice he had terrified
her by some joking remark about the rapidity with which the
provision purchased for the house disappeared. “When we dine
together, my darling,” he said, on one occasion, “you eat what would
be scarce enough for a well-favoured fly; [pg 239]but I am glad to
think that you are hungry at other times.” “O husband,” she said,
“there are many poor of my own people, and I cannot deny them.”
She hoped as she said it that the falsehood would not be counted as
another sin against her. “Nay, nay, darling,” said the good-natured
man. “Give as much as thou wilt. Thank the gods and his Highness
the King I have enough and to spare.”

Glaucus, though allowed to live in his own house, had, of course, to

spend much time upon his military duties, and was, consequently,
often away. During his absence Eglah could bring out the two
prisoners from their underground lodging, and allow them to enjoy
the fresh air of the garden, which, happily, was not overlooked. She
gave them the best food that her means would procure, and at the
same time took pains, as has been said, to keep their garments
scrupulously clean and neat. On the whole they passed the time of
their captivity in tolerable comfort, and without much injury to their
health. Latterly they had been cheered by the tidings, always given
to them at the very earliest opportunity by their hostess, of the
successes of Judas. Within the last few days Glaucus had told his
wife that a decisive battle was expected, that it would probably be
fought at Beth-zur, and that if her countrymen won it, there was
nothing that could hinder them from taking possession of Jerusalem.

[pg 240]
Glaucus, who held a command in the garrison of the fort, had not
been with Lysias at Beth-zur, but he had heard late on the evening
of the day of the result of the battle and had, of course, told it to his
wife, and she in turn had communicated it to her inmates. They had
been scarcely able to sleep for joy, and had eagerly waited for news
of the conqueror’s approach. Evening was come, and Eglah had not
paid them the accustomed visit. The house was curiously silent; all
day not a sound of voices or steps had reached their ears. And now
the suspense had become unbearable. “Go forth,” said Shemaiah to
his younger companion, “go forth, and bring me word again.” Joel
crept out of his retreat. The streets were deserted; but the fortress
was crowded. The garrison stood thickly clustered on the walls, and
with them were many inhabitants of the city. It was easy to guess
that what Glaucus had foretold had happened. Judas was on his way
to take possession of Jerusalem, and all who had compromised
themselves by resisting him, had either fled from the place
altogether or had taken refuge in the fort. He returned to Shemaiah
with a description of what he had seen, and the two at once
hastened down to the walls to greet the deliverers.

The sun was near its setting when they entered the city. Without
turning to the right or left, though many must have been consumed
with [pg 241]anxiety to hear the fate of kinsmen and friends, they
marched to Mount Sion. It was an hour of triumph, the fruition of
hopes passionately cherished through many a dark day of sorrow. To
stand once more in the place which God had chosen to set His name
there, how glorious. But it had its bitterness, as such hours will
have, for it was a miserable sight that greeted them. Nothing,
indeed, had been done of which they had not heard. There was
nothing that they might not have expected or foreseen. Yet the
actual view of the holy place in its dismal forlornness overpowered
them. It was as if the sight had come upon them by surprise. “When
they saw the Sanctuary desolate and the altar profaned, and the
gates burnt with fire, and shrubs growing in the courts as in a forest
or one of the mountains, and the chambers of the priests pulled
down, they rent their clothes, and made great lamentations, and
cast ashes upon their heads, and fell down flat to the ground upon
their faces.”

To repair this ruin, to put an end to this desolation, to purify the

place which had been so shamefully polluted, was the first duty of
the deliverers. But that the work might be done in peace it was
necessary that the fortress of Acra, to use military language, should
be masked. A strong force was told off to perform this duty; the rest
would lend their aid to the great work of purification.
[pg 242]
 CHAPTER XX.
THE CLEANSING OF THE TEMPLE.

Azariah and Micah had been put under John, the eldest of the five
brothers, in command of the force employed to blockade the
garrison of Acra. The night had passed quietly; the garrison had not
attempted a sortie, and had not even harassed the besiegers with a
discharge of missiles. And when the morning came they seemed
inclined to continue the same inaction. From the high ground the
two Jews looked down upon the Temple courts and saw the priests
directing a crowd of eager helpers in the work of cleansing the
Sanctuary, and labouring diligently with their own hands. The first
task was to pull down the idol altar which had been erected on the
altar of burnt-offering. This was done in a fury of haste. The hands
of the workmen could not, it seemed, move fast enough in
destroying the abominable thing. The stones were carried out of the
temple with gestures of loathing and disgust, [pg 243]and
afterwards taken to the Valley of Hinnom—unholy things to be cast
away in an unholy place.

But the stones of the holy altar itself had been polluted by the
superstructure that had been erected upon them. What was to be
done with them? At least it was manifest that they could not stand
where they were. Sacrifice could not be offered upon them. They
were reverently detached from the cement which bound them
together, and then borne one by one to a chamber of the Temple,
where they were to be laid up till a prophet should arise who should
show what was to be done with them. The first duty of dealing with
the altar completed, came the work of cleansing and repairing the
courts and chambers. The long, trailing creepers were pulled down;
the weeds and shrubs were rooted out. The place was still a ruin,
but the manifest signs of its desolation and abandonment were
removed. So numerous and so eager were the labourers that for this
part of the work a few hours sufficed. The task of reparation would,
of necessity, be longer and more tedious.

Azariah and Micah had been watching the work with perhaps a more
absorbing interest than was quite consistent with their duty of
watching the garrison, when suddenly one of the sentries blew an
alarm. Scarcely had it sounded when a flight of arrows from the
garrison of the fortress fell among the besiegers. The Greeks had
watched [pg 244]their opportunity, and when almost all eyes were
turned on the work that was going on below, had sent a volley
among the ranks of the enemy.

This sudden attack did no little damage. One or two of the patriots
were killed on the spot, several were seriously wounded; the others
either covered themselves with their shields, a precaution which they
ought not to have neglected, or sought refuge among the ruins.

Azariah, though he had been caught a little off his guard, was not
unprepared to deal with a manifestation of this kind. He had
organized a company of slingers, and he now ordered them to
advance and clear the wall of its defenders. They knelt with one
knee upon the ground, and covered themselves with their shields.
Under this shelter they loaded their slings. Then, rising rapidly at a
preconcerted signal from their commander, they sent a simultaneous
and well-directed shower of leaden bullets on the defenders of the
wall. These missiles, sent with a skill and a strength in which the
Jewish slingers were unsurpassed, had a marvellous effect. In a
moment the wall was cleared, except that here and there along its
length the dead and wounded might be seen. The survivors did not
venture forth from shelter to carry them away. A fierce conflict
followed. From the loopholes of the towers and from behind the
battlements the Greek archers kept up the discharge of their arrows,
and the Jewish [pg 245]slingers replied. No great damage was done
on either side; but every now and then a skilful aim at some
exposed body or limb was followed by a cry of pain from the
wounded man, and the cry was taken up by a shout of triumph from
the hostile force. In the course of the afternoon a storm came on,
with thunder and lightning and a deluge of rain. Before it had
cleared away the light had failed, and hostilities had perforce to be
suspended.

About the beginning of the second watch16 Micah, who was making
a round of the sentries, heard the sound of something that seemed
to fall heavily upon the soft and plashy ground. The rain had ceased,
and the sky had partially cleared; for a few minutes all was still; then
Micah could hear a sighing which was not the sighing of the wind.
He followed the guidance of the sound, and found a woman lying
almost insensible upon the ground. He called one of the sentinels to
help him, and together they carried her under shelter, and brought
torches, by the light of which they might examine her injuries. That
she was stunned by the fall was evident, for she did not speak, and
when they attempted to move her she groaned with the pain. When
left alone she did not seem to suffer much, and they judged it best
to wait for the morning, administering meanwhile a little wine and
water from time to time.

[pg 246]
The next morning four of the soldiers were told off to remove her on
a litter that had been constructed for the use of the wounded to a
deserted house in the Lower City—and of deserted houses there was
only too great a choice. As the bearers put down their burden on the
way to take a brief rest a strange figure came up to the party. It was
a woman, young and still showing the remains of beauty, but with a
miserably haggard look. It was easy to see from her uncertain gait
and wandering eye that she was a lunatic.

Huldah had been for some time a well-known figure in Jerusalem,

and her story was of the saddest. She had been a servant in the
house of Seraiah, and had been Ruth’s own waiting-maid. Returning
home from some errand on which she had been sent one day at the
beginning of Apollonius’s reign of terror, she had been seized by the
attendants of the newly-dedicated Temple of Jupiter, and made a
slave. Before many weeks had passed the cruel outrages to which
she was subjected overthrew her reason. Thus become a trouble to
her captors she was permitted to escape. Since then she had been
accustomed to wander about the city. The horrors of the past still
haunted her, and the recollection of the abominable idolatries in
which she had been forced to serve. At every pool of water and
fountain she would stay and wash. From every passer-by she would
beg for something that might [pg 247]serve for her cleansing: it was
the one craving of her soul to be rid of its defilement. For food or
money she never asked; but a few kindly souls in the city gave her
enough to support life, and sometimes would renew the garments,
threadbare, but always scrupulously neat and clean, which she wore.
Of these friends the kindest was Eglah, who had a fellow-feeling for
the sufferer, and who was always on the watch to atone by her
charitable deeds for what she believed to be the great offence of her
life.

Huldah cast a glance at the litter in passing, and at once recognized

in the suffering woman her own benefactress. For indeed it was
Eglah whom Micah had found under the fortress wall. The
recognition made a marvellous change in the poor maniac. It turned
her thoughts in another direction. She ceased to dwell upon her own
sufferings, and, for the time at least, reason regained its sway.

She knelt down by the side of the litter, and kissed one of the hands
that hung listlessly down. Then, rising to her feet, she arranged the
cushion on which Eglah lay so as to make it more comfortable. That
done, she bade the bearers take up their burden, made a gesture of
dissent when they were turning aside to the house to which they
had been directed, and led the way to Eglah’s own dwelling.
The unhappy creature was positively transformed by the charge
which had thus been laid upon her. The most intelligent and
thoughtful nurse could not [pg 248]have done better for her patient
than did the poor distracted Huldah. A physician who was called in
examined Eglah, and found that though she had been sadly bruised
and shaken, no bones were broken. Whether any internal injury
existed was more than he could positively say; that time alone would
show. Meanwhile careful attention was all that could be done for her,
and attention more careful than Huldah’s it would be impossible to
imagine.

The two priests who had found shelter in Eglah’s house were
naturally among those whom Judas had summoned to take part in
the cleansing of the Temple when he made proclamation for all such
as, being of the House of Aaron, were “of blameless conversation
and had pleasure in the Law.” Posts of special dignity were, indeed,
conferred upon them, for both were men of high reputation for
sanctity and learning, which was not a little increased by the
romantic story of their long seclusion and marvellous escape. Judas
assigned them quarters near to his own, and was accustomed to
have frequent recourse to their advice. They thus found themselves
almost constantly employed, and were unable for several days to
find an opportunity of inquiring what had happened to their
protectress.

When at last they found their way to the house Eglah had
sufficiently recovered her strength to be able to rise from her bed.
She was sitting, busy with her needle. Huldah was watching her with
[pg 249]an intense look of affection that was infinitely pathetic.

The poor woman told her story with a voice that again and again
was broken with sobs.

“When I was preparing your morning meal in the kitchen my

husband, whom I had never before known to set foot in the place,
suddenly appeared. I was greatly terrified lest he should ask for
whom I was getting the food ready, but he was too much occupied
with other things to notice it at all. ‘Eglah,’ he said, ‘you must come
with me into the fort. Judas the Hammer has broken our army to
pieces. Lysias has fled before him, no one knows whither, and within
a few hours he will be in the city. I would have you here, for the fort
is scarcely a place for a woman, but I fear your people. Haply they
may slay you as having been yoked to a heathen. My darling,’ he
went on—and here poor Eglah’s voice was choked with tears—‘I
have done ill for you, I fear; but I meant it for the best. And now, I
fear, you must cast in your lot with me. May the God whom you
serve turn it for good.’ So I gathered a few things together, and went
with him. I thought many times that we should scarcely have
reached the fort alive, for the people cursed us as we went, the
women especially casting many bitter words at me as one that had
left her people to join herself to the heathen. But my husband had
some six or seven soldiers with him; and they were brave men and
[pg 250]well armed. We had not been many hours in the fort before
there began a battle between the garrison and the soldiers of Judas.
One of my husband’s men, who had gone in a spirit of folly and
vanity to show his courage, was struck down with a stone, and my
husband ran forth to drag him in. And just as he was returning,
another stone from the slingers struck him on the back of his head.
It was about the ninth hour of the day when he was wounded, and
he lived till the beginning of the second watch, but he never spoke
again.”

Here the poor creature’s story became confused and broken, and her
listeners could only guess what had followed. The tale of what
followed must be told for her. “ ‘Ah!’ said one of the soldiers,
‘Glaucus has it. He will never move again, I reckon. A good fellow,
but overstrict.’ ‘But how about the Jewish girl whom he calls his
wife?’ said the other; ‘I shall take her.’ ‘Nay, nay; let there be fair
play between us, comrade, as there has always been. Why you more
than I?’ ‘Because I was the first to speak.’ ‘Not so; ’twas I that first
spoke of her.’ ‘Well, we won’t quarrel, comrade. No woman is good
enough to separate old friends. Let us cast the dice for her, and the
man that wins shall stand treat for a flagon of wine.’ And then Eglah
heard them cast the dice, and count the numbers—they would have
twenty throws a-piece, they said—and curse and swear when they
[pg 251]threw low. And when they had finished their dice-throwing
they came in to see how Glaucus fared; and just as they entered the
chamber, he drew a long breath and died. One of them put his hand
upon his heart and said, ‘’Tis all over with him; he will never toss a
flagon or kiss a pretty girl again.’ And then he laid his hand upon
Eglah’s shoulder, and said, ‘Cheer up; we will find another husband
for thee as good as he.’ But the first said, ‘Nay, Timon, leave her
alone. The women are not like us. You must give them a few hours
to cry.’ ‘Well, well,’ said his comrade, ‘you were always soft-hearted.
Let us come and have our flagon; there is no reason why we should
wait for that.’ ” The comrades went on their errand and left the
widow alone with her dead husband. She kissed him, and cut off a
little curl of his hair, and then went forth on the wall—for the
chamber in which he lay was in one of the wall-towers—and threw
herself down to the ground. It was better, she thought, to die than
to sin again.

“Daughter,” said Joel, “you should thank the Lord that, without your
own doing, the tie that bound you to this heathen man is broken.”

“O sir,” broke out the poor woman, “do not say so. I cannot find it in
my heart to thank Him, though I do try to say in my heart, ‘Thy will
be done.’ ”

“Brother,” said the old Shemaiah, “you are too hard upon her. ’Tis
right that a wife should mourn [pg 252]for her husband, be he Jew
or Greek. Before the Lord, I had thought ill of her had she been of
the temper that you would have her.”

Eglah turned to the old man a grateful look. “O sir,” she said, “you
do not know how kind and good my Glaucus was. I never had an
angry word from him. Nor did he ever hinder me from my prayers.
Rather he would say when I went three times to my chamber to
pray, ‘Speak a word for me, wife, if you will.’ And he would
oftentimes speak to me about my God, and say that he liked Him
better than the gods in whom he had been taught to believe. And I
used to tell him stories out of the Book, and how the Lord had
delivered his people out of the land of Egypt, and had brought them
into the land which He sware to Abraham to give him. And he never
mocked or laughed, but listened with all his heart. And, sir, I do
sometimes think that if he had been spared to live longer, he would
have become one of us. But he is dead, and I shall never, never see
him any more.”

And the poor desolate widow burst out into a passion of tears, and
threw herself prostrate on the couch, Huldah trying to comfort her,
not with words—which, indeed, she could not command, and which,
in any case, would have been of small avail—but with great
demonstrations of love.

After a while Eglah looked up, and turning to Shemaiah, in whose

sympathy and charity she [pg 253]trusted, said, “O, sir, do you think
that there is any hope for him? Must he go into that dreadful
Gehenna? For indeed he was kind and good, and never thought of
any woman but his wife, and never injured one of our people, but
would help them and defend them when his fellows were rough with
them. He was better than many Jews that I know. Is it not possible
that God may have mercy upon him?”

Joel was about to speak, but Shemaiah beckoned to him to hold his
peace. “My daughter,” he said, “these things are too deep for us; but
I would say, be of good hope for him that is gone, seeing that he
was such as you say. Shall not the Judge of all the earth do right? To
some He giveth much light, and to some but little; and He judgeth
each according to that which He has given. Therefore I bid you be of
good cheer.”

“And may I pray for him?” asked Eglah.

“Surely you may, for no prayer, so that it come out of an honest
heart and pure lips, but finds some fulfilment.”17

He rose and, giving her his blessing, departed, followed by Joel,

whose narrow intelligence was not a little startled by what his old
companion had said.
[pg 254]
 CHAPTER XXI.
THE DEDICATION OF THE TEMPLE.

Jerusalem now began to assume an aspect very different from that

which it had borne for some years past. Thousands, who had been
driven away by the terrors of the evil days, now hastened to return.
Many of the lower class, constrained by the necessity of poverty, had
always remained, enduring persecution as best they could, and often,
of course, escaping it by their obscurity. Now the wealthier
inhabitants began to flock back from their hiding-places in the
country and from foreign lands; the streets again began to be busy;
the shopkeepers displayed the wares which there had been no one to
purchase, or which they had been afraid to show; the long-shut
markets were reopened and thronged with purchasers.

The priests alone, gathered as they were from their abodes scattered
throughout Palestine, made a considerable addition to the population
of the [pg 255]city. They were a numerous class, far beyond any
requirements of their sacrificial duties, and commonly remained at
home, awaiting the rarely recurring occasion of services that called
them to Jerusalem. But now a work was before them in which all
could take part, for the Temple, having been cleansed and having
received such repair as could be done at once, was to be dedicated
afresh.

The first necessary work was the construction of a new altar of

sacrifice. This work was to be of the primitive kind, in strict
conformity to the Law, and as unlike as possible to the elaborate
erections of the alien worship, and it was to be done, from first to
last, by the consecrated hands of the priests. They dug out of the
earth of the valley rough stones. No tool of iron was to be used in
raising them from their place; none was to be employed in hewing
them into shape. It was the priests again who solemnly conveyed
them into the Great Court of the Temple, who joined them together
with mortar, and covered them with whitewash. Meanwhile other
preparations for a wholly renovated service were being busily carried
on. Most of the furniture of the Temple had been carried off by a
succession of plunderers; if any of the less valuable and less easily
removed articles had been left these had suffered an irremediable
defilement. Everything therefore had to be replaced; and workmen
were now busily employed [pg 256]in this work. The altar of incense,
the candlestick with its seven branches, the table on which the loaves
of the shew-bread were to be placed, the mercy-seat with the
overshadowing cherubim that was the chief feature of the Holy of
Holies, and the various curtains that were needed for the separation
of the various parts of the building, were manufactured with all
possible haste, some of the articles, from lack of time and materials,
being intended to serve their purpose only till they could be more
worthily replaced. Generally, however, it was time rather than means
that was wanting, for in the late campaigns treasure almost enough
to replace the spoliations of years had been taken from the Greeks,
and this, after being duly purified and blessed, could be devoted to
holy uses.

And so came on the day that had been appointed for the Feast of
Dedication. It was to be the 25th of the month Chisleu.18 It was a
memorable day, both for good and evil, in the annals of Jewish
worship. On this day, ages before, Jerusalem, the newly-won capital
of the nation, had been finally chosen as the place where God should
set His name; for on this day David, as he made atonement in the
day of pestilence, bought the threshing-floor of Araunah the Jebusite
to be the future dwelling-place of the Presence of the Lord God of
Israel. And on this day, again, five years ago, the first [pg 257]idol
sacrifice had been offered within the consecrated precincts.
In the early morning, before the sun had risen upon the earth, a
spark was obtained by striking stone against stone, the fire was
rekindled on the altar, the golden candlestick was lighted and the
table of the shew-bread duly furnished with its twelve loaves.

Meanwhile the rest of the people also had been busy in making
preparations for the great celebration. Every family, even the poorest,
was to keep festival on the day that was to be a new beginning of
the national life. The women and children were early afoot, gathering
branches of palms and other “goodly trees”; none of them having
busier hands than Ruth and her nieces. Even the little Daniel would
take his part in the work, tottering along by his mother’s side with his
arms full of boughs. When they had gathered as great a burden as
they could carry, Ruth gathered her little company about her, and told
them, just as the rising sun began to flood the valley with its slanting
rays, the story of the day—of the glory and the shame which it had
brought to Israel.

And now, as the time of the morning sacrifice drew near, the whole
people moved in one great stream towards the Temple, and the Great
Court was crowded. On the walls of the fortress the heathen soldiers
of the garrison stood in throngs watching the solemnities of the day.
Some of them, [pg 258]of course, were ready with their mockery;
but most looked on in respectful silence. Many of them had witnessed
the prowess of these strange fanatics in the field. They might be
given over to a “senseless and tasteless superstition,” but they could
deal shrewd blows with their swords, and therefore they were not to
be despised. No truce had been arranged, but one was tacitly
observed. The forbearance of the Greeks was partly due to a
wholesome awe of the Jewish archers and slingers, partly to a
curiosity that, as has been said, was not wholly unmixed with
respect.

Then came the solemn ritual of sacrifice. This ended, the whole
congregation of the people united in solemn supplication to the Lord
God of Israel. Usually it was the custom to stand during the office of
prayer; sometimes the attitude of kneeling was used; now, as if to
express the intensity of their feeling, they threw themselves flat upon
their faces, and poured out their entreaty that evils such as they had
endured in the past might never again come upon them in the future.
“O Lord,”—this was the burden of their prayer,—“if we sin against
Thee any more, do Thou chasten us Thyself with Thine own hand,
after the multitude of Thy mercies. Make us suffer that which shall
seem good to Thee here in our own land, but scatter us no more
among the heathen, and deliver us not again unto the nations that
blaspheme Thy holy name.”

[pg 259]
The prayer ended, came the great Psalm of Thanksgiving; and then
the people dispersed to their houses to hold festival. Their mirth was
prolonged far into the night, which, indeed, was almost turned into
day throughout the streets of Jerusalem, so brilliant was the light
that streamed from the lamps set in almost every window.

For eight days the Feast of Dedication was continued. Each day the
services began with the customary morning sacrifice. At earliest dawn
the Master of the Temple summoned the priests who had been
watching round the fire in the gate-house as they waited for his
summons. Then they went out and fetched the lamb for the burnt-
offering. The creature had already been examined on the previous
day, and pronounced to be free from spot or blemish. This done, they
went outside the court in which the great altar stood, and watched
for the coming day. The Mount of Olives stood between them and the
East, and far behind it were the mountains of Moab. Here the first
streaks of the morning light were to show themselves. Then the
priest whose turn it was to slay the victim of the day bathed in the
great laver. Thus purified for the performance of his office, he stirred
up the burning embers from under the ashes of the altar, and added
fresh fuel. This done, he was joined by the other priests, and the
morning sacrifice was offered. Then followed the special ceremonies
of the festival, [pg 260]among them the prayer for deliverance from
captivity, as already given, and the singing of the great Thanksgiving.
And every day the public services were followed by private rejoicings.
No one could have believed that the rejoicing city, gay with its
brightly dressed throngs of merry-makers and resounding with the
music of tabret and harp, was the desolate place so long trodden
down by the heathen. There had been days in the past when the
most hopeful could scarcely discern any light in the darkness. But
now they could see the “silver lining of the cloud.” In this very
Temple, now dedicated afresh with such joyous zeal, but a few years
before, the priests “had left the sacrifices when the game of the
Discus called them forth.” That deadly folly had been purged with
blood. The brutal violence of Antiochus had saved the nation from an
imminent relapse into heathenism.

Among the many hearts that were gladdened by these rejoicings

there was one, as sorely burdened as any, that had found a complete
deliverance from the troubles of the past. The unhappy Huldah, in
proportion as her charge gained strength, and her work became less
absorbing, had seemed to be falling back into her old condition. For
the time her thoughts had been concentrated on the suffering Eglah;
now they were free to be turned upon herself, her own troubles, her
own dismal memories. Eglah did all she could to keep her employed,
and [pg 261]the girl’s gentle and affectionate nature still felt her
influence. Yet it was evident that unless some remedy could be found
the old madness would resume its sway.

On the first day of the Dedication festival, the two were standing
together in the Court of the Women. The priests, who were making a
circuit of the whole building, sprinkling everywhere the blood of
purification, came in due course to the spot. As they performed their
office a drop fell upon the garment of Huldah, who had been joining
in the prayers with an earnestness almost frenzied. The effect was
marvellous. In a moment the excitement passed away. Her eyes lost
their wandering look, and, in a tone calmer and more collected than
any that she had ever before been known to use since the time of
her trouble, she said, showing the crimson spot to Eglah—“He has
heard my prayer; He has sprinkled me with the blood of cleansing.”
She stood silent and collected until the whole ritual was finished, and
when the time for the hymn of thanksgiving came round joined her
voice with a quiet happiness to the voices of the congregation.

When the people returned to their homes Huldah left the Temple in
company with Eglah. But it was evident that her strength was
exhausted. She could barely totter along with all the help that Eglah
and a neighbour could give her, and when she came to the house of
Seraiah and Ruth, which happened [pg 262]to lie in her way, she
sank almost unconscious to the ground. Providentially at that
moment Ruth came up with her husband and the little Daniel.

“She seemed so much better in the Temple—was quite calm and

peaceful again—and now I am afraid that she is going to be very ill,”
said Eglah.

Woman’s wit suggested to Ruth a happy thought for dealing with the
sufferer.

“Leave her to me,” she said. “She was happy here once, and here, if
it please the Lord, she will be happy again.”

Ruth and her husband carried her into the house, and laid her upon
her bed in her old chamber. Once there she was able to swallow a
little broth which had been hastily prepared, cast one grateful look of
recognition at her old mistress, and then fell into a deep sleep. The
next morning she awoke, entirely restored to reason, and, though still
somewhat weak, able to go about the household tasks in which she
had been once employed, and which she resumed at once without a
question, and as if, indeed, they had never been interrupted for a
day. The three years of misery were entirely blotted out of her
memory; nor did any spectre from the past ever come back to
trouble her.
[pg 263]
 CHAPTER XXII.
WARS AND RUMOURS OF WARS.

The Feast of Dedication having been kept and made an ordinance in

Israel for ever,19 Judas’s next act was to fortify the restored Temple.
It was exposed, even more than the rest of the city, to a sudden
attack from the garrison of the fort, which might work irreparable
mischief could it gain, even for an hour, possession of the sacred
building. Accordingly a high wall, strengthened at intervals by towers,
was now erected round it, and a force was told off from the army to
watch it. This done, the patriot leader could attend without anxiety to
other cares. At Beth-zur a fortress was erected and strongly
garrisoned to guard the Eastern frontier especially against the attacks
of the Idumeans, who, under their new name, inherited all the old
Edomite jealousy of Israel. After personally superintending [pg
264]the erection of this stronghold, Judas marched against other
tribes on the east and south, who had been taking advantage of the
troublous times to plunder their Jewish neighbours. The Arabs of the
Negeb, or South Country, were defeated at a pass near the Dead
Sea, which bore the appropriate name of the Pass of the Scorpions;
the Ammonites, another tribe whose kinship with the chosen people
seems to have embittered their hereditary enmity, were defeated
under their Greek leader, Timotheus.

Meanwhile life at Jerusalem had been settling down into a peaceful

order. The younger of the two priests whom Eglah had befriended
had found scope for his energies by joining the army; Shemaiah, the
elder, was again an inmate in the house which had sheltered him,
where Eglah, who had never forgotten the charity with which he had
spoken of her husband, tended him with all the care of a daughter.
The old man was never tired of hearing the story of the two dismal
years during which he had been in hiding.

“Ah, father!” she said to him one day, “you were not so ill off in your
poor prison after all. Had you had your liberty you would have seen
altars to the false gods in every street. And it was not safe to pass
them without showing some sign of reverence.”

“And how did you fare, my daughter?” asked the old man.

[pg 265]
“I could avoid them, knowing where they were, by passing by on the
other side, and my good Glaucus—the Lord have mercy on him!—was
always kind and helpful. He would fetch the water regularly from the
fountain, where there was an altar to the Naiad, as they called the
demon of the spring, which I could not have avoided. The people
used to laugh at him for doing a woman’s work, but he did not heed
them. O why was he taken away before he could learn the truth? I
think that he would have known it if he could have lived a little
longer.”

And the poor woman burst into a passion of tears. She was always
haunted with this fear of her husband’s fate, and reproached herself
with not having been earnest enough in speaking of the truth to her
husband.

“Peace, my daughter,” said the old man, gently; “the mercies of the
Lord are without end, and His ways past finding out. Be sure that He
will not forget the kindness that was showed to a daughter of
Abraham. But tell me,” he went on, anxious to change the subject
—“tell me how we came to find the courts of the Temple desolate
and overgrown as though no one had entered them for months? Did
you not say that there were sacrifices there, and feasts to the
demons whom the Greeks worship?”

“Yes, father; it was so for a time. But soon there were few or none to
make sacrifices, for the [pg 266]city was utterly impoverished. So the
priests, whom Philip the Phrygian and Apollonius—the curse of the
Lord be upon him!—brought in to serve at the altars, went
elsewhere, for, of a truth, they would have died of hunger had they
stayed here. O father, it was a mournful existence; of a truth we were
fed with the bread of affliction and the water of affliction.”

As they talked Ruth came in with a troubled face.

“O Eglah!” she cried, “I did hope that we should have peace and
quiet, but there are wars and rumours of wars on every side. This
morning letters came to the captain from our brethren in Gilead. That
evil Timotheus—would to God he had not escaped out of the hand of
Judas!—has gathered together a host of the Ammonites and slain
some—a thousand, ’tis said, with their wives and children, and shut
up the rest in the fortress of Dametha. And now my husband and my
brother are in council with the captain, and I fear me much that they
will be sent to the wars, for indeed,” she added, with a touch of a
woman’s pride in those that are dear to her, “Judas esteems them
highly, and will always have them in places of trust. Nor would I keep
them back from helping the Lord’s people. But hark! I hear his step.”

As she spoke Seraiah came in from the council.

“How is it?” cried Ruth, with trembling voice, [pg 267]her fears again
getting the upper hand. “Do you go? and Azariah?”

“Yes, my dearest, I go, and next in command to the captain and his
brothers.”

Ruth flung her arms round her husband’s neck. “Oh! I am proud of
you; but yet if you could have stayed, for our little Daniel is so young
——”

And she could say no more.

“Nay, wife, be of good cheer, and do not grudge us to the Lord’s

service, for indeed there is need of us all. Even while the letters from
Gilead were being read there came messengers from Galilee with
their clothes rent. From them we heard that the men of Ptolemaïs
and of Tyre and Sidon and all Galilee of the Gentiles were gathered
together. Then it was determined that Simon should go to Galilee
with three thousand men, and Judas and Jonathan to Gilead.”

“And what of Azariah?”

“He and Joseph, the son of Zachariah, are to be left in the city with
the remnant of the army as captains of the people. They are to have
the Governor’s house, and you, with our little Daniel, will live there
while I am away. This will be well for you, and for Miriam and Judith
also, for there will be many coming and going, and Miriam is a fair
maiden, as she should be, being kin to you.”

Ruth smiled through her tears at the lover-like compliment.

[pg 268]
“Come now,” Seraiah went on, “and get ready what I shall want for
my journey, for we set out at sunset.”

The two women kissed each other, and the old priest blessed Seraiah.
“The Lord give thee strength in the day of battle, and deliver thee out
of the hand of the enemy, and bring thee back to the house of thy
fathers.”

At sunset exactly—for Judas was one of the commanders who are

exactly and punctually obeyed—the two expeditions set forth.

Their departure was, of course, observed by the garrison of the fort,

who were encouraged by it to make some fierce sallies on the
diminished forces of the patriots. These were as fiercely repelled, and
in a few days things settled down again into the virtual truce which
had existed for some time between besiegers and besieged.

Eight days after the departure of the expeditions tidings of victory

came from the main army under Judas. The captain of the host had
taken Bozrah, in Edom. The place lay at least a hundred miles to the
east; but the patriots had covered the distance with unexpected
rapidity, and, reaching the place before there had been any notion of
their approach, had taken it almost without resistance. The
messenger had left, he said, as soon as the place was taken, but
Judas had marched the same night to Dametha, which was in urgent
need of relief.

[pg 269]
The next day came in tidings of further success. Dametha and its
garrison, with the crowd of helpless fugitives which had sought
shelter within its walls, was safe. The night march from Bozrah had
been made just in time. Had it been delayed till morning it might well
have been too late. The Ammonites had chosen that very day for a
fierce assault upon the place. Just as the day was dawning and the
assailants were close under the walls Judas had appeared. His
approach had been observed by the besieged, who had watched it
from the citadel, but the assailants were taken by surprise. Hemmed
in between two attacking forces, the garrison who made a sortie from
the town and the army of the patriots in the rear, they had been
utterly routed. Timotheus had barely escaped with his life, and had
fled northward, followed by Judas in hot pursuit. A few days
afterwards came the news that the campaign was at an end—begun
and finished within the space of two weeks. This time the captain
had found time to write a despatch. It ran thus:—

“Judas, Captain of the Lord’s host, to Azariah, greeting. Know that

the Lord has delivered the enemy into our hands. Timotheus, having
suffered defeat at Dametha, fled northward to a temple where the
heathen worship the ‘Two-horned Ashtaroth,’ a strong place by nature
and skilfully fortified. I judged it better that I should not spill the
blood of [pg 270]the people of the Lord in assaulting it, and so,
having cleared the walls of defenders by help of my slingers, I
surrounded it with great quantities of faggots. To these I caused fire
to be set, nor did my slingers suffer the Ammonites to approach to
put out the flames. In the end the whole was consumed, and
Timotheus perished in the fire. The Lord has rewarded him according
to his deeds. So much for what has been done: now for what
remains to do. This country is not as yet a safe dwelling-place, and
will not be till the heathen shall be more thoroughly subdued. It is my
purpose, therefore, to bring the people of this land to Jerusalem.
Provide, to the best of your ability, for their food and lodging.
Farewell!”

The exultation felt by the people at Jerusalem when the tidings of

their final victory reached them passes description. The times of
David, they were sure, were about to return. The promise was once
again to be fulfilled—“He shall reign from the flood [the Euphrates],
unto the world’s end.” In the Temple chant of the day the words went
—“I will not be afraid of ten thousands of the people that have set
themselves against me round about. Up, Lord, and help me, O my
God, for Thou smitest all Thine enemies upon the cheek-bone. Thou
hast broken the teeth of the ungodly.”

But when tidings of still further victories, won by Simon in Galilee,

came in to swell the popular [pg 271]enthusiasm, there was a certain
change of feeling, something of the jealousy that almost inevitably
springs up when great deeds are done. Joseph and Azariah chafed at
the life of inaction which they were forced to live at Jerusalem, and
what they thought in their hearts the soldiers did not hesitate to
express openly. “Let us also,” so ran the common talk—“let us also
get for ourselves a name, and go and fight against the enemies of
the Lord.”

On the day after the tidings of Simon’s victories came in the two
captains were waited upon by a deputation of soldiers, who came to
urge that they might be relieved from the inaction to which they were
condemned, an inaction made all the more hard to bear by the
glories that were being won elsewhere. Azariah and Joseph listened
with attention, and, indeed, were at no pains to hide their sympathy.

“The men are right,” said Joseph, when the deputation had
withdrawn. “They will lose all heart if we keep them idling here.”
“In my heart I am inclined to agree with you,” answered his
colleague; “but what did the captain say?—‘Watch the garrison of the
heathen that they do no hurt to the city and the Holy Place while we
are away.’ But he said nothing of going elsewhere, and I should be
unwilling to disobey him, for, beyond all doubt, the Lord is with him.”

“Nay, brother, you are too narrow in your [pg 272]thoughts of

obeying. We obey him best if we do the best that we can for the
cause of the Lord. And though I honour Judas greatly, yet he is but a
captain in the Lord’s host, even as we are. Why should we not do as
he has done? And tell me, Azariah,” he went on, “do you think that
the vision which you saw when the angel of the Lord brought you a
sword with the Name written on it has been altogether fulfilled? Shall
this sword which he bade you use for the Lord always abide in the
scabbard? Is this the life to which you are called?”

“You speak truly,” said Azariah. “I can scarcely be faithful to my trust

if I suffer the sword of the Lord to rust. But tell me, what think you
we had best do?”

“Gorgias,” said Joseph, “is encamped at Jamnia, and does great

mischief to the land and the people; if we can drive him out we shall
earn great thanks both from the captain and from our brethren.”

The resolution of the commanders was heard with unmingled delight

by their men, and with almost equal pleasure by the inhabitants of
the city. Some of the more cautious disapproved, and Shemaiah even
made his way to the Governor’s house—no easy task for his scanty
strength—and remonstrated with Azariah. “My son,” said he, “your
strength is to sit still. Make not too much speed, and be not over-
bold.” He was listened to with respect, and [pg 273]even with some
compunction on Azariah’s part. But it seemed too late to retreat. To
hold back now would infallibly give rise to the charge of cowardice,
and Azariah, brave as a lion against all outward danger, had not the
rare moral courage which would have enabled him to face such an
accusation.
At sunrise on the day after the resolution had been taken, the
expedition set out with confident expectation of victory, and watched
from the walls by an eager multitude. At sunset a miserable remnant
came straggling back into the city. They had fared, as their fathers
had fared many centuries before, when, with the like unauthorized
daring, they had assaulted the hill fortress of Ai, and had returned,
bringing discouragement with them. Gorgias had sallied out from his
hill fortress, had charged the Jewish force with full advantage of the
ground, and had driven them in headlong flight before them. Azariah
and Joseph had done all that leaders could do to turn the tide of
battle, but their efforts had been in vain. Two thousand men had
fallen, the wounded being, perforce, left to the mercy or cruelty of
the enemy.

The city was filled with mourning for the dead; and, of course, there
was a rapid revulsion of feeling against the leaders whose rash action
had ended in such disaster. “Who are these men,” was the general
cry, “who have caused the people of the Lord to perish? They are not
of the seed of those by whose hand deliverance is given to Israel.”

[pg 274]
 CHAPTER XXIII.
MORE VICTORIES.

The heathen in the fort observed the return as they had observed the
departure of the expedition that had ended so disastrously. Their
sallies became fiercer and more frequent, and Azariah, his forces
weakened by the loss of two thousand men, found it difficult to repel
them. Nothing could have exceeded the energy with which he
devoted himself to this duty, or the courage with which he executed
it. Night and day he was at his post, for it was here only that he
found a refuge from the anguish and doubt which tormented him;
here only the reproaches of the widows of the slain could not follow
him. He allowed himself no rest; sleep he seemed absolutely to do
without, and food he hastily snatched at any moment when the
opportunity offered.

One remission only from this task he allowed himself, and this
because it was a duty. He paid a daily visit to his children. They, too,
poor little souls, had not escaped a share in the trouble. The [pg
275]life which they had led for the last two years had developed their
understanding beyond their age, and they felt, if they did not fully
appreciate, their father’s unhappiness. One consolation they had, the
care of two little orphans—the father had fallen in the expedition, and
the mother had been struck down by the news of her husband’s
death—who had been taken into the house and put under the charge
of the elderly kinswoman who looked after Azariah’s household.

On one of these occasions he found the aged Shemaiah. His first

impulse was to avoid the old man, but a few words of sympathy
overcame him; his self-control broke down, and hiding his face in his
robe he shed the rare and painful tears of a man.

When the first outburst of grief was over he spoke.

“Tell me, father, why has God forsaken His servant who trusted in
Him. I went out in faith—and see the end. Would that I had died in
the battle!”

“My son, may it not be that you tempted the Lord? Did you count the
cost when you went forth against Gorgias, whether you had force
sufficient for the attack, or skill to handle it?”

“Does faith, then, go for nothing? Had Judas men enough, as soldiers
reckon in such matters, or skill enough, seeing that he had had no
experience in war, when he overthrew Apollonius? [pg 276]Yet the
Lord gave him the victory because he trusted in Him.”

“My son, God gave the victory to Judas, having first given him not
strength only and courage, but skill also and understanding. He gives
not the same gifts to all: to Moses wisdom and learning, but to Aaron
eloquent speech; to David the arts of war, but to Solomon the arts of
peace. Think you that because you are a servant of the Lord, you are
therefore to choose the service that you will do? You would be
captain of the Lord’s host like Judas. Would you also indite psalms
with David, and devise proverbs with Solomon? The Spirit of the Lord
divideth to every man severally as He will. To Mattathias He gave
discernment to see in Judas the leader and commander of the
people, and the people were obedient to him. And so Judas discerned
in you one who might be entrusted with the defence of the city, but
not with the warfare against the heathen that are without. This was
your service, but you were not content with it. Think not that the
Lord has forgotten you, but rather that you have left the place in
which you were set.”

This was plain speaking, but given with such gentleness and
sympathy that the rebuke healed more than it wounded. Humbled
yet comforted, Azariah returned to his post before the fortress. But
he could not forget that his great trial was yet to come. Nor was it
long delayed. The next day [pg 277]it was evident that something
was happening that had attracted the attention of the garrison. The
highest tower was crowded with soldiers who were intently watching
something that could not be seen from below. And indeed it was a
remarkable spectacle. Judas was returning with his victorious army,
escorting at the same time a vast crowd of non-combatants, men,
women, and children, the whole population of the country beyond
Jordan, which could no longer be inhabited with safety, and all
Jerusalem had gone out to meet the champion. Then, in a moment,
the tower was deserted, the gates were thrown open, and a furious
sortie, the last that could be attempted with any hope of success,
was made with the whole force of the garrison. It was with a
desperate courage that Azariah repelled the attack. Never had he
exposed himself so recklessly. He could almost have wished to fall in
the fight; for now the dreaded meeting was at hand, and he had to
render up to his chief the trust which he had so abused. The attack
was repelled, and then Azariah had to remain in an inaction that was
almost unbearable till he should be summoned to the interview with
his chief.

The sun was just setting when a soldier presented himself, and, after
saluting, said, “The general seeks you.”

“Has he summoned the council?” asked Azariah, who dreaded a

public censure.

[pg 278]
“Nay,” said the man; “he is alone.”

And Azariah followed him to the captain’s house, with such a tremor
in his heart as no dangers of battle had ever caused.

What followed at the meeting was never known, save as far as the
result was concerned. Shemaiah was awaiting his return, and the first
glance showed the old man that things had gone well with his friend.
The burden of trouble was gone. Azariah looked brighter and more
cheerful—so great is the force of reaction—than he had done since
he had lost his Hannah. Shemaiah felt that there was no need to
question him, and waited in silence for what his friend should please
to tell him. What he heard was this:

“The captain would have kept me in the office to which he appointed

me when he departed. He said—and I repeat his words, not for my
own glory, but for a proof of his generosity—‘No man could have
better kept the heathen from the fort in check than you have done.
Therefore, I would have you stay where you are. I must go again to
the wars, for the Idumeans and the Philistines have to be subdued.
And I shall go with a lighter heart, leaving the defence of the city in
your hands.’ But I said to him, ‘O my lord, let me rather go with you.
You have accomplished to the full the work unto which you were sent
of God, and have come back, having redeemed from captivity and
death our [pg 279]brethren from beyond the river, nor lost one of
your own people. But I, going in the presumption of my heart to a
warfare unto which I was not sent, have accomplished nothing; I
have wrought no deliverance for my people, and the bones of two
thousand of my brethren lie scattered on the plain. Henceforth I am
but a sword in the hand of the servant of the Lord.’ But the captain
said nothing. Let it be as he will. As for me, I am content, for I know
that he has pardoned me.”

Whatever the kind of service in which Judas might see fit to employ
his lieutenant, it was clear that there would be no lack of work for
him to do.

The victories of Judas in Gilead had been followed by successes won

by Simon in Galilee. And from Galilee, as from Gilead, there had been
a great migration of the inhabitants, who sought in Jerusalem a safer
home than they could find in their own country.

And now, at the head of a more powerful army than he had hitherto
been able to collect, Judas set out. His first object was Hebron, which
had for some time past been in the possession of the Idumeans. He
Welcome to our website – the perfect destination for book lovers and
knowledge seekers. We believe that every book holds a new world,
offering opportunities for learning, discovery, and personal growth.
That’s why we are dedicated to bringing you a diverse collection of
books, ranging from classic literature and specialized publications to
self-development guides and children's books.

More than just a book-buying platform, we strive to be a bridge

connecting you with timeless cultural and intellectual values. With an
elegant, user-friendly interface and a smart search system, you can
quickly find the books that best suit your interests. Additionally,
our special promotions and home delivery services help you save time
and fully enjoy the joy of reading.

Join us on a journey of knowledge exploration, passion nurturing, and

personal growth every day!

ebookbell.com