seems in fact to incorporate one of the statutes which Robert I ordi-
navit, condidit et stabilivit‘in full parliament’ at Scone in 1318, for ‘the
amending of his land and defence of his people and for the peace of his
land’ and with the assent of ‘the whole community’.^49
Though the legislative power of rulers was justified as the means of
answering the needs and petitions of their peoples, both Aquinas and
Beaumanoir see it as ultimately free from human restriction. Beau-
manoir says that in time of war or fear of war accustomed law may be
overthrown and the king ‘make new establissemensfor the common
profit of his realm’, for ‘the time of necessity excuses him’:^50 the example
he gives is the conscription of simple squires to serve as knights in the
defence of their country—something which we know Edward I did
for his Flemish expedition in 1297, to the outrage of the English
baronage.^51 For all his insistence that laws are only just when they are
ordained to the common good, equal in the burdens they impose on
subjects, and within the power of the lawgiver to make (otherwise they
are mere violence and do not bind in conscience), Aquinas has to admit
that even an unjust law, if ‘framed by one who is in power’ and governs
‘the community of the state’ [here civitas], is ‘derived from the eternal
law, since all power is from the Lord God’; a man ‘should even yield his
right’ to it in order ‘to avoid scandal and disturbance’. The political
order has its own values. The end of the state is its own preservation,
for which the ruler makes law, and also interprets and dispenses from
it. Dispensations are justified by the ‘necessity which knows no law’.
The force of the idea of necessity of state comes from the analogy made
in Aquinas’s scheme of legislation and dispensation between the natural
necessity of a starving individual, who may steal to preserve his life, and
the artificial necessity of the community, to preserve which the ruler
may even dispense with his subjects’ property rights.^52
200 Legal Ordering of ‘the State of the Realm’
(^49) Acts of the Parliaments of Scotland, i. 122, 466, 471–2; W. E. Brynteson, ‘Roman Law
and Legislation in the Middle Ages’, Speculum, 41 (1966); A. A. M. Duncan, ‘Regiam
Majestatem: a Reconsideration’, Juridical Review (1969), 210–14; Harding, ‘Regiam
Majestatem amongst Medieval Law-Books’.
(^50) Beaumanoir, Coutumes de Beauvaisis, ii. 261–3.
(^51) F. M. Powicke, The Thirteenth Century,2nd edn. (Oxford UP, 1962), 679.
(^52) Aquinas, Summa Theologiae, I–II, q. 96, art. 6, conc., q. 97, art. 4, conc., II–II, q. 32, art.
7 ad 3, q. 66, art. 7; A. Harding, ‘The Reflection of Thirteenth-Century Legal Growth in Saint
Thomas’s Writings’, in Aquinas and Problems of his Time, ed. G. Verbeke and D. Verhelst
(Leuven, 1976), 33–4.