between the historical (as one ‘not ill versed in our country’s institu-
tions’) and the philosophical (discussing whether the law in England
was more just or unjust than Roman Law ‘here’ in France).^44
There are five ways in which commonwealths or their governments
are held to differ. The first is in the way laws and ordinances are made
by the ‘ruling and sovereign part’ (bk. 1, c. 2; bk. 2, c. 4). In England,
what is done in parliament, ‘by the whole universal and general consent
and authority’ of prince, nobility, and commons, is called ‘firm, stable,
and sanctum, and is taken for law’, and Smith therefore takes pains to
describe how bills are debated (members of parliament using ‘no
reviling or nipping words’), discussed in committee, voted on (those in
favour ‘going down with the bill’, those against sitting still), and finally
approved. ‘The Parliament abrogateth old laws, maketh new...
changeth rights, and possessions of private men, legitimateth bastards,
establisheth forms of religion, altereth weights and measures, giveth
forms of succession to the crown... appointeth... taxes, giveth most
free pardons and absolutions, restoreth in blood and name as the
highest court, condemneth or absolveth whom the Prince will put to
that trial... (bk. 2, c. 1).’ Despite the extraordinary power he gives
parliament in conjunction with the prince, which also embraces the
third of the five differences of the English commonwealth—how funds
are provided for its upkeep and defence—Smith insists that English
monarchs are as ‘absolute’ as any ruler, a fact shown by differences
2 and 4: their power alone to make war and peace, and to choose
ministers and magistrates (bk. 2, cc. 3, 4). But he thinks all actual
commonwealths are mixed (bk. 1, c. 6). Smith identifies government
with commonwealth because it is distributed among all estates from the
yeomanry upwards, and this is shown above all in the fifth difference,
the administration of justice described in the final two thirds of the
treatise (bk. 2, c. 5 to bk. 3, c. 9) in courts which range from parliament,
Star Chamber (existing long before it ‘took great augmentation’ from
Cardinal Wolsey), and the benches in Westminster Hall, to the sessions
of the justices of the peace and the leets of the great lords, all operating
on the monarch’s authority but dependent on the work of sheriffs, jury-
men, and constables.
Jean Bodin on the state
In 1576, between the writing and the printing of Smith’s De Republica
Anglorum, a French professor of law and procureur du roiwho had
316 From Law to Politics: ‘The Modern State’
(^44) M. Dewar, Sir Thomas Smith: A Tudor Intellectual in Office(London UP, 1964),
111–12; De Republica Anglorum, ed. M. Dewar (Cambridge UP, 1982).