3.2 Dial. Translation revised

By John Scott.


This is a revision of the translations included in A Letter to the Friars Minor and Other Writings, ed. A.S. McGrade and John Kilcullen (Cambridge: Cambridge University Press, 1995), and on the website /pubs/dialogus/wtc.html#part32

This revision brings the translation into line with the new edition of the Latin text by Semih Heinen and Karl Ubl.

For an analysis of the argument of 3.2 Dial. see /pubs/dialogus/Summary32Dial.html


 

3.2Dial. Prologue, Book 1 ch. 1-17.

Amendments to translation in A Letter to the Friars Minor, p.242-281

p.242 line 23 obey > be subordinate to

p.244 line 7 could not have lasted > cannot last

p.245 line 27 3 Kings 12 and 13 > 3 Kings 11 and 12

p.246 line 37 should not obey > should not be subordinate to

p. 249 line 29 Proverbs 13 > Proverbs 11

p.255 line 7 powerfully ruled > was powerfully superior to

p.256 line 15 (because > (when

p.257 line 18 though it can > though it could

p.257 line 32 whole and of the part > whole world and of part of it

p.259 line29 promoted to world empire > advanced to world empire

p. 259 lines 33-4 would be abolished more effectively than if there were > will be abolished more effectively than if there are

p.261 line 38 to preside over all mortals > to be lord over all mortals

p.265 line 1 His itaque > Hiis ita

p.265 line 19 unbelievers and believers > believers and unbelievers

p.266 line 11 refuse government > refuse rule

p.267 line 32 Ne clerci vel monachi > Ne monachi vel clerici

p.268 line 16 lest you be >or do not be

p.272 line 10 because such a ruler does not expend due care on his subjects > because such rulers do not expend due care on their subjects

p.277 line 31 In such a case he is bound > In such a case, therefore, he is bound

p.278 line 5 or any other whatever > and any other whatever

p.281 line 2 Wisdom 7 > Wisdom 5

 

3.2Dial. Book 1 ch. 18-31

Revised version of the translation in /pubs/dialogus/t32d1Con.html

Chapter 18

Student Now that we have investigated by way of discussion and recitation whether it is beneficial for the world to be under one emperor and have sought to know in what virtues the emperor of the world ought to be eminent, let us discuss the Roman empire. We will ask first whether the Roman empire arose from the actions of men or of God.

How did the Roman Empire come to exist?

Master One opinion is that the Roman empire was established by God and not by men. Another is that it was established by men, namely the Roman people. A third is that the true Roman empire derived from the pope. Now the last opinion says that after he was converted to catholic faith Constantine the Great humbly transferred to the church, in the person of the highest pontiff, that irregular power which he happened to be wielding before. Then he himself received back from the vicar of Christ, Peter’s successor, the divinely ordained power of empire, which thereafter he used legitimately to punish evildoers and to praise those who do good Thus he who before was abusing his permitted power was thenceforth discharging the authority granted to him. They say therefore that before Constantine received the Roman empire from blessed Peter's successor it was not a true empire, rather usurped by men and permitted by God, but not granted nor ordained by God.

Opinion 3: The Roman Empire is from the pope

Student Because I am sure that that last opinion was held by one of the greatest prelates in the world, I want to debate it with you more fully, by discussing the arguments for and against it and by considering replies to those arguments. In this way those who study it will have an opportunity of understanding a catholic truth which may be unknown to many people, even those who are regarded as most learned. Would you first, therefore, undertake to argue for it?

Arguments for Opinion 3, with answers

Master That opinion, which seems to be often repeated in substance and indeed endorsed in the glosses on the Decrees and Decretals seems to be provable on the basis of many arguments based on sayings of our forefathers. [1] Thus the gloss on dist. 96, Cum ad verum [col. 466], seems to hint at some arguments for this opinion, one of which can be formulated as follows. The true Roman empire is from him who can depose the emperor; but, as the aforesaid gloss implies, the pope "deposes the emperor (15, q. 6, c. Alius and c. Iuratos"). The true Roman empire, therefore, is from the pope.

Student That argument clearly seems to fail and the gloss cited seems to bring forward erroneously the chapters it adduces. For the first chapter it refers to (Alius [c.3, col.756]) does not speak of the Roman emperor but of the king of the Franks. For these are the words of that chapter: "Further, another Roman pontiff, Zacharias, deposed the king of the Franks from his kingdom, not because of his iniquities but because he was incompetent for such great power, and in his place he substituted Pippin, father of the emperor Charles, and he absolved all the Franks from their oath of fidelity." There is no mention of an emperor in these words. So it cannot be proved by that chapter that the Roman empire is from the pope, although it seems provable that the kingdom of the Franks is from the pope.

If it is granted that the kingdom of the Franks is from the pope it seems that it can be concluded that the Roman empire is from the pope, because the argument is no stronger in respect of the kingdom of France than in respect of the Roman empire.

Master Different people try to reply to this objection in different ways. For some say that the Roman empire and the kingdom of France are not similar because, as they say, it is possible that the kingdom of France is more subject to the pope than is the Roman empire. For, as they say, the kingdom of France has been from ancient times subject to the Roman empire both in law and in fact, and still is subject in law, as the gloss on Extra, Qui filii sunt legitimi, c. Per venerabilem [col.1543] attests. When the pope says, "Since the king" of France "does not recognise a superior in temporal affairs," it [the gloss] says "Yet in reality he is legally subject to the Roman empire". And the gloss on dist. 2, c. Ius quiritum says, "The emperor is the ruler of the whole world ... ff. ad leg. Rodiam, Qui levandae. So he who does not want to be under the Roman emperor cannot obtain a hereditary succession." And the gloss on Extra, De privilegiis, c. Super specula [col. 1832] clearly asserts that the laws of the Roman emperors ought by right to be observed by everyone, even if in fact they are not observed by everyone. We gather from these and very many others that the kingdom of France is by right subject to the Roman empire. So the emperor of the Romans, to whom he is subject, can commit to the pope and also to others the power of deposing the king of France for various crimes. For such crimes he could not commit to the pope the power of deposing an emperor. By commission of the emperor and the Roman people, therefore, it is possible that the kingdom of France is more subject to the pope than the Roman empire is. This is confirmed by the fact that the Roman emperor is not more subject to the pope than are those princes who are by right subject to the emperor. So if the king of France is subject to the emperor by right, the emperor is not more subject to the pope than the king of France is, in the sense that the pope can depose the emperor and not the king of France.

But some people say that by his papal authority the pope can depose neither the emperor nor the king of France except for heresy, although on the authority of the Romans he could depose the emperor for other reasons and on the authority of the Franks he could depose the king of France for other reasons. The gloss on the chapter adduced above (15, q. 6, c. Alius [col. 1083]) seems to suppose this. About the word deposed it says, "he is said to have deposed because he agreed with those who were deposing", that is he received the power of deposing from them. Therefore, he deposed, as it were, together with them.

Others say that in deposing the king of France Pope Zacharias put his sickle into another's harvest by usurping to himself a power which was not within the competence of his office, something other highest pontiffs are often known to do to the prejudice of the laity. The gloss on Extra, De foro competenti, c. Si quis clericus attests to this when it says, "Either they are negligent", that is, the laity in showing justice to clerics, "or the pope does not daily grant letters to clerics against the laity on any sort of question thus usurping the jurisdiction of others, against what the immediately preceding chapter, the chapter Novit [c.13, col.242], says.” We read there, "Let no one think that we intend to disturb or diminish the jurisdiction of the illustrious king of the Franks, since he neither wishes to nor ought to obstruct our jurisdiction."

Disciple You have set down the arguments of some people that the gloss brings forward the chapter Alius erroneously. Now explain why it seems that the same gloss brings forward the chapter Iuratos [c.5, col.756] erroneously.

Master This seems to be so to some people because that chapter does not mention an emperor but a knight called Hugh to whom other knights had taken an oath; and in that chapter the pope did not depose Hugh from his position of dignity or power but only ordered that his knights be enjoined not to serve him. This was not to depose Hugh, however, because when a lord is excommunicated his vassals ought not obey him or communicate with him, and yet the lord is not deposed from his lordship because of the excommunication and the obligation by which a vassal is bound to him is not even removed, as the gloss on 11, q. 3, Julianus [col.955] attests. It says, "It is true that excommunication does not remove the obligation by which a vassal is bound to his lord, but only the effect of the obligation. So if the lord is absolved he is immediately bound to obey him."

For these and many other reasons it is clear to some people that it cannot be proved by those chapters that the pope may depose or could depose an emperor. 

It also seems to some people that it does not pertain by right to the pope to depose an emperor because the pope does not have greater power over the emperor and the Roman empire than over other kings and any other kingdoms. If he were to have greater power over the emperor than over other kings he would have such power either by divine law or by human law. He does not have it by divine law, because we do not read anywhere in divine scripture that any power over the Roman emperor was bestowed on the pope which was not granted to him over other kings. Nor does he have such spiritual power over the emperor by human law, because it does not seem that anyone gave him or could have given him power of this kind.

If someone gave or could have given him power of this kind it was either the emperor or someone inferior to the emperor. But the emperor could not have given the pope such power over the emperor and not over other kings. This is because an emperor can no more make an emperor subject to the pope than he can make other kings subject to the pope, and because an equal does not have dominion over an equal. Moreover, if an emperor who gave such power over an emperor to the pope was not subordinate to the pope and the emperor who succeeded him was subordinate to the pope, the succeeding emperor was not a true successor, because when an emperor is more subordinate than his predecessor he does not truly succeed to the rights of the other, and so the succeeding emperor would not be a true emperor. Consequently an emperor who had subjected the Roman empire to the pope in this way would have been the destroyer of the empire as much as he could have been, and so he would have achieved nothing, because no emperor can destroy the empire. Any action of his that were to lead to the destruction of the empire would not hold up in law but should even be legally revoked by his successor and in fact rendered null and void.

And since an emperor did not give and could not have given such power over the emperor to the pope, no one inferior to an emperor could have given it.

For these reasons it is evident to some people that the above argument is inadequate to prove that the true Roman empire is from the pope.

Student In that case would you bring forward another argument to prove the same opinion?

Chapter 19

Master The gloss cited above implies another argument which can be formulated as follows. The empire is from that one to whom the keys of the heavenly and earthly empires were given; but the keys of the heavenly and earthly empires were given to blessed Peter and consequently to his successors. Whence, as we read in dist. 22, c.1, [Omnes sive patriarchi col.73], Pope Nicholas speaks as follows, "He alone who entrusted jurisdiction over both the earthly and heavenly empires to blessed Peter, the key-bearer of eternal life, established and founded it", that is the Roman church, "and built it on the rock of the faith that was soon to be born." The Roman empire therefore is from the pope.

Student That argument seems strong to me, and yet tell me if some people endeavour to speak in refutation of it.

Master There are many ways in which people try to refute it. They say that if the authoritative text of Nicholas on which that argument is based is understood as those who adduce it understand it, many absurdities, indeed clear errors, follow. The first absurdity or error is that all kingdoms are from the pope and that no one is a true king except him who receives his kingdom from the pope. For we do not find in the whole of divine scripture or in any authentic writing that Christ entrusted to blessed Peter jusisdition over the Roman empire in a different way than jurisdiction over other kingdoms. If it can be shown by that authoritative text, therefore, that the Roman empire is from the pope and that the only true emperor is one who receives the empire from the pope, as that opinion holds in support of which this argument is adduced, it follows that all other kingdoms are from the pope and so other kings are not true kings unless they receive their kingdoms from the pope. Therefore, since none or few of them receive their kingdoms from the pope, none or few of them are true kings.

Student Kings do seem to receive their kingdoms from the pope well enough in that they are prepared to obey him and would even be prepared, if it were pleasing to the pope, to resign their kingdoms to him and receive them back from him.

Master Many people deny this. Hence the pope bears witness about the king of France in particular (Extra, Qui filii sunt legitimi, c. Per venerabilem [c.13, col.714] that he does not recognise a superior in temporal affairs. The king of France, therefore, is not a true king nor has anyone ever been a true king who thought that he did not have a superior in temporal affairs.

Student In the light of that point it seems to me that the authoritative text of Nicholas brought forward above can be understood to the disadvantage of kings, and especially the king of France. But I want you to tell me what those who understand that authoritative text of Pope Nicholas and the opinion for which it is adduced in the sense the words mean on first sight, and who also think that Christ so entrusted jurisdiction over all kingdoms to blessed Peter that all kings are bound to recognise the pope as their superior even in temporal affairs, think about the king of France and other kings and princes who do not recognise the pope as a superior in temporal matters? Is their error such that it should be counted among the heresies?

Master Some people say that if the opinion just cited is true, that error should be counted among the heresies because according to that opinion it is from sacred scripture that we infer that Christ bestowed jurisdiction over all kingdoms on blessed Peter in such a way that all true and legitimate kingdoms are from the highest pontiff and that the highest pontiff is superior to all kings even in temporal affairs. But every error which conflicts with divine scripture should be counted among the heresies. Therefore, if the above assertion, that there is a king who need not recognise a superior on earth in temporal affairs, is against divine scripture it should be considered heretical.

Student Should the king of France and others who maintain that assertion be counted among the heretics according to that opinion?

Master If that assertion is heretical and the king of France or someone else does not maintain it pertinaciously he should not be regarded as a heretic. If it is heretical, however, and the king of France or someone else were to cling to it pertinaciously he should be considered a heretic. Now how someone should be convicted of pertinacity was to some extent investigated in the fourth book of the first tractate of this Dialogue.

Student You have recounted what some people consider a multi-faceted absurdity which follows from the authoritative text of Pope Nicholas interpreted as that opinion interprets it. Now tell me whether some people think that any other absurdity or error follows from that same text interpreted in that way.

Master Some people say that another absurdity follows from this, namely that the heavenly empire is from the pope, because that authoritative text affirms that Christ entrusted to blessed Peter jurisdiction over the heavenly empire as he did over the earthly one. So if it can be deduced from that text that the earthly empire is from the pope, it may be deduced from it by the same reasoning that the heavenly empire is from the pope. This seems most absurd because the heavenly empire existed before there was a pope, because many are received into the heavenly empire without the pope, and because even when the see is vacant many are accepted into the heavenly kingdom.

Student I have listened to how some people strive to deduce many absurdities and errors from the authoritative text of Pope Nicholas interpreted as the opinion recorded in the previous chapter interprets it. Now tell me how those critics interpret that text, so that I will be able to ascertain how they try to reply to an argument based on it.

Master They say that when Nicholas refers to the heavenly empire he does not mean the empire which the church triumphant possesses, because that empire is not given by the pope but by God, although the pope has the keys to it and is the key-bearer, not the lord, of that empire. Similarly, when he refers to the earthly empire he does not mean the temporal empire which the emperor possesses. But by heavenly empire he means the good people in the church militant and by earthly empire he means wicked people, over whom the pope is known to have power.

Otherwise, it is said that Pope Nicholas does not say that lordship of the earthly and the heavenly empires was entrusted to blessed Peter, but jurisdiction over them, and therefore the earthly empire is not from the pope. Nevertheless, the pope does have some jurisdiction in the earthly empire when it is governed by a Christian. This is both because he has spiritual power over the emperor and because he has the right to acquire material benefits from the emperor, to whom he ministers spiritually, in accordance with the words of the apostle in 1 Cor. 9:11, "If we have sown spiritual good among you, is it too much if we reap your material benefits?"

Chapter 20

Student Bring forward another argument for that opinion.

Master The gloss on dist. 10, c. Quoniam idem implies another argument. The following argument can be taken from it. The Roman empire is from that man who transfers and can transfer the Roman empire from one house or people to another. But the pope transferred the empire from the Greeks to the Germans (Extra, De electione, c. Venerabilem. Therefore the Roman empire is from the pope.

Student That argument seems incontestable; nevertheless I want to know whether some people try to refute it.

Master Some people think that from that argument, interpreted as certain people do interpret it, a manifest absurdity follows, namely that the pope can transfer any kingdoms at all, whether the rulers be Christians or not, from house to house and from people to people. Thus he could transfer the kingdom of France from the Franks to the English or to the Germans or to the Spanish or to any other people, just as he transferred the Roman empire from the Greeks to the Germans. The foundation of the argument by which they prove that this absurdity follows, moreover, is utilised by many people trying to prove many things about this subject. Now this is the foundation which was also touched on above, namely that Christ gave blessed Peter no special power over the Roman empire which he did not give him over the kingdom of the Franks and all other kingdoms. They try to demonstrate this in two ways.

Firstly, as follows: In the whole of sacred scripture wherever mention is made of the power granted by Christ to blessed Peter there is no mention of special power over the Roman empire, and no kingdom is exempted from that power. For when Christ said to blessed Peter, "Whatever you bind on earth", etc, and again when he said, "Feed my sheep", he no more exempted the kingdom of France or any other kingdom from that power than the Roman empire. It is the same in reference to all the authoritative texts by which papal power is proved. When it is said, for instance, in Genesis 1:16, "God made the two great lights", etc, by which kingdom and priesthood are understood, and when it is said in Jeremiah 1:10, "See, today I appoint you over nations and over kingdoms", and when it is said in Luke 22:38, "Look, here are two swords", and in similar examples, no special mention is made of the kingdom of France or another kingdom such that it is understood to be specially exempted, more so than the Roman empire, from any power given by Christ to Blessed Peter. So blessed Peter received from Christ no power over the Roman empire that he did not receive over France and other kingdoms. Therefore, if by the power given by Christ to blessed Peter the pope can transfer the Roman empire from people to people, he can by the same power transfer the kingdom of France from people to people.

Secondly, they prove the same point as follows. Greater power was not given to blessed Peter over the Roman empire than over parts of the Roman empire or over kingdoms that were subject to the Roman empire. But when Christ gave blessed Peter papal power, the kingdom of France, like other kingdoms too, was part of the Roman empire or subject to the Roman empire. Blessed Peter did not receive greater power from Christ over the Roman empire, therefore, than over the kingdom of France.

Student Perhaps some people would say as long as the kingdom of France was subject to the Roman empire, all the power which the pope had over the Roman empire he also had over the kingdom of France. But he does not have that power now because the kingdom of France is not subject to the Roman empire.

Master That reply seems absurd to many people. This is because the pope should not be deprived of any power due to the rebellion or exemption of the kingdom of France, and also because the power which the pope has by Christ's decree cannot be changed or removed from him by anyone inferior to Christ, and finally because then he who was pope after the rebellion or exemption of the king of France would not have been equal in power to the pope who preceded him and so would not have been a true successor.

Student You have set down how that argument is attacked. Now explain how a response is made to it.

Master The reply to it is that Pope Zacharias deposed the king of France and established Pippin as king, (as was noted above,) on the basis of the same or similar authority, by which he transferred the Roman empire from the Greeks to the Germans. However, he did not depose the king of France on the basis of authority or power given to him by Christ, but he did this either on the authority of the Franks, who gave him appropriate authority and power in that situation or, as the gloss on the chapter Alius says, "He is said to have deposed because he agreed with those who were deposing". So it was not on the basis of the authority or power given to him by Christ that the pope transferred the empire from the Greeks to the Germans but on the basis of the authority of the Romans who gave that power to him in that situation as the most excellent person among the Romans. Or he can be said to have transferred it because he agreed with those involved in the transfer.

Student That reply seems to be based on the opinion which posits that the pope has some power directly from Christ, that is power in spiritual matters and the right of acquiring the material goods necessary for his sustenance, and that in the exercise of his duty he has some power from general councils, some from the congregation of the faithful, at least by their tacit consent, some from different peoples or emperors or princes or others of the faithful. I can find many comments about this opinion in the tractate, "On the power of the pope and clergy". For the moment, therefore, I will pass over some of the attacks on that reply and bring forward just one, as follows.

 When something is said to be done by the apostolic see this is not understood as meaning that it was done by some power granted to the person of the pope only but is understood to mean that it was done on the basis of the authority of the office entrusted to him by Christ. Now it is the decretal [Extra, De electione c.] Venerabilem that says that the apostolic see transferred the empire from the Greeks to the Germans. For these are the words of that decretal: "We acknowledge that it is to those princes to whom it is known to pertain by right and ancient custom that we owe the right and power of choosing the king to be afterwards promoted to emperor, especially since this right and power came to them from the apostolic see which transferred the Roman empire from the Greeks to the Germans, in the person of Charles the Great." Therefore, the pope transferred the Roman empire on the basis of the authority of the office entrusted to him by Christ.

Master The reply to this attack is that often "apostolic see" is taken for “pope”, and often that which is done by the pope in his own person is said to be done by the apostolic see. And therefore because it was the pope who had the power from the Romans who transferred the empire, it is said that the apostolic see transferred the empire.

Chapter 21

Student Let us discuss still other arguments for the aforesaid opinion.

Master Another argument for that opinion is the following. The emperor has the Roman empire from him by whom, after his election, he is examined, confirmed, anointed, consecrated and crowned and to whom he takes an oath. But after his election the Roman emperor is examined, confirmed, anointed, consecrated and crowned by the pope and to him he swears an oath (Extra, De electione, c. Venerabilem and dist. 63, Tibi domino.

Student That argument [reading ‘ratio’] seems to incorporate many subdivisions. So tell me whether any opinion holds that from the fact that an elected as emperor is examined by the pope it can be demonstrated that the emperor has received the empire from the pope.

Master Some people say that it cannot be so demonstrated. For the letters of a legate should be examined by those to whom he is sent (dist. 97, Nobilissimus [c.3, col.348], where the gloss says, "Legates are not received without some risk. So a more careful examination is made of them.") And yet the office of a legation is not from the examiners. Therefore, it cannot be proved by the fact of an examination that the one examined has his office from the one examining. It is even permitted to examine papal letters (Extra, De crimine falsi, c. Ad falsariorum [c.7, col.820]), and yet such examiners do not have any power over the letters examined. So from the fact that an elected emperor is examined by the pope it cannot be inferred that the emperor has the empire from the pope. An elected emperor is examined by the pope, therefore, not so that the pope may confer the empire on him but so that the pope and others do not treat someone as emperor who was not elected legitimately and consequently who is not the true emperor, just as those who want to base their action on papal letters examine them so that they do not accept false letters as true.

Student I see why it is said that it cannot be proved from the fact of an examination that the empire is from the pope. Now tell me what is said about papal confirmation of an emperor.

Master It is said that we do not find in any authentic ancient writing that the emperor was confirmed by the pope. So in the decretal [Extra, De electione] Venerabilem, which seems clearly to affirm that the empire is from the pope, there is no word about confirmation. So it may be said that in former times the emperor was not confirmed by the pope. If, however, later on any emperor was confirmed by the pope this was a result of the emperor's simplicity and humility. Even so he could not have imposed this law on his successor.

Student Can it be shown that the empire is from the pope from the fact of his anointing, consecration and coronation of the emperor?

Master It is said that it cannot, because other kings are anointed, consecrated and crowned by archbishops and bishops of their kingdoms and yet they do not have their kingdoms from them.

Student Can it be shown that the empire is from the pope because of the oath the emperor swears?

Master It is said that it cannot be so shown, because it cannot be proved that any emperor offered a different oath to a pope than that which the emperor Otto made to John. But Otto's oath was not the oath of fidelity and submission that a vassal offers to his lord for the fief which he receives from him. To prove this we bring forward both Otto's oath and the oath that a vassal offers his lord. Otto's oath, as we find in dist. 63, c. Tibi domino [c.33, col.246], was as follows, "I, King Otto, do promise and offer an oath to you my lord, Pope John, through the Father and the Son and the Holy Spirit, through this piece of wood from the vivifying cross and through these relics of saints, that if the Lord allows it and I come to Rome, I will magnify the holy Roman church and you its ruler in accordance with my power, and that you will never lose your life or limbs or that honour which you have as a result of my will or counsel or encouragement. And in the city of Rome I will not make any decision or ordinance about anything that pertains to you or to the Romans without your advice. And whatever comes into our control from the land of St. Peter I will return to you. And I will make the one, whoever it is, on whom I bestow the Italian kingdom swear an oath that he will be your helper in defending the land of St. Peter in accordance with his power."

But the form by which a vassal swears to his lord is, according to Hostiensis, as follows, "I swear by the holy gospels of God that from this very moment and henceforth I will be faithful to this person, as a vassal should be to his lord, and what he has bestowed on me on the basis of my loyalty I will not, to his detriment, knowingly make available to anyone else." Hostiensis describes another recent form which is as follows: "I Ticius swear on the holy gospels of God that from this very moment henceforth until the last day of my life I will be faithful against all men to you, Gaius, my lord." It is clear to some people from these forms of swearing that the oath of emperor Otto was not an oath of fidelity. This is because there is no mention of fidelity in that oath, and also because even if some sort of fidelity should be understood by some of the words of his oath, yet by none of the words included in it is that fidelity which a vassal owes to his lord meant. For not every kind of fidelity is the fidelity which a vassal owes to his lord. For sometimes one should maintain fidelity with one’s enemy, because faith is be maintained with an enemy, (23, q. 1, c. Noli [c.3, col.892]. And yet that fidelity which a vassal owes his lord should not be maintained with an enemy.

Student It seems that Otto's oath was an oath of fidelity from the fact that he swore to him that by his (Otto's) will, advice or encouragement he (the pope) would never lose his life or limbs or honour. This particular, however, pertains to an oath of fidelity, 22, q. 5, c. De forma [c.18, col.887], where we read the following, "He who swears fidelity to his lord should always have these six words in his memory: unharmed, safe, honourable, useful, easy, possible; unharmed in the sense that there should be no harm to his lord’s person." It seems that we can gather from these words that he who swears to someone that by the swearer’s doing no harm will come to his life or limbs swears fidelity to him. Now this particular is contained in Otto's oath above. Therefore he swore fidelity to the pope.

Master The reply is that not everyone who swears to someone not to harm his person swears the fidelity to him that a vassal owes his lord. For, as we read in 1 Kings 30, David swore an oath to the Egyptian boy who was going to lead him to the Amelakites who had attacked Sichelet that he would not kill him and would not deliver him into the hands of his lord, and yet David did not swear to that boy the fidelity that a vassal owes his lord. And consequently the fact that Otto swore to the pope that he would not lose his life or his limbs by his (Otto's) will or advice did not reveal an oath of fidelity to him. Indeed even if he had sworn to him that he would never do any wrong to him it could not be concluded that he had sworn the fidelity to him that a vassal owes to his lord. For Isaac swore in this way to Abimelech, king of the Philistines, yet he was not his vassal and he did not swear to him the fidelity which a vassal owes his lord, although he did swear to him that he would do him no harm and Abimelech swore a similar oath to Isaac. For this is what we read in Genesis 26:26-29 & 31, "When Abimelech went to him from Gerar, with Ahuzzath his friend and Phicol the commander of his army, Isaac said to them, `Why have you come to me seeing that you hate me and have sent me away from you?' They replied, `We have seen that the Lord is with you; so now we say, let there be an oath between us and let us make a covenant that you will do us no harm.' ... In the morning they arose early and exchanged oaths." We gather from these words that Isaac and another man, neither of whom was the other's vassal, swore an oath that they would not harm each other. And consequently, even if Otto had sworn to the pope that he would not harm his person and would not secretly harm his fortifications, his justice, his possessions or anything at all pertaining to him, it could not be concluded from this that he had sworn to him the fidelity a vassal owes his lord, because the oath does not say that he will be faithful to him against every man until the last day of his life, as a vassal does to his lord.

Student It seems that the emperor Otto could have sworn fidelity and submission to the pope without swearing to him the fidelity that a vassal owes his lord. For as we find in Extra, De iureiurandso, c. Ego episcopus [c.4, col.360], “bishops swear an oath of fidelity to the lord pope,” and yet they do not swear to him the fidelity that a vassal owes his lord, because bishops are not vassals of the pope, just as the pope is not the lord of the bishops, as blessed Peter says [1 Peter 5:3], "Do not lord it over those in your charge.”

Master The reply is that this discussion is about the oath which it is said should be made by the emperor by reason of the Roman empire, which is said to be from the pope because it is said that no one is a true Roman emperor unless he receives the Roman empire from the pope. We conclude from this that the emperor should be enfeoffed by the pope, and consequently that the emperor is the vassal of the pope. It follows from this that if he ought to swear an oath to the pope for the Roman empire he should swear to him the fidelity that a vassal owes to his lord.

Student It seems that Otto did swear to Pope John that fidelity which a vassal owes his lord, because he calls him his lord when he says, "... to you my lord, Pope John" etc.

Master The reply is that just as Otto calls the pope `lord' in that place, so also the pope calls the emperor `his lord', (11, q. 1, c. Sacerdotibus [c.41, col.638]). Just as it cannot be inferred from that way of speaking, therefore, that the pope is the vassal of the emperor, so it cannot be demonstrated from Otto's way of speaking that the emperor is the vassal of the pope. So it is said that Otto calls the pope ‘lord’ not because the pope is his temporal lord but on account of the prerogative of his office and dignity, just as secular lords often call even mendicant religious ‘lords’ on account of the prerogative of their sanctity and religion, not because they regard themselves as their vassals. We find this way of speaking often in the divine scriptures too.

Student Was Otto bound, especially if asked, to swear an oath to Pope John?

Master The reply is that Otto swore an oath to the pope of his own free will, and could not have been forced to swear such an oath. This is proved by the following argument. By Christ's ordination the emperor is no more bound to the pope for the Roman empire than the king of France and any other kings are for their kingdoms. But the king of France and many other kings are not bound to swear an oath to the pope unless they want to. Neither, therefore, is the emperor. And from this we can conclude that the emperor does not have the empire from the pope and is not his vassal, because a vassal is bound to swear an oath to his lord, above all if it is demanded of him.

Chapter 22

Student Touch briefly on some other arguments for that often quoted opinion.

Master [5] Another argument is this. The pope makes good the deficiency in the empire when there is an imperial vacancy, Extra, De foro competenti, c. Licet c.2, col.250]. Therefore the empire is derived from the pope.

Student Tell me briefly how that argument is replied to.

Master It is said that just as by the authority given to him by Christ the pope does not meddle with temporal affairs when there are vacancies in the many other kingdoms and also that he is not the guardian of the heirs of other kingdoms who are less than full age, so by the papal authority given to him by Christ he does not meddle in the empire when there is an imperial vacancy, but (if he acts rightly in meddling) he meddles on the authority of the Romans or of the electors, to whom it principally pertains to make good the deficiency in the empire when there is an imperial vacancy, who can transfer their power to the pope.

Student Would you bring forward another argument?

Master Another argument is as follows. The pope has both swords, that is, the material and the spiritual swords. Therefore, the empire is from him.

Student Tell me how that argument is replied to.

Master It is said that the pope does not have both swords, as Pope Nicholas attests when speaking of the church he says, as we find in 33, q. 2, c. Inter haec [col.1152), "He has only the spiritual sword. It does not kill but restores to life."

Student The gloss at that place [col.1652] replies that the church has only the spiritual sword "with respect to use", yet has the material sword hidden as it were in its sheath and bestows the use of it on the emperor. “For both swords are hidden in the breast of the faithful church. Whoever, therefore, is not in that place has neither sword.” This is proved by the fact that “the Lord did not say to Peter, `Throw away your sword', but said [cf. Mat.26:52 and John 18:11], `Put your sword back into its sheath', so that Peter would employ the power of the sword not himself but through the emperor. For the power of the material sword is attached to the church but is deployed by the emperor who receives it. As a sign of this, when the highest pontiff crowns a Caesar he shows him the sword held in its sheath. When he has received it the prince takes it out and indicates by flourishing it that he has accepted the employment of it.”

Master That argument is condemned in many ways by some people who regard it as heretical.

Student Why that opinion is thought to be heretical you will explain below when you record why the opinion we are now treating is considered heretical. So set down briefly now how that reply is condemned.

Master It is attacked first as follows. The king of France and many other kings do not receive the power of the sword from the pope. Indeed even when they begin to rule they do not need it from anyone, either for their coronation or for any other power granted to them. Therefore nor does the emperor receive the power of the sword from the pope.

It is attacked secondly because the power of the sword is outside the church. For otherwise no pagan would have been a true prince.

It is attacked thirdly because when Christ said to Peter, "Put your sword back in its sheath", Peter was not pope. For he became a shepherd after the resurrection, although he was an apostle beforehand, (dist. 50, c. Considerandum [c.3, col.198] and c. Fidelior [c.4, col.198] So it cannot be demonstrated by means of those words that the power of the sword was given to the pope by Christ.

It is attacked fourthly because other kings receive from archbishops or bishops of their kingdoms the crown by which royal authority and even temporal power are designated and yet they do not have that power from the archbishops and bishops. For they have all the power of the sword and of temporal administration before their coronation that they have after it, and at their coronation they receive much less than those who have been elected do when they are confirmed by consecration. Yet before their consecration the latter acquire everything which is in their jurisdiction, (Extra, De translatione episcoporum, c. 1, Cum ex illo [c.1, col.96]).

It is attacked fifthly because the one who is elected as emperor is crowned as a king before he is crowned as emperor by the pope. But every king has the power of the material sword. Therefore before the emperor receives from the pope the sword held in its sheath he has the material sword, even with respect to its use.

Chapter 23

Student That reply, to which perhaps we will return later, is clearly refuted. So touch on another argument for the same conclusion.

Master Another argument is as follows. The power of the Roman empire is from that person who received from Christ the power of binding and loosing everything. But Christ gave that power to blessed Peter when he said to him, as we read in Matthew 16:18-19, "You are Peter and on this rock I will build my church and the gates of Hades will not prevail against it. And I will give you the keys of the kingdom of heaven, and whatever you bind on earth will be bound in heaven, and whatever you loose on earth will be loosed in heaven." So blessed Peter could do everything. And consequently he could give the empire to the emperor.

Student Although we will be able to find many things about the basis of that argument in the tract, On the power of the pope and clergy, nevertheless tell me briefly here whether everyone agrees that the pope can do anything without any exception. For it seems that it is so, since Innocent III seems expressly to think and say this when he says, as we find in Extra, De maioritate et obedientia, c. Solite [c.6, col.196] "Let us not pass over as very well known what the Lord said to Peter, and in the person of Peter said to his successors, `Whatever you bind on earth will also be bound in heaven' etc, excepting nothing in saying, `Whatever you bind' etc.”

Master Many regard it as a heresy to say that the pope can do anything without any exception, even speaking about those things which can be done by man. This is because he can do nothing which is against divine law or natural law and also because there are many things which are not against divine law or natural law that he cannot do, many of which indeed can be done by others.

Student I do not doubt that the pope cannot do anything which is against divine law or natural law. So do not give any examples of those things, but touch briefly on some other examples which others bring forward to prove that the pope cannot do everything which is not against divine law or against natural law.

Master The first example is that the pope cannot appoint the pope who is to succeed him, (8, q. 1, para. His omnibus [c.7, col.591]).

The second is that it is not against divine or natural law but in agreement with it that unbelievers should accept the faith. And yet the pope cannot compel unbelievers to accept the faith, (dist. 45, De Iudaeis c.5, col.161] and 23, q. 5, c. Ad fidem [c.33, col.939] and c. Quali nos [c.44, col.943]).

The third is that without blame he cannot compel anyone to enter a religious order, 20, q. 3, c. Praesens [c.4, col.849].

The fourth is that without blame and a manifest reason he cannot order anyone to maintain their virginity, as Ambrose attests when he says, as we read in 32, q. 1, c. Integritas [c.13, col.1119], "For it is only virginity to which one can be persuaded but cannot be commanded. It is a matter more of a desire than of a command."

From these words the fifth example is taken, namely that the pope can command nothing supererogatory of anyone, without blame and without a reason, so that he cannot command chastity or fasting on anyone except by reason of some fault or for some manifest reason, dist. 74, c. Gesta [c.2, col.262], where blessed Gregory says, "As it is just that no one who is unwilling is to be compelled to accept promotion, so I think that it should be resolved that no one who is guiltless is to be ejected unjustly from the performance of his clerical order." From these words it is argued as follows. By plenitude of power the pope cannot eject anyone unjustly. Nor can he, therefore, by plenitude of power force anyone who is unwilling to accept promotion, except by reason of some fault or for some reason.

The sixth is that the pope cannot exempt a monk so that he may have his own goods or contract matrimony, Extra, De statu monachorum, c. Cum ad monasterium where we find the following, "The renunciation of property, like the guarding of chastity, has been so bound to the monastic rule that the highest pontiff cannot grant freedom from that demand."

The seventh is that without a reason the pope cannot grant an exemption from any vow, as the gloss on Extra, De voto et voti redemptione, c. Non est voti attests. About the word ‘fulfil’ it says, "He whom the pope exempts is not safe with respect to God unless there exists a reason for the exemption, just as he is not said to be absolved who suppresses the reason for his excommunication. That one who is granted an exemption without a reason will nevertheless be exempted in the eyes of the church. In the eyes of God the pleading of an exemption will not avail him."

The eighth is that the pope cannot alienate the estates and possessions of the church except for a reason and in the due manner, (12, q. 2, c. Non liceat), where Pope Symachus speaks as follows, "Let the pope not be permitted to alienate an estate of the church in any way at all," that is at his own pleasure, although he can do so in a particular case in the due manner. Nor does a pope impose a law on his successor, but shows what he cannot by right do, as the gloss on dist. 40, c. Si papa says. [col. 195-7]

The ninth is that according to blessed Gregory formerly a pope could not compel subdeacons to chastity. As we find in 27, q. 2, c. Multorum and dist. 31, c. Ante triennium he rejects a constitution of his predecessor. As the gloss on the chapter Ante triennium says, he [the predecessor] commanded that subdeacons who had not promised chastity "be content with their wives only or with their benefices. Later the same pope,” Gregory’s predecessor Pelagius, “issued a constitution in which he absolutely forbad subdeacons from uniting sexually in any way with their wives from that time on." In writing about that constitution blessed Gregory says "Three years ago the subdeacons of all the churches of Sicily were forbidden," by Pope Pelagius, “from uniting sexually with their wives as was the custom of the church of Rome. It seems to me unsuitable and harsh that he who has not undertaken the practice of continence and has not promised chastity should be compelled to be separated from his wife and because of her absence fall into worse behaviour." In conveying the legal problem of this chapter the gloss says the following about that constitution of Pope Pelagius, "But that constitution was unjust because someone who did not promise to remain continent was forced to be continent. It is retracted by Gregory and established here that those who are now subdeacons will not be forced to be continent it unless they want to do so. Anyone in the future who is to be ordained, however, is not to be admitted to ordination unless they promise to remain continent." And the gloss on the word ‘harsh’ says, "The statute of Pelagius was against the gospel in which only fornication is expressly mentioned. And therefore it was rejected."

Student If what Pope Pelagius commanded was against the gospel, that example does not prove that the pope cannot do anything which is not against divine or natural law.

Master The reply to you is that the statute of Pelagius was both against the gospel and against the freedom or right of those subdeacons and their wives, because he wanted to force the subdeacons to be continent, notwithstanding the gospel and notwithstanding the freedom or right of both the subdeacons and their wives. For it was in the power of the subdeacons with the consent of their wives to be continent and this was not against the gospel. But Pope Pelagius could not take that power away from the subdeacons and their wives, as Gregory attests. He was not able, therefore, to do everything that was not against divine or human law. And from this opinion of Gregory we conclude that the pope can do nothing against the freedom and right of any Christian, even in spiritual matters, except by reason of fault or for some clear cause, since no one can deprive another of his right and his freedom without some fault or for some reason. And so except by reason of some fault or for some cause he cannot order anyone, except with that person’s consent, to undertake a fast to which he is not bound or to give alms which he is not bound to give or to do anything similar.

Student We will be able to find many things about this and other matters in the tract On the power of the pope and clergy. So touch briefly on some more examples.

Master A tenth is that he cannot force anyone who steadily refuses to do so, to take on an ecclesiastical dignity, as the gloss on 23, q. 4, c. Displicet notes.

An eleventh is that he cannot decree that he not be accused of heresy, as the gloss on dist. 40, c. Si papa attests when it asks, "Can the pope decree that he cannot be accused of heresy?" In reply it says, "No, because if he did so the whole church would be endangered." And for a similar reason he could not decree that he cannot at all be accused of some other crime, since he cannot decree that he cannot be accused of that crime for which he can be deposed. But for any other crime the pope can in a particular case be deposed, as the gloss in the same place attests when it says, "Certainly I believe that whatever his crime be, if it is notorious and the church is as a result scandalised and he is incorrigible, then he can be accused", and, consequently judged, because the accusation should be made before a judge. So he cannot decree that he cannot be accused of and judged for any crime at all.

According to some people a twelfth is that he cannot compel someone to confess a sin which he has confessed to someone else able to absolve him, because the confession of sins is something sacramental which lies under divine command not human.

A thirteenth is that the pope cannot force someone to contract marriage. Some people offer an argument for this by saying that a man is not bound to obey man but only God with respect to those things which pertain to the nature of the body, because all men are equal in nature, that is in those things which pertain to the sustenance of the body and the generation of offspring, as in the contracting of marriage, the maintaining of virginity or anything else of this kind.

A fourteenth is that in temporal matters the pope cannot make someone legitimate, as is noted in Extra, Qui filii sunt legitimi, c. Per venerabilem.  

A fifteenth, which includes very many examples, is that outside the lands subject to his temporal jurisdiction the pope cannot do those things which a temporal lord can do to his slaves as slaves.

Student That example has strength from the fact that not all men are absolute slaves of the highest pontiff, because if the pope could do everything which was not against natural or divine law he would be able to do everything against emperors, kings, princes, and all mortals generally that any lord can do against any slave of his and so no one except the pope would be free but all would be slaves of the pope. Now although we can find much about that and indeed about anything else that pertains to the power of the pope in the first tractate of this third part of our dialogue, would you nevertheless try to show briefly here by argument that not all men are absolute slaves of the pope.

Master This seems provable in many ways. Firstly: kings, princes and other laymen have ownership of temporal things; however, a slave has nothing of his own; therefore not everyone is a slave of the pope. Secondly: there is a difference between slaves of the church and slaves of others; therefore not all men are slaves of the highest pontiff. Thirdly: the pope does not have all the same power in the lands subject to his jurisdiction as in the other lands not subject to his temporal jurisdiction; therefore not all men are absolute slaves of the highest pontiff. Fourthly: there are some men who do not have principal lords, (Extra, De haereticis, c. Excommunicamus); therefore not all men are slaves of the pope. Fifthly: if all men were absolute slaves of the pope, the pope could at his pleasure alienate any temporal thing at all; so he could alienate at his pleasure the estates of the church, against 12, q. 2, c. Non liceat papae. Sixthly: the pope should not domineer over the clergy, according to Peter's statement (1 Peter 5:3), "Not domineering over the clergy." Therefore clerics are not absolute slaves of the highest pontiff.

Chapter 24

Student I will have occasion to speak of that matter later. So briefly complete the arguments for the opinion which we are now discussing.

Master That the empire is from the pope is proved by the following argument. The empire was from Christ because he was not only a priest but he was also king of all temporal affairs, in token of which he did some things in so far as he was emperor and some in so far as he was a priest, as the gloss on dist. 10, c. Quoniam idem notes. So the empire is from the pope who is the vicar of Christ on earth.

Student Tell me how reply is made to that argument.

Master Reply is made in two ways; in one way that it is heretical to say that Christ as a mortal man was a king in temporal affairs.

Student We will be able to find enough about this in the third tractate of the second part of this Dialogue. So tell me what the other reply is.

Master The other reply is that a vicar does not always have all the power which the one whose vicar he is has. And therefore even if Christ had been a king in temporal affairs and the empire had been from him, it could not be concluded from this that the empire is from the vicar of Christ.

Student Bring forward another argument.

Master Another argument is this. A priest of the old law was above kings, as God attests who said to the prophet and priest Jeremiah in Jeremiah 1[:10], "See I have set you this day over nations and over kingdoms", etc. Much more clearly, therefore, is the highest priest of the new law over the empire.

Student Tell me how reply is made to this.

Master There are many replies. One is that a priest of the old law was not above kings except in spiritual matters, but not in temporal affairs. So the highest pontiff is above the emperor in spiritual matters not in temporal affairs. Another reply is that the highest priest of the new law is not considered as similar to the highest priest of the old law. And so even if the highest priest of the old law had been above the king, it could not be inferred from this that the highest priest of the new law would be over the emperor. A third reply is that although Jeremiah was a priest, nonetheless he was not the highest priest. And so it cannot be proved from that authoritative text that the empire is from the highest priest of the new law, unless it could also be proved in the same way that the empire is from a priest inferior to the highest pontiff. But this is not true.

Student Would you bring forward another argument?

Master Another argument is as follows. By the sun and the moon we understand the highest priesthood and the empire. Genesis 1:16 says about these, "God made the two great lights", etc. Just as the moon receives light from the sun, therefore, so the emperor receives power from the pope.

Student What reply is made to that argument?

Master The reply is that although by the sun and the moon we may understand the highest priesthood and the empire, nevertheless the relationship between the empire and the highest priesthood is not the same in every way as that between the moon and the sun. For if we grant the analogy, the opposite conclusion to that of the aforesaid argument might be deduced. This is firstly because just as the moon is not from the sun but both are from God, so the empire would not be from the highest priesthood but both would be from something else. Secondly, it is because, just as the moon has some strength and power which it does not have from the sun, namely over waters and fluids, so the emperor would have some power which he would not have from the pope. So we may say that in one respect there is a similarity between the sun and the moon and the pope and the emperor, and in another respect there is no similarity. For there is a similarity in this respect, that just as the sun is worthier and nobler than the moon, so the highest priesthood is worthier and more noble than the empire, even as spiritual matters are worthier than temporal ones.

Again, just as the moon receives light from the sun, so in many matters, in God's causes for instance, the emperor ought to receive direction from the pope, when he is catholic, good and wise. However, in many respects there is no similarity, as was said above.

Student Would you bring forward yet another argument?

Master Here is another argument. The church is one body. Therefore it has one head. But the emperor is not the head. So the pope is the head of the church. Now the members of a body derive their strength from the head. Therefore the emperor, who is a member of the church not its head, should receive his strength from the pope as from its head. Therefore the empire is from the pope.

Student Tell me what reply is made to this.

Master The reply is that the pope is the head of the church, which is the congregation of the faithful. And so in spiritual matters the emperor is subject to the pope. And therefore he ought to receive from the pope some spiritual direction and strength. But because the pope is not head in temporal matters, so the emperor is not subject to him in temporal matters and he should not receive the empire from him.

Chapter 25

Student By argument and response we have fairly extensively treated the third opinion recorded in chapter 18 above. However, now I want to know how it is rejected.

Arguments against Opinion 3

Master That opinion makes two points. The first is that the empire is from the pope. The second is that no empire can be a true one unless it is from the pope. Some people say that the first is false, but they say that the seond heretical.

Student Let us treat the second point first. Tell me why some people say that it is heretical.

Master Some people try to show that this is heretical as follows. What is contrary to divine scripture should be regarded as heretical. But that there cannot be a true empire except from the pope is contrary to divine scripture. For they say that it is quite certain from divine scripture that many pagans were true emperors. For the evangelist Luke attests this of Octavian when he says in his second chapter, "A decree went out from Caesar Augustus that all the world should be enrolled." We gather from these words that Octavian, to whom those words refer, was a true emperor.

Again, in Matthew 22[:21] Christ said to the Jews, "Render to Caesar the things that are Caesar's." We are given to understand by these words that he was a true Caesar, and yet he did not have his empire from the pope; indeed he was an unbeliever and a pagan. Therefore a true empire, true temporal lordship, true temporal jurisdiction and the true power of the material sword existed and can exist among unbelievers and outside the catholic church, although unbelievers sometimes, and perhaps usually, abuse such legitimate power. But it cannot be inferred that the dignity or power of someone who abuses it is less true, as Augustine attest when he says (in 14, q. 5, c. Neque enim), "The wickedness of a tyrannical faction will not be praiseworthy if the tyrant treats his subjects with royal clemency, nor is the rank of royal power invalid if the king rages with tyrannical cruelty. For it is one thing to want to use unjust power justly and it is another to want to use unjust power justly." These words make us understand that anyone can abuse true power and true lordship, and so it cannot be proved from its abuse by unbelievers that there are not among them true lordship and true power of the material sword.

Student I think that I understand why its attackers might regard the aforesaid opinion as heretical. So bring forward only those authoritative texts by which they try to prove that there has been true temporal lordship and true power of the material sword among unbelievers?

Master For this purpose they bring forward both texts from the Old and New Testament and also texts from the saints, the fathers and our forebears. For, as we read in Genesis 23[:8-16], Abraham refused to accept for nothing a double cave in which to bury his wife but bought it from the unbeliever Ephron. He would not have done this if Ephron had not had a true right to it. The believer Jacob too recognised that the unbeliever Laban had true lordship of some temporal things when he said to him, as we find in Genesis 31[:32, 37, 38], "Take whatever you find that I have that is yours. ... What have you found of all your household goods? ... Your ewes and your she-goats have not miscarried and I have not eaten the rams of your flock."

Again, we find in Genesis 39:5, "And the Lord blessed the Egyptian's house for Joseph's sake and multiplied all that he had in house and field." Therefore that unbeliever had true lordship of things.

Again, speaking in Genesis 41[:35] of pharaoh's legitimate power Joseph says, "Let all the grain be laid up under the authority of pharaoh." And it is written in Genesis 47[:20-1, 23], "So Joseph bought all the land of Egypt; for all the Egyptians sold their fields because the famine was severe upon them. And he subjected the land and all the people to pharaoh. ... Behold, as you see, pharaoh possesses both you and your land."

Again, we read in Deuteronomy 2[:4-6, 9, 17-19] that God gave true lordship of lands to certain of the unbelievers. This is written there, "You are about to pass through the territory of your brethren, the sons of Esau, who live in Seir; and they will be afraid of you. So take good heed; do not contend with them; for I will not give you any of their land, no, not so much for the sole of the foot to tread on, because I have given Mount Seir to Esau as a possession. You shall purchase food from them for money that you may eat; and you shall also buy water of them that you may drink. ... And the Lord said to me, `Do not harass Moab or contend with them in battle, for I will not give you any of their land because I have given Ar to the sons of Lot as a possession' ... The Lord said to me, `This day you are to pass over the boundary of Moab at Ar; and when you approach the frontier of the sons of Ammon, do not harass them or contend with them, for I will not give you any of the land of the sons of Ammon because I have given it to the sons of Lot as a possession.'"

Again, we read in 3 Kings 9[:11] that Solomon freely gave to Hiram king of Tyre, who is not one of the children of Israel, twenty cities in the land of Galilee. He would not have freely given them to him, however, if Hiram had not been capable of true lordship of any temporal possessions.

Again, in 3 Kings 19[:15] the Lord ordered the prophet Elijah to anoint Hazael as king over Syria although he was an unbeliever. Now it is certain that a kingdom given by God is a true kingdom. Therefore an unbeliever was fit for a true kingdom, true lordship and true temporal power.

Again, in 2 Chronicles 36[:22-3] and 1 Ezra 1[:2] we read as follows, "The Lord stirred up the spirit of Cyrus king of Persia so that he made a proclamation throughout all his kingdom and also put it in writing: `Thus says Cyrus king of Persia: The Lord the God of heaven has given me all the kingdoms of the earth and he has charged me to build him a house at Jerusalem.'" The following is also said of him in Isaiah 45[:1], "Thus says the Lord to his anointed, to Cyrus, whose right hand I have grasped to subdue nations before him and turn the backs of kings."

Again, we read in Tobit 2[:20-1] that when Tobit's wife Anna "receiving a young kid had brought it home, her husband said to her when he heard it bleating, `Be careful lest perhaps this goat is stolen; return it to the owners for we are not permitted to eat or touch anything stolen.'" We gather from these words that the unbelievers among whom Tobit was living had true lordship of things.

Again, in Daniel 2[:37-8] Daniel said to the infidel king Nebuchadnezzar, "You, O king of kings, to whom the God of heaven has given the kingdom, the power, the empire and the glory, into whose hand he has given human beings, wherever they live, the wild animals of the field and the birds of the air, and whom he has established as ruler over them all."

Again, we read as follows in Daniel 5[:18], "The most high God gave your father Nebuchadnezzar kingship, greatness, glory, and majesty." We conclude from these words that Nebuchadnezzar had a true kingdom and empire. For God does not give a false empire and kingdom but a true one.

Again, Herod was an unbeliever and yet was a true king of Judea. Thus it is said about him in Matthew 2[:1], "In the time of King Herod after Jesus was born in Bethlehem of Judea ...." And we read in Luke 1[:5], "In the days of King Herod of Judea, there was a priest named Zechariah", etc.

Again, we read in Matthew 17[:25] that Christ questioned Peter, saying, "What do you think, Simon? From whom do the kings of the earth take toll or tribute? From their children or from foreigners? When Peter said, `From foreigners,' Jesus said to him, `Then the children are free.'" We gather from these words that foreigners are not free from tribute, but children are. And consequently foreigners owe tribute at law. It follows from this that even unbelieving kings are true kings because it was of them that Christ was speaking.

Again, we read in Luke 3[:12-3], "Even tax collectors came to be baptised, and they asked him," that is John the Baptist, "`Teacher, what should we do?' He said to them, `Collect no more than the amount prescribed for you.'" Therefore tax collectors legally received what was prescribed for them, although it had been prescribed by unbelievers.

Then follows [Luke 3:14], "Soldiers also asked him, `And we, what should we do?' He said to them, `Do not strike or make a false allegation against anyone, and be satisfied with your wages.'" If, however, they were to be content with the wages which they received from pagan princes, those unbelieving princes had true lordship of what they were giving the soldiers, because it would not be permissible for soldiers to receive wages from those who have nothing but only tyrannically appropriate the goods of others.

Again, at John 19[:11] Jesus said to Pilate, "You would have no power over me unless it were given you from above." Power given from above, however, is legitimate and not usurped. Therefore Pilate had legitimate power, although he was not using it legitimately.

Again, the apostle says at Romans 13[:1], "Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God." The apostle seems to be speaking here about unbelieving authorities, about those, that is, to whom the Romans offered taxes. The apostle says [Romans 13:6,7], "For the same reason you pay taxes ... Pay to all what is due them, taxes to whom taxes are due, revenue to whom revenue is due." But the Romans used to pay taxes only to Caesar and his subjects, who were unbelievers. Therefore unbelievers there had power instituted by God, and so had true temporal power.

Again, at 1 Corinthians 7[:20-1] the apostle says, "Let each of you remain in the condition in which you were called. Were you a slave when called? Do not be concerned about it." So someone is a slave before his call to the faith, and, as a consequence, someone else is his true lord.

Again, the apostle says at 1 Timothy 6[:1-2], "Let all who are under the yoke of slavery regard their masters as worthy of all honour, so that the name of God and the teaching may not be blasphemed. Those who have believing masters must not be disrespectful to them on the ground that they are brethren but rather must serve them all the more as believers." Here the apostle seems to distinguish between slaves having unbelieving masters and slaves having believing masters, and he orders unbelieving masters to be honoured. He would not do this unless some unbelievers were true masters.

Again, blessed Paul affirms that he is a Roman citizen, as is clear in Acts 16[:37] and 22[:25-7]. But he was not a Roman citizen except by the authority and grant of the Romans, since at the time he was not at Rome. Therefore the Romans had true power by which they could grant Roman citizenship to others.

Again, as we read in Acts 24[:10], blessed Paul said to the pagan Lisias [actually Felix], "I cheerfully make my defence, knowing that for many years you have been a judge over this nation." Here Paul recognised that a pagan was a true judge.

Again, as we find at Acts 25[:10-1], Paul regarded Caesar as a true judge, since he appealed to him in these words, "I am appealing to the emperor's tribunal; this is where I should be tried. ... I appeal to the emperor."

Again, in [verses 13-14 of] the second chapter of his first letter blessed Peter says, "For God's sake accept the authority of every human being, whether of a king, as supreme, or of dukes, as sent by him." At that time, however, no Christians were kings or dukes. Therefore blessed Peter wanted Christians to accept the authority of unbelieving kings and dukes. Hence, unbelievers had true lordship.

Again, blessed Peter adds below in the same place [1 Peter 2:18], "Slaves, accept the authority of your masters with all deference, not only those who are kind and gentle but those who are harsh." He implies by these words that even those who are harsh can be true masters and should be obeyed.

It is clear to some people that this could also be shown by the testimony of many saints, but I will bring forward [only] a few. We read in 11, q. 3, c. Iulianus that Ambrose says, "Although the emperor Julian was an apostate he nevertheless had under him Christian soldiers who obeyed him when he said, `Advance the battle front for the defence of the republic.'" And in the same part of the canon Augustine says about the same man. "Julian was an unbelieving emperor. Isn’t it the case that he remained an apostate and wicked idolater? When it came to the cause of Christ they [his soldiers] knew only him who was in heaven. When he wanted them to worship idols and offer incense they set God above him. However, when he said, `Advance the battle front, move against those people', they obeyed at once and distinguished the eternal Lord from their temporal lord." So although Julian was apostate he was a true lord and a true emperor.

Student It seems too absurd that an apostate and heretic was a true emperor and true lord of temporal goods, since heretics possess no temporal goods by right, as we gather plainly from the sacred canons, dist. 8, c. Quo iure, Extra, De hereticis, c. Excommunicamus, and the whole of 23, q. 7. So Julian was not a true emperor nor a true lord of temporal goods. The gloss on the article from Ambrose cited above, Iulianus, seems to imply this when it says, "Until now Julian was tolerated by the church so that he would not stir up hatred against Christians." So although Julian was tolerated by the church he was not a true emperor.

Master The reply to this is that it is not by divine law that heretics have no property and no secular dignity, but by human law, and therefore before heretics were deprived by human laws of their lordship of temporal goods they had true lordship of temporal goods. And so because in the time of Julian apostates and heretics were not deprived of temporal goods, Julian was a true emperor and a true lord of temporal goods. Afterwards, however, heretics were deprived of lordship of temporal goods by the human laws of the emperor and the pope. And so from that time no true lords of goods have been heretics. But it is about this later time that the sacred canons speak, not about the time when Julian lived.

There are two ways to reply to the gloss that was cited. In one way it is said that Julian was tolerated by the church as a true emperor and not as one holding only a usurped empire. It is said otherwise that at that point the glossator had no memory of things done in the time of Julian, because, as we read in various authentic writings, Julian stirred up what hatred he could against the Christians, and so the church did not tolerate him so that he would not stir up hatred against Christians. But it tolerated him because it could not in fact deprive him of the empire. And if by its judgement it had deprived him of the empire, that deprivation would have harmed the church, not profited it.

Student Would you bring forward some other sayings of our forefathers for the same point of view.

Master We draw this conclusion from the legend of St. Mauritius and his companions, in which we read that they said the following: "We are your soldiers, O emperor, but yet we are servants of God as we freely confess. We owe you military service, but we owe him our innocence." And yet that emperor, Maximianus, was an unbeliever.

Again, as we read in their Legend, Paul and John said to Julian the Apostate, "We do not do such injury to you as to put any secular person at all before you, but we put the lord who made heaven and earth before you." Therefore those saints regarded Julian the Apostate as a true emperor.

Chapter 26

Student Although that opinion which posits that the empire is from the pope should be more fully discussed, and especially in so far as it posits that the empire is from the pope only, yet because there will be in the future an opportunity of speaking about this and other matters which that opinion incorporates when we deal with alternative points of view, let us therefore briefly reflect upon the opinion that posits that the Roman empire was established by God and not by men. Would you try to argue for that?

Opinion 1: The Roman Empire was established by God, not men

Master An authoritative text of Pope John is brought forward for this opinion. As we find in dist. 96, c. Si imperator he says, "The emperor has the privileges of his power which he acquired from heaven for the administration of public laws." The gloss on the words ‘from heaven’ says, "Not therefore from the pope. For the empire is from God alone, as in 23, q. 4, Quaesitum. For the emperor has the power of the sword 'from the heavenly majesty', (C, de veteri iure enucleando, l. 1, at the beginning [Justinian, Codex, I.17.1, ed. Kreuger, p. 69]), which I concede to be the mark of a true emperor".

Again, speaking about the emperor in the same chapter, Pope John says, "... let him not strive against, and so be separated from, him," that is God, "by whom everything has been established, and let him not be seen to fight against the benefits of that one from whom he acquired his own power."

Again, blessed Cyprian, in dist. 10, c. Quoniam idem, and Pope Nicholas, in dist. 96, c. Cum ad verum, express the same opinion in the same words, saying, "Jesus Christ, as a man, mediator between God and men, separated the duties of each power by its own acts and distinct dignities." At this point the gloss says, "Rather it seems that he did not separate them but confuse them since he who was one and the same undertook both duties himself in order to indicate that they derived from the same source. For the law says that the highest gifts, that is the priesthood and the empire, have been granted to us by God, (in the beginning of collation 3 of the section of the Digest Quomodo oportet episcopos).

Again, as we read in 23, q. 4, c. Quaesitum [c.45, col.924], Pope Innocent, speaking about secular powers says, "Our ancestors remembered that these powers were granted by God and that the sword was granted to punish the guilty and given to the minister of God to be a judge in such a case. So how will we find fault with an arrangement which is seen to have been granted under the authorship of God?" We conclude from these words that secular powers are from God. Most of all, therefore, is the imperial power from God. All these things are confirmed by the apostle when he says at Romans 13:1, "There is no power except from God."

Student Tell me briefly how that argument is refuted.

Master It is refuted by virtue of the fact that we do not read that God himself established the emperor and did not do so through another person. So that opinion can be disdained with the same ease as it is proved.

Student Tell me how reply is made to the arguments for that opinion.

Master The reply stresses a single word, ‘only’, in that it is granted that imperial power and all licit and legitimate power generally are from God, yet not from God only. But some power is from God through men, and imperial power is of this kind, from God but through men.

Chapter 27

Student Let us now deal with the second opinion touched on above in chapter 18.

Opinion 2: The Roman Empire was established by God through the Roman people

Master That opinion posits that the Roman empire was originally established by God, but yet through men, namely through the Romans.

The Empire was established by the people

The gloss on dist. 17, para. Hinc etiam seems to attest to this, however we read it, when it says, "The Roman church has authority from the Lord, but the emperor from the people", which ever we read. Hence the gloss on dist 2, Lex est constitutio populi also says, "Formerly the people established laws but not today because they have transferred this power to the emperor." But the empire is from whoever conferred on the emperor the power of establishing laws. So the empire is from the people.

Again, the Roman empire was from those who subjected the rest of the nations to the Roman empire, who entrusted the lordship of these subjugated people to whomever they chose, and who changed, as and when they liked, the way of dominating and ruling those who were obedient to the Romans. But the Romans did this in connection with the people they had subjugated. We find this in 1 Maccabees 8:1, where we read, "Now Judas heard of the fame of the Romans, that they were very strong. ... And they (the Israelites) had heard of their wars and the brave deeds that they were doing among the Gauls, how they had defeated them and forced them to pay tribute, and what they had done in the land of Spain to get control of the silver and gold mines there, and how they had gained control of the whole region by their planning and patience, even though the place was far distant from them. They also crushed the kings who came against them from the ends of the earth, and inflicted a great disaster on them."

Moreover, that they entrusted the lordship of the people they had subjugated and who were obedient to them to whomever they chose is implied in the same place when it says, "Yet for all this not one of them has put on a crown or worn purple as a mark of pride. ... They trust one man each year to rule over them and to control all their land; they all heed the one man and there is no envy or jealousy among them."

Moreover, we find trustworthy writings about their changing their way of dominating and ruling those obedient to them. For sometimes they had kings, sometimes consuls, sometimes one man who was changed every year. Finally, however, they chose an emperor who commanded everyone without his being changed. So the Roman empire was established by the Romans.

Student It does not seem that a true empire came from the Roman people, but only one that was usurped. For the Romans oppressed others. So they did bnot acquire a true empire but only a tyrannical one.

Master There are two replies to this. One is that the Romans understood that it was necessary for the common good of the whole world that one emperor dominate all people. So those who objected to the unity of the empire were deprived of the power of making arrangements about it because they were obstructing the common good. As a result the power of making arrangements about the empire fell to the Romans and to others who agreed with them about this. And thereafter the Romans could licitly make subject to their empire those who opposed or rebelled against them.

Otherwise it is said that although at first and for a long time afterwards the Romans unjustly forced others to be subject to them, nevertheless after other peoples began to agree to their lordship the Romans received true lordship over them. And so after the whole world willingly agreed to the lordship and empire of the Romans, that empire was a true, just and licit empire.

Student Was it necessary for the whole world to agree to the empire of the Romans in order for Roman rule over the whole world to be a true empire?

Master The reply is, as the gloss on Extra, De constitutionibus, c. Cum omnes attests, that when a number of people form one college it is sufficient that those things which must necessarily be done be done by a majority. Now all mortals form one body and one college, and it was necessary at the time when the Romans began to rule the world for one prince to rule all other mortals. So at that time a majority of the people of the world, even if there were others who opposed them, could appoint an emperor over the whole world without the agreement of everyone being required. Similarly, it was not necessary for all to agree when kings and princes were placed in authority and likewise, if some country had been invaded by enemies, the majority could appoint one head over them for the defence of their country even if some people opposed them.

Student According to that it would seem that the Romans subjugated the whole world to themselves justly and without sin. This does not seem to be so since Augustine censures them for their love of ruling.

Master The reply is that if in making arrangements for the empire the Romans had been moved solely by love of the common good and the republic and not by a love of ruling and had neither intended their own vain glory nor had any corrupt intention in doing this, they would have been without sin. And perhaps some of them did not sin in acquiring imperial rule or cooperating in its acquisition. If they were exerting themselves for their own advantage, however, so that they might rule others or increase their own wealth, they did sin. Hence, as we read in 23, q, 1, c. Militare, Augustine says, "To wage war is not wrong, but to wage war for the sake of booty is a sin. And it is not sinful to govern the republic, but likewise to govern the republic in order to increase one's wealth seems to be reprehensible." Similarly, therefore, it is not a sin to work to subjugate the world to one prince, but it seems that it should be regarded as blameable to do this out of vain glory or in order to strike fear into others or out of a pleasure in ruling.

Student If the Romans had a corrupt intention in acquiring their empire, with the result that they sinned reprehensibly, should the empire so acquired be considered usurped and illicit and not a true one? It seems that if it was acquired in this way with a corrupt intention it was not a true empire, because no temporal good acquired illicitly passes into the true lordship of the one acquiring it. Augustine deals with this in his letter to Vincent (found in 23, q. 7, c. 1) where he says that the lordship of all temporal belongs to the just and that the impious do not by right have true lordship over anything because they do not possess by right those things that belong to other just men.

Master The reply is that notwithstanding the corrupt intention of the Romans, the Roman empire acquired with the consent of the people was a true empire because a corrupt intention does not prevent the acquisition of true lordship. For he who buys something with a wicked intention does not on that account fail to acquire true lordship of the thing bought. And he who with a wicked intention receives something from a donor who is able to give it obtains true lordship of the thing given. And so a wicked intention does not prevent the acquisition of true lordship either in the transferring of some temporal thing or in receiving the thing transferred.

Now it is said that some people understand that authoritative text of Augustine wrongly. For Augustine does not mean that by divine right true lordship of everything is ascribed to the just, because then no sinner would have true lordship of any temporal thing. And so whenever some king, prince or other rich man sinned mortally, true lordship of all his goods would pass to the just and would not remain in the possession of any sinner. So Augustine means that by divine right everything belongs to the just in the sense of the dignity of their merit. Thus only the just are worthy of true lordship of temporal goods and no sinner is worthy of any temporal good. So whatever the sinner possesses he possesses unworthily.

Student It still seems that before Constantine resigned it, the Roman empire was not a true empire because outside [the church] all things build toward hell. As the apostle says at Romans 14[:23], "Whatever does not proceed from faith is sin." So no power outside the church has been ordained by God.

Again, Constantine would not have resigned the empire to the pope unless he had perceived that he did not have before that a true empire. So before that resignation the Roman empire was not a true empire.

Master The reply is that it is not without exception universally true that all things outside [the church] build toward hell. For not all unbelievers sin mortally in every act. For the midwives about whom we read in Exodus 1[:15-21] did not sin mortally in saving the Hebrew males, although they did sin mortally or venially in lying. Many other unbelievers too do not sin mortally in many of their acts. Now when the apostle says, "Whatever does not proceed from faith is sin", they say that he means that whatever is done against conscience is sin, whether it is done by a believer or an unbeliever.

When it is said moreover that Constantine resigned the empire, they say that this is not found in ancient writings, although certain writings imply that Constantine gave the imperial honour to the apostolic see. For, in dist. 96, Constantinus, we find the following in the Acts of blessed Sylvester, "On the fourth day after his baptism the Emperor Constantine conferred a privilege on the pontiff of the Roman church such that pontiffs or priests throughout the world bishops or priests should have him as head, as judges have the king. In this privilege we read, among other things: 'We together with all our satraps, the whole senate, our nobles and all the people subject to the rule of the Roman church, judge it useful that just as blessed Peter is seen to have been established on earth as the vicar of the Son of God, so also those pontiffs who hold the place of the prince of the apostles should have by grant from us and our empire more ample power of primacy than the gentleness of our earthly imperial serenity is seen to have, choosing the prince of the apostles and his vicars to be our reliable patrons before God. And as ours is an earthly and imperial power, so we have decided that his sacred Roman church should be honoured truly and that the most sacred seat of blessed Peter should be gloriously exalted, more than our empire and earthly throne. We bestow on it power and glory, the dignity and energy and imperial honour. And we decree and ordain that it should have principacy over the four sees of Alexandria, Antioch, Jerusalem and Constantinople and also over all the churches of God throughout the whole world. Also let the pontiff who for the time being is the head of the sacred Roman church be higher than, and ruler over, the rest of the priests even throughout the whole world and let whatever needs to be prepared for the worship of God and for the firmness of the faith of Christians be arranged according to his judgement … We have conferred estates of possessions on the churches of the blessed apostles Peter and Paul for the maintenance of their lights ... Behold, we grant and leave to blessed Peter and blessed Sylvester our palace, the city of Rome and all the provinces, places and cities of Italy and of the western region and we decree through a pragmatic constitution that they should be managed by Sylvester and his successors and we grant that these things are to be managed under the law of the holy Roman church.'"

We conclude from these words that it was not as someone not having the legal and legitimate power to hold the empire that Constantine resigned the empire to the pope nor as someone who before this had not had a true empire. But it was out of piety and imperial munificence he granted to him those things which are named in the above words and in others in the same document. Thus Pope Sylvester did not have any of those temporalities named except by the gift of Constantine, nor by the resignation of something previously held unjustly. Constantine never said that he did not have a true empire before his baptism.

 

Chapter 28

Student Since that opinion holds that the empire was from the Roman people and consequently was not from the pope, you have brought forward some arguments to prove that the empire was from the people. Would you now bring forward some particular arguments to prove that the empire was not from the pope?

The Empire was not from the pope

Master Some arguments for this are implied in the glosses on the decrees and decretals. For a gloss on dist. 10, c. Quoniam idem says, "It is argued that the empire is not had from the pope and that the pope does not have both swords. For the army makes the emperor, as we read in dist. 93, c. Legimus." From this it is argued as follows: the empire is not from him who does not make the emperor; but the pope does not make the emperor because he is made by the army; therefore, the empire is not from the pope.

Student By that argument the empire is not from the Roman people but from the army.

Master The reply is that the army does not make the emperor except by the authority of the Roman people. On account of the danger that could threaten if the emperor were to die while with the army and it lack a head and chief, the Roman people committed to the army the power of creating and choosing the emperor.

Student Bring forward another argument.

Master Another argument is implied by the gloss on Extra, Qui filii sunt legitimi, c. Causam which says, "There was an emperor before he began to receive his crown from the pope and his sword from the altar (dist. 93, c. Legimus), because the empire existed before the apostolate." So since what is earlier is not from what is later it follows that the empire is not from the pope.

Student Those two arguments seem to prove that the empire was not originally from the pope but they do not prove that the empire is not now from the pope. For the power of making an appointment to the empire seems now to be in the power of the pope, although it was not in his power from the beginning; indeed the empire existed before the pope.

Master Some people say that it is clearly proved by those arguments that the empire is not from the pope, in so far as the pope is the vicar of Christ and the successor of blessed Peter. And those who hold that opinion mainly have this point in mind.

Student Would you bring forward some other arguments?

Master A gloss on dist. 10, c. Quoniam idem implies another argument when it says, "If the empire were had from the pope it would be licit to appeal to him in temporal matters. Alexander forbids this and says that those things do not belong to his jurisdiction (Extra, Qui filii sunt legitimi, c. Causam)." For it is possible to appeal from the emperor to the one from whom the empire comes.

Student By that argument it has always been possible to appeal from the emperor because the emperor has always had the empire from someone.

Master It is granted that in some cases it has always been permissible to appeal from the emperor, but in many cases it has not been permissible to do so (though in these cases it has been permissible to appeal from other judges). Therefore the laws that say there should be no appeal from the emperor should not be understood of specific cases which rarely or never arise but of others, just as the sacred canons which say there should be no appeal from the pope should not be understood of a case of heresy, because it is permissible to appeal from the pope in a case of heresy.

Student Would you bring forward another argument?

Master The gloss cited earlier implies another argument when it says, "Again, churches pay tribute to the emperor, as in 2, q. 1, c. Magnum." However, the empire is not from him who pays tribute to the emperor. So the empire is not from the pope if the pope pays tribute to the emperor.

Chapter 29

Student There are still more things that remain to be dealt with concerning the origin of the Roman empire and perhaps an opportunity will arise later to talk about these. So putting them aside for the moment let us investigate whether the Roman empire can licitly be ruined, destroyed, made smaller, divided or transferred. And so let us ask first whether the Roman empire can be transferred.

Can the Roman Empire be Transferred?

Master That the Roman empire can be transferred is proved by three examples. The first is that it was transferred from the Romans to the Greeks (dist. 96, c. Constantinus). The second is that it was transferred from the Greeks to the Germans, in the person of Charlemagne (Extra, De electione, c. Venerabilem). The third is that it was transferred from the Franks to the Germans. Thus a gloss on the word ‘Franks’ in dist. 63, c. Ego Ludovicus says, "Note that the empire of the Franks was earlier, but later the Germans deserved the empire because of their virtues.

Student It does not appear that it should be doubted that the Roman empire can be transferred from people to people. But it perhaps seems doubtful to many how and by whom it can be transferred. Tell me, therefore, how some people think that the empire can be transferred.

Master The Roman empire can be understood to be transferred in many ways. In one way the empire is transferred from the Romans so that it is no longer the Roman empire, in the sense that the Romans have no particular right in the empire more than other nations. The empire can be transferred from the Romans in another way so that it remains the Roman empire and the Romans have some power or a particular right in the empire more than other nations. And the idea of translation can be understood in still more ways: in one way so that the empire is given to someone whose descendants possess the Roman empire by right of succession; in another way so that it is decreed that the emperor is elected from a certain nation or people, if it were ordained, for instance, that no one should be elected emperor unless he is a German; in another way that the power and right to elect an emperor from any nation at all is given to some person or persons.

Student Who has the power to transfer the empire in one of these ways?

Master The reply is that the power to transfer the empire in one of these ways belongs principally to the totality of mortals, just as the power of establishing the empire belongs principally to them. If the totality of mortals wished to do so, therefore, they could transfer the Roman empire from any people to any another.

Student Could the totality of mortals excluding the Romans transfer the Roman empire from the Romans?

Master The reply is that without some fault of the Romans or some clear reason the whole rest of the world could not transfer the empire from the Romans despite their opposition, because they should not be deprived of their right without some fault of theirs and without a reason. Nevertheless, if the Romans were at fault and there were a reason, the rest of the world could transfer the empire from them, because, as we read in dist. 93, c. Legimus, "The world is greater than the city." This is not only true of the world as it includes the city, in that the whole is greater than any part of it, but it also represents the truth when the world is separate from the city. And so the power of making such a transfer for a reason or because of a fault of the Romans is in the power of the rest of the world.

However, according to one opinion the power of transferring the empire is in the power of the Romans in a second sense. For because anyone can surrender a right of his and grant it to someone else, the Romans can surrender the right they have over the empire and transfer that same right to another person or persons, just as the Roman people transferred to an emperor the power of making laws and ruling the empire.

Nevertheless, there are various opinions about the way the Romans transfer their empire. One opinion is that the Romans were not and are not able to transfer the empire from themselves in the first way, that is with the result that they retain no particular right over the empire more than other nations. For just as an emperor cannot impose a law on an emperor, because ‘equals have no sovereignty over each other’, and so cannot deprive his successor of any right which he has, so the Roman people cannot impose a law on those who come after them and cannot deprive them of any right which they have over the empire. And so the Roman people cannot surrender any right that they have over the empire.

Another opinion is that the Roman people could surrender any right that they have over the empire. They could also transfer any right to another person or persons. For although an agreement among individuals does not set aside the force of a public right (Extra, De foro competenti, c. Si diligenti), yet by the agreement and consent of the whole community which some public right affects, the force of that public right is set aside, as long as that public right is not a divine or natural right but is a positive and human right. For although no cleric can give up the clerical privilege which has been granted to the whole college of clerics, yet the whole college of clerics could give up that privilege. So since the right that the Romans have over the empire is a human and positive right, its force can be set aside with the agreement of the whole community of the Romans although it is a public right granted to the community of the Romans. And so with their agreement that right can be totally transferred to another person or persons.

Chapter 30

Student According to that opinion the Romans were able to transfer to the pope the whole of the right they had over the empire, and so the empire could be from the pope.

Did the Romans transfer the Empire to the pope?

Master According to one opinion, the Romans not only were able to transfer the whole of their right to the pope, but did in fact transfer them. And from that time on the empire has been from the pope, and so from that time on the pope has had both swords, not in the sense of executive power but in the sense that he was able to commit the executive power of the material sword to whomever he wished. And it is in this way according to that opinion that the apparent inconsistency of many canons and many glosses on the decrees and decretals is solved.

Student If the Romans transferred the whole of their right to the pope, or were able to do so, they therefore transferred or were able to transfer to him the executive power of the material sword, and so the pope either has or can have the executive power of the material sword.

Master The answer is that the Romans were able to transfer to the pope the whole of the right and power that the whole multitude of Romans had, yet were not able to transfer the whole of the right that some person or some particular or special number of Romans had. For they were not able to give to him the whole right that the Roman emperor had nor every right that the senators or the prefect of the city had. And so they could not transfer to the pope the particular rights of persons, congregations, colleges or particular communities. It was not the whole community of the Romans, however, who had the executive of the sword, but the emperor or some other person under the whole community or some particular community. And therefore the community of the Romans was not able to transfer to the pope the executive power of the material sword.

Student According to that opinion, neither in temporal nor in spiritual matters does the pope have such plenitude of power as be able to do anything at all.

Master That opinion regards it as heretical to say that the pope can do anything at all, because neither from God nor from a man nor from men does he have the power to do anything at all, since from God he does not directly have the executive power of the material sword nor the ability to commit that executive power to someone else. But he certainly has, or can have, from a man or from men, the ability to commit to someone else the executive power of the material sword, although he does not have himself executive power over the material sword.

Student So what right over the Roman empire did the Romans transfer, or what right were they able to transfer, to the pope?

Master The answer is that they were able to confer on him the power of making arrangements for the promoting of an emperor, in the sense that he himself might elect the emperor or commit to others the power of electing him.

Student It is certain from what our forefathers have said that the pope intervened in many matters that concerned the emperor and the empire. And according to that opinion it is not from God that the pope has any more particular power over the emperor and the empire than he has over other kings and kingdoms, but has that power only from the Romans. So what right over the empire did the Romans in fact transfer to the pope?

Master The reply is that no one can answer this, except someone who has carefully looked at the papal privileges, trustworthy registers, or authentic writings about this kind of transfer or about the right over the empire that was conferred on the pope, because the Romans were able to confer on the pope a more or less substantial right over the empire. They were also able to give this sort of right to the apostolic see or only to the person of the pope. They were also able to give it to the pope for one occasion or for several.

Student In this matter should trust be placed in the mere assertion by a pope who says that the whole right of the Romans over the empire has been transferred to him, even if he does not show this by authentic writings or by other proofs?

Master The reply is that no matter with what dignity he shines the assertion of one man should never be believed to the prejudice of others (the whole of 6, q. 2), and therefore in this matter trust should not be granted to the assertion of a single pope to the prejudice of the Romans unless he brings forward suitable proofs.

Student Can the pope lay claim to the right and power to make a disposition about the empire on the basis that he has been accustomed to interfere in the disposition of the empire, since custom acquires the force of law and custom gives jurisdiction and, consequently, a right and legitimate power?

Master The reply is that in connection with those matters which the pope has made a legitimate claim against the Romans he has right and power, but not in connection with other matters.

Chapter 31

Student We have investigated briefly whether the Roman empire can be transferred. Now let us ask whether it can be divided or made smaller or even be destroyed or collapse. And let us see first whether the Roman empire can be destroyed or can collapse.

Can the Roman Empire be destroyed?

Master In that the Roman empire is the empire of the whole world it can be understood as being destroyed or collapsing in three ways. In one way, that it is simply destroyed so that the empire which now is the Romans' would by right remain neither in the possession of the Romans nor of anyone else. In another way, so that the empire does not continue to be in the power of the Romans and would not ever for any reason come back to them. In a third way, so that the empire does not continue to be in the possession of the Romans yet might be able to be returned to them for some reason. In the second and third ways it seems to be said more properly that the Roman empire would be transferred rather than destroyed or collapse. But in the first way it would properly be said that the Roman empire is destroyed or collapses.

Student Can the Roman empire be destroyed or collapse in the first way?

Master As was touched on above in chapter 8 [A Letter to the Friars Minor, p.257], the reply is that the Roman empire cannot be destroyed by right and legally because, just as before there was a Roman empire it could not have been decreed even by the totality of mortals that no one would ever assume imperial rule of the whole world, so after all mortals have been subject to the one empire it cannot be decreed or ordained, even if everyone agrees, that the empire should be completely destroyed, because this would be to the detriment of the common good.

Student Can the Roman empire be destroyed in the second way?

Master One opinion is that it can be destroyed in such way that it will never come back to the Romans. But it cannot be removed from them in this way without the Romans being clearly at fault. Their fault could be such, however, that they would deserve to be deprived of the empire in this way, because, just as through his own fault anyone at all can be deprived, he himself and all his descendants, of all his temporal goods, his honours and rights and any privileges, so also any particular community or corporation can, because of its own fault, be deprived forever of any special right or honour.

Another opinion is that for no fault at all can the community of the Romans be deprived forever of the Roman empire because such a perpetual deprivation could redound to the detriment of the whole totality of mortals. Therefore, it should not be regarded as permissible.

Student That argument is not conclusive because to deprive anyone at all in this way of every right of his forever could redound to the detriment of the common good. So every such deprivation should be considered impermissible.

Master The reply to this is that to deprive anyone of every right of his in such a way that no one could in any eventuality revoke the sentence before its execution was enjoined, is neither permissible nor just. Hence even if someone is condemned to death absolutely for some crime some general conditions are always implied, just as in every oath, promise, agreement and vow some general conditions ought to be implied. So the community of the Romans could for some fault of theirs be absolutely deprived of every special right and privilege that it has over the Roman empire, and yet some general conditions should be implied. And therefore because the community of the Romans should not be wholly destroyed, so a sentence of this kind against the Romans should never be enjoined for execution without its revocation being possible for some reason. Yet for some fault of theirs or even for a [valid] reason the Romans can be deprived of the empire in such a way that they can never justly acquire the empire without its being newly conferred by that one or those who can confer it on them, unless everyone else for some fault of their own were justly to lose the empire.

Student Can the Roman empire be destroyed or collapse in the third way, so that the Roman empire may not continue to be in the possession of the Romans, yet can for some reason come back to them?

Master They say that this is possible, because it can be transferred from the Romans to another people or person.

Student Can the Roman empire be divided or made smaller?

Master One opinion is that the Roman empire can neither be divided nor made smaller without the express or tacit agreement of the whole totality of mortals, because if a private person and a partial or particular community should not be deprived of its right without some fault or reason, it is much more surely the case that the total community of mortals should not be deprived of its right. Now the Roman empire belongs principally to the total community of mortals, just as the lordship of temporal goods belongs principally to the same community. Hence the Lord said to our first parents on behalf of the whole community of mortals [Gen. 1:28], "Fill the earth and subdue it; and have dominion over the fish of the sea." Therefore the community of mortals should not be deprived of its right over the empire without its agreement. If the empire were made smaller or divided, however, the community of mortals would be deprived of some right which it has over the empire, because after any temporalities have been divided among the parts of any community they do not belong to the whole community. So the Roman empire cannot be made smaller or divided, at least without the tacit or express agreement of the community of mortals.

Student Many issues need to be dealt with in relation to the possibility of the destruction, division, diminution and translation of the Roman empire, but because many of them will find a place later, I put aside the investigation of them for now. I ask about one thing only, that is whether any part of the community of mortals can, without its express or tacit agreement, be deprived of the right which it has in common over the empire.

Master The reply is that because of some fault any person or partial community can be so deprived of the right which it has in common over the empire, that every one of its rights falls to others. This is why some people think that through the fault of heretics, Jews and other unbelievers all rights in the empire have fallen to Christians, with the result that Christians can freely dispose of the whole empire, just as the whole community of mortals has always been able to.

Student About this matter I ask further whether any Christian or anyone else can without any blame willingly and freely renounce every right that it has in common over the empire.

Master There are various opinions about this. One opinion is that it is permissible to renounce every right of this kind. So it is said that the Friars Minor have licitly renounced every such right because it is permissible to renounce every human and positive right. Another opinion is that it is not permissible to renounce a right of this kind because it is not permissible to renounce a public right. A right of this kind which is held in common, however, is a public right. And therefore it is not permissible to renounce it.

 

 

 

3.2Dial. Book 2

Revised version of the translation in

/pubs/dialogus/t32d2Con.html

CHAPTER 1

Student Just as “the ecclesiastical order is thrown into confusion if a bishop’s jurisdiction is not preserved,” as the sacred canons attest (the gloss on Extra, De accusationibus, c. Sicut olim and 11, q. 1, c. Pervenit), so also it is clear that the order of humanity is thrown into confusion if the rights of each person who is in command in temporal affairs, and especially he who is supreme ruler, are not preserved. But they cannot be preserved unless they are known. Now I propose, therefore, that we investigate the rights and the power of the Roman emperors. But in order to begin with the basics I ask first of all whether the power of the emperor and the power of the pope are distinct powers, whether one comes from the other or not.

The rights and powers of the Roman Emperor

Are the powers of the Emperor and the pope distinct powers?

Master Many people maintain that they are distinct powers.

Student If there are statements of our forefathers which express that assertion would you bring them forward. For perhaps I will better understand from them everything that you are going to say on this matter.

Master Many sacred canons and glosses on the decrees and decretals seem to assert clearly that those powers are distinct. So Pope Nicholas says in dist. 96, c. Cum ad verum, "Since the truth has come, the emperor has not seized the rights of the pontificate for himself nor has the pontiff usurped the imperial name for himself." Here the gloss [on the word ‘usurped’] says, "It is argued that since those powers are separate, the emperor does not have his sword from the pope."

Again, in the same distinction, c. Duo sunt Pope Gelasius says, "There are indeed, august emperor, two powers by which this world is principally ruled, the sacred authority of bishops and royal power." Here the gloss on the word ‘authority’ says, "Neither depends on the other, and this is an argument on behalf of the emperor.”

Again, the gloss on the words ‘quod ad regem’ in Extra, Qui filii sunt legitimi, c. Causam says, "Thus it is clear that temporal and spiritual jurisdictions are separate and distinct."

Again, the gloss on the word administrationibus in dist. 10, c. Imperium says, "For his [the emperor’s] power is distinct from pontifical power."

Again, in Extra, De privilegiis, c. Sicut, Gregory says, "Just as we do not want to disturb the privileges of the laity in their courts, so we want to resist with moderate authority those who are prejudicial to us." Here the gloss says that the argument is “that the church does not want to arrogate to itself the rights of the other because its jurisdiction should be distinct."

Again, in Extra, De iudiciis, c. Novit, Innocent says, "Let no one think that we intend to disturb or diminish the jurisdiction of the illustrious king of the Franks, since the latter neither wants nor ought to hinder our jurisdiction."

Student Those words do not mention the emperor, but the king of the Franks.

Master We learn from these words that the power of the king of the Franks is distinct from the power of the pope. From this we conclude that it is much more surely the case that the power of the emperor is distinct from the power of the pope. This is firstly because the emperor's power is greater than the power of the king of the Franks, and secondly because, as was touched on above, no writings declare that any power over the emperor was bestowed on the pope which he does not have over the king of the Franks.

So the gloss on the above words of Innocent III says, "It is clear from what is said here that neither the church nor the pope has both swords. ... Therefore the pope should not involve himself in temporal jurisdiction except to provide help, when a secular judge is negligent, for example."

Again, we cited above Cyprian’s words found in dist. 10, c. Quoniam,"Christ, distinguished the duties of each power by their own proper responsibilities and distinct dignities" The gloss here on the word ‘distinguished’ says, "So since those powers are distinct there is here an argument that the empire is not obtained from the pope. ... I believe that those powers are distinct, although sometimes the pope assumes both powers to himself." From these and many other authoritative texts we conclude that the powers of the pope and of the emperor are distinct powers.

 

CHAPTER 2

Student It seems that there should be no doubt that they are distinct powers, but I do not know how they are distinguished. So would you tell me how it is opined that they are distinguished?

The opinion that the pope has power in spiritual matters, the emperor in temporals

Master It is said that they are distinguished by this, that the pope has power in spiritual matters, the emperor in temporal matters.

Student Try to buttress that assertion with some authoritative texts if you can.

Master That assertion seems able to be strengthened by many authoritative texts. For in Extra, De maioritate et obedientia, c. Solitae Innocent III says, "We do not deny that in temporal matters the emperor rules those who receive temporalities from him. But the pope is superior in spiritual matters, which are worthier than temporal matters to the extent that the soul is esteemed over the body."

Again, Cyprian in dist. 10, c. Quoniam idem, and Pope Nicholas in dist. 96, c. Cum ad verum, say that the duties of those powers were distinguished by Christ "so that Christian emperors would need pontiffs for eternal life and pontiffs would make use of imperial laws in the course of temporal affairs only. Thus a spiritual act would be removed from carnal distractions, and one serving as a soldier of God would not involve himself in secular affairs and, on the other hand, he who had been involved in secular affairs would not be seen to have the management of divine matters."

Again, in the same distinction c. Denique, Nicholas says, "Indeed, we do not at all understand how those people who are allowed to oversee human affairs only and not divine affairs, presume to make judgements about people by whom divine matters are managed."

Again, in dist. 10, c. Suscipitis Gregory Nazienzanus writing to the emperors in Constantinople says, "Do you accept the freedom of the word? Do you freely accept that the law of Christ has subjected you to priestly power and its tribunals? For he both gave us power and gave us a more perfect principacy than yours. Does it seem just to you if the spirit gives way to the flesh, if heavenly affairs are surpassed by earthly affairs, if human affairs are preferred to divine affairs?"

Again, Innocent III says at the place cited above [Extra, De maioritate et obedientia, c. Solitae], "God made two great lights in the firmament of heaven, a greater light to preside over the day and a lesser light to preside over the night, one of which is great and the other greater. … In respect of the firmament of heaven, that is the universal church, God made two great lights, that is he established two dignities, which are pontifical authority and royal power. But the power which presides over the days, namely over spiritual affairs, is greater, that presiding over carnal affairs is lesser, so that the difference between bishops and kings is known to be as great as that between the sun and the moon." From these and innumerable other authoritative texts, some of which were brought forward in chapter 1 above, we conclude that the emperor has power in temporal affairs and the pope in spiritual affairs.

 

CHAPTER 3

Student It seems to have been shown adequately that the emperor's power has regard to temporal, carnal, secular and human matters and papal power to spiritual matters. But I do not perfectly understand what matters are temporal and what are spiritual. Let us try to investigate, therefore, what the temporal, carnal, secular and human matters are that concern imperial power.

What are temporal matters?

Master It seems to some people that from various distinctions found in different writings we gather what those matters are over which the emperor's power endures.

Student I will willingly listen to those distinctions.

Master One is that some men are spiritual, some carnal or natural. We draw this distinction from chapters 2 and 3 of 1 Corinthians. For the apostle clearly says in 2:14-15, "The man who is natural, however, does not perceive those things which are from God's spirit ... He who is spiritual judges all things and is himself judged by no one."

Another distinction is that some people belong to the church and some are secular. This distinction comes from the words of Jerome in 12, q. 1, c. Duo sunt. "There are two kinds of Christians. There is one kind who are devoted to the divine office and for whom it is appropriate, since they are dedicated to contemplation and prayer, to stand back from all the din of temporal affairs; these are clerics and those who are faithful to God as monks. ... The other kind of Christian is those who are the laity. For laity is Greek for people. It is permissible for them to possess temporal goods."

Another distinction is that some goods are ecclesiastical, some are secular. We infer this distinction from various sacred canons because they call some goods ecclesiastical, implying by this that some are secular. So as we read in the report of the council of Antioch found at 12, q. 1, c. Episcopus, "Let the bishop have power over ecclesiastical goods."

Another distinction is that some cases are ecclesiastical and some are secular (11, q. 1, para. 1, in the gloss).

Another distinction is that some offences are ecclesiastical and some are secular. This distinction is hinted at in the same place.

Another distinction is that some penalties are ecclesiastical or canonical, others are secular or involve secular law. This distinction is found in the writings of various doctors under these words, that some penalties are canonical, others belong to secular law.

Another distinction is that some judges are secular and some are ecclesiastical. We infer this distinction from innumerable sacred canons.

Another distinction is that some affairs are secular and some are spiritual. The Apostle implies this distinction when he says in 2 Timothy 2:4, "No one serving as a soldier of God gets entangled in secular affairs." For when he says that there are secular affairs from which those serving as soldiers of God keep away, he implies that there are other spiritual affairs from which they do not keep away.

Another distinction is that some dignities are secular, some ecclesiastical.

Another distinction is that some laws are secular and some are ecclesiastical. This distinction is cited in dist. 3, para. 1 which says, "All these legal situations are part of the secular laws. But because one kind of case is civil, another is ecclesiastical."

Another distinction is that some jurisdiction is temporal and some spiritual. We clearly infer this distinction from what was brought forward above in chapter 1 of this second book.

CHAPTER 4

Student I think that many other such distinctions may be found in different writings. But you need not bring them forward, for I reckon that from those just cited I will have the opportunity of understanding the others and of investigating the power which the emperor is known to have in various temporal matters. Yet because I still do not know from the above examples how temporal, carnal, secular and human affairs are distinguished from spiritual, ecclesiastical and divine affairs, would you therefore set down some opinions about any small difference between them?

Master There are some people who say that the above words, ‘temporal’, ‘spiritual’, ‘carnal’, and the like, are used equivocally in different writings. Nevertheless, when it is asked what power the laity have in temporal matters and clerics in spiritual matters, these words are confined to one meaning, so that by temporal matters are understood those which pertain to the guidance of the human race considered purely naturally independently of any divine revelation. Those who were to adopt only natural and positive law and on whom no other law had been imposed would preserve this form of guidance. By spiritual matters are understood those which pertain to the guidance of the faithful in so far as that guidance is informed by divine revelation.

Student According to that opinion, emperors and other unbelievers in ruling their subjects interfered in many matters which pertained neither to temporal nor to spiritual affairs.

Master This is granted. For everything that pertained to the worship of false gods and to wickedness should be reckoned as among neither temporal nor spiritual matters but should be considered as superstitious.

CHAPTER 5

Student I think that I understand to some extent how temporal matters are distinguished from spiritual matters. So concentrating on the power of the emperor over temporalities, I ask first whether a true emperor of the Romans has such power over temporalities throughout the whole world that all the regions of the world have been made subject to him in temporal matters.

THE EMPEROR'S POWER IN TEMPORAL MATTERS

Are all parts of the world subject to the Emperor in temporals?

Opinion 1: affirmative

Master As was touched on above, there are various opinions about this. One is that all the kingdoms of the world are by right subject to the emperor of the Romans in temporal affairs.

Student Although you brought forward in chapter 26 of book 1 of this tractate some glosses on the decrees and decretals which maintain that opinion [not found], would you nevertheless adduce some others, if there are any?

Master The gloss on the words per singulas provincias in dist. 63, c. Hadrianus seems to imply this when it says, "Therefore there is one emperor in France and in Spain, as in 7, q. 1, c. In apibus. I grant this unless they prove that they are exempt from the emperor, as in 23, q. 8, Ecce. Hence their head of state will still give tribute to the emperor, since they do not prove that they are exempt, as in the final law of ff. de censibus. For if they say they are not subject to the Roman emperor, they are saying as a consequence that they do not have anything of their own, as in dist. 1, c. Ius quiritum above. So let them confess that the emperor is lord of the world, as in ff. ad legem Rodiam, Qui levande" But there is no greater reason for France and Spain to be subject to the Roman emperor than for other kingdoms. Therefore, all kingdoms of both believers and unbelievers are subject to the emperor in law, although not in fact.

Again, the gloss on the words in Germanos in Extra, De electione, c. Venerabilem reads as follows: "In this way, therefore, rule of the world was transferred to the Germans. For they have the rule of the Roman church, De consecratione, dist. 5, c. in die. Therefore, it is clear that the empire is not with the Greeks, although the empire is in a broad sense called by that name, Extra, De maioritate et obedientia, c. Solitae. So too is the king of the Scots called a king, since there is no empire outside the church, 24, q. 1, para. sed illud. Now the emperor is above all kings, 7, q. 1, c. In apibus, and all nations are under him, 11, q. 1, para. Hec si quis, at volumus. For he is the prince and lord of the world, ff. ad legem Rodiam deprecatio. And even the Jews are under him, c. de Iudeis, Iudei, and also all provinces, 63, dist. c. Adrianus. And everything is in the power of the emperor, 8, dist. c. Quo iure defendis and 23, q. 8, c. Convenior."

Again, the gloss on dist. 1, c. Ius Quiritum, part of which was brought forward earlier, says, "The Jews use Roman law and are called Romans, because all who are subject to the Roman empire are called Romans (just as it is said that it is characteristic of Romans to have their children in their power), so also are gentiles under the Roman empire. For the emperor is prince of all the world, ff. ad legem Rodiam, Qui levandae. So whoever does not want to be subject to the Roman empire can have neither an inheritance nor the other things that are counted here as part of human law."

Again, the gloss on the word omnia in 23, q. 8, c. Convenior implies the same thing when it says, "Therefore everything belongs to the emperor, as above at dist. 8, c. Quo iure."

Student It is clear enough that many people are of the opinion that the emperor of the Romans is the lord and prince of the whole world. Would you try to argue for that opinion?

Master It seems to be based mainly on one argument, which runs as follows. The whole world has sometimes been subject to the Roman empire. The Roman empire has not been deprived of any lordship over any kingdom which was subject to it. All the kingdoms of the world, therefore, are still subject to the Roman empire.

Student How is it proved that the whole world has been subject to the Roman empire?

Master The gospel attests to this when it says, "A decree went out from Emperor Augustus that all the world should be registered." Constantine testifies to this in dist. 96, c. Constantinus (brought forward above) where he says, "Our determination and decree is that the see of Rome, should have principacy both over the four sees of Alexandria, Antioch, Jerusalem and Constantinople and over all the other churches of God throughout the whole world. ... Now we have resolved that all of these things, which we determine and confirm through this our sacred imperium and through other divine decrees, should remain undiminished and undisturbed until the end of the world. Hence, before the living God, who commanded us to rule, and before his terrible judgement, we call on all the emperors who succeed us, on all our nobles and satraps, the whole senate and all people throughout the whole world, now and forever, to witness that none of them is permitted in any way to violate or in any way to overthrow these decrees." Constantine shows in these words that the whole world was subject to him, not indeed in fact because at that time some people were in rebellion. Therefore it was in law.

Student How is it proved that the Roman empire has not been deprived of the right and lordship which it had over every kingdom or province?

Master This is proved as follows. If the Roman empire was deprived of the right and lordship which it had over every kingdom or province it was deprived either by right or by a person: not by right because there is no divine or human right to such a deprivation; not by a person because no one inferior to the emperor, who was the lord of the world, could have deprived the emperor of such right and lordship.

Student That argument does not seem to be valid. This is firstly because the Roman empire could have been deprived of this right and lordship by the power of rebellious kingdoms, since we read in Extra, De regulis iuris, c. Omnis that, "Through whatever causes a thing arises, by those same causes it is dissolved." The Roman empire acquired its right and lordship over other kingdoms, however, by the power of the sword. So it is also by the power of the sword that it could have lost that right and lordship.

It is not valid secondly because by his own negligence and fault the emperor of the Romans could have lost the right and lordship which he had over many other kingdoms. For, as the gloss on 22, q. 5, c. De forma notes, "Any lord is bound to his subject by the same faith by which the subject is bound to his lord. And if he has not kept faith, he is deprived of the lordship which he had over his vassal." So if the emperor treated some kingdoms unjustly or did not defend them in their necessity, it was just that he lose the right and lordship which he had over them.

It is not valid thirdly because rights are removed by prescription. So other kingdoms could have issued a prescription against the empire. And as a result the emperor could have lost the right and lordship which he had over some other kingdoms.

Master It is clear to some people that those reasons do not obstruct the previous argument.

The first does not do so because, as was touched on above, although a great part of the world was subjugated to the Roman empire by the power of the sword, yet afterwards they all willingly agreed to be subjected to that same empire. And therefore their subjection could not thereafter be dissolved by the power of the sword.

The second reason too, about a fault of the emperor or of the Romans, does not seem to obstruct the argument, because neither in him nor in them is so great a fault found that the Roman empire should have been deprived of its right and lordship over any kingdom. Even granted that such a fault had been committed, the empire should nevertheless not have been deprived of its right without the decision of the totality of mortals or of some individual or individuals acting in the place of the totality of mortals. However, no such decision against the Roman empire has ever been asserted by the totality of mortals or by any individual or individuals acting in their place. Therefore the Roman empire has not been deprived of that right or lordship.

Nor does the third reason about prescription seem to obstruct the previous argument. This is firstly because it does not seem that anyone ever has issued a prescription against the Roman empire in this matter, because no one could in good faith remove himself from the Roman empire. Therefore, whoever did remove himself from the Roman empire removed himself by force alone. It does not obstruct it secondly because as in spiritual and ecclesiastical affairs there can be no prescription against obedience and the right of visitation, so no one can issue a prescription against the lordship of the Roman empire. This is proved from the fact that in temporal affairs prescription is by imperial right. However, the emperor has never made a law or statute to the effect that someone could issue a prescription in this way against the Roman empire. Therefore, no prescription can be brought forward in this case.

CHAPTER 6

Student Relate a different opinion.

Master Another opinion is that although the emperor of the Romans was once the lord of the whole world, yet now he is not the lord of all nations.

Opinion 2: The Roman Emperor is not now lord of all nations

Student Would you try to bring forward some arguments for that opinion?

Master A first argument for that opinion is as follows. What the pope assents to we also ought to assent to and hold as true (dist. 19, c. Si Romanorum). But the pope seems to assent to the assertion of the Franks and others who assert that they are not subject to the Roman empire. For if he did not assent to their opinion he should not have decreed anything about their assertion, especially anything that sounds like endorsement of their assertion. But we read in Extra, De privilegiis, c. Super specula that because Franks and others remove themselves from the Roman empire and do not use imperial laws the pope decreed that civil law should not be taught or heard in Paris or in other neighbouring cities or places. This seems to express assent to the assertion of the Franks and others. Therefore we should assent to that same assertion and regard it as true.

Student Perhaps others would say that the pope did not make such a statute because he assented to that assertion of the Franks but because he wanted the learned to pursue theology more than law, and because it would have been vain to have issued a statute insinuating that he did not assent to that assertion since the Franks and others would not have abandoned their own opinion on that account.

Master It seems to others that that reply does not obstruct the previous argument, because the pope, to whom the correcting of all sins and errors belongs, should have implied that by no means did he assent to the said assertion if it is false.

Student Would you bring forward another argument for the same opinion?     

Master Another argument is as follows. We should not believe that saints canonised by the church have gone astray by any mortal sin or blameworthy rebellion or by doing any wrong. But there have been many saintly kings and others saints who have not recognised the emperor as their superior in temporal affairs and have finished their days with this opinion. Examples are St. Louis king of the Franks and many kings of England. Therefore they truly were not subject to the Roman empire.

Student Perhaps others would say that those saintly men did not know that they were subject to the Roman empire and if they had known this they would have recognised it in deed and in word. So they can be excused by their ignorance of the civil law.

Master It appears to others that this reply is not adequate, because kings and princes are bound to know whether they have a superior or not. Moreover, ignorance of that which one is bound to know does not excuse (1, q. 4, para. Notandum. Therefore kings and princes are not excused by such ignorance.

Student Perhaps some people would say that those kings and princes were not bound to have such great expertise in civil law and history as to know that they were subject to the Roman empire.

Master To this it is objected that they should have sought to learn from others if they did not know themselves, as the gloss on dist. 38, para. 1 attests when it says, "No one is excused by ignorance who can have access to those with expertise."

Student To this it might be said that they did not find learned men who would instruct them in this because many learned men desire the destruction of the Roman empire more than its exaltation, and, as much as they can, they give the uneducated to understand that not all mortals are subject to the Roman empire. Moreover it is not appropriate that kings and princes and other laity be too solicitous in inquiring whether they are subject to the Roman empire. The gloss on 1, q. 4, para. Notandum attests to this when it says, "For someone to be said probably to be in error, he is not required to be too careful, scrupulous and thoughtful in inquiring, nor be too negligent and lax in not inquiring." Therefore in this matter kings and other laity could have been excused by ignorance although they did not recognise that they were subject to the Roman empire.

Master An objection to this is that kings and princes especially ought to be greatly solicitous of the common good, although they do not have to be too careful, scrupulous and thoughtful. But the common good of the whole human race depends on the Roman empire. In connection with it, therefore, kings and princes in particular are bound to exhibit the greatest care.

Student If another argument occurs to you bring it forward.

Master A further argument for the above opinion is as follows. It belongs above all to the office of the highest pontiff to instruct the laity, and especially kings and princes on whom the salvation of others depends, in matters that pertain to faith, justice and good morals. But if all mortals are subject by right to the Roman empire, kings and princes who refuse this subjection to the Roman empire are acting against justice. So the highest pontiffs should have been carefully instructing kings and princes on this matter. However, even many holy highest pontiffs did not do this, and yet they would have done so if it were relevant to justice. For otherwise they would not have been solicitous for the common good and the salvation of those for whom they will render an account to God. So it is not probable that all mortals are now subject to the Roman empire.

Student It seems that this argument can be stymied in two ways. It is stymied in one way by saying that the highest pontiffs did not know that all mortals should be subject to the Roman empire. For this knowledge pertains to civil law. But they are not obliged to be learned in the civil law and they are not bound to teach the faithful matters that pertain to the civil law. In another way it can be said that the highest pontiffs perceived that kings, princes and many other of the laity in no way wished to give assent to anyone announcing to them that they ought to be subject to the Roman empire. And therefore they were silent in accordance with what Solomon says in Proverbs 23:9, "Do not speak in the hearing of fools. For they will despise the wisdom of your words."

Master It seems to some people that neither of those replies stymies the aforesaid argument. The first does not do so firstly because it is not probable that the highest pontiffs did not know, if it is true, that everyone is subject to the Roman empire, especially since the glossators on the decretals, which the highest pontiff should not be ignorant of, seem clearly to assert this. The first reply is not effective secondly because although the highest pontiff is not obliged to have an excellent knowledge of the civil law, yet he ought not be wholly ignorant of all that is in the civil law, indeed he is obliged to know those things which affect the whole totality of mortals. For otherwise he could not correct Christians for many mortal sins which redound to the danger of the whole church, because he should not correct them in connection with matters that he does not know to be sins. So since whether all mortals are subject to the Roman empire is a matter that affects everyone, to the extent that whoever knowingly refuses to be subject to the Roman empire, if he is subject to it, commits a mortal sin, the highest pontiff should not to be ignorant of this, because he ought to know of those things which are done by many people and commonly whether they are mortal sins or not.

It seems that the second reply also does not stymie that argument. For it was not evident to the highest pontiffs that all the laity who did not subject themselves to the Roman empire were so obstinate that they did not in any way want to be informed about the truth. So they should at least have tested whether they were willing to receive true teaching in this matter. Again, it is certain that there were many holy kings and princes and many other of the laity who loved justice and the common good and hated all injustice. For otherwise all kings, princes and other lay people would have been lovers of wickedness and consequently would have been in a state of damnation. Therefore they would have been prepared to be informed about any matter of justice that pertained to them. And consequently they were prepared to be instructed whether they were by right subject to the Roman empire or were wholly free from subjection of that kind. 

Further, those who are in truth subject in law to the Roman empire and yet refuse to be subject in fact possess nothing justly, because they do not possess anything by imperial law. Whoever possesses nothing by imperial law, however, and yet is subject to the emperor possesses nothing justly, as Augustine attests when he says in his commentary on John found in dist. 8, c. Quo iure, "By human law one says, `This is my villa, this is my servant, this is my house.' But human laws are the laws of the emperors. ... Remove the laws of the emperors and who would dare to say, `This is my villa, this is my servant, this is my house'? ... Do not say, `What is the king to me?' ‘Then what is your possession to you?’ Possessions are possessed by the laws of kings. Have you said, `What is the king to me'? Do not say `your possessions', because you have renounced those human laws by which possessions are possessed." And Augustine says the same thing in his letter to Vincent found in 23, q. 7, c. 1, "No earthly thing can rightly be possessed by anyone except either by divine law, by which all things belong to the just, or by human law, which is in the power of the kings of the earth." We conclude from these authoritative texts that no one subject to the emperor or to a king possesses anything justly except by the law of the emperor or the king. And consequently if all nations are by right subject to the Roman empire, no king, prince or other lay person who renounces the laws of the emperors and does not want to be subject to the emperor possesses anything justly. Hence the gloss on dist. 1, c. Ius Quiritum cited above says, "He who does not want to be under the Roman empire can have neither an inheritance nor the other things that are reckoned here as belonging to human, that is Roman, law." So all kings, princes and other laypeople who refuse to be subject to the Roman empire possess nothing justly. But if they possess nothing justly they cannot from anything they do possess give alms or give anything to anyone or make public offerings or sacrifices at the altar, because although alms can be given from some goods acquired illicitly, (although no offering or sacrifice can be made from them,) yet none of those things can be done from things possessed unjustly which do not belong to the possessor. Therefore the church and all clerics and religious sin if they openly receive, except at a time of necessity, alms, gifts, offerings or sacrifices from goods which kings, princes and other lay people who refuse to be subjected to the Roman empire possess in fact but not in law.

 

CHAPTER 7

Student Argue further for that opinion.

Master The sacred canons seem to attest that the emperor of the Romans is not the lord even of all who are secular. According to them there are many people who do not have a superior; yet this would not be true if all who are secular were subject to the emperor. For as in Extra, De hereticis, c. Excommunicamus, Innocent III says, "Indeed if a secular lord neglects to purge his land of the filth of heresy despite the request and advice of the church... nevertheless we keep the same law for those who do not have principal lords."

Again, in Extra, Qui filii sunt legitimi, c. Per venerabilem the same pope says, "Moreover since the king does not recognise a superior in temporal affairs he could subject himself to our jurisdiction without wounding anyone else's right in doing so."

Again, speaking about the pope, the gloss on Extra, De foro competenti, c. Ex transmissa says, "Although he may grant a right to a cleric against a layman, yet he does not make a grant to a layman against a layman as long as he has a superior feudal lord." We gather from these authoritative texts that there are many laymen who do not have a superior. Consequently not everyone is subject to the emperor.

Student Although that argument seems strong, yet the second text, which concerns the king of France, does not seem pertinent to the argument. This is because the gloss at that point, cited in chapter 18 of the first book of this tractate, asserts that the king of France is by right subject to the Roman empire. It is also not pertinent because Innocent does not say that the king of France does not have a superior in temporal affairs, but that the king of France does not acknowledge a superior. Someone can have a superior, however, without acknowledging it.

Master It seems to some people that neither of those objections involves as a consequence that Innocent's authoritative text does not show what is intended. The second objection does not, because we can deduce from the words of Innocent that are quoted that he himself reckons that the king of France truly and justly does not recognise a superior in temporal affairs, since he asserts that because the king does not acknowledge a superior in temporal affairs, he could, therefore, without wounding anyone else's right subject himself to the jurisdiction of the pope. But if the king were wrong and unjust not to acknowledge a superior in temporal affairs, then he could not subject himself to the jurisdiction of the pope without wounding anyone else's right, because a false and unjust denial of the lordship of one person does not bestow on the one denying it the power of subjecting himself to the jurisdiction of another person without wounding the right of his true lord. Therefore Innocent considers that the king’s refusal to acknowledge a superior in temporal affairs is right and just. We conclude from this that the first objection is not valid because that gloss seems opposed to its text since the gloss says that the king of France is by right subject to the empire whereas the text says that because the king of France does not acknowledge a superior he can subject himself to the jurisdiction of the pope. But he could not do this if he were by right subject to the empire because this would be to the prejudice of the emperor if he were subject to him.

Student My objection seems to be excluded and so the above argument seems to be fully confirmed. Nevertheless tell me how a reply might be made to it.

Master The reply to the first decretal is that it is talking about the obligation of a lord to obey the pope in the matter of overcoming heretics even if in fact he does not have a principal lord.

In response to the second decretal it is said that it is talking about the king of France at a time when the emperor seems to consider at least as a matter of fact that the king of France is not subject to him, in that neither by word nor by deed does he show that he by right rules over the king of France. It is on account of a mistake or negligence of the emperor that the pope can in such a case exercise this sort of jurisdiction over the king of France, if the latter makes himself a subject. The pope does this not by means of the authority given to him by Christ but by means of that which he obtains from custom. The pope has this jurisdiction not because the king of France falsely and unjustly fails to acknowledge the lordship of the emperor but because the emperor neglects his own rights or does not know what rights he has over the king of France and all other lay people. For just as an ecclesiastical judge can meddle in secular jurisdiction when a secular judge neglects to provide justice (Extra, De foro competenti, c. Ex tenore and c. Licet in the gloss), so in many cases the pope can make good the negligence or ignorance of the emperor towards his subjects.

Student If the pope can make good the negligence or ignorance of the emperor by exercising temporal jurisdiction over the king of France, by the same argument, therefore, he can deprive the emperor of the right and lordship which the he has over the king of France.

Master The reply is that by no power which he has either from Christ or from licit custom can the pope deprive the empire of this kind of right and lordship, just as he cannot destroy the empire.

Student Can the emperor release the king of France or another king so that he is not in any way under the empire?

Master The reply is that although the emperor can grant many freedoms to the king of France and to other kings, yet he cannot in any way totally separate the kingdom of France or another kingdom from the empire so that it is not in any way under the empire, because this would be to destroy the empire, something the emperor cannot do.

Student Tell me how reply is made to the third gloss cited above.

Master The reply is that that gloss is talking about a member of the laity who in fact does not have a superior, although in law every member of the laity, both unbelieving and believing, is under the emperor.

CHAPTER 8

Student It seems that a clear reply has been given to the argument brought forward in chapter 7. To the arguments cited in chapter 6 I have reported some replies, but if there are other replies to them besides those I would like to hear them.

Master The reply to the first of them, which affirms that what the pope assents to we should also assent to, is that this is true when the pope assents to something in a just and catholic way using his papal authority to define and determine it. But if the pope assents to something not by defining or by determining it or even by defining and determining it in a way that is not just or catholic, we are for this reason not bound to assent to it. So it was that although he was pope, Innocent IV did not want his opinions regarded as authoritative. Similarly we are not bound to assent in any way to the opinions of Innocent V either, even those which he assent tod after he was pope. Now we do not find that any pope in any definition or determination assented to the opinion that all the provinces of the world or the kingdom of France should be subject to the Roman empire. Therefore we are not bound to assent to this. Even if some pope had in a definition and determination assented to this, yet because his assent would not have been just, we are not bound to assent to the same thing.

Student Two objections to that reply occur to me.

The first is that according to that reply we are no more bound to assent to what the pope assents to than to what any bishop or any expert in the sacred scriptures is known to assent to, because whatever a bishop or expert in sacred letters assent to in a just and catholic way, we too are bound to assent to because we ought to assent to everything that is just and catholic.

The second objection that occurs to me is that if we are not bound to assent to what the pope assents to, even in a determination and definition, it would follow that we could condemn it. This seems counter to a certain papal constitution [Redemptor noster], which a pope is said to have propounded in connection with the order of Friars Minor, by which (they say) it is provided that after any question of faith has been brought before the apostolic see, no brother thereafter should dare to assent to, choose or affirm one side of it or the other before it has been determined by the church. For if after some question of faith has begun to be considered in the curia no one ought to assent to any one side or other, and consequently ought not condemn either side, so much more is it the case that no one ought to condemn in any way what the pope assents to.

Master The reply to the first of your objections is that we ought to assent to what a pope assents to more readily than to what someone else who his inferior assents to, because when a pope assents to something we should not, (unless we are sure that he is in error,) in any way publicly or before others deny it, either assertively or conjecturally or by expressing doubt, although if we are sure that he is in error against faith or justice we can and should in that case publicly and secretively condemn it in every way. But that which a bishop or someone else inferior to a pope assents to, however, we can, even if we are not sure that he is in error, deny by expressing doubt or an opinion even publicly before others and can contradict his assertion, although we should not assert the opposite pertinaciously if he is not in error, because we ought not assert anything false pertinaciously.

In reply to the second it is said that if we are certain that the pope errs against the faith or good morals or justice even in a definition or determination, we can and ought to condemn him openly, so that even if some question of faith begins to be discussed in the curia anyone who is certain about its truth from the sacred scriptures or the catholic determinations of the church can and ought to choose, assent to and assert the true side and reject and condemn the false side. This is why it is reported that some people think that the constitution propounded by the pope in connection with the Friars Minor is heretical, savouring manifestly of the worst heresy that has ever been devised by any heretic, so that a worse heresy could not be found.

Student You are reporting something marvellous to my ears. So I want to confer here briefly with you about it. For although we have been able to find much in the works of other authors about it, yet because this little work may perhaps come into the hands of some people who will not see the other works, tell me briefly what those who hold that opinion consider to be that worst heresy which that constitution smacks of and why it is the worst and what absurdities they think follow from it.

Master They say that in their view the worst heresy which that constitution smacks of is that the pope dominates Christian faith in such a way that the whole of the Christian faith that Christians are bound to believe so completely depends on the approval, definition and determination of any pope at all that no Christian should firmly believe anything pertaining to faith before he is certain that the pope at the time holds and assents to it. They say moreover that this is the worst heresy because according to it the pope could change the whole faith and all the articles of faith and could make articles opposed even to the articles contained in the Apostles' Creed. Then nothing would be certain and unchangeable in the whole of Christian faith and all of it would depend on the will of the pope. And he could destroy the gospel and the whole of divine scripture and could create a new antithetical scripture to which all Christians would have to adhere, as long as the pope wished it, all of which afterwards his successor could change. As a result any pope could give Christians a new faith which they would be bound to accept and assent to during his time and until it was revoked by his successor. There could be no worse statement against the Christian faith.

Moreover, they say that additional absurdities beyond those they derive in relation to the scriptures follow from that constitution. They say that many are inferred from what has happened in our own time. One of these absurdities is that no friar minor, however learned and skilled, should henceforth assert or assent to the proposition that the world has not existed since eternity, nor even to the proposition that it has existed since eternity. Another absurdity is that no friar minor should henceforth assent to the proposition that there is any distinction among the persons within the divine. Another is that no friar minor should assent to the proposition that however just someone is, he is not changed into the divine essence, as in the sacrament of the altar bread is changed into the body of Christ. Another is that no friar minor should assert henceforth that neither blessed Peter nor any other man who is not Christ, true God and true man, did not create the stars and that without such a man God would not know how to make anything. Another is that none of them should henceforth assert that the creatures of God are not pure nothingness.

That all these absurdities and many similar ones follow from that constitution they prove from the fact that a certain German master in theology of the order of preaching brothers, Eckhart by name, offered all the above and many other most absurd views as an opinion. He was first accused of or denounced for these beliefs by the archbishop of Cologne, in whose court a hearing was given to Eckhart and the above beliefs and other similar ones aired. When he subsequently came to Avignon and assessors were appointed for him he did not deny that he had taught and preached the above things. He was not condemned for them nor were those assertions and others of his immediately condemned, but they were entrusted to cardinals who were to consider whether they should be reckoned as heresies. Certain masters of theology were also instructed jointly to consider the matter. And so it is notorious that all the above assertions of Eckhart and many others like them were discussed in the curia and that no pope subsequently made a determination about those questions. Therefore, no Friar minor should choose, assent to or affirm one side or another of any of those questions. Similarly, if it were discussed at the curia whether Christ was born of a virgin or whether the Blessed Mary was a virgin after giving birth or whether there will be a future resurrection of bodies or anything similar, a friar minor will not be permitted to assert one side or the other.

CHAPTER 9

Student I can find out in a certain person's work how that papal constitution can be defended in different ways and how all the defences are attacked in many ways and seemingly condemned by demonstration. Therefore I do not want to hear more about it here. So tell me how one can reply to the second argument put in chapter 6 above.

Master The reply is that because the emperor has not demanded of kings and others that they recognise him as their superior, so those who would have been prepared to recognise him as their superior if this had been clearly showed to them should have been sufficiently excused of any sin by ignorance. Moreover, when it is said that kings and princes should be especially attentive to the common good, and consequently should have been very attentive to whether they were subject to the Roman empire on which the common good depends, it is said that although they ought to be especially attentive to the common good, nevertheless they are not bound to be very attentive to everything that pertains to the common good and that cannot easily be known, especially when they do not find wise men to advise them about this. So although the common good depends on the universal empire, yet because most kings and princes and many other laymen could not easily know that they are subject to the empire and because the emperor did not make demands on them about this nor were wise men advising them that they should be attentive to this – in fact many who were considered wise were affirming the opposite – therefore they were not obliged to be attentive to this.

Student Tell me how one can reply to the third argument.

Master The reply is that although the highest pontiffs should instruct and teach kings and princes about what is relevant to faith, justice and good morals, they are nevertheless not bound to instruct them about all such matters, because they cannot do so and no one is under an obligation to do the impossible. So it was enough for just and holy highest pontiffs to instruct them about what was more useful and necessary for their own times, because experts and prelates should adapt their teaching to the quality of the time. So because it was more useful and necessary in the times of many of the highest pontiffs for kings, princes and other laymen to be instructed about other matters than that they were subject to the Roman empire, they were not therefore bound in those times to instruct them about this, especially since the emperors did not demand of others that they recognise them as their superiors. And perhaps it was appropriate at the time to be silent about that truth, although it has never been expedient to assert the contrary falsehood. They say that it is clear from this that many of those who refused to be subject to the Roman emperor were in this, nevertheless, not sinning mortally because they were excused by likely ignorance.

And in this way one can reply to the last argument touched on in that chapter, because many who are by right subject to the Roman empire and yet refuse to be subjected to it, possess justly those things they possess because they are possessors in good faith, believing themselves to possess them justly and licitly and to have true lordship. Therefore they can justly and licitly give those things away and make alms, offerings and sacrifices of them. If they do not labour under gross and heedless ignorance, clerics too who think that they are just possessors can accept from them alms, sacrifices and offerings. And when it is said that such people possess nothing by imperial law, the reply is that in a certain manner they do possess things even by imperial law, (although those who are such possessors in good faith do not know this). Because they are possessors in good faith, they can prescribe and take possession of many things even by imperial law and as time passes can acquire true lordship of them.

 

CHAPTER 10

Student Thus far we have sought to know whether all regions of the world are subject to the emperor. And I understand this in respect of those things which do not pertain to the temporal jurisdiction or patrimony of the church. For in the third book of this tractate there will be discussion of those things that do pertain to the patrimony of the church (and we will also be able to find out much about those things in the tractate About the Power of the Pope and Clergy). But now let us come to persons who do not belong to the temporal jurisdiction of the church. And first let us reflect on the wicked, asking what power the emperor has over them, namely whether the emperor can punish the wicked who are subject to him for every crime. And because some crimes are ecclesiastical and some are secular (as was mentioned above in chapter three of this second book), let us investigate here only secular crimes, because we will deal with ecclesiastical crimes in the third book of this second tractate. Therefore, I want to ask whether the emperor can punish all those subject to him for any crime at all that is secular and not ecclesiastical.

The Emperor's power over the wicked: Can he punish every secular crime?

Opinion 1: He cannot

Master There are different opinions about this. One is that the emperor cannot punish all those subject to him for every secular crime. This is proved by the following argument. The same person should not be punished for the same crime by different judges, one of whom is not under the other and who do not have power from one and the same prince. For if this were allowed, a dangerous struggle and dissension could arise between those judges as each was wanting to drag the criminal to his own court, which could not be done. But it does belong to an ecclesiastical judge to punish criminals for various secular crimes. Therefore the emperor should not punish the same people for those crimes. The major premise of this argument seems self-evident, while the minor seems clearly provable from sacred canons. For we find the following from the Council of Pope John, in Extra, De officio iudicis ordinarii, c. Perniciosa, "Therefore let the bishops of every city have unfettered power in their dioceses to inquire into, punish and judge adulteries and crimes." We gather from these words that all secular crimes should be punished by bishops, both because adultery is a secular crime, since it is thought to be a crime even among unbelievers and those content with the law of nature alone, and because he says "and crimes" without distinction. Therefore he means all crimes.

Again, in Extra, De iudiciis, c. Novit, Innocent III says, "No one who is sound mind does not know that it pertains to our office to correct every Christian for any mortal sin and to punish him through an ecclesiastical penalty if he disdains correction." We conclude from these words that every Christian should be punished for any crime by an ecclesiastical judge.

Again, in 24, q. 3, c. Si quis Romipetas, Pope Calixtus says, "If anyone tries to seize pilgrims to Rome or pilgrims and visitors to the tombs of the apostles and to the oratories of other saints or to despoil them of the goods they are carrying and to annoy merchants with novel exactions of tolls and taxes, let him be deprived of Christian communion until he has made satisfaction."

Again, in the same causa and quaestio, c. Itaque, we find the following from the council of Montpellier, "Therefore we have decreed that murderers and false witnesses should be removed from ecclesiastical communion unless they have cleansed themselves of the crimes committed by satisfactory penance." It is clear from these two authoritative texts that those who seize even laymen, those who despoil and annoy merchants without just cause by tolls and taxes, and murderers and false witnesses are punished by an ecclesiastical judge, and yet it is certain that those are secular crimes.

Again, an ecclesiastical judge punishes arsonists (23, q. 8, c. Pessimam). He also punishes those who kill their own children (Extra, De iis qui filios occiderunt, c. De infantibus), and those who engage in tournaments (Extra, De torneamentis c. Felicis and c. Ad audientiam. He punishes archers (Extra, De sagittariis, c. 1]) and those involved in debauchery (Extra, De adulteriis et stupro, c. 1, and adultery (throughout the same titulus), as well as abductors (Extra, De raptoribus, c. 1). Yet these are all secular crimes. So secular crimes should be punished by an ecclesiastical judge.

This point also seems provable from texts of divine scripture. For Truth Himself says in Matthew 18[:15-7], "If your brother sins against you, go and point out the fault when the two of you are alone. If he listens to you, you have regained your brother. But if you are not listened to, take one or two others along with you, so that every word may be confirmed by the evidence of two or three witnesses. If he will not listen to them, tell it to the church. If he refuses to listen even to the church, let him be to you as a gentile and a tax gatherer." We gather from these words that it pertains to the church to correct every Christian even for sins which are committed against a neighbour and which are certainly secular.

Again, in 1 Cor. 6[:3] the apostle rebuked the Corinthians because they were litigating before unbelieving secular judges and because they were abandoning the judgement of the church which ought to judge between brother and brother even about secular matters. He said, "Do you not know that we are to judge angels, to say nothing of secular matters?" Therefore it pertains to an ecclesiastical judge to judge secular matters, and consequently criminals should be punished by an ecclesiastical judge even for secular crimes.

CHAPTER 11

Student Set out a contrary opinion.

Opinion 2: It pertains to the Emperor, and only to a secular judge, to punish the secular crimes of those subject to secular judges

Master Another opinion is that it pertains only to the emperor and a secular judge to punish those criminals who are subject to secular judges for secular crimes.

Student That opinion makes two assertions. The first is that it pertains to a secular judge to punish such criminals. The second is that this does not pertain to an ecclesiastical judge. Argue for the first assertion first.

Master That it pertains to a secular judge to punish criminals of this kind seems provable both from authoritative texts of sacred scripture and from the canons. For speaking of secular powers in Romans 13:3-4 the apostle says, "For rulers are not a terror to good conduct but to bad conduct. Do you wish to have no fear of the authority? Then do what is good and you will receive its approval. For it is God's servant for your good. But if you do what is wrong, you should be afraid, for the authority does not bear the sword in vain. It is the servant of God to execute wrath on the wrongdoer."

Again, blessed Peter in the second chapter of his first letter [1 Peter 2:13-4] says, "For the Lord's sake accept the authority of every human institution, whether of the king as supreme, or of dukes as sent by him to punish those who do wrong." It seems clearly proved by these authoritative texts that crimes, especially those that are secular, should be punished by secular judges.

This also seems to be shown in the sacred canons. For in 23, q. 5, c. Incestuosi, the following is found from the third council of Tours, "Many committers of incest, parricides and murderers are found among us, but some of these refuse to give their ear to the warnings of priests, wanting to persist in their original crimes. It is fitting that these be punished for such wicked habits by the discipline of a secular power."

 

Again, Cyprian says of the ninth kind of abuse, as we find in the same causa and quaestio, c. Rex, "The king should restrain thieves, punish adulteries, eliminate the impious from the land, not permit parricides and perjurers to live, and not allow their sons to act impiously." We gather from these and very many other canons that crimes of this kind should be punished by secular judges.

CHAPTER 12

Student I now think it clear that it pertains to secular judges to punish criminals who are subject to them for secular crimes, so that I do not care to hear more arguments for this. So try to argue for the second assertion, namely that it does not pertain to ecclesiastical judges to punish criminals of this kind.

Master It seems that this can be shown from authoritative texts of the holy fathers. For Augustine seems to assert this when writing on the prophet Amos, as found in 23, q. 5, c. Sunt quaedam. He says, "There are some immensely shameful acts which are punished by worldly judges rather than by priests and rulers of churches, as when someone kills a pontiff, apostolic, bishop, presbyter or deacon. Kings and princes of the world condemn those guilty of this kind of thing. So it is not unreasonable that those who are judges of such enormities carry a sword. They have been appointed especially because of murderers and abductors, in order both to condemn them and to curb the fear of others." It is clear from these words that robbers and murderers should not be punished by an ecclesiastical judge. And by a similar argument nor should other secular crimes be punished by such a judge.

Further, it seems that all secular crimes should be punished by the same [sort of] judge. If someone is excluded from judging some of them he cannot licitly judge any of them. But some secular crimes, those which are to be punished by death, the cutting off of a limb or the shedding of blood, are by no means judged by an ecclesiastical judge (Extra, Ne clerici vel monachi secularibus negotiis se immisceant, c. Clericis and c. Sententiam and Extra, De raptoribus, c. In archiepiscopatu, and 23, q. 8, c. His a quibus, and dist. 51, c. Aliquantos). So no other secular crimes should be punished by an ecclesiastical judge, unless he has secular jurisdiction over the criminals.

Again, the punishment of secular crimes is reckoned among secular cares and occupations. But secular cares and occupations are forbidden to ecclesiastical judges, as the apostle attests when he says in 2 Tim. 2[:4], "No one serving in the army of God gets entangled in secular occupations." The rule of the apostles agrees with this, as we read in dist. 88, c. 3, Episcopus. In it we find, "Let not a bishop or priest or deacon take on secular cares; but if he do otherwise let him be deposed." And we find in the fourth Council of Carthage from the same distinction, c. Episcopus, "Let a bishop not call back on himself any household care, but let him occupy himself only with reading, prayer and the word of preaching." And in 21, q. 3, c. Hi qui, blessed Cyprian says, "Let those who are promoted to ordination as clerics in the church of the Lord not be diverted from divine administration in any way nor be bound to secular troubles or occupations, and let them not withdraw from the altar or from sacrifices, but let them devote themselves to heavenly and spiritual affairs day and night." From these and other sacred canons located at dist. 88, c. Decrevit and c. Consequens and c. Perlatum and Extra, Ne clerici vel monachi secularibus se negotiis immisceant, c. 1 and c. Sed nec procurationes and c. Clericis and Extra, De vita et honestate clericorum, c. Clerici and 21, q. 3, c. 1 and c. Placuit and c. Cyprianus and c. Sacerdotum we gather that ecclesiastical judges should not involve themselves in secular cares and occupations. Therefore it does not pertain to them make judgement on secular crimes.

In addition, the right order of the judiciary is thrown into confusion if the power of each judge is not preserved. Consequently he who presumes to judge those whose judgement belongs to another judge, as though thrusting his scythe into another's harvest throws the right order of the judiciary into confusion by trying to disturb and hinder another's power. The sacred canons abominate this behaviour (dist. 96, c. Cum ad verum and Extra, De iudiciis, c. Novit Extra, De privilegiis, c. Sicut in iudiciis). Therefore, since those who are entangled in secular crimes should be punished by a secular judge, an ecclesiastical judge should not punish them. But he should leave them to be punished by secular judges, just as the pope abandons secular cases to secular judges so that he is not seen to detract from their rights (Extra, Qui filii sunt legitimi, c. Causam and c. Lator and Extra, De foro competenti, c. Si quis clericus and c. Ex transmissa and c. Verum and c. Licet and c. Ex tenore). This is also found in Extra, De appellationibus, c. Si duobus where Alexander III speaks as follows, "And then you ask whether an appeal is binding if it has been made from a civil judge to our hearing before the latter’s judgement or after. It is certainly binding in the case of those who are subject to our temporal jurisdiction; but in other cases we believe that it is not binding according to the rigour of the law even if it is binding according to the custom of the church." Here the gloss on ‘is binding’ says, "Therefore, it is clear that temporal jurisdiction does not belong to the church, which should not involve itself in it to the prejudice of a secular judge."

 

CHAPTER 13

Student The authoritative texts brought forward in connection with the above assertions seem to be so opposed that one or the other should be absolutely denied unless they can be harmonised by an opinion or assertion that mediates between the above opinions. So I want to know whether there is some intermediate opinion between the opinions recorded above.

Opinion 3: An intermediate opinion

Master It is clear to some people that the above texts can be harmonised by means of an intermediate opinion. To make this clear they say that it should be known that a double form of punishment or correction belongs to the church, one in the area of penance, the other in the area of litigation. The first form belongs to an ecclesiastical judge with respect to any Christian for any sin, and many texts speaking about this matter should be understood of that form of punishment and no text adduced denies this to an ecclesiastical judge. The second form of punishment or correction of secular crimes belongs to an ecclesiastical judge in three cases. The first is when criminals are subject to the temporal jurisdiction of an ecclesiastical judge. The second is when there is not a secular judge or the secular judge is negligent in doing justice or punishing crimes. The third is when a secular judge can impose no penalty on a transgressor, on whom, nevertheless, an ecclesiastical judge can inflict a penalty. This happens when there is a clear crime but the transgressor is unknown, as was the case with the person about whom we read in 5, q. 1, c. Quidam maligni who wrote the slanderous pamphlet against the notary Castorius, blessed Gregory's representative. Not knowing who it was, Gregory bound him with a penalty of excommunication since a secular judge could not have punished with any penalty as long as he did not know who the transgressor was. And ecclesiastical judges often pronounce a sentence of excommunication in that way against thieves and other hidden transgressors against whom secular judges can in no way proceed.

 

CHAPTER 14

Student I do not want to discuss here the first and third cases referred to above because they seem to pertain directly to the tract About the power of the pope and clergy, but I do want to investigate a little the second case with you. But first I want to know whether there is any other case apart from the ones referred to above in which, according to those so opining, an ecclesiastical judge can, when a secular judge is unwilling to do so, punish those involved in secular crimes who are not subject to the temporal jurisdiction of the church.

Master It seems to them that in no other case can an ecclesiastical judge do this, unless perhaps it was some case that could be reduced to one of the above.

Student The gloss seems to be expressly against this, as it seems from Extra, De foro competenti, c. Licet which has the following on the words ‘quo vacante’, "This is one case, therefore, in which an ecclesiastical judge can involve himself in secular jurisdiction, namely when a superior is not found. Another is when a secular judge neglects to do justice (see here on the word dummodo and within the next chapter and c. 2 [and] the argument in 23, q. 5, c. Administratores.) A third is when something is doubtful and difficult and there are differences among judges (see within, Qui filii sint legitimi, c. Per venerabilem.) A fourth case is in connection with any ecclesiastical crime, for example, usury, sacrilege and the like, as in 16, q. 2, c. 1 and 12, q. 2, c. Nulli liceat and within De usuris, c. Quoniam. A fifth case is when a case is referred to an ecclesiastical judge by denunciation of the crime (see the next chapter, Novit). Again, because of an affinity, as in the case of a dowry (see De donationibus inter virum et uxorem, c. De prudentia.)

It is quite clear from this gloss that there are three cases (namely the third, fifth and sixth just referred to) in addition to the ones mentioned earlier in which an ecclesiastical judge can involve himself in secular jurisdiction and, consequently, in which he can punish those entangled in secular crimes even if they are not subject to the temporal jurisdiction of the church. Although all this seems clear from the gloss, nevertheless tell me how one can reply to it.

Master The reply is that in certain cases an ecclesiastical judge can involve himself in secular cases by way of instruction, advice and even command, and nevertheless in those cases he cannot punish the secular crimes, even with no secular judge willing and prepared to show the fullness of justice. He cannot even pronounce a definitive sentence in these cases, but sentence should be pronounced by a secular judge who is prepared to do justice. So if one understands the above gloss in this way, it is in accord with the truth; if, however, one understands it otherwise, it contradicts the sacred canons.

Student What canons does it contradict?

Master They say that it contradicts the canon of Alexander III who says in Extra, De foro competenti, c. Ex transmissa, "From the report despatched to us of the knights B, C and W from your church we have understood that when R. de Cassaville hauled them before the bishop of Troyes on a charge over a certain possession, their lord, a nobleman from Campis, restrained them through their duty of loyalty from appearing in an ecclesiastical court on the issue of a secular feud. ... You should order the case of the feud to be brought to an end by their lord. And if he maliciously defers it, you are to impose on him an enforced conclusion." We gather from these words that in a case pertaining to a secular judge an ecclesiastical judge should not involve himself by imposing a conclusion to the case through his sentence if the secular judge can and wishes to exhibit justice.

Again, they say that it contradicts the canon of Innocent who says in the same title, c. Ex tenore, "Giving heed to the fact, therefore, that we are under an obligation to widows in justice and that we should not do an injustice to others, we determine that unless it is a case that is known to pertain to an ecclesiastical judge, you are to take care to refrain from it as long as she can obtain justice from her secular judge. Otherwise, notwithstanding the objection of that judge, you are to bring that case to an end, with reason as your guide." We gather from these words that an ecclesiastical judge should refrain from a secular case whenever justice can be obtained from a secular judge.

CHAPTER 15

Student Since they say that an ecclesiastical judge should never punish those involved in secular crimes or, by offering a definitive sentence, involve himself judicially in a case pertaining to a secular judge when the secular judge can and wishes to present full justice, tell me how one can reply to what the above gloss asserts to the contrary.

Master To what is difficult and ambiguous in the third case brought forward, the reply is that secular judges often anticipate a difficult and doubtful judicial decision, the truth of which cannot be judged without the authority of the holy scriptures. In that event case there should be recourse especially to the highest pontiff to whom it particularly pertains in this situation to indicate truth in relation to such a judicial decision, yet not by offering a definitive judgement in some particular case when the secular judge is prepared to pass a just sentence when he has learnt the truth. But through the authority of divine scripture he should indicate the truth about this matter for judgement by teaching, advising and even by issuing a command if it is necessary that the secular judge whom it concerns carry out the execution of justice. But if the secular judge is unwilling or unable to do so, the highest pontiff can in many cases pronounce a just sentence, and in certain cases, namely in cases of blood, he should entrust this to someone else.

Student Can this reply be strengthened by any argument?

Master It seems that this reply can be strengthened by the following argument from the text of Deuteronomy 17:8-9, brought forward without distinction by Innocent. He says [in Extra, Qui filii sint legitimi, c. Per venerabilem] that "If a judicial decision is too difficult for you to make between one kind of bloodshed and another, one kind of legal right and another, or one kind of assault and another an judgements vary ... you shall go the Levitical priests and the judge who is in office in those days;" - by these Innocent understands the highest pontiff and his assistants - "and they shall announce to you the decision in the case." But it is certain that a difficult and doubtful judicial decision can appear in cases of bloodshed and that the judgement of secular judges about them can vary. Even in this situation, therefore, that involves a case of bloodshed recourse should be had to the highest pontiff, not indeed so that he may carry judgement into effect in cases of bloodshed, but so that he may indicate in general what kind of judgement should be carried into effect by secular judges in such cases. So likewise in any secular cases civil or criminal, whenever a difficult or doubtful matter of judgement arises among secular judges and judgement varies among them, recourse should be had chiefly to the highest pontiff so that he may judge the truth about the matter of judgement, not by issuing a definition but by teaching, advising and, if necessary, issuing a command, as in Malachi 2[:7], "The lips of a priest guard knowledge and people seek the law from his mouth, for he is the messenger of the Lord of hosts."

Student By that argument it would be enough in such a situation that secular judges were to have recourse to someone well-informed in sacred letters who knew how to judge the truth about this matter of judgement through the sacred scriptures.

Master The reply to that point is that if secular judges were prepared to show justice once they had learnt the truth about the matter of judgement it would be enough for them to have recourse to someone well-informed in the sacred scriptures. But because it could happen that secular judges either refuse to hear or accept the truth about the matter of judgement or refuse to do justice even when they have learnt the truth, there could as a result be many cases in which it was necessary to have recourse to someone who had the authority to order secular judges and to make good their negligence or malice if they refuse to do justice. But the highest pontiff is one who has the authority to order secular judges to do justice, and, if they refuse to do so, can even make good their negligence or malice himself or through others.

Student From what does the highest pontiff have this power?

Master There are opposing views about this, as you can find in the tract About the Power of the Pope and Clergy. One is that he has this by the express regulation of Christ, another is that he has it by reasonable and prescribed custom.

Student It seems that these views are clearly inconsistent with Innocent's text. For in that decretal c. Per venerabilem he does not say that when a difficult and doubtful matter for judgement is discerned it pertains to the highest pontiff to indicate the truth about the matter for judgement by teaching, advising and issuing an order only, but he also says that in this situation it pertains to him to exercise temporal jurisdiction. For he says, "Indeed in other regions once certain cases have been examined we even occasionally exercise temporal jurisdiction, not because we want to be prejudicial to the right of another, but because, as we find in Deuteronomy, ‘If a judicial decision is too difficult ...’. When something is difficult or doubtful in such situations recourse should be had to the judgement of the apostolic see. If anyone in his pride disdains to observe its sentence he is ordered to die, that is by a sentence of excommunication to be separated like a dead man from the communion of the faithful." We gather from these words that in the above case the pope passes sentence by exercising temporal justice.

Master The reply to this is that just as it seems that some other words of Innocent in that same decretal should be expounded as it were violently so that they may be saved from heretical wickedness, so these words too should be expounded soundly lest they are shown falsely and unjustly to prejudice the rights of the emperor and other laymen.

Student What are those words of Innocent which should be violently expounded so that they are saved from heretical wickedness?

Master It seems to some people that these words of Innocent, "Indeed since the term ‘Deuteronomy’ is translated as ‘a second law’, the force of the word proves that what is there decreed should be observed under the New Testament," smack of manifest heresy unless they are violently expounded, that is that many ceremonial acts of the old law should be observed under the New Testament, because many ceremonial acts are decreed in Deuteronomy, as is clear almost throughout it.

Student Innocent means that those things that are decreed in Deuteronomy should be observed spiritually in the New Testament, not according to the letter or in the literal sense.

Master It seems that this does not suffice. For all the ceremonial decrees and whatever else is contained in the other books of the Pentateuch and of the Old Testament should be preserved under the New Testament, as Gratian attests. He says in dist. 6, "There are in the Law certain moral teachings, such as that you shall not kill, certain as it were mystical commands about sacrifices, as of a lamb and such like. Moral mandates pertain to natural law and are shown therefore not to have undergone any change. But on the surface, the mystical mandates are accepted as alien to natural law, although in terms of moral understanding, they are found connected to them. Thus even if they seem superficially to have changed, they are nevertheless proved not to know any change in terms of moral understanding." Innocent, however, says in particular that what is decreed in Deuteronomy should be preserved under the New Testament, implying that what is decreed in the other books of the Pentateuch should not be preserved under the New Testament. So he means that those things that are decreed in Deuteronomy should be preserved under the New Testament either according to their literal sense, and this is heretical, or according to their moral sense. It is in this latter sense, therefore, that what is decreed in the other books should be preserved under the New Testament.

Student How can those words of Innocent be expounded so that they do not smack of either error? Either the ceremonial acts that are decreed in Deuteronomy should be preserved under the New Testament according to their surface meaning, or the ceremonial or mystical commands which are decreed in the other books should not be preserved under the New Testament according to their moral understanding.

Master It can be said that Innocent means that it is not only follows from the nature of reality that those things that are decreed in Deuteronomy should be preserved under the New Testament according to their moral understanding, but also that this follows from the force of the language in that ‘Deuteronomy’ is translated as ‘a second law’.

Student Now tell me how Innocent's other words are expounded so that they are shown not to prejudice the rights of the emperor and other laymen.

Master It is said that the above words of Innocent should be understood of a situation when the emperor and other laymen despite having learnt the truth about the matter for judgement refuse to undertake the execution of justice. For then the pope can pass a definitive sentence in cases pertaining to the emperor and other laymen by exercising temporal jurisdiction on the occasion.

 

CHAPTER 16

Student Because that third opinion tries to harmonise authoritative texts that seem opposed and does not want to deny any of them, let us run through those texts and see how they should be understood according to that opinion. For by doing this I will perhaps better be able to arrive at the truth of that whole matter. So tell me first of all how the decretal Extra, De officio iudicis ordinarii, c. Perniciosam, adduced in chapter 10 above, should be understood according to that opinion. 

Master One reply is that that decretal is talking about the power of inquiring into, avenging and punishing adulteries and other crimes of clerics and those who are subject to the temporal jurisdiction of bishops.

Another reply is that it is talking about everyone without distinction in cases when secular judges neglect to punish with due chastisement adulteries and other secular crimes. So it is that in many regions ecclesiastical judges punish acts of fornication and many other crimes, because secular judges do not punish such crimes or countenance criminals of this kind. And so if secular judges were to inflict due and sufficient punishment for acts of fornication, adulteries and secular crimes of this kind, ecclesiastical judges would not have to involve themselves in punishing them if the secular judges were unwilling for them to do so and forbad them.

Student This reply seems contrary to the truth with respect to the crime of adultery, since adultery should be considered an ecclesiastical crime and pertains to an ecclesiastical judge. For the crime of adultery pertains to the same judge to whom matrimonial cases are known to pertain; but matrimonial cases pertain to an ecclesiastical judge, as the gloss on Extra, De foro competenti, c. Ex tenore notes, citing the chapter Causam quae from Extra, De officio delegati and the chapter Ex literis from Extra, De consanguinitate et affinitate. So the crime of adultery also pertains to an ecclesiastical judge.

Master The reply is that both the crime of adultery and a matrimonial case pertain in some ways to an ecclesiastical judge and in some ways to a secular judge. The reason given for this is that matrimony is found not only among believers who accept ecclesiastical and divine law but among unbelievers and those content with natural law only. So a matrimonial case pertains to an ecclesiastical judge in so far as matrimony derives from divine law, and pertains to a secular judge in so far as it derives from the law of nature. Similarly, in so far as the crime of adultery is against matrimony as it derives from divine law it pertains to an ecclesiastical judge; in so far as it is against matrimony derived from the law of nature, however, it pertains to a secular judge. So in so far as the crime of adultery is against a divine or ecclesiastical prohibition it should be punished by an ecclesiastical judge, but in so far as it is against matrimony as derived from the law of nature, it should be punished by a secular judge. So if it is not against the law of nature that one man have many wives, but only against divine and ecclesiastical law, someone who was to contract a marriage first with one woman and later with another woman with whom he lay, should not be punished by a secular judge for adultery with the second, because a secular judge would not judge him to be an adulterer solely by the law of nature, but should be punished by an ecclesiastical judge who would regard him as an adulterer in terms of divine or ecclesiastical law.

Student Tell me what reply is given to Innocent III's decretal, Extra, De iudiciis, c. Novit.

Master The reply is that Innocent expressly says that it pertains to his office ‘to reprove any Christian for any mortal sin’. Nevertheless it does not always pertain to him to punish any Christian for any mortal sin in a litigious case. For this would be to absorb totally the power of punishing crimes which the emperor and other secular judges have. But if someone reproved for a mortal sin ‘disdains the reproof’ and there is no secular judge to punish the disdainer worthily for the sin he has committed, the pope can ‘punish him with an ecclesiastical penalty’, and this is the sort of case that Innocent is speaking about. Even if there is a secular judge who punishes such a person sufficiently for his first secular crime, the pope can punish him for the disdain by which he disdains the reproof of the church, because when that disdain is criminal it should be reckoned as among ecclesiastical crimes.

Student It seems that even if the pope were to punish every Christian for every mortal sin, the power of the emperor and other laymen to punish secular crimes would not be totally absorbed, because a canonical penalty is one thing and a legal penalty another. Therefore even if a criminal is punished with a legal penalty by a secular judge, he can nevertheless be punished with a canonical penalty by an ecclesiastical judge for the same crime.

Master This seems altogether irrational to many people because, as we read in Extra, De iudiciis, c. At si clerici, no one should be crushed with a double penalty when one is enough. And therefore someone who is sufficiently punished by a secular judge for some crime should not be punished by an ecclesiastical judge with another penalty. The custom of the church preserves this principle, because when robbers, murderers and other miscreants are convicted before a secular judge and punished with an appropriate penalty, the church does not impose any public penalty on them and does not involve itself with them in any way beyond the imposition of penance.

Student Tell me what reply is made to the other canons which are brought forward in chapter 10.

Master The reply is that they should all be understood of occasions when secular judges are negligent in punishing crimes of this kind or when miscreants of this kind are inaccessible so that they cannot be convicted in court.

 

CHAPTER 17

Student I especially want to know what reply that assertion makes to the authoritative texts adduced from the scriptures.

Master To the Saviour's text [Matt. 18:15], "If your brother sins against you" etc., there are many replies. One is that it is understood of that occasion when a secular judge is negligent in doing justice.

Another reply is that by those words of the Saviour no power is given to ecclesiastical judges more than to secular judges. For in that text ‘church’ is not taken to stand for those ecclesiastics who are called clerics but for the whole or a particular gathering of believers which comprises clerics and laymen. For it is said that in the whole of divine scripture the word ‘church’ does not stand particularly for clerics, although it is often taken in that way in the sacred canons. So the Saviour meant that after private correction and then the summoning of witnesses the sin of a transgressor was to be told finally to some gathering of believers, lay or clerical or both at the same time. If the transgressor were not to listen to this, he would be held to be like a Gentile and tax collector.

It can also be said that no power to punish sinners is given to the church by those words, but only the power of reproof without any punishment. For nothing more is given to the church by those words than to a brother who is sinned against and to summoned witnesses. For just as it is said, "If you are not listened to, take one or two others along with you", and "If he refuses to listen to them, tell it to the church", so it is said, "If he refuses to listen even to the church, let him be to you as a Gentile and a tax collector." These words mean that the church ought to do finally what the brother who was sinned against did first and what the summoned witnesses did. Once this has been done, he who was sinned against should consider the sinner as a Gentile and tax collector, because to him it is said, "Let him be to you as a Gentile and a tax collector". That means either avoid him as a Gentile and tax collector, or, out of a love of justice and for the common good so that the good may live quietly among those who are evil, hand him over to a judge who will execute justice on him. But the Saviour’s words of do not give to the brother who is sinned against nor to the summoned witnesses the power to punish a transgressing brother, but only to reprove him. So by those same words the church is given power only to reprove a transgressor.

This is proved by the following argument. Believers are no more permitted to wrong the emperor and other believing laymen than are unbelievers, and they should no more wrong him [[reading isti]] or them by usurping their power to punish the guilty when the latter should be punished by them, than by denying them tax or by usurping to their prejudice any temporal dignity. But Christ did not want believers to wrong an unbelieving emperor by denying him tax since he said in Matthew 22[:21], "Render to Caesar that which is Caesar's". Nor did he want any believer to usurp for himself any temporal dignity to the prejudice of an unbelieving emperor, in token of which he refused to be made temporal king over the Jews, as we read in John 6[:15]. Likewise, by those above words, therefore, he did not give to believers the power to punish the guilty when they should be punished by others.

 

CHAPTER 18

Student Set out what reply is made to the text of the apostle in 1 Cor. 6:3 when he says, "Do you not know that we are to judge angels, to say nothing of secular matters?" 

Master The reply is that in that chapter the apostle is not intending to forbid the Corinthians from being judged by unbelievers in every situation, nor is he intending to assert that only believers should judge secular matters. So he is not rebuking all those who in every situation sought the judgement of unbelievers - for he would have been contradicting himself both in word and in deed - but he is rebuking only those believers who indiscriminately, maliciously or scandalously want to be judged by unbelievers and those who are wicked. To understand this it is said that we should know that when a judge discerns that some people want to litigate before him he can and should first induce the parties to agree between themselves before they begin to litigate (Extra, De transactionibus, last chapter, and Extra, De symonia, c. Querelam, and 5, q. 2, c. Si primates, and dist. 90, c, Studendum, where we read the following, "Bishops should take pains to urge brothers who disagree, whether they be clerics or laymen, to make peace rather than to go the court."). So also the ruler of any particular college can induce his subjects, if one of them has a difficulty with another, to come to an agreement rather than to court and, if they cannot agree between themselves in a friendly way, he can induce them, when they can do so without prejudice to a superior judge, to litigate first before a judge or judges set up or chosen by themselves or by the college before they have unnecessary recourse to a judge outside their college. In the same way, in order to avoid scandals and many disadvantages monks could make arrangements among themselves, if one monk were to have a case against another or one monastery against another, in order to come to an agreement before they came before the bishop's judgement if they could do so. But if they could not agree without a judgement they could arrange to treat the case before some monks set up or chosen as judges by the parties or the college before they had recourse to the bishop's judgement. If this was arranged, monks who abandoned the judgement of the monks indiscriminately, maliciously or scandalously and had recourse to the judgement of bishops should deservedly be censured, although those who had recourse to a bishop's judgement by force of necessity or for a reasonable cause should not be rebuked but on some occasions praised. In response to that particular situation it is said that the apostle judged that some Corinthians had abandoned the believing judges who had been set up or were to have been set up for bringing cases between the faithful to an end and were wanting indiscriminately, maliciously and scandalously to be judged by unbelievers without their being any necessity or utility in this, and it was these the apostle rebuked, not those, if there were any, who were wanting to be judged by unbelievers because they were forced to do so either by their opponents or by their wish not to prejudice illicitly the authority of unbelievers. So it was that Paul himself did not flee from the judgement of Caesar but said in Acts 25:10-11, "I am appealing to the emperor's tribunal; this is where I should be tried. I have done no wrong to the Jews, as you very well know. Now if I am in the wrong or have committed something for which I deserve to die, I am not trying to escape death; but if there is nothing to their charges against me, no one can turn me over to them. I appeal to the emperor."

 

CHAPTER 19

Student The texts brought forward in chapter 11 above do not seem to be opposed to that third opinion. So do not indicate whether some people try to reply to them, but tell me what reply is made to the texts and arguments cited in chapter 12, because they do seem to be incompatible with that third opinion. 

Master There is one reply to all of them and that is that they are conclusive when secular judges are not found to be negligent in the punishment of secular crimes. So according to that opinion if laymen were not found in any way to be defective, negligent or indolent in arranging temporal affairs, in secular occupations or cares, and in punishing secular crimes, clerics, and especially bishops, should not involve themselves in any way in matters of this kind, but it would be proper for them to commit everything of this kind even the arranging of ecclesiastical possessions to lay people. So they should carry out literally and exactly those things which the sacred canons cited in chapter 12 command about this, and devote themselves only to the preaching of the word, to reading and to prayer.

 

CHAPTER 20

Student We have asked about what power the emperor has over people who are bad; let us now investigate what power he possesses over the good people who are subject to him. Now I especially want to ask whether the emperor has such power over good people who are subject to him that all of them are bound to obey him in everything. 

The Emperor's power over the Good: Are they bound to obey him in everything?

Master The reply is that no one should obey him in unlawful and unjust matters.

Student Is everyone bound to obey him in everything lawful to the extent that whoever refuses to obey him in anything lawful commits a sin?

Master The reply is that this does not mean that anyone who does not obey him in something lawful should be judged to be sinning. For if he were to order someone to fast or not to drink wine or some such thing that does not pertain to the office of emperor, that person would not be bound to obey him. But in those things which pertain to the government of people in temporal affairs, everyone is bound to obey him.

Student Is anyone more bound to obey the emperor in matters of this kind than anyone else inferior to the emperor, such as his king or duke or margrave or another direct lord of his? For it seems that just as a bishop is superior to an abbot and yet notwithstanding this in many matters monks are more bound to obey their abbot than their bishop, so notwithstanding the fact that the emperor is superior to kings, dukes and other temporal lords, the subjects of other lords are nevertheless more bound to obey their direct lords than the emperor.

Master Many people reply that just as the pope is the direct head of all Christians in spiritual matters so that in all matters of this kind everyone is more bound to obey him than any inferior head, so the emperor is the direct lord of everyone in temporal affairs so that in those matters that pertain to the government of mortals the emperor ought more to be obeyed than any inferior lord. Blessed Augustine seems to think this. Writing about the Letter to the Romans [13:2] he says about the words, "Those who resist will incur judgement", "If the proconsul himself should order something and the emperor another thing, is it doubted that the former should be spurned and the latter served?" Also in the second book of his Confessions, included in dist. 8, c. Que contra, he says, "In regard to the powers in human society, the greater power should be put before the lesser in respect of obedience." So there is a greater obligation to obey the emperor than any inferior lord.

Student Two unsuitable conclusions seem to follow from this. The first is that everyone is a servant of the emperor and that no one person is more a servant of the emperor than another, nor, with respect to the emperor, is one person freer than another, because those who are equally bound to obey someone are equally his servant or equally free. So if all the subjects of the emperor are bound to obey him as their direct lord in everything that pertains to the government of people, all are equally his servants or equally free.

The second unsuitable conclusion that seems to follow is that anyone who was to come with his lord to war against the emperor would commit the crime of lese-majesty, because anyone who is a direct subject of the emperor commits the crime of lese-majesty if he thinks about the death of the emperor, which that person does who comes to a mortal battle against the emperor. Now tell me what is said about these two points.

Master The reply is that the first conclusion does not follow from the citations from Augustine, because, as was said earlier, the subjects of the emperor are not bound to obey him in everything but only in those matters that pertain to the government of the people, that is in those things that are necessary for ruling the people subject to him justly and beneficially. Therefore if he were to command something which was contrary to the benefit of the people subject to him, he would not have to be obeyed. Hence the servants of the emperor and those who are free are not bound to obey him equally, but his servants are bound to obey him in many matters in which the free are not so bound. For solely at the command of the emperor his servants are bound to abandon to him all the goods that they possess without his alleging [reading ‘pretendat’] some common benefit, but the free are not bound to do this, and the emperor cannot command it of them without its being advantageous to the common good, indeed without its being a clear necessity. Servants of the emperor are bound to obey him in many other matters as well in which the free are not obligated. For it would detract from the dignity of the human race if all were servants of the emperor, and so it would detract in a similar way if the emperor could treat the free like servants in everything. Therefore, since the emperor is bound to make provision for what pertains to the benefit and dignity of the whole human race he should in no way wish to treat those who are free as servants. So those who are free are not bound to obey him in all those matters in which his servants are bound to obey him.

In regard to the second conclusion it is granted that anyone coming with any lord of his to an unjust war against the emperor falls into the crime of lese-majesty and should be punished with the penalty for that crime. The emperors Honorius and Arcadius in the ninth book of their codex titled Ad legem Iuliam maiestatis, found in 6, q. 1, Si quis [c.22, col.560], seem to attest to this when they say, "If anyone who has joined a wicked [reading ‘scelestem’] faction with knights or infantry, especially if they are barbarians, or receives or gives the oath of allegiance of that faction, or has planned the death of (especially) those illustrious men who attend our councils and assembly and of the senators too - for they too are part of our body - or finally of anyone who fights for us, let him be struck by the sword as if guilty of lese-majesty and let all his goods be yielded to our fisc, for the laws want the willing of a crime to be punished with the same severity with which its carrying out is punished. Let their sons, to whom with particular imperial gentleness we grant life - for they, in whom the examples of the paternal hereditary crime are feared, ought to perish with the paternal punishment - be considered unworthy of inheriting anything from any of their relatives."

Student This seems to conflict with blessed Augustine who asserts that if someone goes even to an unjust war he does not sin as long as it is not evident to him that it is unjust. For he says in 23, q. 1, c. Quid culpatur, "If a just man happens to serve as the soldier of a king who is idolatrous, he can rightly go to war at the king’s command, if in preserving right order instead of peace either he is certain that what he is ordered to do is not against the command of God or he is not certain whether it is. The injustice of giving the order might make the king guilty while the preservation of right order involved in serving shows that the soldier is innocent." We can gather from these words that if a king or someone else leads his soldiers even to an unjust war against the emperor, the soldiers can lawfully go to war against the emperor if it is not certain to them that their lord's war is unjust.

Master The reply to this is that if warriors fight with their lord against someone else who is not their lord they are absolved of sin even if the war is unjust as long as they do not know this and are not labouring under a negligent and crass ignorance. But if they go to war with an inferior lord against a superior lord of theirs, and especially against the emperor who is their direct lord, they are not absolved of the crime of lese-majesty if the war is unjust even if they do not know this, because they should rather presume in favour of the emperor that his is a just war than in favour of their inferior lord, and so unless they are certain that their inferior lord is undertaking a just war against the emperor, they are not absolved of the crime of lese-majesty.

CHAPTER 21

Student We have investigated, however briefly, the power of the emperor over individuals. Let us now look at his power over temporal things, namely whether he is the lord of all temporal things that do not belong to the church.

The Emperor's power over things: Is he lord of all temporal things that do not belong to the Church?


Master There are various opinions about this. One is that the emperor is not the lord of all things of this kind.

Opinion 1: He is not lord of all things

Student Would you bring forward some arguments for that opinion?

Master This assertion seems provable in many ways. The first is as follows: the emperor is not the lord of those things which are not among the goods of anyone and which are granted to whoever takes possession of them. But there are many things which are not among the goods of anyone and which are granted to whoever takes possession of them (dist. 1, c. Ius naturale, in the text and in the gloss). Therefore the emperor is not the lord of things of this kind.

Further, he who is the lord of any temporal thing at all can sell it if he wishes to; see 1, q. 1, c. Eos qui, where we read, "Every lord sells what he has if he wants to, whether it is his slave or anything else that he possesses." But there are many temporal things that the emperor cannot sell, nor indeed alienate, because if that were possible he could sell and alienate the empire, and this is not the fact. Therefore the emperor is not the lord of all temporal things.

Again, he who gives a temporal thing to another person deprives himself of lordship over it, but emperors have given many things not only to clerics but also to lay people. Therefore those things have been alienated from the emperor's lordship.

In addition, he who has a particular portion in a distribution of temporal things is not the lord of the other portions which are granted to others. But an emperor who captures booty in a just war has a particular portion of it. Thus we read in dist. 1, c. Ius militare, "A military right includes the formality of waging war ... then the decision about the booty: a just division according to the quality and labour of the people with a portion for the prince." So the emperor is not the lord of the other portions.

Again, the things that belong to the fisc are proper to the emperor, as the gloss on Extra, De iudiciis, c. Cum venissent notes, but what belongs to the fisc is distinguished from other things because things belonging to some people and not to all people are particularly confiscated (6, q. 1, para. Verum). Therefore the emperor is not the lord of all temporal things.

Moreover, if the emperor is lord of all temporal things which do not belong to the church, all things are either common to the emperor and to others or rightly belong to the emperor. But they are not common to the emperor and to others because then nothing would belong to any individual; and they do not belong rightly to the emperor because then no one else would have lordship of anything and no one else could say, `This is my thing', since the emperor could say, `This thing is mine', if it belongs rightly to him, because, as the gloss on dist. 1, para. 1 says, "Where something is judged to be mine, it is judged consequently not to be yours, ff. De procuratoribus, Pomponius in fine." The fact remains, therefore, that the emperor is not the lord of all temporal things.

Again, if the emperor is lord of all temporal things, he is lord of all such things either (i) by divine law or (ii) by the law of nature or (iii) by human law. (i) He is not lord by divine law because, as Augustine says in his commentary on John found in dist. 8, c. Quo iure, "By divine law `The earth is the Lord's and all that is in it' [Psalm 24:1]. God made the poor and the rich from the one mud; the one earth supports the rich and the poor." So the emperor is not the lord of all such things by divine law especially since, as Augustine attests in the same place, "We find divine law in the divine scriptures." Nowhere in the sacred scriptures, however, do we read that God gave the emperor lordship of all temporal things. (ii) Nor is the emperor the lord of all such things by the law of nature, because by the law of nature everything is common. (iii) Nor is he lord by human law, because human laws are the laws of the emperors (dist. 8, c. Quo iure). The emperor, however, could not appropriate to himself the lordship of the things that belong to others. Therefore by imperial law, which is human law, the emperor is not the lord of all temporal things.

 

CHAPTER 22

Student I will willingly listen to some arguments for the contrary opinion.

Opinion 2: The Emperor is lord of all temporal things

Master The contrary opinion, which lays down that the emperor is the lord of all temporal things, seems supportable by many arguments. For he who is the lord of the whole world is the lord of everything which is in the world and, consequently, is the lord of all temporal things. But the emperor is the lord of the whole world, as was proved above in chapter 5 of this second book. Therefore the emperor is the lord of all temporal things.

Again, he who is the lord of any person is the lord of things belonging to that person. But the emperor is the lord of all people, at least of those who are not clerics or do not pertain to them. Therefore he is the lord at least of all things belonging to those who are subject to him.

Again, he in whose power everything lies is the lord of all temporal things because temporal things seem especially to lie in the power of their lord. But everything lies in the power of the emperor, as the gloss on Extra, De electione, c. Venerabilem, which was brought forward above in chapter five of this second book attests. Therefore the emperor is the lord of all temporal things.

Again, the emperor is no less lord of all the things which belong to those who are part of the empire than a king is lord of all the things which belong to those who are part of his kingdom. But a king is lord of all the things which belong to those who part are of his kingdom. Therefore the emperor also is lord of all the things which belong to those who are part of the empire. The major premise seems evident. The minor premise is proved by what is said in 1 Kings 8:10-17, where we find the following, "So Samuel reported all the words of the Lord to the people ... . He said, `These will be the ways of the king who will reign over you. He will take your sons and appoint them to his chariots and to be his horsemen and to run before his chariots; and he will appoint for himself commanders of thousands and commanders of fifties, and some to plough his ground and to reap his harvest, and to make his implements of war and the equipment of his chariots. He will take your daughters to be perfumers and cooks and bakers. He will take the best of your fields and vineyards and olive orchards and give them to his courtiers. He will take one tenth of your grain and of your vineyards and give it to your officers and your courtiers. He will take your best male and female slaves, and the best of your young men and donkeys and put them to his work. He will take one tenth of your flocks, and you shall be his slaves." We conclude from these words that everything they owned pertained to the right of the king, and consequently to his lordship, especially since they are his slaves, as is expressly said, " ... and you shall be his slaves." For whatever a slave owns is the lord's, and whatever a slave acquires, he acquires for his lord.

Further, everything that is part of the empire belongs no less to the emperor than in former times those things which pertained to the kingdoms of unbelieving kings belonged to them. But those things which pertained to the kingdoms of unbelieving kings belonged to them. Therefore all temporal things which pertain to the empire and to those who are part of the empire belong to the emperor. The major premise seems evident. The minor premise is proved by what we read in Genesis 14[:16, 21-3], "Then Abraham brought back all the goods, and also brought back his nephew Lot with his goods, and the women and the people. ... Then the king of Sodom said to Abraham, `Give me the persons, but take the goods for yourself.' But Abraham said to the king of Sodom, `I have sworn to the Lord, God Most High, maker of heaven and earth, that I would not take a thread or a sandal-thong or anything that is yours.'" We conclude from these words that Abraham regarded those things that he brought back to have belonged to the king of Sodom. However, he brought back many things that belonged to those who were part of the kingdom of that king. Therefore Abraham considered that even those things that belonged to those who were part of the kingdom of the king belonged to that king. This is confirmed by Ambrose in his book in his book On the Patriarchs found in 23, q. 5, c. Dicat. He says, "Let someone who has conquered speak as Abraham spoke to the king of Sodom, `I will take nothing from you', although the booty was surely in the control of the conqueror.' He teaches military discipline, that everything is to be preserved for the king." We gather from these words that the booty which those going to war under a king capture belongs to the king, and yet booty belongs to the victor; and so the booty of a victorious soldier belongs principally to his king, although in some way it also belongs to the soldier himself. By the same argument the other goods that belong to a soldier belong principally to his king, and everything which is in a kingdom belongs principally to its king.

 

CHAPTER 23

Student If there is any opinion which lies between the aforesaid opinions, do not hesitate to record it.

Opinion 3: an intermediate opinion

Master There is one opinion that the emperor is not the lord of all temporal things which do not belong to the church in the sense that at his own pleasure he is permitted or able to make what arrangements he wishes about all such things, yet he is to a certain extent lord of everything because of the fact that he can make use all such things despite anyone's objection and adapt them to the common benefit, whenever he sees that the common benefit should be preferred to a private benefit. To make this clear they say that it should be known that certain things are movable and certain are immovable, and some of each belong only to the emperor. No one else has lordship or charge of these things, which can be called imperial things or things belonging to the fisc, except by special commission of the emperor. But certain things belong to others who are lords over them in some way.

Of those moveable things which belong especially to the emperor, the emperor is the lord to the extent that he can make any arrangements he wishes about them without being bound to make any restitution. For he can sell, give, bequeath and alienate just as he wishes, gold and silver, precious stones, clothing, arms, animals and other moveable things without being bound to make restitution. For even if he were to sin by alienating such things illicitly and from an evil cause he would nevertheless not be bound to make restitution to the empire or to another person. He is also lord of some immoveable things in this way, as a result of which he can in the same way give and alienate some castles and fields, vines and cities. So in such things he has a very full lordship and right. But he does not have such a full lordship and right in some immoveable things because he cannot sell, give, bequeath or alienate them. So he cannot alienate the empire and kingdoms the alienation of which would redound to the notable detriment of the empire, and if he were in fact to alienate them, such an alienation would not hold in law but everything should be resumed into the right of the empire and he himself would be bound to make restitution if he could. Nevertheless he is lord of such things to a certain extent, in so far as he can appropriate and defend them and use them for the common benefit while no one else is known to have any right in them. He also has lordship of things pertaining to others in so far as he can remove the things from them for the sake of the common benefit and because of an offence by those possessing them and can appropriate them for himself or can give them to others. Yet because he cannot do this according to his own free will but because of a fault by their possessors or for a reason relating to the common benefit, so he does not have as full a lordship and right in them as in the first things [belonging especially to him] which he can alienate at his own pleasure just as he wishes, with the result that however he has alienated them the alienation holds, at least if he has conferred them on those who are obedient, and ought not be recalled by anyone.

 

CHAPTER 24

Student On the basis of this opinion let us run through the arguments for the first of the completely opposing opinions recorded in chapters 21 and 22 above and let us see what it thinks of them. So tell me first what it says about those things that are among no one's goods. 

Master To this it is said that after divine lordship the principal lordship of those things that are among no one's goods is in the possession of the whole human race, because God gave lordship of all temporal things to our first parents for themselves and their descendants, as we gather from chapter one of Genesis. Yet nonetheless the emperor is to some extent the lord of all such things in so far as he can appropriate them to himself for the common benefit so that they may not granted to whoever possesses them except at the good pleasure of the emperor, and are consigned to the emperor if he discerns that this is expedient for the common benefit.

Student Can the emperor at his own pleasure order that no one inferior to him appropriate such things to himself?

Master The reply is that he cannot do so. For certain stipends, taxes or defined temporal things have been assigned for his use so that as a result he does not seize the things of other people and leaves to those who possess them things which are among no one's goods, unless for some offence or for some reason or for the common benefit he sees that he should appropriate them for himself.

Student Tell me what reply is made to the second argument which asserts that a lord of temporal things can sell them if he wants to, which is something the emperor cannot do.

Master The reply is that a lord of temporal things who has in them the fullest lordship and right can sell them if he wants to, and it is of such a lordship that the decretal 1, q. 1, c. Eos qui, is speaking. But the emperor does not have such lordship with respect to all temporal goods but only with respect to some of them.

Student What does it say about the third argument which is based on the fact that emperors have given away many things?

Master It says that many people often give away many things and yet retain for themselves principal lordship of them, and therefore the emperor can alienate many things from himself and yet not in such a way that he cannot in many cases recall them and appropriate them to himself for the common benefit. Therefore he always remains lord of them in some way.

Student Tell me how it replies to the fourth argument which accepts that the emperor has a special portion of the booty captured in a just war.

Master The reply is that although he has a fuller right in the special portion assigned to him, he is nevertheless to some extent lord of the other portions in so far as he can take them to himself for the common benefit.

Student How does it reply to the fifth argument about the things belonging to the fisc?

Master The reply is that although the emperor has a fuller right in the things belonging to the fisc than in other things, nevertheless for the above reasons he has lordship in some way of all other things too.

Student What does it say about the sixth argument which accepts that if the emperor is lord of everything, either all things are common or all things are the property of the emperor?

Master It says that because the emperor is not lord of all temporal things in the same way, but is lord of some things in one way and of other things in another way, so it is not the case that all things are common - but some are the property of the emperor so that they belong to no one else - nor are all things the property of the emperor in the sense that no one else has ownership in them, but some things are appropriated to other people. Nevertheless the emperor is to some extent lord of these things in so far as he can remove them from others for the common benefit.

Student Tell me what it says about the seventh argument which affirms that neither by divine law nor by the law of nature nor by human law is the emperor lord of everything.

Master The reply is that the emperor is the lord of everything in the above ways by human law because, just as the empire is from people and from God with people as intermediaries, so the lordship which the emperor has is from people and, consequently, he has lordship of all such things by human law. And when it is said that ‘human laws are the laws of the emperors’ (dist. 8, c. Quo iure, the reply is that at the time when Augustine's said those words human laws were the laws of the emperors because at that time the people had transferred their power to establish laws to the emperor. But human laws have sometimes not been imperial laws because there were human laws before there was imperial law, and therefore the emperor is not the lord of all through imperial law but is to a certain extent lord of all by right of the people who transferred to the emperor that lordship of everything that God gave to our first parents and their descendants in order for him to be able to use those things for the common benefit and order and arrange them as seems expedient for the common benefit.

 

CHAPTER 25

Student Briefly tell me now what reply that third opinion makes to the arguments brought forward in chapter 22 above for the second opinion.

Master To the first of them it is said that the emperor is not lord of the whole world in the sense that at his will he can do whatever pleases him with all the people of the world. But because everyone is bound to obey him in those matters which pertain to the common good, he is not for that reason also lord of all temporal things, except in the ways referred to above in chapter 23.

The reply to the second argument is the same, that he who is people's lord is to some extent the lord of the things belonging to those people, and therefore the emperor is to a certain extent the lord of all the things belonging to those subject to him, because he can use them for the common benefit, although not at his own pleasure without some reasonable grounds.

The reply to the third argument is that everything is in the power of the emperor because he can take everything to himself, [but only] for the common benefit and not otherwise. So he is lord in that way that was described before and not in other respects.

The reply to the fourth argument is that a king is to a certain extent the lord of all those things which are in his kingdom, yet not in such a way that he can at his pleasure make any arrangements he wants for them, but because he can remove everything for the common good. That was the sense in which God announced that everything that belonged to the children of Israel ought to pertain to the right of the king.

Student It seems that it pertains to the right of a king to be able to take what belongs to his subjects not only for the common benefit but also for the benefit of the king himself, since the text cited there expressly says [1 Kings 8:11, 12, 14], "He will take your sons and appoint them to his chariots ... and he will appoint ... some to plough his ground and to reap his harvests ... He will take the best of your fields and vineyards and olive orchards and give them to his courtiers." We gather from these words and from almost everything found in that authoritative text that it pertains to a king's right to be able to take everything for his own private benefit.

Master The reply is that the king's benefit is the common benefit. Hence, just as he who sins against a king sins to some extent against everyone subject to him, so he who does something for a king seems to some extent to do this for all those subject to him. Therefore when a king was not able to work out his own affairs by using his own slaves and his own goods, he was able to take away the things, slaves and sons of other people subject to him in order to work out his own affairs and in this he assisted the common benefit. It was in this sense that God said that everything pertained to the king's right. When there was no such necessity, however, he could not do the above things, and so, as we read in 3 Kings 21[:1-4], Naboth the Jezreelite refused to give, exchange or sell his vineyard to King Ahab because he saw that the king was not seeking it out of any necessity or for the common good but only out of avarice and greed. Hence too we read in 3 Kings 12:4 that the whole multitude of Israel said to Rehoboam, the son of Solomon, "Your father made our yoke heavy", implying that he had oppressed them against justice and the legitimate power of a king. So although a king can take away the possessions, servants and sons of his subjects and accommodate them to his own benefit, when his own resources are not sufficient and the common benefit would be hindered if the king's own affairs were not expedited, nevertheless he cannot do this when it would not redound to the common benefit.

Student This seems to emphasise that God said [1 Kings 8:17], "And you shall be his slaves." For slaves have nothing of their own.

Master The reply is that God did not say, "And you shall be his slaves", because they were going to be of servile condition and not free, since we read in 3 Kings 9[:22] that, "Of the Israelites Solomon made no slaves; they were the soldiers, they were his officials, his commanders, his captains, and the commanders of his chariotry and his cavalry." But they were going to be slaves with the word ‘slaves’ taken broadly for those subjects who in certain situations are bound to serve with their lord as free subjects.

Student Tell me how it replies to the fifth argument.

Master The same reply is made as was made to the preceding argument, that everything that is in a kingdom is the king's with respect to his power to use it for the common good not with respect to his power to dispose of it at his own pleasure without a common benefit. And booty taken in a just war belongs to the king in this way, and also in another way, namely with respect to his power to divide it and to distribute it to the soldiers who took it -- justly, however, and without partiality to any persons. Hence the gloss on dist. 1, c. Ius militare says, "Note that everything belongs to the prince in the sense of its protection, but he is bound to divide it according to people's merits." Hence also the gloss on the word omnia in 23, q. 5, c. Dicat says, "If military service is performed under someone all the booty is the lord's, but he is bound to divide it equally according to the quality of persons involved, as above in dist. 1, c. Ius militare, just as tenths are given to a bishop so that he may divide them (12, q. 2, c. Concesso). So when it is said that by the right of nations what we capture in war becomes ours, (as in ff. De acquirendo. rerum dominio, Naturale, para. ultimo), this is true because it does belong to the one who captures it, but he is bound nevertheless to give it to his lord to divide according to the merits of his men."

CHAPTER 26

Student We have asked what power the emperor has over some particular things. Now I seek to find out in general whether the emperor has fullness of power in temporal matters, just as the pope is known to have fullness of power in spiritual matters according to some people.

Does the Emperor have fullness of power in temporal things?


Master There are different assertions about this. One is that the emperor has such fullness of power in temporal matters that he can do anything that is not against divine or natural law law, with the result that all those subject to him are bound to obey him in all matters of this kind.

Student Would you try to argue for that assertion?

Opinion 1: The emperor has power to do anything not contrary to divine or natural law, and in such matters all his subjects must obey him

Master Many arguments can be brought forward for that opinion. For he who is bound by no human law but is under an obligation only to divine laws and natural laws can do anything that is not against any of those laws. But the emperor is bound by no human law, but by divine and natural laws [only] because, as we find in ff. De legibus and as the gloss on Extra, De constitutionibus, c. Canonum records, the emperor is exempt from laws. So in temporal matters he has such fullness of power that he can do anything that is not against divine and natural laws.

Further, that person has fullness of power in temporal matters whose will has the force of law in such matters; but "what pleases a prince", especially the emperor, "has the force of law". So the emperor has fullness of power in matters of this kind.

Again, that person has fullness of power in temporal matters whose very mistake “makes a law”; but "the mistake of a prince", namely the emperor, "makes a law" in temporal matters; therefore he has fullness of power in temporal matters.

Again, if someone subject to the emperor can justly resist an order of his in matters which is not against divine law nor against the law of nature, it is necessary that he be able to resist it by some law, because we can do correctly what we can do by law. So he can resist it either by divine law, or by the law of nature, or by human law. He cannot do so by divine or natural law because it was stated that his order is not against either of those laws. Nor can he do so by human law because, we read in dist. 8, c. Quo iure as brought forward above, "Human laws are the laws of the emperors. Why? Because God distributed those human laws to the human race through the emperors and kings of the world." But by imperial law no one can resist an order of the emperor in matters of this kind. Therefore the emperor can do everything in all matters of this kind.

Moreover, human society is bound to observe that to which it binds itself. But human society binds itself to obey kings generally, and consequently the emperor much more so. For Augustine says in the second book of his Confessions, as found in dist. 8, c. Quae contra, "The general agreement of human society indeed is to obey its kings." So in temporal affairs generally the emperor ought to be obeyed, with the result that he can do anything which is not contrary to divine or natural law.

 

CHAPTER 27

Student Relate the opposite assertion.

Opinion 2: The Emperor has power only for the common good

Master The opposite assertion is that the emperor does not have fullness of power in temporal matters to be able to do everything that is not contrary to divine or natural law, but his power is limited, so that, with respect to his free subjects and their goods, he can do only those things which are useful to the common benefit.

Student Would you bring forward some arguments for that assertion?

Master One argument for it is the following. That person does not have fullness of power to be able to do everything whose laws ought to be made for the common benefit not for his private advantage. For if he were to have fullness of power he could establish laws not only for the common benefit but also for the private benefit of himself or someone else and for any reason at all, as long as it was not against divine or natural law. But just like other laws imperial laws ought to be made not for private advantage but for the common benefit, as Isidore attests in dist. 4, c. Erit autem. He says, "Moreover, a law will be honourable, just, possible according to nature and the custom of the country, appropriate to the place and time, necessary, useful, clearly expressed too lest through its obscurity it contain something deceptive, framed not for any private advantage but for the common benefit of citizens." So the emperor does not have such fullness of power that he can do anything which is not for the common benefit.

Further, if the emperor were to have such fullness of power in matters of this kind, all other kings and princes and other lay people would be subject to him purely as his slaves. For the master of slaves does not have any greater power over them than to be able to order them to do anything which is not against divine or natural law; indeed perhaps he does not have such great power over them. If the emperor could not only do those things which are for the common benefit, therefore, but also anything else in temporal affairs which is not against divine or natural law, all others would be subject to him as his true slaves.

Again, the pope does not have such fullness of power in spiritual matters because he cannot enjoin on anyone what is supererogatory, such as virginity, fasting with bread and water, entry to the religious life, and the like. So it is much more the case that the emperor does not have such fullness of power in temporal matters.

Further, the emperor does not have greater power in temporal affairs than the people had, since the emperor has his power from the people as was argued above and the people could not transfer to the emperor greater power or right than they had. But the people did not ever have such fullness of power that they could enjoin on anyone at all anything that is not against divine or natural law, because they could not enjoin those things that did not have to be done out of necessity. The gloss on Extra, De constitutionibus, c. Cum omnes attests to this. It says that in such matters that do not have to be done out of necessity "nothing can be done unless everyone agrees." If the people enjoin something on any one person that does not have to be done out of necessity, therefore, he is not bound to do it unless he wishes to. So the fact remains that the emperor does not have such fullness of power.

Moreover, to destroy, alienate, give away, sell or bequeath the empire is against neither divine nor natural law, yet the emperor cannot do any of these things. Therefore he does not have such fullness of power.

Again, the emperor does not have power which is dangerous to the common good, but such fullness of power would be dangerous to the common good. For he could reduce all his subjects to poverty and this would be contrary to the common good.

Again, power which is established only for the common benefit extends only to what is organised for the common benefit, and consequently does not extend to everything which is not against divine or natural law. But imperial power is established only for the common benefit. So it does not extend to what does not pertain to the common benefit. This argument is confirmed, because that which is not organised for its proper end seems to be disorganised. However, what is disorganised should not be judged as licit. But the end for which of an emperor is established is the common benefit. What the emperor does by imperial authority and does not organise for the common benefit, therefore, he does in a disorganised way and consequently illicitly. We infer from this that by imperial authority the emperor cannot do everything which is not against divine or natural law, but only what profits the common benefit.

 

CHAPTER 28

Student Because that second opinion seems to favour the community of mortals and the common good, for which everyone is bound to be zealous, I want to know how it replies to arguments for the opposite opinion. And so tell me how it replies to the first argument brought forward in chapter 26. 

Master The reply to it makes a distinction within human law, because some human laws are the laws of emperors and other people and particular communities subject to the emperor and these can be called civil laws. Some are to a certain extent laws of the whole community of mortals and these seem to pertain to the law of nations. They are to a certain extent natural and to a certain extent human and positive, as can be gathered from what was said in chapters 10 and 11 in the first book of this part. The emperor is by no means bound by necessity by the first laws, that is the purely civil ones, whether they are his or the laws of other people or particular communities, although it is proper for him to live in accord with his own laws. Because of the fact that all nations, especially those that are rational and live in accord with reason, accept the second kind of laws which pertain to the law of nations, the emperor is bound by them, and he is not permitted to transgress them regularly, although he can do so in a particular case in which he sees that they detract from the common benefit. Hence he would not be permitted generally to prohibit occupations of places, wars, captures, slavery, reprisals, the custom of the non-violation of ambassadors and other matters that are known to pertain to the law of nations. However, for the emperor not to have fullness of power to be able to do anything in temporal matters which is not against divine law or absolute natural law, (which was discussed above in chapters 10 and 11 of the first book of this part) pertains to the law of nations, just as it is also known to pertain to the law of nations for some men to be free and not purely slaves, in that one follows from the other. And therefore the emperor is bound by this law, which nevertheless is a human law because if all mortals agreed and there was no one at all in opposition its opposite could be preserved as law.

Student Tell me how it replies to the second argument.

Master In response to that it is said that “what pleases a prince”, that is the emperor, reasonably and justly because of the common good “has the force of law” when he makes it known clearly. If, however, something pleases him not because of the common good but because of some private good, it does not have on that account the force of law, namely it is not just, but wicked and unjust.

Student That reply, like the opinion recorded in the previous chapter, seems to detract from the truth and authority of the emperor. For according to what was written above, the emperor could not establish any law except a general one that was mindful of the common good. It follows from this that he could not grant any privilege to any one at all, because privileges are private laws not common or general (dist. 3, para. Hoc quidem and c. Privilegia. But for an emperor not to be able to give any particular privilege to any one seems to detract from his truth and authority.

Master The reply to this is that because every private person and every particular college is part of the whole community, so the good of any private person and any particular college can redound to the good of the whole community and be arranged for the common good. If in granting special privileges to some particular persons or colleges, therefore, the emperor intends this to be for the common good and his reasoning is not false, those privileges are just and pertain to the common good. If he does not intend this to be for the common good in that way, however, but grants privileges of this kind out of private love or for some other less just reason, those privileges are not just but are wicked and unjust, and the one granting them is not absolved of the fault of partiality towards persons.

Student Tell me what it says in response to the third argument.

Master It says that a reasonable mistake by a prince makes law in the sense that others are bound to obey unless they are certain that the prince's mistake is against divine or natural law or against the common good. A different sort of mistake by the prince does not make law.

Student Indicate how it replies to the fourth argument.

Master The reply is by way of what was said above in response to the first argument, because as was said there often someone can resist an emperor's order which is not against divine or natural law on the basis of human law, not civil law but the law of nations,. In reply to Augustine it is said that he is talking about human civil laws not about the law of nations, because civil laws are the laws of emperors and kings but the law of nations does not come from the disposition of emperors and kings, although it can be said to come with their approval and respect.

Student Tell me what that opinion thinks about the last argument.

Master It thinks that the general agreement of human society is to obey kings in those matters which pertain to the common good. And so human society is under an obligation to obey the emperor generally in those matters which profit the common benefit, but not in other matters about which it does not doubt that they do not profit the common good.

CHAPTER 29

Student Finally, let us discuss briefly whether someone elected as king or emperor can and should by virtue of the fact that he has been elected involve himself by right in arranging the temporal affairs of the kingdom before his election has been presented or even notified to the pope.

Should an elected secular ruler administer at once, or wait to notify the pope?

Master Different replies are made to this according to the different opinions recorded above. For according to those who say that the empire is from the pope, the one elected has no legal right of administration before he is confirmed by the pope. According to those who say that the empire is no more from the pope than is the kingdom of France or any other kingdom of believers or unbelievers and that the emperor is no more subject to the pope in temporal affairs than the king of France or anyone else elected as king or emperor of the Romans, then by the very fact that he has been elected, even without this election being presented or notified to the pope, he has the full right of administration in temporal affairs and he can and should involve himself in the empire or Roman kingdom, unless the Romans or those to whom the Romans have transferred their authority, right and power have ordained for some reason for the common good that before the one who has been elected involves himself in the kingdom or empire he should be presented to the pope, just as sometimes the election of the pope was presented to the emperor before his ordination (dist. 63, para. Electiones and c. Agatho).

Student It seems to me generally that if the empire is from the pope and the emperor ought to fulfil his oath of fidelity like a vassal to his lord, the one who has been elected should not involve himself in the kingdom if his election has not been presented to the pope and the pope has declared his wish about whether he wants the elected to involve himself in the kingdom. So follow up with another opinion and try to argue for it.

Master It seems provable in many ways that the one who has been elected should at once undertake administration. For in matters of this kind a reasonable custom especially should be observed and preserved, but it was a reasonable custom from the beginning that the one who was elected involved himself at once before his election was presented to the pope. For unbelieving emperors, who were true emperors although they were unbelievers, did not present any election to the pope and did not need him at all. Some emperors too who were crowned as emperors by the pope did indeed undertake administration and were crowned with another crown or crowns before their coronation in Rome with the golden crown, although they did notify or present their election to the pope. So the custom that the one who has been elected should at once begin to undertake administration should be preserved.

Further, someone elected to any secular dignity for which he is not subject to someone else is not bound to present his election to another before he undertakes administration. But someone elected emperor or king of the Romans is not subject to the pope for the Roman kingdom since he is not the pope's vassal for the Roman kingdom. So he ought to undertake administration even if he has not presented his election to the pope.

Again, the king of the Romans is no more subject to the pope than any other kings because he is subject neither by divine nor by human right, but many kings, even those who are believers, undertake administration without notifying anything to the pope either about themselves or about the death of their predecessors or fathers. Therefore, the king of the Romans too should immediately undertake administration.

Student It seems that by human law the king of the Romans is more subject to the pope than many other kings because he is elected by the authority of the pope who establishes the electors who have to elect him.

Master It seems to others that that is not an objection because human law is either the law of emperors or kings or it is canon law which is law of the highest pontiffs. But by imperial law the king of the Romans is not more subject to the pope than are other kings, nor is he by canon law. This is firstly because the highest pontiff could not subject the king of the Romans to himself more than other kings, and so if he could subject the king of the Romans to himself he would be able in the same way now to subject to himself the king of France and any other kings. This is so secondly because if [reading ‘si’ with Ve] there are laws someone cannot abolish, he cannot subject to himself the maker of those laws. But the pope cannot abolish imperial laws, as the gloss on dist. 10, c. Constitutiones attests when it says, "So do the canons always modify laws? Put that idea away, except in respect to spiritual matters ... and the pope cannot abolish laws except in respect of his own forum." By no canon nor canon law, therefore, could the pope subject to himself the king of the Romans who is the maker of laws.

Student Try to strengthen that opinion further.

Master That the king of the Romans, by the very fact that he has been elected, ought to undertake administration before his election is presented to the pope is proved because someone who has been elected and who does not need to be confirmed by someone else can undertake administration before his election is presented to someone else because every right and power of administration that someone elected has he has either through his election or his confirmation. Hence, neither bishops nor others who are consecrated acquire any right of administration through that consecration, but it is by confirmation that they have rights of administration. The pope too has all his rights of administration by election (dist. 23, c. In nomine). So he who does not need to be confirmed has every right of administration by the very fact that he has been elected. But the one elected as king of the Romans does not need to be confirmed by the pope. Hence even Innocent III, who in Extra, De electione, c. Venerabilem seems to give a fuller account of what a pope does for the one who has been elected as king of the Romans, makes no mention at all of confirmation. Nor do we read that of old anyone who was elected as king of the Romans, even if he was a believer was confirmed by the pope. So someone elected king of the Romans has by virtue of that election an immediate right of administration.

 

3.2Dial. Book 3, ch. 1-4

Revised version of the translation in /pubs/dialogus/t32d3a.html

Chapter 1

Student: I do not remember having read explicitly in the divine scriptures that in spiritual affairs all power has been denied to the emperor, if he were catholic, and so I propose to investigate in this third book whether the emperor has any power over spiritual matters or is capable of power of this kind. Moreover, because not only are grace, virtues, the gifts of God, sacraments, ecclesiastical rights, ecclesiastical causes, goods that belong to the church and things of this kind which are said to pertain especially to clerics reckoned to be among spiritual matters, but so are persons or individuals, I will begin my inquiry about the power of the emperor over spiritual matters with spiritual persons.. Now I consider that we should first ask whether the emperor has power over any spiritual persons.

Does the Emperor have any power in spiritual matters?

Does the Emperor have any power over spiritual persons?

Master: It seems to some people that persons or individuals can be called spiritual in two ways. For some people are called spiritual because they live virtuously in accordance with the spirit and Christian law, which is spiritual law, and the apostle is talking about such spiritual people when he says in 1 Cor. 2:12-3, "Now we have received not the spirit of the world but the Spirit that is from God, so that we may understand the gifts bestowed on us by God. And we speak of these things in words not taught by human wisdom but taught by the Spirit, interpreting spiritual things to those who are spiritual." Others can be called spiritual, even if they do not live virtuously in accordance with the spirit, because they have been assigned especially to spiritual offices, as clerics and religious have been. Many of these are known not to lead a spiritual and virtuous life but a carnal and vicious one, so that by virtue of a comparison of their lives laymen have the power to judge them, even bishops who are the greatest among the clerics. Jerome attest to this when he says in 8, q. 1, c. Vereor, "Many people judge bishops who withdraw from their position in the church and do not engage in those activities which befit a bishop." The emperor has power over many men called spiritual in the first sense because many laymen subject to him should be considered spiritual in that sense of the word since they are living according to the spirit not according to the flesh. There are opposed opinions about men called spiritual in the second sense, with some people saying that the emperor has no power over them and others asserting the opposite.

 

Chapter 2

Student: I was intending to ask only about people called spiritual in the second sense. So let us go on with them, beginning with the most exalted of them, namely the highest pontiff, investigating first whether the emperor has or can have any power or right in the election of the highest pontiff and second whether he has or can have any power over him who is appointed highest pontiff. First, however, I want to investigate whether the right of electing the highest pontiff can belong to the person of the emperor.

Does (or can) the Emperor have any power in relation to the pope?

Can the right of electing the pope belong to the Emperor?

Opinion 1: The Emperor cannot have the right to elect a pope

Master: Contrary assertions are made about this. One is that such a right cannot belong to the person of the emperor as long as he remains emperor.

Student: Would you bring forward some arguments for that assertion?

Master: Many arguments can be brought forward for it. For he who is not competent to have spiritual rights cannot have the right to elect the highest pontiff because the right to elect the highest pontiff seems to have first place among spiritual rights. But the emperor and other lay people are not competent to have spiritual rights, as the gloss on Extra, De iudiciis, c. Quanto, attests when it says, "A layman can possess such a right," that is the right of patronage, "when it is not merely spiritual but is bound to him, but he cannot by right possess other rights which are purely spiritual." Therefore the right to elect the highest pontiff cannot belong to the emperor.

Further, just as the pope presides in spiritual affairs, so does the emperor in temporal affairs. But temporal or secular rights, especially those which are known to have the most important place among secular rights, can in no way belong to the highest pontiff and to other clerics, for example, rights to engage in cases of blood, which seem to be considered especially secular rights. So rights which are especially spiritual, among which the right to elect the highest pontiff seems to be first, can in no way belong to the emperor and to other lay people.

Again, he who ought to be content with secular acts only is not competent to have the power or right to elect the highest pontiff, because to elect the highest pontiff should be reckoned among spiritual acts. But the emperor should be content with secular acts only, as Pope Nicholas attests when he says in dist. 10, c. Imperium, "Your empire should be content with its daily administration of public matters and should not appropriate those things which belong only to the priests of the Lord." At this point the gloss says, "For his power is separate from priestly power, as is clear within in the same distinction c. Quoniam and dist. 96, c. Cum ad verum: 'Otherwise if he appropriates their duties, he is struck with leprosy, as was Ozias." Therefore the emperor is not competent to have this right to elect the highest pontiff.

Moreover, separate powers have separate functions, as Pope Nicholas attests when he says in dist. 96, c. Cum ad verum, "That mediator between God and men, the man Jesus Christ, distinguished between the duties of each power by way of its own acts and separate dignities." But the secular power and the ecclesiastical power are separate powers. Therefore they have separate functions. But it is certain that the act of electing the highest pontiff belongs to ecclesiastical power. Therefore it does not belong to the secular power and consequently the emperor ought not to engage in such an act.

Again, just as different members have different functions in the human body (Romans 12:4), so in the body of the church different members should have different functions. Hence, in dist. 89, c. Singula, Gregory says, "[So it is] in the body of the church according to a truly spoken opinion of Paul's: in one and the same spiritual body the one duty should be conferred on one person, and the other duty should be committed to another person ... just as it is unbecoming that one member in the human body should discharge the duty of another, so it is certainly a novelty and also most wicked if the separate ministries of affairs have not been distributed to just that many persons." But clerics and laymen are different members of the body of the church; therefore they have separate functions; to elect the highest pontiff, however, pertains to clerics (dist. 23, In nomine); in no way, therefore, can it pertain to laymen.

Again, the emperor and other lay people cannot elect patriarchs, archbishops, bishops and the prelates of other collegiate churches; it is much more the case, therefore, that they cannot elect the highest pontiff. The consequent seems clear. The antecedent seems plainly provable by sacred canons. For in dist. 63, c. 1, Nullus, Pope Hadrian says, "Let no member of the laity, prince or potentate, involve himself in the promotion of a patriarch, a metropolitan or any bishop, lest an irregular and unsuitable confusion or disagreement arise, especially since it is not appropriate that any of the powerful or any other lay person have any power in such matters." And in Extra, De electione, c. Sacrosancta, Gregory IX says, "The right of electing in a collegiate church does not fall on the laity"; and the same pope, in c. Massana of the same title, says, "We forbid by a perpetual edict the election of a bishop to be undertaken by the laity together with the canons. If by chance it is undertaken, let it acquire no durability, notwithstanding any opposed custom, (which should rather be called a corruption)." The gloss here on the word "custom" says that, "Such a custom ... because it is not reasonable cannot be prescribed." We gather from these words that by no custom can the laity have the right to elect prelates, and consequently they cannot have this by human right, because whatever human right can bestow custom can bestow. However, it is certain that lay people do not have this right to elect by divine right because then they could not be deprived of it. As a result, therefore, they can in no way have the right to elect bishops and the prelates of collegiate churches. Many other sacred canons seem clearly to assert this: they are found at dist. 63, c. Adrianus I, c. Si per ordinationem, c. Non est, c. Non liceat, dist. 79, c. Si quis and c. Si quis pecunia, 16, q. 7, c. Si quis deinceps, c. Quoniam, c. Si quis episcopus, c. Sane, c. Si quis clericus, c. Constitutiones, c. Nullus, c. Per laicos, c. Non placuit, c. Laicis and at many other places.

 

Chapter 3

Student: I would willingly listen to the opposite opinion to that one.

Opinion 2: The Emperor can have the right to elect a pope

Master: The opposite opinion to the above is that although the emperor does not have specifically by reason of his imperial dignity the right to elect the highest pontiff or other lesser prelates, yet in so far as he is a catholic and believing Christian the right to elect the highest pontiff can belong to him in such a way that his imperial elevation does not render him incompetent to have a power or right of this kind. On the contrary, to some extent it renders him more worthy of a power or right of this kind.

Student: Bring forward some arguments for that opinion.

Master: There are many arguments for it. For that power or right can belong to the emperor which any kings have in fact sometimes had. But some kings have in fact had the power or right to elect the highest pontiff. Therefore such power or right can belong to the emperor. The major premise does not seem to require proof. The minor premise seems to be clearly proved by plain authoritative texts. For as we read in dist. 63, c. Adrianus, the following is found in the Historia Ecclesiastica, "Pope Hadrian requested King Charles to come to Rome to defend the possessions of the church. ... Then when he," that is King Charles, "returned to Rome he established a synod there with Pope Hadrian in the church of the Holy Saviour in the Lateran palace, a synod celebrated by 153 bishops, religious and abbots. Then Pope Hadrian together with the whole synod committed to Charles the right and power to elect the pontiff and to ordain to the apostolic see. They also granted to him the dignity of the patriciate. The pope also pronounced that bishops and archbishops in every province were to accept investiture from him, and that a bishop was to be consecrated by no one unless he was recommended and invested by the king. And he bound with the chain of anathema anyone who went against this decree and ordered that his goods be confiscated if he did not come to his senses."

Again, in the same distinction, c. In synodo, Pope Leo says, "In the synod gathered together at Rome in the church of the Holy Saviour, I follow the example of the blessed Hadrian bishop of the apostolic see who granted to the lord Charles, most victorious king of the Franks and the Lombards, the dignity of the patriciate, the right to ordain to the apostolic see and the to invest bishops. I too, Leo, bishop and servant of the servants of God, together with the whole clergy and Roman people, determine, confirm and strengthen this right and, by our apostolic authority, concede and grant to the lord Otto I, king of the Germans, and to his successors in this kingdom of Italy, the capability forever [omitting ‘ordinandi’ with Gratian] of choosing our successor and of ordaining the pontiff of the highest apostolic see, and, therefore of ordaining archbishops or bishops, so that they accept investiture and consecration from him from whom they ought, with those excepted the ordaining of whom the emperor has granted to the Roman pontiff and archbishops. Henceforth no one of whatever dignity or piety is to have the capability, without the consent of that emperor, of choosing the patriarch or pontiff of the highest apostolic see or of ordaining any bishop. ... If someone is chosen as bishop by the clergy and people he will not be consecrated unless he is recommended and invested by the above king." We conclude from these texts that some kings and [reading ‘et’ not ‘in’ with the mss] emperors have had the power to promote and the power to elect the highest pontiff. Therefore such power or right can belong to the emperor.

The same conclusion derives from the council [of Toledo], (found in the same dist. 63, c. Cum longe), "When the speed of messengers coming and going is impeded by the length and breadth of their lands so that either the passing of a dying bishop cannot be notified to kings or a free election of the successor of the dying bishop cannot be expected of the prince ... it has pleased all the bishops of Spain and Galicia that, saving the privilege of each province, it should henceforth remain permissible for the archbishop of Toledo to put in charge in any provinces in the sees of those bishops who have died whatever bishops the royal power has chosen who have been approved as worthy in the judgement of the same bishop of Toledo." We find from these words that kings sometimes had the power to elect bishops.

Further, emperors and lay people can take part in the elections of bishops. Therefore, the right to elect the highest pontiff can belong to the emperor too. The consequent seems to be proved by the fact that there seems to be the same argument for the one as for the other. The antecedent is proved by what is included in dist. 63, c. Adrianus 1 from the eighth synod where the following words are added after the synod has pronounced that no layman should involve himself in the election of bishops, "But if any layman is invited by the church to apply himself to and to co-operate in this, he is permitted, if by chance he so wishes, with reverence to obey those who are supervising." The gloss at this point [col.314] says, "Here the laity are invited to an election." We conclude from these words that at least those laymen invited to do so can have a voice in the election of bishops and so are competent to have power of this kind.

Again, in dist 63, c. Valentinianus, we read that when the bishops had been called together for the election of the bishop of Milan )on the occasion when blessed Ambrose was elected) [emperor] Valentinian spoke as follows, "You who have been instructed in divine eloquence know plainly what kind of man a bishop should be and that it is not fitting that he govern those subject to him only by his word but also by his way of life, and that it is appropriate that he himself be an imitator of every virtue and lead a good life as a witness to his teaching. And so appoint such a man in this episcopal see before whom we who govern the empire may sincerely lower our head and whose advice we may receive, when we fail as men necessarily do, as the remedy of one who heals." After those words the following are immediately added, "When the emperor had said this, however, the synod besought him that it should rather be he as someone wise and pious who made the decision." It seems that these words clearly imply that according to the declaration of that synod the emperor was able to choose the bishop of Milan although he did not wish to do so. And so he said to those bishops, "Such an election falls on you." For because the emperor refused to elect, the election pertained to the bishops.

Again, the right to elect the highest pontiff can no less belong to the emperor than the right to grant episcopates as he himself wills and wishes at the request of the highest pontiff, because it seems less to choose the highest pontiff than for the highest pontiff to have to ask the emperor to grant episcopates to suitable persons. But the emperor has sometimes been able to grant episcopates at his own pleasure to suitable persons at the request of the highest pontiff. Hence, in dist. 63, c. Reatina, Pope Leo writes to the emperors Lothair and Louis and says, "We beseech you in your clemency to deign to grant to the humble deacon Colonus rule of that same church," that is Rieti, "so that with your leave received we can with God's help consecrate him as bishop in that place. If, however, you do not want a bishop placed in authority over that church, would your serene highnesses deign to grant him the church of Ascoli which remains deprived of a head, so that, consecrated by our papal dignity, he can offer thanks to the omnipotent God and to your imperial highnesses." We learn from these words that the emperor could grant episcopates to suitable people. Therefore right to choose the highest pontiffS also belongs to him.

Again, the right to choose the highest pontiff can belong to him by whose order the ordination of the highest pontiff can be carried out. We find the following from the Deeds of the Roman Pontiffs in dist. 63, c. Agatho [c.21, col.240], "This man," namely Pope Agatho, "received  a divine letter," that is, one from an emperor, "by which the quantity of money which it was customary to pay for carrying out the ordination of the highest pontiff was revealed. The result was that if it happened that the election was carried out after his passing, he who was chosen should not be ordained unless in accord with the ancient custom a general decree first be introduced into the royal city, so that with their [the emperor’s] knowledge and at their order the ordination should thrive." Therefore, the right to choose the highest pontiff can belong to the emperor.

Student: Something remarkable seems to be implied in those words, namely that the election of the highest pontiff should have been placed before the emperor before the highest pontiff was ordained. It seems to follow from this that the one elected as highest pontiff should be confirmed by the emperor, because any election should only be placed before him to whom it pertains to confirm it. So if the election of the highest pontiff should be placed before the emperor that same election should be confirmed by him.

Master: The reply to this is that the confirming of some election does not always pertain to him to whom it ought to be placed before. Hence it also seems to some people that at this time the election of an emperor should be placed before the highest pontiff, yet it does not have to be confirmed by him. The election of the highest pontiff was placed before the emperor, therefore, not so that the emperor would confirm that election but so that he would examine it. When it was examined the emperor would consent to that election and command that all those subject to him should hold the elect as true pope and true highest pontiff after he had been ordained. Gratian seems to attest to this when he says, in the oft-quoted dist. 63, para. Principibus, "Indeed custom and order have handed it down that on account of the dissensions of schismatics and heretics the elections of Roman pontiffs and others bishops should be referred to princes and emperors; because the church of God has sometimes been shaken by these people and put at risk, we read that the laws of most faithful emperors have frequently defended the church against them. Their election was handed over to catholic princes, therefore, so that with the election strengthened by their authority no heretic or schismatic would dare to oppose it, and so that the princes themselves would be in accord as most devout sons with him whom they saw elected as their father and would become his supporters in everything." Similarly, according to some people, the election of the emperor is now placed before the pope, not for the pope to confirm the election or to confer the imperial dignity on him, since he is a true emperor by virtue of the fact that he has been elected, but so that no clerics or other adherents of the pope who strive for the destruction of the empire, of whom we believe there is a very great number in these times, dares to oppose the emperor whose election has been strengthened by the authority of the pope, and so that the pope himself, as one zealous for the empire and the common good, is in accord with him and becomes his helper in everything, especially in restraining the wicked.

Student: Try to argue further for that assertion.

Master: It seems that that assertion can be proved by the following argument. If the right to elect the highest pontiff cannot belong to the emperor, this will be because it is prohibited by some irrevocable or indispensable law. For if the emperor were not prohibited by some law from electing the highest pontiff, he could elect him like anyone else. But the emperor is not prohibited by any irrevocable or indispensable law from electing the highest pontiff. Therefore the right to elect the highest pontiff can belong to him. The major premise seems clear. The minor premise is proved, because if the emperor is prohibited from electing the highest pontiff, he is prohibited either by divine law or by natural law or by human law. But he is not prohibited by divine law because divine law is found in the divine scriptures (dist. 8, c. Quo iure), yet nowhere in the divine scriptures do we read that the emperor should not involve himself in the election of the highest pontiff. Therefore this is not prohibited by divine law.

Student: This does seem to be prohibited at least implicitly in divine law. For the power to elect lesser prelates than the highest pontiff is granted by divine law only to men of the church who are the successors of the apostles. So it is much more strongly the case that a power of this kind to elect the highest pontiff has been granted by divine law only to men of the church, and consequently cannot belong to the emperor. The antecedent is proved by the fact that it was only to the apostles, who were men of the church, that the power of choosing the 72 disciples, who are the model of lesser prelates, was granted, as Anacletus attests who says in dist. 21, c. In novo [c.2, col.69], "When the apostles saw that the harvest was great and the labourers few, they asked the lord of the harvest to send labourers to the harvest. Hence 72 disciples were chosen by them, and these are the model for priests who were established in the church in their place." If only the apostles had the power to choose the 72 disciples, therefore, only the successors of the apostles have the power to choose the successors of the 72 disciples, and these are the lesser prelates. So we find that it is by divine or gospel law that only men of the church have the right to elect prelates, and, consequently, we conclude that by divine law neither the emperor nor any layman can have the right to elect the highest pontiff.

Master: The reply to this is that although Christ wanted the apostles to ask him to send labourers, namely the 72 disciples, into his harvest, yet he did not want only those who succeeded the apostles in the apostolic dignity to have the power to elect the successors of the 72 disciples. For two absurdities would follow from this, one that the canons of cathedral churches, because they are not the successors of the apostles, could not have the right to elect their bishops, the other that cardinals, deacons and priests, since they are not the successors of the apostles, could not have the right to elect the highest pontiff, because he who cannot have the right to elect lesser bishops cannot have the right to elect the highest pontiff.

Student: You have said in adducing proof that the emperor is not prohibited by divine law from choosing the highest pontiff. Would you now follow up that line of argument?

Master: It seems that by natural law too the emperor is not prohibited from choosing the highest pontiff, because this does not seem to conflict with any precept of natural reason. Nor is he prohibited by any irrevocable or indispensable human law, because every human law by which one is prohibited is either canon law or civil law; but each of these is revocable or dispensable; so he is prohibited by no irrevocable or indispensable human law. The right to elect the highest pontiff, therefore, can belong to the emperor.

Chapter 4

Student: The arguments for the second opinion seem so plain to me that I do not care to hear replies to them. So tell me how reply is made to arguments for the opposite view.

Master: To the first of them it is said that the emperor and other laymen are competent to have many spiritual rights, because they are competent to have all those spiritual rights which can belong to someone not on account of the rank which he holds nor on account of some divine office to which he is appointed but on account of the common benefit of the church, that is of the congregation of the faithful. So since the right to choose the highest pontiff does not belong to anyone by reason of rank nor on account of some divine office to which the one having the right to elect is appointed but on account of the common benefit of the church, so that the church will has a head which rules it, this right can as a result fall to the emperor and other laymen. For the gloss on Extra, De iudiciis, c. Decernimus attests that laymen are competent to have many spiritual rights, so that they can even determine spiritual cases, when it says, "Indeed the pope can delegate civil, criminal and spiritual cases to a layman, as argued in dist. 32, c. Praeter, para. Verum, 2, q. 5, c. Mennam, dist. 63, c. In synodo and c. Adrianus and 10, q. 3, c. Illud." So since the gloss adduced says in the same place that laymen cannot possess rights which are merely spiritual, if it understands ‘merely spiritual rights’ to be those which cannot belong to anyone except by reason of his rank or of the divine office to which he is appointed, such as the right of consecrating churches, of ordaining clergy, of celebrating masses and the like, then laymen cannot possess merely spiritual rights according to human laws or according to divine laws. But if the gloss understands ‘merely spiritual rights’ to be those which are called ‘merely spiritual rights’ because they are only principally directed to a spiritual outcome alone not to a secular outcome, laymen cannot possess merely spiritual rights in this sense according to human constitutions and customs which have already been enacted and are in fact observed. Nevertheless they could possess these rights if such human constitutions and customs which could be revoked on reasonable grounds had been revoked, just as opposed human constitutions and customs were sometimes rationally observed. Laymen are absolutely competent to have rights of this kind, therefore, although not with the human constitutions and customs observed which are now observed.

To the second argument it is said that just as some secular rights can belong to the pope although he is pre-eminent in spiritual affairs, so some spiritual rights can belong to the emperor although he is pre-eminent in temporal or secular affairs. Therefore, just as the pope cannot have rights which are chiefly secular, so the emperor cannot have rights which are chiefly spiritual. The right to choose the highest pontiff, however, is not a chiefly spiritual right of this kind; but a chiefly spiritual right of this kind is a right that belongs to men of the church by reason of their order, the kind of right that cannot fall to a layman.

In reply to the third argument it is said that the emperor, as emperor, should be content with secular affairs, and this is what Pope Nicholas means in dist. 10, c. Imperium. But nevertheless as a Christian, a catholic and a Roman the emperor can involve himself in spiritual affairs. And the emperor can have the right to choose the highest pontiff, although as a Christian and a Roman and not by reason of his imperial majesty.

The reply to the fourth argument is that because secular power and ecclesiastical power are separate powers, so the acts that pertain to anyone by reason of such powers are separate. Nevertheless a person having one of these powers can carry out an act which another person having the other power carries out; otherwise neither the pope nor any prelate of the church could carry out any act of secular jurisdiction or power. To elect the highest pontiff, however, does not belong to a layman by reason of secular power, and yet he who has secular power can also carry out the act of choosing the highest pontiff.

There are two replies to the fifth argument. One is that just as different members in the human body have some duties that are their own and some that are communal (for all human members can move and feel and a man can deliver a blow, carry and perform many other activities because different members help), while other duties are proper to a particular member (such as to see, to hear and the like), so in the body of the church some duties are common to clerics and laymen and some are proper to clerics and some proper to laymen. However, unless it is ordained otherwise by human custom or constitution, to choose a prelate is a duty common to clerics and laymen, and so although it pertains to clerics to choose the highest pontiff, it can nevertheless pertain to laymen.

Another reply is that there is not complete similarity between the members of the human body and the members of the body of the church, although there is similarity in many respects. For the proper duties of the members of the human body come from nature, so that one member cannot make good the defect of another in every necessity. But with respect to many duties, even to a certain extent those that are proper to one member, the members of the body of the church can mutually make good each other's defects. For a cleric can make good the vice and defect of seculars, even with respect to those things that are to a certain extent proper to seculars, as could be proved by many examples that were touched on earlier. In the same way laymen too can in many cases make good the defect, negligence and even malice of clerics. So although when the body of the church was best ordered (in so far as the state of this present life allows) different duties had to be committed to different people, yet when the body of the church suffers different defects in different members, it is not unsuitable, indeed it is necessary, that different duties be committed to one person and that one member discharge the duty of another. So, granted that to choose the highest pontiff was to a certain extent proper to clerics, it will not be inappropriate in a particular case for the emperor, either alone or with others, to choose the highest pontiff.

The reply to the sixth argument is that the emperor and laymen cannot now choose the prelates of collegiate churches because this has been prohibited by human constitutions So at the time when it was not prohibited by human constitutions they were able to choose archbishops, bishops and the prelates of other collegiate churches. Therefore, all the canons which say that laymen ought not to involve themselves in the choice of prelates and that the right of making such a choice does not fall on any layman, are speaking of the time when laymen were forbidden by human constitutions to choose prelates of this kind. And when it is said that by no custom can laymen have a right to choose prelates because, as has been argued, such a custom is not reasonable and cannot be prescribed, the reply is that it is not in reality that such a custom is not reasonable and cannot be prescribed but it is by human regulation. For many things become unable to be prescribed by human regulation alone. Therefore such a custom is not reasonable only because it is against the laws, and cannot be prescribed because this fact that it not be prescribed has been established by human laws, which can for a reasonable cause be annulled. Therefore although it has been established in fact that the emperor and other laymen do not have the right to choose the highest pontiff and other prelates, this right could nevertheless belong to them if it had not been prohibited by revocable human constitutions.

 

 

3.2Dial. Book 3, ch. 5-7

Amendments to translation in A Letter to the Friars Minor, p.281-98

p.281 line 26 but a Christian > except Christians

p.281 line 37 right or power > power or right

p.282 line 1 previously > at first

p.282 line 11 could > can

p.283 line 12 highest pontiff except from the pope > highest pontiff from the pope [“except” in our opinion is correct]

p.284 line 8 law of emperors > law of the emperor

p.284 line 16 But, nevertheless > And, nevertheless

p.286 line 30 contrary to the state of nature > contrary to the statute of nature [“state” in our opinion is correct]

p.287 line 26 return of a thing deposited > return of a thing by deposition [“deposited” in our opinion is correct]

p.289 line 7 first way > first way, and others of others, and therefore the words you use in objecting should be understood of natural law spoken of in the first way

p.289 line 25 i.e., of natural reason > i.e., of reason

p.291 line 3 Again, to those whom it concerns > Again, those to whom it belongs

p.292 line 7 determined by those whom that power, secular or ecclesiastical, is to be set over, or by their superior > determined, or by their superior

p.294 line 29 done of necessity, not in respect of things not to be done of necessity > done of necessity

p.295 line 1 which you took as a premise > which I took as a premise [“you”, a conjectural amendment (cf. p.282 line 15), in our opinion is correct]

p.295 line 23 a successor > his successor

p.295 line 31 change the state of the Church > change the statute of the Church [“state” in our opinion is correct]

 

3.2Dial. Book 3, ch. 8-23

Revised version of the translation in /pubs/dialogus/t32d3Con.html

Chapter 8

Student Because things easily revert to their nature, I have decided to ask you, if the Romans have transferred to the highest pontiff the power of making arrangements about the electors of the Roman bishop, whether in any case, and in what case, the right to elect and the power to make arrangements about the electors of the pope reverts, according to that opinion, to the Romans.

When does the right of election revert to the Romans?

Opinion 1: The right reverts to the Romans if the Pope and Cardinals are heretics

Master Different replies can be made to this. In one way it is said that in only one case does the right to elect and the power to make arrangements about electors revert to the Romans, namely if the pope and all the electors have been infected with heretical wickedness. So if the pope and all the cardinals were to become heretics and the Romans were to remain catholic, maintaining suitable care for the faith and the common good in so far as it pertained to them, by that very fact the Romans would have the right to elect and the power to make arrangements about electors. If the pope and the emperor had become heretics when the emperor alone had the right to elect, the Romans for that reason would have recovered the right to elect and the power to make arrangements about electors.

Student I want us to consider that opinion at some length. So that I better perceive whether it contains some truth, therefore, I want you, before you bring forward arguments for it, to make some things about it clear. First, therefore, tell me why that opinion implies that the right to elect does not revert to the Romans unless the pope becomes a heretic. For it seems that if the cardinals alone or all the other electors --- if there were others --- were to become heretics, the right to elect would revert to the Romans because the cardinals or other electors would be deprived of the right to elect by virtue of the fact that they became heretics. But by the fact that some are deprived of the election or of the power to elect, the right to elect devolves upon others to whom it pertains by right. It is not necessary, therefore, that the pope become a heretic for the right to elect to revert to the Romans.

Master That opinion means that as long as the pope is alive, the right to elect does not revert to the Romans even if the cardinals or other electors --- if there were others, as there sometimes have been --- were to become heretics, unless the pope too were to become a heretic, because although the cardinals would be deprived of the right to elect by the fact that they became heretics, yet the living catholic pope would not for this reason be deprived of the right to make arrangements for electors. But if the pope were dead, by the fact that the cardinals had become heretics the right to elect would on that occasion revert to the Romans.

Student Why is it said that on that occasion the right to elect would revert to the Romans?

Master This is said because after a catholic pope was elected following the death of a pope or also his infection with heretical wickedness, that catholic pope would have the power to make arrangements about electors just as the other popes who were his predecessors had, if the Romans transferred that right and power of theirs to the pope by reason of his office and not by reason of his person.

Student Why does that opinion say that in that case not only does the right of choosing revert to the Romans but also the power of making arrangements about electors?

Master This is said because some multitude often has the right to elect without its being expedient that all of them act as electors, because many might be inspired by an evil zeal and often they could not agree on a suitable person, indeed at different times they might not be able to meet conveniently at one place. And therefore it is expedient that they make arrangements about who should elect by committing the right to elect to one person or to a few persons separate from the whole multitude and having a zeal for the faith and the common good. For it was on account of this that the elections of prelates were conceded from of old to clerics, because, although all clerics and laymen had the right to elect, nevertheless it was arranged with the agreement of laymen that clerics alone were to have the right to elect because of the fact that clerics were wiser and holier than laymen. So when laymen were wiser and better than clerics the right to elect should have been removed from clerics and given to laymen, because what pertains to the common good and does not belong to anyone by reason of their order or the divine office to which they are vowed should be managed by wiser and better men and those through whom the common good can best prosper. And that was the reason why many Roman pontiffs, as Romans themselves and in conjunction with other Romans, gave the right to elect the highest pontiff to some emperors, although they were laymen.

Student Why does that opinion say that in the above case the right to elect would revert to the Romans if the Romans were to remain catholic, etc?

Master It says this because if the Romans together with the pope and the electors were to become heretics or, in connection with the election of the highest pontiff on which hangs the common good of Christianity, were negligent or idle to the detriment of the Christian religion, the right to elect would not revert to the Romans.

Student To whom would it revert or upon whom would it devolve?

Master It is said that it would devolve upon other catholic Christians who were duly solicitous about making an election.

Student This does not seem to be a reasonable statement, because there is so great a number of other Catholics that they could not come together in any one place to deal with the election of the future pontiff.

Master The reply is that in such a case the provinces, dioceses, parishes or any other large groups which cannot come together ought to elect some persons and commit their duties to them, who in the name of those who are absent ought with others to manage the election. Whatever provinces, dioceses or large groups, however, and whatever persons were not to employ the care that they should in choosing the highest pontiff, would for that reason be deprived of the right to elect and of the power to make arrangements for the holding of the election, and the right to elect would devolve upon others, so that if only one cleric or layman were to remain who was solicitous as he should be about making the election, the right to elect would devolve upon him.

Student What if no one were solicitous as he should be?

Master The reply is that just as until the end of the world faith will never be lacking, so there will always be someone in grace and duly solicitous for those things which are necessary for the church of God. For if no one were solicitous but all were careless about carrying out the necessary election of a highest pontiff, all would be outside grace and in mortal sin, but this will never happen.

 

Chapter 9

Student You have attended as much as I want to an explanation of that opinion. So now begin to bring forward arguments for it. But first try to show that any electors of the highest pontiff, whether cardinals, the emperor or any other clerics or laymen, who became heretics would by that fact be deprived of the right to elect the highest pontiff.

Master This seems provable in many ways. First as follows: those who do not belong to the body of the church cannot elect the head of the church, because the head of the church should be chosen only by a member or members of the church. But no heretics, whether they be cardinals or others, belong to the body of the church, because all heretics leave the church by reason of their heresy. Blessed Cyprian attests to this when he says in 1, q. 1, c. Si quis, "If anyone leaves from the church by virtue of heretical presumption, he condemns himself." Therefore heretics do not have the right to elect the highest pontiff.

Further, he with whom, by the teaching of divine law, Catholics ought not to communicate does not have the right to elect the highest pontiff, because Catholics are bound to communicate with the electors of the highest pontiff by listening to the way in which they have chosen. But by the teaching of divine law Catholics should not communicate with heretics. Blessed Paul attests to this when he says in Titus 3:10, "After a first and second admonition have nothing more to do with anyone who is a heretic." And blessed John also says in his second letter [2 John 2:10-11], "Do not receive into the house or welcome anyone who comes to you and does not bring this teaching; for to welcome is to participate in the evil deeds of such a person." As we read in 24, q. 1, c. Omnis, Bede says about these words, "What John taught in words about the need to avoid heretics or those who are schismatic he also showed by his actions. For his student, the most holy Polycarp, bishop of Smyrna, says of him that when on a certain occasion he had gone into the baths at Ephesus to wash himself and had seen Cherinthus there, he immediately went out without having washed, saying, `Let us hasten away from here lest the very baths in which that enemy of truth Cherinthus washes himself fall to the ground.'" We gather from these and very many other authoritative texts that Catholics should not communicate with heretics. So cardinals or others who are heretics cannot have the right to elect the highest pontiff.

Again, anyone who should be considered as a gentile and a tax collector cannot have the right to elect the highest pontiff, because unbelievers, namely gentiles, are not competent to have such a right. But a heretic should be considered as a gentile and tax collector because he who scorns the church of God - which a heretic does - should be considered as a gentile and tax collector. As we read in 24, q. 1, c. Omnibus, Jerome attests to this when he says, "If anyone scorns this house," that is the church of God, "when it corrects and reproves him, `Let him be to you like a gentile and a tax gatherer.'" So if a heretic did have the right to elect the highest pontiff he has been deprived of it.

Moreover, anyone who has no power and right does not have the right to elect the highest pontiff, because that right should be considered as not the least of the ecclesiastical rights. But heretics have no power and right, as blessed Cyprian attests when he says in 24, q. 1, c. Dicimus, "We have learnt clearly that all heretics and those who are schismatic have no power and right." Cyprian is referring to an ecclesiastical right because heretics were sometimes able to have secular rights. Therefore heretics cannot have the right to elect the highest pontiff.

Again, enemies of the Christian faith and of all Catholics cannot have the right to elect the head of all Catholics, who for the sake of the Christian faith ought to expose himself even to death if it is necessary. But if cardinals are heretics they are enemies of the Christian faith and of all Catholics. So if cardinals are heretics they do not have the right to elect the highest pontiff.

Moreover, those who have the right to elect the highest pontiff should be maintained and supported by Catholics in the land where the election is to be celebrated. But if cardinals or others who would have had the right to elect the highest pontiff become heretics they should not be maintained or supported in any catholic land, according to the witness of the Lateran council from which we find the following in Extra, De hereticis, c. Sicut, "We forbid under anathema anyone to presume to maintain or support them," that is heretics, "in their house or in their land or to carry out any business with them." So if cardinals become heretics they do not have the right to elect the highest pontiff.

 

Chapter 10

Student According to that opinion cardinals who become heretics lose the right to elect the highest pontiff. Do they recover that right when they return to the Christian truth? 

Master The reply is that if the cardinals become heretics, however secretly, they do not recover the right to elect the highest pontiff, even if they return to the orthodox faith and wash away the defect of heretical wickedness by penance, unless the same right is conferred on them anew. And the same thing is said about any individual cardinal who becomes a heretic while the others remain in catholic truth, because from that moment he will not be able to elect unless the right to elect is conferred on him anew.

Student Would you bring forward some arguments for this assertion?

Master This assertion seems provable as follows. No ecclesiastical dignity lost because of heretical wickedness can be retained without dispensation. Similarly therefore, no ecclesiastical or spiritual right lost because of heretical wickedness will be able to be recovered, unless it belongs to its possessor by Christ's decree alone, without that right being newly conferred. Consequently, if cardinals lose the right to elect the highest pontiff because of heretical wickedness they will not be able to recover that right without its being newly conferred, since cardinals do not have the right to elect the highest pontiff immediately by Christ's decree alone, but mediately by human decree.

Student That argument does not seem to be valid. For, that the dignities of the church are lost because of heretical wickedness is not due to the nature of reality but due to a regulation of the church. For in wanting to punish heretics the church has determined that they lose the ecclesiastical dignities that they could retain if the determination of the church did not prevent it, because spiritual powers which are more exalted than ecclesiastical dignities, such as the power to accomplish the sacrifice of the body of Christ if the heretic is a priest and the power to confer orders if he is a bishop, remain with heretics. Therefore they would also retain their ecclesiastical dignities unless a determination of the church were to prevent it. It is inferred from this that heretics retain the spiritual rights that they had before unless they are deprived of them by a determination of the church. But we do not find any determination of the church by which cardinals who become heretics are deprived of the right of choosing the highest pontiff. If they return to orthodox truth, therefore, they recover the same right without its being conferred anew.

Master It seems to some people that this response is not adequate. For, they say, it is not by a determination of the church only but by the very fact that they are heretics, (even if there were no determination of the church,) that heretics lose ecclesiastical dignities, just like anything that can be lost by pilgrims. This is proved as follows. There is not a greater argument for any one losable spiritual right that is lost by heretical wickedness without an ecclesiastical determination than there is for any other, because by any argument by which it were to be said that one losable spiritual right could endure despite heretical wickedness it would be said with the same facility about any other losable spiritual right. But something is a losable spiritual right because in the nature of reality it is not compatible with heretical wickedness even if there were no determination of the church. And therefore no losable spiritual right is compatible with heretical wickedness. 

The major premise seems clear. The minor premise is proved. For, with respect to all the spiritual gifts that are proper to it, the papal dignity is lost because of heretical wickedness without any determination of the church. This is shown as follows. No one can be bound by the sentence of a canon, even if the sentence of that canon were not published, unless he is less important than, and inferior in rank to, the framer of that canon. But if the pope becomes a heretic he is bound by the sentence of a canon framed by his predecessor, as the gloss on 24, q. 1, c. 1 attests when it says, "This is a case in which a pope can bind a pope, in which a pope falls under the canon of a sentence that has been published. Nor does the rule that an equal cannot loose or bind an equal conflict with this, because if the pope is a heretic, by virtue of the fact that he is a heretic, he is inferior in rank to any catholic at all, because the law notes the fact even without a sentence." Therefore a pope who has become a heretic is inferior in rank to the framer of the canon by which he is bound, even if that framer had not published any sentence. It is inferred from this that the papal dignity is lost by heretical wickedness without any determination of the church.

Student It does not seem true that every losable spiritual right is lost because of heretical wickedness without a determination of the church and that it cannot be recovered without that same right being conferred anew. For the right to elect the highest pontiff is a spiritual right, they say, and yet the Romans would not lose that right if they were to become heretics, because then, by the above argument, they would not recover the right to elect if they return from their heresy.

Similarly, if the Romans and all the cardinals who have the right to elect were to become heretics, the right to elect would devolve in those circumstances to other Catholics. Given this assumption, let it be assumed further that all other Christians except ten become heretics. Given this assumption, all Christians except those ten would lose the right to elect the highest pontiff. Given this assumption, let [it be assumed that] twenty of the heretical Christians return to the catholic faith and that the ten who were previously the only Catholics slip into heresy. It is then asked whether or not those twenty who have returned from heresy have the right to elect the highest pontiff. If they have the right to elect, they have therefore recovered without its being conferred anew a spiritual right which they had lost before through heretical wickedness. If they do not have the right to elect, the whole church of God would therefore be deprived of the right to elect a highest pontiff, and consequently Christ would not have sufficiently provided for the church in everything that was necessary.

Again, the right of patronage is a spiritual right, and yet even if it is lost through heretical wickedness it will be able to be recovered without its being conferred anew. For any patron who becomes a heretic loses the right of patronage. But if he retains the possession with respect to which he is a patron and returns to the true faith, he recovers the right of patronage which he had lost, because, if the right of patronage is passed on with the whole of the property, much more is it the case that it reverts to him in whose power the lordship of the possession with respect to which he was patron has remained.

Again, dignities of the church lost through heretical wickedness are recovered without being conferred anew. Therefore spiritual rights lost on account of heretical wickedness will also be able to be recovered without those rights being conferred anew. The consequence seems clear because the same argument applies to the one as to the other.

The antecedent seems provable by plain texts. (1) For as we find in 23, q. 4, c. Ipsa pietas, Augustine says, "Let them have bitter grief about their detestable error, as Peter had about his fear of untruth, and let them come to the true church of Christ, that is to our catholic mother; let them be clerics in her, let them to her advantage be bishops, they who were like an enemy to her. We do not regard them with ill will, rather we embrace, encourage and desire them."

Again, (2) in 1, q. 7, c. Convenientibus, we find the following from the sixth synod, "Most devout monks have said, `Just as the six universal synods have accepted those who turn back from heresy, so we also accept them.' The holy synod has said, `It pleases all of us, and Basil, bishop of Anichira, Theodorus, bishop of the city of Mirea, and Theodosius have been ordered to remain in their positions and their sees. ... Constantinus, bishop of Cyprus said, `It has been adequately shown that those coming back from heretics should be accepted."

Again, (3) in dist. 12, c. Nos consuetudinem, Gregory, speaking about the Donatist bishops returning to the faith, says, "Let it be enough for them, however," that is for the Donatist bishops coming back to the catholic faith, "to take care of the people committed to them."

It seems from these objections that what was said above is not in accord with the truth. Now tell me how reply is made to them.

Master To the first of them it is said that if all the Romans were to become heretics they would lose the right to elect the highest pontiff; and according to one teaching they would not recover the right to elect even if they were to turn back from heresy to the faith; according to another teaching they would recover the same right because of the fact that they have the right to elect immediately by Christ's decree and by the law of nations.

Student Where did Christ decree that the Romans were to have the right to elect the Roman pontiff?

Master The reply is that he decreed this at the time when he made blessed Peter head and pontiff of all Christians, giving him the power to choose for himself the place where he would establish his seat; and he did not deprive those whose own bishop, as it were, blessed Peter chose to be of their right to choose someone to be set over them [reading ‘preficiendum’], a right which belongs to them by the law of nations, although not in such a way that the opposite cannot licitly be ordained and determined.

Student Tell me how one may reply to the second objection that I made.

Master It seems to some people that that objection is so fantastic that it is to be considered undeserving of any reply. For it posits a case that has never occurred, and it is not likely that it ever should occur.

Student It seems to other people that that objection is not so fantastic because although that case has never occurred, nevertheless it could happen, and it is rash to say that it never will occur. So it does not seem useless to discuss it, because from a discussion of those things which never or rarely happen those things that occur often are more profoundly and subtly understood. Whether that objection is fantastic or not, therefore, tell me how reply is made to it, because, just as to know evil is often useful and to discuss falsities brings us to a greater understanding of truth, so to discuss fantastic things is often effective in the learning of those things that are known to be true and solid.

Master The reply to this is that if all Christians were to become heretics except ten who were not Romans, the latter would have directly by the special decree of Christ the right to elect the highest pontiff; and if later twenty non-Romans were to return to catholic truth and those ten were to become heretics, the twenty returning to the faith would by the special decree of Christ recover the right to elect the highest pontiff which they had earlier lost through heretical wickedness.

Student Where did Christ decree these things?

Master It is said that Christ particularly regulated and promised these things to the church when he specifically said in the last chapter of Matthew [28:20], "I am with you always until the end of the age." For at that time he promised that in anything necessary he would never until the end of the age fail his church. And so because to have the power to elect the highest pontiff is necessary to the church of God, he arranged and also promised at that time that Catholics, whether all of them or some, whatever they had been before, would always have the power and right to elect the highest pontiff. Therefore, if there were only those twenty Catholics (even if they were laymen and not Romans,) who had been heretics before, those twenty Catholics would have directly by a particular regulation and promise of Christ the right to elect the highest pontiff, because there is no better reason for one of those twenty to have the right to elect than for another to have it. And so all would have the same right.

Student That seems to conflict with earlier points, because according to it cardinals who had become heretics could recover the right to elect the highest pontiff without that right being conferred anew. For it was posited that the cardinals first become heretics and later all or some of them return to the catholic faith while all others become heretics. Then it is asked whether or not the cardinals returning from heresy have the right to elect. If they do have it, they have therefore recovered the right to elect without that right being conferred anew by the very fact that they have returned to orthodox faith. If they do not have the right to elect and there are no other Catholics [with the right] through the same circumstance, the whole church of God would as a result lack the right to elect the highest pontiff.

Master The reply to this is that in no case, without that right being conferred anew, do cardinals recover a right to elect which they have by human decree, for example by a grant from the pope or from the Romans, because of the fact that they return to the faith; and what was said above about this is understood in that sense. But a right to elect that belongs to them by Christ's decree they can recover by virtue of the fact that they were to return to the true faith, at least in the case where there were no other Catholics.

Student Why do they recover a right to elect which they have by Christ's decree because of the fact that they return from heresy to the Christian faith more than a right which they have by human decree?

Master The following reason is offered: a right should first be conferred and restored after its loss by the same person; and therefore because Christ decreed and promised that his church would never lack anything necessary, he did as a result decree that in the sort of case where there are no other Catholics the right to elect is restored to heretics because of the fact that they return to the faith. But we do not find in any human decree that cardinals who become heretics may recover the right to elect because of the fact that they return to the faith, and therefore they do not have such a right without its being conferred anew. It could be decreed nevertheless that they would recover the right to elect by the very fact that they became Catholics.

Student Tell me what is said about the right of patronage lost because of heretical wickedness.

Master Two things are said. One is that the same right is recovered because it is granted by human decree, because, just as a right of patronage is passed on with the rest of the property, similarly it is recovered, if the property by reason of which someone has the right of patronage is recovered. In another way it is said that a right of patronage is not recovered unless it is specifically given to him who recovers the property.

Student Tell me what is said about ecclesiastical dignities lost due to heretical wickedness which are said to be recovered without a new election.

Master It is said that if episcopates and other ecclesiastical dignities are lost due to heretical wickedness they are not recovered without a new election or without something equivalent to a new election. An example of this is the dispensation by which heretics were sometimes exonerated, so that they might regain the dignities that they had lost due to heretical wickedness. For such a dispensation is equivalent to an election. Now all the texts brought forward should be understood to mean that heretics are taken back into dignities lost as a dispensation and not otherwise. As we find in 1, q. 1, c. Si quis heretice, Leo attests to this when he says, "If anyone has defiled himself by the pollution of heretical participation, let him hold it as a great benefit if, giving up all hope of promotion, he may remain in the order in which he is found."

Chapter 11

Student The assertion recorded in chapter 8 above holds that cardinals are deprived of the power to elect the pope for the crime of heresy and not for any another crime, and we should look at this now. But because this will be clear from what follows, begin now to show that according to that assertion if all the cardinals who alone now have the power of election become heretics, the right to elect reverts to the Romans.

Master This seems provable by various arguments, because if the pope and all the cardinals become heretics either the right to elect is in the power of some Catholics or no Catholics in the whole church of God have the right to elect the highest pontiff. If the right to elect is in the power of some Catholics, then no others than the Romans have the right to elect, because it seems less likely of others than of the Romans that the right to elect devolves to them. In this case, therefore, the Romans have the right to elect the highest pontiff. But if no Catholics have the right to elect, then the whole church of God would be deprived of the power to elect the highest pontiff and so sufficient provision in necessities would not have been made for the church of God.

Further, it does not seem that it should be at all believed that less provision by divine or human laws has been made for the church of Rome if the electors of its prelate are deprived of their power to elect than for other lesser churches if the electors of their prelates are deprived by some chance of their power to elect. But provision has been made for other lesser churches about how their prelates should be set over them if the electors are deprived of their power to elect, (Extra, De electione, c. Ne pro defectu). So it should be believed that by divine or human laws provision has been made for the Roman church about how its prelate should be elected if its electors are deprived of the power to elect and the see is vacant. This would happen if all the cardinals, together with the pope or with the pope dead, were to fall into heretical wickedness. No other provision has been made, however, either by human laws or by divine laws, except that the election should revert to the Romans, who had the right to elect both by divine law and by the law of nations, because the election cannot devolve upon a superior as happens by human laws with other churches. In this circumstance, therefore, the election of the Roman pontiff reverts to the Romans.

Student That argument does not seem valid. For laws are adapted to things that occur quite frequently, because laws are not established on the basis of those things that can perhaps happen on one occasion. For as sacred laws attest, legislators disdain what is done once or twice. But it happens often that the electors of the prelates of other churches are deprived of their power to elect. It never, or rarely, occurs, however, that the electors of the highest pontiff are deprived of their power to elect. So although provision should be made by laws about by whom prelates should be set in authority over other churches if those to whom election has been granted are deprived of their power to elect, it is nevertheless not necessary that laws make provision for how the Roman pontiff should be elected even if those to whom election has been given are deprived of their power to elect.

Master For two reasons that objection does not move many people. For although laws are more often adapted for things which happen quite frequently, they are nevertheless sometimes adapted for things which happen rarely, especially where the whole community of the faithful is threatened with spiritual danger unless the law helps. But if neither divine nor human law helps the church so that it can have a highest pontiff when those to whom the election of the highest pontiff has been given have been deprived of the right to elect then spiritual danger threatens the whole church. If that misfortune occurs, therefore, the church is helped by some law. So since no human law is found concerning this matter recourse must be had to divine law, namely that election reverts to the Romans who have the right to elect the highest pontiff both by divine law and the law of nations.

It does not move people secondly because, as the gloss on dist. 28, c. De Siracusane notes, one should employ caution “from the fact that something is customarily done, as in dist. 98, c. Affros” and as is also clearly concluded from dist. 23, c. In nomine. But it has often happened that the electors of the highest pontiff have been deprived of their power to elect because of heretical wickedness. At that time at least, therefore, provision should have been made by human law for how the highest pontiff should be elected, if provision had not been made for this in divine law. But at that time no human law was promulgated on the subject. So from divine law and by evident reason a conclusion should be drawn about how the highest pontiff should be elected if the electors are deprived of the power to elect and there is no pope who can grant election to others. Nothing about this seems to need proof except the fact that it has often happened that the electors of the highest pontiff have been deprived of their power to elect because of heresy. This is proved by the fact that emperors have often had the power to elect the highest pontiff and later have been deprived of the right because of heretical wickedness. Gratian attests to this when he says in dist. 63, para Verum, "Emperors have indeed fallen frequently even perfidious heresy and have attempted to attack the unity of our catholic mother the church, and so statutes of the holy fathers have been issued against them to the effect that they not involve themselves in any election."

Student It seems that the emperors were not deprived of the power and right to choose the pope but that they renounced any such right, because in the same distinction, para. Ex his Gratian says that, "We discern from imperial constitutions that the emperors renounced those privileges which Pope Hadrian had issued to the Emperor Charles, and in imitation of him Pope Leo had issued to Otto I, king of the Germans, about the election of the highest pontiff."

Master The reply is that many emperors of whom we do not read in the decretals also had the right to elect the highest pontiff; some of these lost that right because of heretical wickedness, while some of them renounced it; and so each of the quotations from Gratian is true for different emperors.

Chapter 12

Student If the right to elect the Roman bishop reverts to the Romans once the electors have been deprived of their right to elect and there is no pope who can make arrangements for the election, to which Romans does it revert, is it, namely, to all of them, to one of them or only to some of them?

To which of the Romans does it revert?

Master Various assertions are made about this. One is that it reverts to the emperor of the Romans. The reason given for this is that when some el