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
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
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?" |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
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. |
Revised
version of the translation in
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.
|
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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.
|
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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.
|
||||||
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. |
||||||
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. |
||||||
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." |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
||||||
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. |
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.
|
||||||
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.
|
||||||
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. |
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]
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.
|
||||
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 electors are
deprived of their right to elect, the election reverts
to those who before them had the right to elect
directly; but before the cardinals, who had the right to
elect after the emperors, the emperor directly had the
right to elect the highest pontiff. If the cardinals are
deprived because of heretical wickedness of their right
to elect the Roman bishop, therefore, the right to elect
reverts to the emperor. |
||||
Another
assertion is that if the cardinals become heretics and
there is no pope who can make arrangements about
electors, the right to elect reverts to the canons of
the church where the pope's see is, because when a
privilege ceases there should be recourse to the common
law. But the cardinals have the right to elect only by a
special privilege. So if they have lost that privilege
because of heretical wickedness recourse should be had
to the common law. However, the common law is that the
canons of cathedral churches have the right to elect
bishops. In this case, therefore, the right to elect the
highest pontiff reverts to the canons of the church
where the pope's see is. |
||||
Another
assertion is that in this case the election of the
highest pontiff reverts to or devolves upon the whole
Roman clergy, because it is by a special privilege that
only the clerics of the cathedral church have the right
to elect their bishop, while the common law is that the
whole clergy have the right to elect. So because the
right to elect the highest pontiff either was not
granted to the clerics of the church where the pope's
see is by a special privilege, or, if it was granted to
them, it was taken away when it was given to the
cardinals, and because when a privilege is null recourse
should be had to the common law, the conclusion remains
that if the cardinals become heretics, election reverts
to the whole Roman clergy. Moreover, Gratian seems to
bear witness to the fact that the common law is that the
whole clergy has the right to elect. As we read in dist.
63, para. Ex his, he says, "Just as the election
of the highest pontiff should be carried out not only by
cardinals but indeed also, on the authority of Pope
Nicholas, by other religious clerics, so is the election
of bishops also not to be carried out by canons only but
also by other religious clerics, as was determined at
the general synod held at Rome by Pope Innocent." Whence
Innocent too in the same place in his chapter Obeuntibus
argues that this is the case: "Indeed, since when
bishops die the decrees of the holy fathers forbid a
vacancy of more than three months in that church, we
prohibit under a penalty of anathema the canons of the
episcopal see from excluding religious men from the
election of bishops; rather, with their advice the
canons should elect an honest and suitable person as
bishop. But if the election has been made with religious
men excluded, let it be considered invalid and void
because it had been carried out without their advice and
agreement." We gather from these words that according to
the common law election belongs to the whole clergy. |
||||
Another
assertion is that if the cardinals become heretics the
election reverts to the Roman clergy and people, that is
to say that it reverts to all Romans. It is not that all
elect, because unless there were very few of them this
could not be done without confusion, which in such a
case should be avoided, but so that arrangements are
made with the common consent, whether express or tacit,
of all about what person or persons should elect their
bishop on behalf of all. For in this case all the Romans
could entrust their duty to the catholic emperor who on
behalf of all would elect the Roman bishop. |
||||
It is argued
as follows for this assertion. If any Roman or Romans in
particular were able in this case to appropriate to
themselves the right to elect the highest pontiff, he or
they could do so either by divine law only or by human
law only or by divine and human law at the same time.
[They could not do so] by divine law only, because this
cannot be proved from the sacred scriptures, nor by
human law alone, because all canonical human rights
concerning this matter, except the right that was
granted to the cardinals when the right to elect was
granted to the cardinals alone, have been abrogated. Nor
by the law of nations can such a right be appropriated
by any one Roman or by some Romans in particular,
because according to the law of nations it belongs to
everyone to elect someone to be set over them or to make
arrangements about how that person should be elected,
since according to the law of nations what touches all
should be managed by all. The conclusion is left that
the right to elect reverts to all Romans both clerical
and lay so that how the highest pontiff is elected is
arranged with the express or tacit consent of all. |
||||
Further,
when some power is not possessed by divine law alone and
there is no relevant ecclesiastical or secular civil
law, recourse should be had to the law of nations, which
is more ancient and universal than either ecclesiastical
or secular civil law. But all Romans, not some in
particular, had the right to elect the Roman bishop both
by divine law and by the law of nations. Arguments were
brought forward earlier to prove
this. So, if all civil laws, canonical and secular,
concerning the election of the highest pontiff were
wanting, which happens if all the cardinals become
heretics, the power to elect the Roman pontiff reverts
both by virtue of divine law and by the law of nations
to the Romans. |
||||
Student It seems
that that argument is not valid because no power can
revert by virtue of a law that has been repealed, since
if some law is repealed it is just as if it had never
existed; but the law of nations by which the Romans have
sometimes been able to elect the Roman bishop has been
repealed with respect to them. The power to elect the
Roman bishop, therefore, does not revert to the Romans
by virtue of that law. |
||||
Master The reply
is that no power reverts by virtue of a law that is
completely repealed; but the law of nations by means of
which - in conjunction with divine law - the Romans were
able to elect the Roman pontiff cannot be completely
repealed, because it cannot be completely repealed
unless at that time others have the right to elect
according to canon law. So when civil law and
ecclesiastical law are null such a law of nations
immediately comes back, just as, because it is the case
from the law of nature that all things are common, so
when the law of nations and the civil law by which
something may belong to someone are null, the law of
nature that all things are common comes back
immediately, just as they were before any human decree. |
||||
Chapter 13 Student Because that
assertion seems to
have some plausibility, tell me how it replies to the
arguments for the opposed assertions. |
||||
Master In response
to the argument for the first assertion
it is said that when electors are deprived of the right
to elect that right does not always revert to those who
had it immediately before them, because in such a case
the right to elect often devolves upon their superior,
sometimes it even reverts to those who had the right to
elect by a more ancient and general law. Therefore,
although the emperor had the right to elect immediately
before the cardinals that right does not revert to or
devolve upon the emperor alone if the cardinals become
heretics, but reverts to him and other Romans together,
so that he, together with other Romans, has the power to
make arrangements about how the Roman bishop should be
elected. In this matter, nevertheless, the emperor does
have a certain prerogative over other Romans with
respect to the election of the highest pontiff, so that
the Romans should not proceed to an election or make
arrangements about electors without him, at least if his
presence can be conveniently arranged. |
||||
Student What if the
emperor wanted to hinder the election of the highest
pontiff when the cardinals had become heretics or did
not want to involve himself even if asked by the Romans? |
||||
Master The reply
is that in this case the Romans could and should proceed
to the election without the emperor because, as was said
earlier, the power to elect the highest pontiff does not
belong to the emperor by divine law and the law of
nations as emperor but as a catholic and a Roman, and
other Romans share this with him. Therefore, just as no
other Roman can hinder the Romans from their duty to
proceed to election in this case, so neither will the
emperor be able to hinder them. |
||||
Student If the
emperor does not have the right to elect by virtue of
divine law and the law of nations except as a catholic
and a Roman, other Romans are therefore equal to him in
this. We infer from this that in this respect the
emperor ought no more be called or asked or waited on
than other Romans. |
||||
Master The reply
to this is that although the emperor and the other
Romans are to a certain extent equal, in so far as the
sort of power and right the emperor has in the election
of the Roman pontiff other Romans also have, yet when
they are bound to elect or to deal with the election or
the electors other Romans should in many respects defer
to the emperor, just as in other elections others should
in many ways defer to those who are wiser, more
powerful, better and worthier. And therefore other
Romans ought not proceed to election without the
emperor, when he is duly zealous for the Christian
religion and his presence can be conveniently arranged,
but rather in such a case all the others would be bound
to commit to him alone the right to elect, just as some
highest pontiffs and other Romans have given the total
right to elect to certain emperors, as was put forward
above. And then the emperor would be bound to elect the
Roman pontiff on behalf of everyone. |
||||
Student Tell me how
reply is made to the argument brought forward for the second assertion. |
||||
Master The reply
is that although now the common canon law is that the
clerics of a cathedral church have the right to elect
their bishop, nevertheless the common law once was that
the clergy and people had the right to elect, and that
law is the more common and ancient one. Therefore, if
every special privilege and right is void, it is
necessary to have recourse to the most common and
ancient law. Wherefore, if all the cardinals become
heretics, recourse should be had to the more common and
ancient law and not to some more special law of other
churches. This law, however, is divine law and the law
of nations, and it is by virtue of these laws that the
right to choose the highest pontiff belongs to the
Romans, that is clergy and laymen. |
||||
And in this
way we reply to the argument for the third assertion,
because although it once was the common law that the
election of a bishop pertained to the whole clergy and
not to the clerics of the cathedral church only, as the
texts brought forward prove, yet this was not always the
common law but it was made the common law solely by
human ecclesiastical decree. Nor was it the most common
law. And so if the cardinals become heretics and the
pope is a heretic or is dead, and all the human laws
established for the election of the Roman pontiff fail,
recourse should be had to the divine law and the law of
nations, by virtue of which the election returns to the
clergy and people of Rome. |
||||
Chapter 14 Student I asked in
chapter
8 above
whether in any circumstances and in what circumstances
the right to elect the bishop of Rome reverts to the
Romans. You said that there were various replies to this
question. You have reported one way of replying. Now
report another. |
||||
Master Another reply is that the right to
elect the highest pontiff reverts to the Romans not only
because of heretical wickedness but also because of the
supporting of heretical wickedness, if, that is, all the
cardinals are supporters of heretical wickedness and the
pope is dead or is a heretic. |
||||
It is argued
as follows for this opinion. Whoever supports heretical
wickedness seems to defend it. For it does not seem that
any other support apart from defence can be attributed
to him. But someone defending heretical wickedness is
more worthy of condemnation than heretics, as Pope Urban
attests. In 24, q. 3, c. Qui aliorum he says,
"Someone who defends others' errors is much more worthy
of condemnation than those who err, because not only
does he himself err but he also prepares and confirms
stumbling-blocks of error for others. So because he is a
master of error he should be called not only a heretic
but even a heresiarch." Someone defending heretical
wickedness, therefore, deserves every penalty that
heretics deserve since he is a heretic. But if cardinals
become heretics they are deprived of the right to elect.
If they are supporters of heretical wickedness,
therefore, they are also deprived of that right. |
||||
Again, he
who supports the errors of heretics should deservedly be
reckoned among those who believe their errors, and
consequently should be considered a heretic, as Gregory
IX attests, He says in Extra, De hereticis, c. Excommunicamus,
“But we judge those who believe their errors in a
similar way to the heretics themselves.” So if all the
cardinals support heretical wickedness they are deprived
of their right to choose the Roman pontiff as though
they were heretics. Opinion 3: Or if the Cardinals support some heretic and the pope is a heretic or dead |
||||
Another
reply is that not only if the cardinals support
heretical wickedness but also if they are supporters of
a heretical pope, living or dead, or of other heretics,
they are deprived of their right to elect and the
election reverts to the Romans, if the pope is a heretic
or is dead, or has been deposed by law. |
||||
It is argued
for this opinion as follows. Cardinals are deprived of
their cardinalship for any crime for which the pope is
deposed in fact or in law from his papal dignity, and as
a consequence they lose the right to elect which belongs
to them by virtue of their cardinalship. But if the pope
is a supporter of heretics he is in fact or in law
deposed from the papacy. So cardinals too are deprived
of their right to elect because of support for heretics. |
||||
The major
premise does not seem to need proof. The minor is proved
by an example. For Anastasius II was
deposed because of support for heretics, since all we
read about him is that he supported the heretics Fotinus
and Achacius. Thus we find the following in the
decretals at dist. 19, "Anastasius II, of Roman stock,
lived in the times of King Theodoric. At that time many
clerics withdrew from communion with him because without
consultation with the bishops, priests and clerics of
the whole catholic church he had communicated with a
deacon of Thessalonica named Fotinus, who had
communicated with Achatius, and, because he wanted
secretly to recall Achatius and could not do so, he was
struck down by divine command." We find nothing in these
words except that Anastasius supported Fotinus and
Achatius, and yet he was deposed. Therefore a pope is
deposed because of support for heretics. Opinion 4: Or if the cardinals are in schism |
||||
Another reply is that it is not only
because of heresy and the support of heretical
wickedness and heretics that cardinals are deprived of
the right to elect the highest pontiff, but also because
of schism. |
||||
This seems
provable as follows. Whoever has no power or right does
not have the right to elect the highest pontiff. But if
cardinals become schismatic they have no right or power,
as blessed Cyprian attests. In 24, q. 1, c. Didicimus
he says, (as was cited earlier,) "We have learnt that
absolutely all heretics and those who are schismatic
have no power and no right." Schismatic cardinals,
therefore, do not have the right to elect the highest
pontiff. |
||||
Again, he
who is outside the church does not have the right to
elect the highest pontiff. But cardinals who have become
schismatic are outside the church, as blessed Cyprian
attests. He says in the place just quoted, "All heretics
and those who are schismatic are outside the church and
do not have the Holy Spirit, and so we have not laid our
hands on them in order for them to receive here what
cannot be there and cannot be given." It seems clearly
to be deduced from these words that all those who are
schismatic are outside the church. Whence blessed
Cyprian also considered that Novatian should be reckoned
as outside the church and among its enemies and the
antichrists because he was schismatic. He says in the
place just cited, "As one who is outside the church and
acting against the peace and love of Christ Novatian
should not and cannot be excempt from being reckoned
among his enemies and the antichrists." Therefore all
those who are schismatic are outside the church. So if
cardinals become schismatic they lose, like those who
are outside the church, the right to elect. And as a
consequence in these circumstances the right to elect
reverts to the Romans. Opinion 5: Or if the Cardinals will not act |
||||
Another
reply is that the cardinals are deprived of their right
to elect, with election reverting to the Romans, not
only for the aforesaid crimes but also if, with the pope
a heretic or dead, the cardinals refuse to elect, saying
that they do not want to do so, or also if they have
through malice or blameworthy negligence deferred the
election of the highest pontiff to the perceptible
detriment and danger of the Christian religion. |
||||
It is argued
as follows for this opinion. No less provision against
the dangers that can befall it is made for the Roman
church than for other lesser churches. For if less
provision were made for it, with respect to those things
which should be arranged by its rulers, those rulers
would deserve to be judged as reprehensible for culpable
negligence because where there is greater danger
involved action should be more cautious and careful. But
sufficient provision has been made for churches other
than the Roman church if the electors who ought to elect
have delayed election through malice or negligence,
because they are deprived of the power to elect if they
have not elected within three months and the power of
enacting this provision devolves upon their superior. So
provision has also been made for the Roman church about
how the pope should be elected if through malice or
culpable negligence to the extraordinary detriment and
danger of the Christian religion they have delayed
electing. But no provision has been made other than that
election reverts to the Romans. Therefore, at least on
that occasion, the cardinals would be deprived of the
power to elect and the right to elect would revert to
the Romans. |
||||
Chapter 15 Student How one can
reply to that final argument and what objection can be
made to that reply can be shown by what was dealt with
in chapter
10 above.
[Nothing seems relevant there. See here.] Therefore
I do not want you to involve yourself any further now
with that argument and the opinion on behalf of which it
is brought forward. But indicate how one replies,
according to the opinion recited in chapter
8 above, to
the arguments brought forward for the other opinions
recited in the preceding chapter. |
||||
Master To the two
arguments brought forward for the first opinion [i.e.
opinion 2] it is
replied that for any support of heretical wickedness,
support that cannot be without the heretical wickedness
of the supporter, the cardinals would have been deprived
of the right to elect the highest pontiff, and the right
to elect would revert to the Romans. For any other
support, they would not have been, but should have been,
deprived of the right to elect the highest pontiff.
Whether anyone can be a supporter of heretical
wickedness without there being heretical wickedness in
the supporter, however, whoever is keen can perceive
from what is said in book 7 of the first part of this Dialogue. |
||||
To the
argument for the second opinion it
is replied that although a pope is deposed in fact and
in law if he becomes a heretic, as is proved by very
many arguments in book 6 of the first part of this Dialogue,
and therefore is ipso facto deposed for support
of heretical wickedness which cannot exist without
heresy in the supporter, yet the pope is not ipso
facto deposed solely because of support for
heretics without his support of their error. Indeed
according to some people he should not even be deposed
unless he seems to be incorrigible and the church is
caused to stumble because of it. |
||||
When it is said, however,
that Anastasius II was deposed only for the support of
heretics, it is said that this is not true. Rather he
was deposed for heresy and for promoting heretical
wickedness, which seems to be clearly gathered from the
text and gloss of dist. 19. For in the paragraph Hoc
autem of that distinction Gratian says, "For
Bishop Anastasius II with the support of the emperor
Anastasius decreed that the bishops and deacons whom
Achatius had ordained after the sentence published
against him should duly discharge the offices they had
received" --- understand "erroneously". Whence Gratian
says in the following paragraph [Quia ergo],
"Therefore because he issued these rescripts illicitly
and not canonically, but contrary to the decrees of his
predecessors and successors, as is proved by Felix and
Gelasius, who excommunicated Achatius before Anastasius,
and by Hormisda, third in line after Anastasius who
later condemned Achatius, he is as a result repudiated
by the Roman church and was, we read, struck by God." |
||||
Again the
gloss on the words "withdrew" in [dist. 19] c. Anastasius
says, "In this case the clerics did not withdraw from
Anastasius before the sentence because he had fallen
into a heresy that was already condemned." Again on the
words "had communicated" the gloss says, "He, that is
Anastasius, communicated in wickedness with that one,
namely the heretic Achatius. Whence it, that is the
excommunication, could pass over to a third person." We
gather from these words that Anastasius was a heretic
and a supporter of heretical wickedness. And so he was
deposed by right and was bound by a sentence of
excommunication. |
||||
To the
arguments for the third opinion the
reply is that not all those who are schismatic are
deprived of every right. But all those who are
schismatic and are also heretics, as those who are
schismatic often are, are deprived of every right, and
it is about these that blessed Cyprian is speaking. In
addition, all those who are schismatic are unfit for any
honours in the Church as long as they are schismatic.
And therefore according to Cyprian Novatian could not be
pope. Nor can those who are schismatic have the power to
execute any ecclesiastical right, although they can have
some ecclesiastical rights as long as they are not
heretics. And so cardinals do not lose the right to
elect the highest pontiff just on account of their being
schismatic without their also being heretics, although
they should not elect as long as they persist in schism. |
||||
Chapter 16 Student Although we
considered whether the emperor is the regular judge of
the highest pontiff in book six of the first part of our
Dialogue, and in that place you tried with many
arguments to establish the opposed opinions about this,
let us nevertheless confer here about this matter in
order to stimulate others, who will see this little
tract but perhaps will not have the first part of this
work, to investigate carefully whether the emperor has
or can have any power over a pope already established as
the highest pontiff. But let us first investigate
whether by reason of his imperial dignity the emperor is
the regular judge of the pope on any occasion.
|
||||
Master There are
differing and opposed assertions about this. One is that
on no occasion is the emperor the regular judge of the
highest pontiff by reason of his imperial dignity. Opinion 1: The Emperor is never the pope's regular judge by virtue of his imperial dignity |
||||
Student Argue for
that assertion. |
||||
Master It can be
argued as follows for that assertion. If the emperor as
emperor were the regular judge of the pope he would be
his judge either in an ecclesiastical case or in a
secular case. He is not his judge in any ecclesiastical
case because an ecclesiastical case belongs only to an
ecclesiastical judge. For it is called an ecclesiastical
case because it should be treated before an
ecclesiastical judge. Nor is he his judge in any secular
case because he is not one in either a criminal or a
civil case. That he is not his judge in a criminal case
is proved because, as we read in dist. 40, c. Si
papa from the deeds of Pope Boniface the martyr,
"Let no mortal presume to contradict a pope’s faults in
this place”, namely in this life, “because he who is
himself going to judge everyone else should not be
judged by anyone unless he is detected as turning away
from faith." We gather from these words that the pope
should be judged by someone only for turning away from
faith. But turning away from faith is not a secular
offence. So the pope should not be judged by the emperor
or by anyone else for a secular offence. Nor is the
emperor the regular judge of the pope in a civil secular
case since even in such a case, as in a criminal case,
he is not the regular judge of any bishop, as Boniface
attests. He says in 11, q. 1, c. Nullus [episcopus],
"No bishop is to be brought before any civil or military
judge either in a civil or a criminal case." From the
above we are left with the conclusion, therefore, that
as emperor the emperor is in no case the regular judge
of the pope. |
||||
Student To give me
an opportunity to understand that matter more deeply
would you bring forward many authoritative texts for
that assertion, even those that you cited in the first
part of this Dialogue, because I want you
afterwards to set forth for me carefully how the
opposite assertion tries to reply to them. For in this
way we will incite others to explore the truth more
intelligently,and our own understanding of the
authoritative texts brought forward will be found to be
clearer. |
||||
Master Very many
authorities are brought forward for that opinion. For in
9, q. 3, c. Cuncta, Pope Gelasius says, "The
whole church throughout the world knows that the see of
the blessed apostle Peter has the right of loosing
whatever has been bound by the sentences of any other
bishop, as we might expect given that it has the right
to judge every church." |
||||
Again, in
12, q. 1, c. Futuram Pope Melchiades says, "That
same prince," namely Constantine, "bestowed immense
gifts and constructed the fabric of the temple of the
first seat of blessed Peter. Indeed, he abandoned his
imperial seat and resigned it to the use of blessed
Peter and his successors. And presiding over the holy
synod that gathered at Nicaea and perceiving that the
complaint of certain people was to be referred to him
Constantine said, `You can be judged by no one because
you are reserved for the judgement of God alone. For you
are called gods and therefore you cannot be judged by
men.'" |
||||
Again, in 9,
q. 3, c. Cuncta Pope Gelasius says, "The whole
church throughout the world knows that the most holy
Roman church has the right to judge everyone and that no
one is permitted to judge its judgement. Moreover, an
appeal can be made to it from any part of the world,
while no one is permitted to appeal from it. Not should
we pass over the fact that without any preceding synod
the apostolic see had the power both of releasing those
whom another synod had condemned unjustly and of
condemning those whom it should have condemned without
even calling a synod." |
||||
Again, as we
find in dist. 96, c. Duo, Pope Gelasius writing
to the emperor Anastasius says, "And so you know that in
these matters you depend upon their [priests']
judgement, while it is not the case that they can be
brought under your will." |
||||
Again, in 9,
q. 3, c. Nemo Pope Innocent says, "No one will
judge the first see when it wants to temper justice. For
that judge will be judged neither by Augustus, nor by
any clergy, nor by kings, nor by the people." |
||||
Again, in
dist. 96, c. Si imperator Pope John says, "If
the emperor is a catholic, which we say saving his
peace, he is a son of the church not one of its
priests." But the law is put to shame if sons are to
reprove of their parents. Therefore the emperor can in
no way be the judge of the pope who is the father of
all. |
||||
Again, we
find in 9, q. 3, c. Aliorum that Pope
Symachus says, "God wanted men to determine the cases of
other men, but without question he reserved to his own
authority the bishop of that see. He wanted the
successors of the blessed apostle Peter to owe their
innocence only to heaven and to present an inviolate
conscience to the investigation of the most subtle
examiner. Do not consider that those souls that above
all God reserved for his own investigation do not have
fear of examiners. ... It is clear from the voice of the
saints that the dignity of the see of the pontiffs
became venerable in all the world: at the same time any
issue of the faithful everywhere is submitted to it,
while it is designated as the head of the whole body." |
||||
Again, in
dist. 21, c. Nunc autem Pope Nicholas says, "The
first see will not be judged by anyone." |
||||
Again, in 9,
q. 3, c. Facta Pope Anterius says, "The deeds of
our subjects are judged by us, but ours are judged by
the Lord." |
||||
Again, we
find in 2, q. 5, c. Mandastis that when Pope
Sixtus had been calumniated by a certain person he wrote
to the bishops saying, "Although I could have
sufficiently avoided suspicion in another way when the
council met I nevertheless satisfied everyone by
undergoing full legal scrutiny and purged myself before
everyone, so freeing myself from suspicion and envy. But
I was not providing a model of acting to others who do
not want to do so or who have not chosen it of their own
free will." We gather from these words that on no
occasion is the pope bound to purge himself if he has
been defamed. We infer from this that he is not bound to
submit to anyone's judgement. Whence the gloss on that
text on the words "could have" says, "The pope can be
judged by no one." |
||||
Again, we
read in 9, q. 3, c. Ipsi that Pope
Gelasius says about the Roman see, "They," that is the
canons, "have decreed that on no occasion at all ought
there be an appeal from it, and as a result that it is
the judge of the whole church and does not come under
anyone's judgement. And they have commanded that there
be no judgement of its judgement and they have
determined that it is not appropriate that its sentence
be dissolved, rather they have ordered that its decrees
should be followed." |
||||
Again, in
dist. 17, para. Hinc etiam we read, "Nor has the
bishop of the afore-mentioned see," that is the Roman
see, "lain under the judgement of inferiors. ... Indeed
bishops sitting in a synod gathered on the authority of
Symachus said, `Pope Symachus, bishop of the apostolic
see, who has been assailed by opinions of this kind, is
exempt and free in respect of men because we reserve his
whole cause to the judgement of God.’" |
||||
Again, we
read in 9, q. 3, c. Patet that Pope Nicholas
says, "It is certainly true that the judgement of the
apostolic see, than whose authority there is none
greater, should not be revised by anyone, and no one is
permitted to pass judgement on its judgement. This is in
accordance with what Pope Innocent says in writing to
Rufus and the rest of the bishops appointed throughout
Thessalia, `No one has ever rashly raised hostile hands
against the apostolic crown, whose judgement one is not
permitted to revise'. Blessed Pope Gelasius also says,
`The canons have never ordered that judgement ever be
passed on its, that is the Roman church's, judgement,
and they have determined that it is not appropriate that
its sentence be dissolved, but rather have ordered that
its decrees be complied with.'" We seem to gather from
all these that neither the emperor nor anyone else is
the judge of the Roman pontiff. |
||||
Student Now that
you have cited some authoritative texts, bring forward
some arguments to prove the same assertion. |
||||
Master This
assertion is proved by argument. For an inferior is not
the judge of his superior (dist 21, c. Inferior
and c. Denique). The emperor and anyone else at
all are inferior to the Roman pontiff, as Pope Nicholas
attests in dist. 96, c. Duo [sunt], when he
cites blessed Ambrose to this effect, saying, "He," that
is Ambrose, "also shows in his writings that gold is no
more precious than lead than the priestly order is
loftier than royal power. He writes in this way about
the origin of his pastorship, `The honour and loftiness
of the episcopacy, brothers, cannot be equalled in any
comparisons. If you compare them to the splendour of
kings and the diadem of princes the latter will be far
more inferior than if you compare the stuff of lead to
the splendour of gold. Indeed when you see the necks of
kings and princes lowered before the knees of priests
and the right hands of the latter kissed, they [the
rulers] believe that they are joined to their [the
priests'] prayers.'" Innocent III also attests to this,
as we read in Extra, De maioritate et obedientia,
c. Solitae, when he says about priestly
authority and royal power, "That which rules over the
days, that is over spiritual matters, is greater, while
that is lesser which rules over carnal matters. As great
as the difference between the sun and the moon is known
to be, so great is the difference between bishops and
kings." We gather from these and many other words that
the emperor is inferior to the pope. Therefore he is not
the latter's judge. |
||||
Further, no
one is the judge of his own judge. But the pope is the
emperor's judge, since he can excommunicate him, and the
emperor is subordinate to the pope and ought to obey
him. Blessed Clement attests to this in 11, q. 3, c. Si
autem vobis, when he says, "However, if all
priests, the rest of the clergy, all princes, both of
the greater and lesser order, and the rest of the people
do not obey you bishops, they are not only of ill repute
but are also banished from the kingdom of God and from
the fellowship of the faithful and will be inimical to
the threshold of the holy church of God." Pope Gelasius
asserts this too in dist. 96, c. Duo when he
says, "Therefore, upheld by such regulations and such
authorities many pontiffs have pronounced
excommunications, some against kings, some against
emperors. Now if some particular example concerning the
persons of the princes is required, blessed Pope
Innocent excommunicated the emperor Archadius because he
agreed to the expulsion of Saint John Chrisostom from
his see." The emperor is not the judge of the pope,
therefore, since the pope is his judge. That the pope is
the emperor's judge is shown again. For as the body is
in relation to the human soul, so is the ruler of the
body in relation to the ruler of souls. But with respect
to rule the body is subordinate to the soul. Therefore,
the emperor, the ruler of bodies, is also subordinate to
the control of the pope, the ruler of souls. |
||||
Again the
emperor is not the judge of someone who is exempt from
imperial laws and is not bound by secular laws. But the
pope is not bound by secular laws, as Pope Nicholas
attests when he says in 33, q. 2, c. Inter haec,
"The holy church of God is never bound by secular laws."
And in dist. 10, c. Lege, the same pope says,
"Imperial law should not be used in any ecclesiastical
controversies. ... Ecclesiastical laws cannot be
dissolved by imperial judgement." It is clear from these
texts that the pope is not bound by imperial laws. This
is also clear from the fact that the pope is not bound
by papal canons and not even by the canons of general
councils. Therefore, he is not bound by imperial laws,
which should be esteemed less than sacred canons, as
Gratian attests when he says in dist. 10, para. 1, "The
constitutions of princes do not surpass but yield to
ecclesiastical constitutions." And he says in the same
distinction, para. Ecce, "Note that the
constitutions of princes should be esteemed less than
ecclesiastical laws." In 2, q. 3, para. Hinc
colligitur, the same pope says that secular laws
do not disdain to imitate the sacred canons. Therefore
the pope is exempt from imperial laws. And consequently
the emperor is not the judge of the pope. |
||||
Again, the
emperor is not the judge of lesser bishops and clerics,
as is gathered from innumerable sacred canons. Therefore
he is not the judge of the pope. |
||||
Chapter 17 Student Those
arguments are enough in support of the above assertion.
Therefore turn to the opposite assertion. |
||||
Master There are
different ways of putting that opposite assertion. |
||||
Student Record
those different ways. Opinion 2A: The Emperor can judge any crime, ecclesiastical or secular, and hence can depose a pope |
||||
Master One way of
putting it is that by reason of his imperial dignity the
emperor has the power to judge the pope on any charge,
ecclesiastical as much as secular, and to depose him if
a charge worthy of deposition is proved against him. |
||||
Student Would you
bring forward some arguments to prove that the emperor
is obliged to judge the pope on any charge? |
||||
Master Many
arguments were brought forward for this in chapters 2,
3, 4 and 5 of book 6 of the
first part of this Dialogue, and it will perhaps
not be easy to find stronger ones than these. So it does
not seem necessary for you to importune me to bring
forward other arguments. |
||||
Student It will not
be useless to consider arguments made there in addition
to others. So would you touch on those and try to bring
forward others? |
||||
Master [1] That the emperor can and ought to
judge the pope on any charge is shown in very many ways,
one of which, cited also in the first part of this Dialogue,
is taken from the fact that every well-ordered community
should have a single supreme judge. For every kingdom,
every city, every college and every community should
have one single judge who is plainly supreme, or many
who are supreme and hold or manage the same office in
place of that one, and all others should be judged by
this one judge or by these judges. So if the whole
totality of mortals is well ordered and governed it will
have one plainly supreme judge, or many judges holding
the same office or acting in place of one, and by this
one judge or these judges all the others should be
judged. But the Christian religion does not destroy or
impede the good management of the community of mortals.
Therefore, nothing is found in it that is contrary to
the best management of the totality of mortals, but
whatever is found in it is consistent with the best
management of mortals. We conclude from this that it
does not at all conflict with the Christian religion
that the totality of mortals have one supreme judge, or
many holding or maintaining the same office in place of
that one, and that all others should be judged on any
charge by that one or by those. But that one supreme
judge is not the pope and the pope cannot even hold such
an office. The pope himself, therefore, should be judged
by that supreme judge. But that supreme judge is the
emperor who is by right the prince and lord of the whole
world. Therefore the emperor has the right to judge the
pope on any charge. |
||||
Student That
argument is somewhat obscure to me. So before you
demonstrate those things which it assumes make one thing
clear. For in this way I will better understand whether
it contains any probability. So tell me what is
understood by "one supreme judge or many holding the
same office". |
||||
Master This is
said in the context of the different ways of governing
which moral philosophy considers, namely royal,
aristocratic and democratic. For in royal government
there is one sole supreme judge. But in the other ways
of governing there are many supreme judges, by none of
whom on his own should any sentence be pronounced, but
it should be pronounced in accordance with their common
deliberation and consent, or at least with the consent
of the more powerful part of them according to their
approved laws and customs. And so then there are many
supreme judges, yet each holding the same office and
having exactly the same power, so that they are often
equal in everything. And therefore they act in place of
one supreme judge and hold his position. |
||||
Student Would you
now complete the argument you touched on? |
||||
Master It does not
seem that anything needs to be proved about that, except
that it does not in any way conflict with the Christian
religion for the totality of mortals to have one supreme
judge or many supreme judges holding the same office.
This seems provable from what was said in the first chapter of
the first book of this tractate [Letter to the Friars
Minor, p.237], because the totality of mortals is
only best governed if it is subjected to one ruler who
has dominion over everyone. Eleven arguments were
brought forward in that place to prove this. |
||||
Student Let us give
up for the moment talking about the totality of mortals,
some of whom are believers and some unbelievers, who
would therefore perhaps not agree at all about one judge
who would judge all others for any crime, and let us
speak about the whole community of believers, of whom
some are laymen and some clerics. And let us see whether
it is the case that that community cannot be best
regulated, as much as the condition of this present life
allows, unless as a whole it has one sole supreme judge
by whom all others should be judged on any charge at
all.
|
||||
Master That the
whole community of believers does not have such a single
supreme judge can be put in many ways. |
||||
Student Explain
those ways so that we can discuss some of them or each
of them. Various versions of this opinion |
||||
Master (1) One way of putting it can be that
different kingdoms or provinces have different supreme
judges and are not subject to one supreme judge. (2) Another
way is that in regard to the same populace there are
various supreme judges not holding the same office in
the way explained above who have the right to judge the
same people for the same crimes. (3) Another
way is that one part [of a populace] has one supreme
judge, by whom alone it should be judged on any charge
at all, and another part has another supreme judge by
whom it too should be judged on any charge at all, just
as, according to some people, all clerics have one such
supreme judge, namely the pope, and all laymen have the
emperor. (4) Another
way is that one part [of a populace] has one highest
judge by whom alone, or on the authority of whom, it
should be judged for any offence, while another part
should be judged by one supreme judge for some offences
and by another judge for other offences, just as,
according to some people, all clerics should be judged
by the pope for any offence at all, but laymen should be
judged by the pope for some offences and by a secular
judge for other offences. (5) Another
way is that there is one supreme judge who has the power
to pass judgement on all, with one or a few exceptions,
just as, according to one assertion, by Christian law
only the pope is exempt from the jurisdiction of a
secular judge. But all other clerics are exempt from the
judgement of secular judges only because of a liberty
granted to them by emperors and kings. Objections against each of these versions |
||||
Student If there
are other ways of putting the negation of the earlier
assertion, I think that they can be reduced to these
just cited. So let it be enough to adduce arguments that
can be brought forward to refute them. Therefore, tell
me how the first way is
refuted. |
||||
Master Anyone who
is diligent can adduce from what was brought forward in
chapter one of the
first book of this tractate [Letter
to the Friars Minor, p.237] how it can
be argued and shown that it is not expedient for
different kingdoms and provinces to have different
supreme judges who are not subject to any superior. |
||||
Student Turn to the
second
and indicate
how one can refute that way of speaking which holds that
it is not against good management of a community of
believers for there to be, with respect to the same
people, different supreme judges not holding the same
office, as some posit about the pope and the emperor
that each separately can without the request or
agreement of the other punish the same person for the
same offence. |
||||
Master This is
refuted by many arguments of which the first
is as follows. [1] Those committing a crime cannot be
duly punished unless they are summoned or led captive to
a judge. But if there are many judges, each of whom can
separately judge an offender without the other, it can
happen that he who is summoned cannot appear and he who
is or should be captured cannot be presented before a
judge. For it can happen that each judge, wishing to
exercise his own jurisdiction, summons the offender to
appear at the same time, or that each sends his
retainers to capture him. If he is summoned by both,
however, either he will appear before each of them - and
this is impossible for him - or he will appear before
one only and then will do a wrong to the other before
whom he does not appear, since he is not bound to appear
before the one more than before the other - and in
return without being at fault he will be punished for
being contumacious by the one before whom he does not
appear - or he will appear before neither and then his
offence will remain unpunished. Also if each of those
judges sends his retainers to capture the offender,
either one or the other group of those retainers will be
disobedient to their lord, or they will fight among
themselves to lead the offender back to the judge by
force. While they fight the offender will escape, and so
a dangerous sedition will arise among the people or in
the community and crimes will remain unpunished. A
community in which such problems arise because of the
power of judges, therefore, is very badly governed. [cf.
Marsilius, I.xvii.3] |
||||
Further,
[2] any public benefit and the punishment of offenders
are hindered by this plurality of judges because it can
happen that those judges will have wanted to call their
subjects together at different places at the same time
to punish criminals or to discuss common business.
However, they cannot assemble in different places at the
same time. Therefore both the punishment of wrong-doers
and the common benefit will be hindered, and sedition
will easily arise. So such a community would be very
badly and most dangerously regulated. |
||||
Again, [3]
if there is no necessity and benefit a plurality should
be avoided because what can be done by fewer people is
done to no purpose by many. But this sort of plurality
of judges lacks any necessity and benefit because
everything is better regulated by one than by many. So
because such a plurality easily gives rise to war,
sedition and discord, both among the judges themselves
wanting to use their own power and also among their
subjects, some of whom can be inclined for different,
indeed for innumerable, reasons to obey one and not
another, while others could be inclined towards the
other, a community which has different supreme judges,
any one of whom can separately without another punish
the same transgressors, should as a result be considered
very bad and most dangerous. |
||||
[4] Truth
himself seems very clearly to testify to this when he
says at Matthew 6:24, "No one can serve two masters; for
he will either hate the one and love the other, or be
devoted to the one and despise the other." We learn from
these words that no one ought to have two masters or two
judges, one of whom is not under the other. |
||||
Student That text
does not seem to demonstrate the proposition because
Christ is talking about opposed lords who issue opposed
orders. |
||||
Master That reply
does not satisfy other people, because the Lord is
talking not only about lords actually opposed, that is
who actually issue opposed orders, but also about those
who are inclined to the issuing of opposed orders and of
whom there is a reasonable fear that they will disagree
among themselves and will issue opposed orders. So since
human nature is inclined to disagreement, it is not an
unjust fear that if the same community has two heads
those heads will disagree with each other because there
will be as many opinions and points of view as there are
heads (De consecratione, dist. 4, c. Sicut in
sacramentis). Therefore, it should be feared that
those heads or lords will issue opposed orders. From
this we infer that no subject can serve them, and
consequently that community which has many heads is very
badly regulated. We conclude from this that if a
community of believers has two supreme judges, namely
the emperor and the pope, it should be regarded as a
dangerous society. And by a similar argument we infer
that in the same kingdom or province and even city there
cannot be without clear dangers two supreme judges, that
is an ecclesiastical and secular one, over the same
people, especially in that kingdom, province or city
that does not in fact recognise any superior in temporal
affairs. |
||||
[5] To
strengthen this, an assertion of the Truth from Matthew
12:25 can also be adduced, "Every kingdom divided
against itself will be made desolate, and no city or
house divided against itself will stand." We conclude
from these words that every community and congregation
which is near to division is near to desolation and
ruin. So since a community or congregation of believers
would be near to division if it has [a plurality of]
highest judges because different heads are inclined to
disagreement, it follows that [such] a community or
congregation of believers is near to desolation and
ruin, and consequently it is against the common good
that it have two supreme judges over it. |
||||
[6] The
authority of Jerome is also introduced to this effect.
In 7, q. 1, c. In apibus, he says to the monk
Rusticus, "Among bees there is one ruler; cranes follow
one of their number in learned order; there is one
emperor and one judge in a province. When Rome was
founded it could not have two brothers as kings at the
same time and is inaugurated by fratricide. In Rebecca's
womb Esau and Jacob waged war; single bishops, single
archbishops, single archdeacons of single churches; and
the whole ecclesiastical order rests on its rulers." In these
words Jerome clearly proves by many examples that in the
same church there should not be many prelates, one of
whom is not under another. It can equally or more
clearly be shown by them that there should not be many
supreme judges in the same community, because if by the
singleness of the ruler of bees the singleness of a
bishop in one diocese and the singleness of an
archbishop in one archdiocese can be shown, by the same
argument from the singleness of the ruler of bees the
singleness of a supreme judge over one community or
congregation can be shown. Again, if
the singleness of a bishop and archbishop is shown from
the fact that cranes follow one of their number, by a
similar argument it shows the singleness of a supreme
judge over one community. Similarly,
if the singleness of a bishop, an archbishop and other
rulers of the church is shown from the fact that once
Rome was founded it could not have two brothers as kings
at the same time but is on record as inaugurated by
fratricide, the singleness of a supreme judge over the
same community can much more strongly be proved from
this, that is that there not be two such judges, namely
one ecclesiastical and one secular, because it seems
that it should not be any the less presumed that a
secular judge will oppose an ecclesiastical one, even as
far as killing him, just as one of the founding brothers
of Rome killed the other, than that one ecclesiastical
judge will oppose the other or one bishop oppose the
other. So if it can be proved by the example of the two
brothers, one of whom killed the other, that there
should not be two bishops in the same episcopate, it can
much more strongly be shown by the same example that
there should not be two highest supreme, one secular and
the other ecclesiastical, over a community of believers. And for the
same reason it is clear that if it can be shown from the
example of Esau and Jacob, who waged war in their
mother's womb, that there should not be two bishops in
one diocese, it can much more strongly be proved by the
same example that there should not be two supreme
judges, one ecclesiastical and one secular, over a
community of believers. Jerome's
words also seem to signify this since he thinks that
there should be one judge of one province. He does not
say, however, that there should be one ecclesiastical
judge or one secular judge of one province, as if he was
wanting to exclude only a plurality of ecclesiastical
judges and of secular judges. But he does say without
distinction that there is one judge of one province,
wanting by this to exclude every plurality of any
supreme judges at all. And so it is not appropriate that
there be many supreme judges of any kind over a
community of believers. |
||||
[7]
Moreover, that regulation of a community is not good by
which it comes to pass that a more powerful member of
that community who is able to have a large following is
provoked to impatience and anger against another of the
more powerful members in that same community who is also
able to have a large following, because dissension,
seditions and wars easily follow from such regulation.
But if a community of believers is regulated so that
there are two supreme judges, namely the pope and
someone else, it will easily follow from such regulation
that one will be provoked to impatience and anger
against the other, because, as the poet says, "All power
is impatient of a partner." As we read in 23, q. 7, c. Qui
autem nobis, Augustine seems sufficiently to
allude to this when he says, "For what greedy man seeks
a joint-possessor? What man inflamed with a desire to
rule or puffed up with the arrogance of domination wants
to have a partner?" as though to say, there is no such
person. So the regulation of a community is neither good
nor praiseworthy when there are many supreme judges
having no superior. |
||||
We conclude
from all of the above that if in a community of
believers there are many supreme judges or many heads
who are plainly chief and have the power to coerce the
same people for the same crimes and to command the same
things of the same people, it manifestly follows that
that same community of believers will always be exposed
to discords, dissension, seditions, fighting and wars
both between the heads themselves, with each trying to
put himself ahead of the other, and among the subjects,
some of whom will adhere to one head and some to the
other. And so there will be few people or none that will
not hate one and love the other. And consequently they
will uphold one and attack the other if they can, and so
it will always be something to be feared that there will
not be peace in the community or congregation of
believers. |
||||
Chapter 18 Student So that I
can understand more deeply whether those arguments have
any plausibility I will offer some objections to them. For from them it seems that no
community over which many ruled --- even when they held
the same office so that without the advice and consent
of the others or of the stronger part of them one of
them should not command, decree or ordain anything or
coerce anyone --- would have been fitly or beneficially
set up. This is because all the disadvantages deduced
from a plurality of supreme judges in a community of
believers can be inferred from a plurality of those in
charge of the same people holding the same office or
acting like one person. For if there
are many such men in charge they can summon offenders to
different places or send different retainers to capture
them and lead them to different places, as the first argument
declares. They can
also call their subjects to different places to punish
offenders or to deal with common business, just as the second argument
declares. In vain
would any community be ruled by many men of this kind in
charge when it can be ruled by one man, as the third argument
declares. Also, no one
will be able in that way to serve different lords able
to order contrary things according to the Saviour's text, "No one
can serve two masters." Such a
community will also be near to desolation and ruin
because of the fact that the many of this kind in charge
are inclined to disagree with each other, according to
the other text of the
saviour, "Every kingdom divided against itself will be
made desolate" etc. It can also
be shown by Jerome's examples in the
chapter In apibus that it is not appropriate
that there be many of this kind in charge. Because of
the fact that all power is impatient
of a partner too, it can
be proved that in no community should there be many in
charge in that way, just as there should not be many
bishops ruling in any way at all in any episcopate. For it
always seems that if there are many men in charge of the
same community in
any way at all, there will be fear of
dissension, struggles, seditions, quarrels, fighting and
wars, if the above arguments are conclusive that there
should not be in a community of believers many supreme
judges, namely an ecclesiastical one and a secular one,
who have the power to coerce the same criminals for the
same crimes. |
||||
Further, many communities are well regulated
in which, nevertheless, the same person is under many
rulers. Therefore, a community of the faithful can be
well regulated even if many supreme judges in it rule
over the same people. The antecedent is clear because we see that the same man is the
vassal of many lords, even of kings, none of whom is
under another. The same cleric
too is subordinate to different bishops for different
churches or benefices, and in one
case of one person there can be many judges, both
regular and appointed and also arbitrators (Extra, De
sententia et re iudicata, last chapter, and Extra,
De rescriptis, c. Cum contingat) These
points seem to show that the above arguments are not
conclusive in achieving their intention. Would you point
out how they are replied to? |
||||
Master The reply
to your first objection
is that whenever in the same community there are many in
charge, even holding the same office or acting like one
person, it is not best regulated but falls short of the
best regulation, because the best regulation of a
community is that there be a single supreme person in
charge of it. Nevertheless it is often necessary because
of different occurrences to retreat from that best
regulation, because sometimes the subjects would not
support that single person while sometimes no one could
be found who alone would be adequate to rule. So for
many reasons it can happen that it is better for many to
rule than for one, although a community would be better
regulated if one person could easily be found who could
be in charge, in the sense that any community,
especially a large one, that is governed by many who are
supreme in the same community, is not governed according
to the best form of rule. Yet, just as often those who
are in danger at sea are forced to abandon the most
direct sailing route in order to avoid the dangers, and
sometimes travellers are forced to leave the best path
and to choose and longer and inferior one, and
frequently many good things are given up for necessary
reasons, and very often by way of dispensation those who
would at another time be unworthy are promoted for a
multiplicity of reasons to different offices, so
sometimes it is necessary for a reasonable cause to
abandon the best way of exercising control, namely the
rule of one person, and to accept the control of many. |
||||
Student That reply
can be made to all the arguments in the
preceding chapter, in so far as they prove that in a
community of believers there should not be a number of
supreme judges, namely an ecclesiastical and a secular
one, because they only prove, as that reply says, that
if a community of believers were to be best regulated it
ought to have one supreme head or judge. It is not
necessary, however, that a community of believers that
is subject to various tribulations and afflictions
always be regulated in the best way. So it can have a
number of supreme judges, namely an ecclesiastical and a
secular one, as long as all the believers are subject to
the same people for the same crimes. |
||||
Master The reply
to this is that it could happen because of the
tribulations and adversities which a community of
believers could undergo from the singular malice of
Christians that it would be expedient for some time for
the whole community to be subject to two supreme judges.
Nevertheless this would then be to withdraw too far and
too dangerously from the best organisation, and so it
should not support such a way of rule except in the most
extraordinary case. As far as possible, therefore, it is
bound to try to have only one supreme judge with the
power to punish all evil-doers for any crimes either
himself or through judges inferior to him, from whom
reasonable appeal is allowed to him. However, that judge
cannot and should not be the pope, because by Christ's
decree the pope should as far as possible remove himself
from secular affairs. If a community of believers is
ordered in the best way, therefore, it will have one
supreme secular judge who should be none other than the
Roman emperor, when he is a catholic. |
||||
So that you
truly understand how conclusive the arguments of the
preceding chapter are according to those who put them
forward [reading secundum allegantes’ for ‘sed
allegaciones’ as
in at least Ve] they add one thing that it seems to them
no Christian should deny, namely that neither by
Christ's decree, nor by decree of the apostles, nor by
decree of the highest pontiffs zealous for Christian
faith, nor by decree of general councils duly celebrated
nor by decree of those who are just, is the best way of
ruling believers, as far as the status of this present
life allows --- a way which has indeed been preserved
among many believers and among many unbelievers wanting
laudably to live according to reason --- forbidden to
the whole universal community of believers, although
sometimes the whole community of believers cannot lay
hold of this best way of ruling because of the
wickedness of men. They infer from this that by Christ's
decree the pope does not have universal jurisdiction
over the whole Christian people for every crime. And
consequently it does not conflict with Christ's decree
for someone else to have power over the whole Christian
people. And the above arguments in the preceding chapter
come to this conclusion, or at least it seems to be the
necessary conclusion of those arguments that the whole
community or congregation of believers is not best ruled
if it has many supreme judges who have the power to
punish the same people for the same crimes and that such
a way of ruling through different supreme judges of this
kind was not decreed by Christ. |
||||
Student Point out
how my second objection
is replied to. |
||||
Master It is
granted that many communities in which the same person
is under many rulers are well ordered. But those in
which the same person is under many rulers not having a
superior are not best ordered. Therefore although
someone can be the vassal of many lords and have some
benefit from this because he holds many fiefs, yet he
would have greater benefit if he were the vassal of only
one lord for all those fiefs, although in a particular
case it may be more useful to have many lords than to
have only one. But this is because of some wickedness in
one or other of the lords in that some depart from the
best arrangement of mortals. Reliable experience would
seem to teach, however, what kind of worse losses those
who have many lords often endure than those who are
subject only to one wise and just lord. |
||||
Now when you
take there as your second
example that
the same cleric is subject to different bishops for many
churches or benefices, the reply is that that example
proves the opposite, because it is against common law
for the same cleric to be subject to many bishops for
different benefices and it can happen only by
dispensation. So although in a particular case for a
special reason it may be consistent with the good
ordering of clerics that someone be subject to many
bishops, this is nevertheless not consistent with their
best ordering because clerics are better ruled if the
common law could always be preserved so that no cleric
were to have benefices in many bishoprics. |
||||
However,
when you say for your third example
that there can be many judges in the same case, etc.,
the reply is that those judges have a superior judge and
they are not supreme. So it is sometimes useful that
there be many judges who are not supreme, especially
when those judges are not separate, so that one can
without the other proceed in a case at his own pleasure,
but rather act in unity. Nevertheless, that there are
many comes about for some particular reason, and this
would not arise when litigants were regulated as well as
their condition permits. For this reason litigants seem
to be best regulated when they agree in their choice or
commit themselves to the one judge rather than when they
so differ that they want to have completely different
judges. And so it is with all litigants that those who
want to litigate under a single judge, unless some
particular reason prevents that, depart less from good
regulation. |
||||
Chapter 19 Student We have
reflected on the second way of putting the case that the
community of believers does not have one supreme judge
that was put in chapter 17 above. Let us now reflect on
the third way that
was set down there. |
||||
Master How that
way can be investigated can be quite clear to those who
are diligent from what was dealt with in chapters 1 to 13 of
the first book of this tractate [Letter
to the Friars Minor, p.237-269]. |
||||
Student
Notwithstanding that, let us look more particularly at
an aspect of that way of putting it, namely whether it
conflicts with and opposes the best regulation of the
community of believers for clerics to be judged on every
charge by the pope or other ecclesiastical judges
inferior to him and for all of the laity to be judged by
a secular judge, because against that way of putting it
that the whole community of believers does not have one
supreme judge the arguments adduced in
chapter 17 do not seem to be conclusive. This is because
on that way of putting the point no one should be cited
or called by different people to different places, no
one will be forced to serve two masters, a number of
judges will not have power over the same people and
there will be no power impatient of a partner, and it is
on the basis of these points that those arguments seem
to have proceeded. Therefore either make clear how
according to the opinion recorded in chapter 17 above
those arguments are conclusive against that third way
about which I now wish to speak, or try to bring forward
some other arguments. |
||||
Master Although
according to the opinion recorded in chapter 17 above
the way of ruling the community of believers which we
treated in the preceding chapter and in chapter 17 is
much more destructive than that way about which you now
wish to confer, and therefore those arguments are more
obviously conclusive against the former than against the
latter, nevertheless the same arguments, or some of
them, seem to demonstrate that that way of ruling the
community of believers departs from the best way of
ruling and of punishing the guilty. |
||||
However, the
first two arguments do seem ineffectual against that way
of ruling. But the third seems to
have some plausibility against it due to the fact that
the whole community of believers could be ruled by one
person; that which can be done by fewer people, however,
is done in vain by many; therefore two such rulers,
namely an ecclesiastical and a secular ruler, are
proposed to no purpose in that way of ruling. |
||||
The fourth argument,
based on the authoritative text of the saviour in
Matthew 6:[24] does not seem to be conclusive against
that way of ruling. But the fifth, based on
the authoritative text of the saviour in Matthew
12[:25], "Every kingdom divided against itself will be
made desolate" etc., is adduced against that way of
ruling in the following way. Not only is a society that
is divided against itself near to desolation and ruin,
but also, according to the same text of the saviour, a
society that due to its way of ruling is inclined
towards division and is near to division. But if the
community of believers has two parts, one of which has
one supreme judge and the other another, then that
community of believers is inclined towards division and
is near to division, because the subjects and the
supreme judges, who are prone to disagreement like all
mortals, will easily be divided among themselves because
of their reciprocal communion. So if the community of
the faithful is ruled in such a way it should be
considered dangerous. |
||||
The sixth argument,
however, based on an authoritative text of blessed
Jerome, seems to be effectually conclusive against that
way of ruling because the examples that Jerome adduces
not only commend the singleness of a ruler over one
people or over one multitude of people but also commend
the singleness of a ruler over one place in which
subjects live, so that in one diocese, which comprises a
fixed region, there should be only one bishop and in one
province there should be only one archbishop. Therefore
the same examples not only commend the singleness of a
supreme judge over any multitude of people but also
commend the singleness of a supreme judge over any place
in which those subject to him live, so that in the same
place there should be no other supreme judge of all
those living in that place, just as there is only one
bishop in the diocese of Paris and only one archbishop
in the province of Milan. |
||||
The seventh argument
also seems to be conclusive against that way of ruling,
because power is impatient of a partner not only with
respect to the same subjects but is also impatient of a
partner in the same place. For just as no judge would
want his subjects to be subject to someone else, so he
would not want anyone else to have power in the place
where his subjects live. Therefore, not only will a
society of believers be endangered if there are many
judges over the same people or subjects, such a society
of believers will also be endangered if several supreme
judges are established in the same place over different
believing subjects. And so it is not appropriate for
clerics to have one supreme ecclesiastical judge, that
is the pope, and laymen to have one supreme secular
judge, that is the emperor, since clerics and laymen
live together in the same places. |
||||
Student I see how
the earlier arguments are adduced against that way of
ruling, so try to find others against the same way of
putting it. |
||||
Master It seems
that it can be argued in another way against that same
way of putting it. For, as was
argued in chapter
one of the first book of this tractate [Letter
to the Friars Minor, p.237], that rule is
advantageous to the totality of mortals, and by the same
argument to the whole congregation of believers, through
which the quarrels and disputes to which the nature of
mortals is prone are more equitably and suitably
settled. But quarrels and disputes which can arise
between clerics and laymen for countless reasons are
settled more equitably and suitably if everyone, both
clerics and laypeople, has one supreme judge under whom
all should litigate, than if there are several such
judges, namely an ecclesiastical one and a secular one.
For if a matter of dispute has arisen between clerics
and laypeople and they have to litigate before an
ecclesiastical judge who is not the supreme judge of
laypeople, the laypeople will justly consider him
suspect. Similarly if they have to litigate before a
secular judge who is not the judge of clerics, the
clerics will not without reason consider him suspect. So
no dispute between clerics and laymen will be dissolved
without reasonable suspicion unless there is one supreme
judge of everyone. |
||||
Further, it
is a fact that more and greater opportunities for
discord, strife, sedition, battles, wars and brawls
generally arise among those living together than among
those who are distant, if those living together do not
have one highest judge by fear of whom they are
restrained from things of this kind. But among those who
are distant yet able to have communion with each other,
opportunities for evils of this kind often come to pass.
It is therefore much more to be feared that such things
will arise among those living together unless they have
one supreme judge who has the power to coerce everyone
hindering peace and tranquillity. |
||||
Again, no
community of those living together is best regulated in
its political life unless it is a unity in the civil
sphere. So also in regard to the faithful, just as they
are one body in Christ (Romans 12[:5]), so also they
should be one body or college in civil life. But that
community which has various supreme judges or various
heads or rulers is not a unity in the civil sphere, just
as those who do not have one king are not one kingdom.
But a community or congregation of believers either is
best regulated or should take pains to be best
regulated, especially in the civil sphere, because on
account of the fact that civil life includes different
parts and different ways of living it pertains to
Christian religion and is not opposed to the life of
faith. If a community of believers is not one,
therefore, because it does not have one supreme judge
who has the power to punish all wrong-doers either
himself or through judges established by him or inferior
to him, it should strive mightily to have highest judge
of this kind so that it is best regulated in civil life
and is a unity in the civil sphere. And so it is not
appropriate that in a community of believers there be
several supreme judges, one of whom is bound to punish
clerics and the other, laypeople. |
||||
Chapter 20 Student Let us now
see how the fourth way, as
recorded in chapter 17 above, of putting the view that a
community of believers does not have one supreme judge
is attacked. |
||||
Master As was said
there, that way maintains that one party of believers,
namely the clerics, has one supreme judge and it should
be judged for any offence either by him alone or by
judges inferior to him. The other party, namely the
laity, has another supreme judge and by him alone it
should be judged for certain offences, especially if he
has not been negligent or remiss in delivering justice.
For certain crimes, however, it should be judged, as
also should its supreme judge, by the highest judge of
the other party, namely by the pope or by ecclesiastical
judges inferior to him. |
||||
But it seems
to some people that such a community is not best
regulated in civil life, because that community is not
best organised in civil life in which opportunities for
discord, quarrels, sedition, brawls, battles and wars
are not cut off as much as the state of this present
life permits. But if a community of believers is
organised in the aforesaid way opportunities for evils
of that kind are not cut off, as much as is possible for
the state of this present life. For not the least
opportunity for such things occurs if both the different
judges at the same time try to haul the same offender,
especially if he is rich and powerful, to different
places and courts. It can happen, however, that some
powerful and rich lay person commits various crimes, the
punishment of some of which pertains to the secular
judge and others to the ecclesiastical judge. As a
result it can come to pass that both the secular and the
ecclesiastical judges want to haul him before his own
court, and this will be impossible. So from this will
arise strife and sedition, brawling and war between the
judges themselves and consequently between their
subjects. Assuming such a plurality of judges in a
community of believers, therefore, the peace and
tranquillity of their subjects and even of the judges
will easily be overthrown. |
||||
Also
seemingly conclusive against that way of putting the
view are all the arguments of chapter one of the
first book of this tractate [Letter
to the Friars Minor, p.237] and chapter 17 of this
third book which were brought forward to prove that it
is advantageous that the whole community of mortals have
one prince who is the lord of all, and that it is
advantageous that the whole community of believers have
one supreme judge who has the power to punish all other
believers if they have transgressed. For although more
unsuitable consequences follow the second and third ways
of putting it, attacked in chapters 18 and 19 above,
than from this way of putting it, nevertheless some do
follow this way, as could be shown by those arguments or
by some of them. |
||||
Student Briefly
touch on some arguments brought forward [reading
adductas] above against [reading ‘contra’ with the mss
instead of ‘quas’] other ways of putting that view,
because perhaps from the deduction you made from them
there I will observe whether they have any plausibility
against this way. |
||||
Master [1] If
laypeople are subject to both an ecclesiastical and a
secular judge, even if for different cases, it can
happen that each of those judges wants to call those
laypeople to different places at the same time for a
case which pertains to him or for some common business
pertaining to him and to the laypeople which has to be
investigated. So which one will the laypeople obey?
Either both, which is impossible, or neither, and then
such a community will not be best organised because that
community is not suitably regulated in which subjects
either should not or cannot obey their superior. If they
obey one and not the other they will inflict a wrong on
the one they do not obey and offend him and he will
punish them for contumacy. |
||||
Further, [2] the common
utility of laymen will be hindered by such a plurality
of judges because they will not be able to obey both
highest judges if they are called to different places at
the same time for common business. |
||||
Again, [3] according
to the authoritative text of the saviour [Matthew 6:24],
no one can serve two masters. So laypeople will not be
able to serve a secular and an ecclesiastical judge, who
are inclined to disagreement. |
||||
Again, [4] an
ecclesiastical and a secular judge will be able to be
divided against each other for numberless reasons.
Therefore the whole community of believers will easily
be laid waste. |
||||
Further, [5] there
should be one bishop in one diocese and one archbishop
in one province, as Jerome attests who he commends
singleness with many examples. There should be only one
supreme judge over laypeople, therefore, not only for
the same crimes but indeed for all crimes, so that they
should be judged for all crimes by one single supreme
judge and by other judges inferior to him. |
||||
Again, [6] “all power
is impatient of a partner”, and especially over the same
subjects and for various cases. Therefore, a secular
judge will be impatient if an ecclesiastical judge has
power over laypeople, and in the same way an
ecclesiastical judge with power over laypeople will be
impatient if a secular judge has power over the same
people. As a result they will be quickly provoked to
anger, and consequently to strife, brawling, war and
battle. |
||||
The
conclusion, therefore, is that a community of believers
will not be best regulated in its civil life, especially
with respect to its political life, unless each and
every part of it has one supreme judge and ruler under
whose direct or indirect jurisdiction everyone else
should be judged for any offence in any case, either by
him or by judges inferior to him. |
||||
Chapter 21 Student I have
heard how the second, third and fourth ways, recorded in
chapter 17 above, of putting the view that a community
of believers does not have a single supreme judge are
attacked. Now I want to hear how the fifth is
attacked. |
||||
Master The fifth
way is that of some people who posit that the emperor is
in every case the judge of all Christians except the
pope because the pope is completely exempt from the
jurisdiction of the emperor and of every mortal. All
other clerics, however, are exempt only through the
privileges of emperors and kings. |
||||
However,
that way is attacked as follows. [7] Just as two
multitudes of people do not live together in the same
place without the danger of the destruction of
tranquillity and peace if they do not have one supreme
judge who can punish wrong-doers, so it is not without
the danger of the destruction of tranquillity and peace
that someone who can have a powerful and great following
lives with someone else or with others but is not a
subject. For on account of the following that he can
have, such a person should not unjustly be reckoned as
representing many. But on account of the eminence of the
office that he administers the pope can have the
greatest following of Christians. If he is not subject
to the supreme judge of the Christians, therefore, he
will not live with him without the danger of the
destruction of tranquillity and peace. |
||||
Chapter 22 Student I see that
the argument which we have treated from chapter 17 up to here
is based on two points, of which the first is
that no community or gathering of mortals, whether
universal or particular, is best regulated unless it has
one supreme head or ruler, to whom everyone else with no
exception is subject with respect to everything that has
necessarily to be done for the common benefit. |
||||
This seems
to have much plausibility because it is not easy to
preserve harmony where there is no unity. But there is
not one gathering or multitude,, whether universal or
particular, which does not have one head or ruler,
because, as blessed Cyprian attests in 24, q. 1, c. Loquitur,
where there is a unity it is necessary that its
beginning spring from one thing, since, as he says there
"the beginning proceeds from oneness." In any community
or gathering in which there is unity, therefore, that
unity begins from one thing. That one thing, however, is
nothing but the head and ruler of the community.
Therefore, no community is truly one unless it has one
ruler, so that all the others are its members. |
||||
Again, the
unity of a community or gathering is nothing but a unity
of order according to superiority and inferiority, so
that everyone is an inferior or a superior with respect
to another person or many are inferior with respect to
one superior, because where there were many superiors
with respect to one inferior there would not be the most
genuine unity which is the best regulation of a
community. It is necessary therefore that the supreme
superior in the one strongest community be single, and
so it seems quite clear that no community, whether
particular or universal, is best organised unless it has
one head or ruler to whom everyone else is subject.
Whence even one home is not best regulated unless it has
one head of the family, nor are one village, one town or
one kingdom best governed unless they are ruled by
someone who is supreme. And therefore all who have
wanted to live politically according to reason have set
up one supreme head over all. |
||||
The second
point on which that argument seems to be based is that
the emperor and other laypeople are not subject to the
highest pontiff in all matters which pertain to their
governing and their correcting if they transgress. It
seems that this does not have as much plausibility as
the first point. Would you therefore adduce some
arguments for it? |
||||
Master You will be
able to assemble very many arguments for that point from
many chapters in the first book of this tractate,
especially chapter 28, and from
chapters 1, 12, 14 and 15 of the
second book in this tractate. |
||||
Student Would you
bring forward some particular arguments for the second
foundation of the above argument, or consider more
carefully some already touched on? |
||||
Master There is an
argument touched on
in chapter 28 of the first book in this tractate which
seems very strong to some people, and this is it. One
person is not inferior to another with respect to those
matters in which it is not licit to appeal from the
former to the latter, because in all matters in which
one judge is inferior to another it is permitted to
appeal to the one who is superior, or at least to that
one's superior. But in many cases it is not permitted to
appeal from the emperor to the pope. With respect to
many matters, therefore, the emperor is not inferior to
the pope. The major premise is clearly proved by sacred
canons. For as we find in 2, q. 6, c. 1, Pope Fabianus
says, "An appellant is permitted to alleviate a faulty
case by the remedy of an appeal." And in the same causa
and quaestio c, Liceat, the same pope
says, "Even in criminal cases it is permitted to appeal
and the voice of appeal is not denied to him for whom a
sentence has resolved on punishment." We gather from
these that wherever a judge has a superior appeal can be
made to the superior. The minor premise, namely that in
many cases there should be no appeal from the emperor to
the pope, is proved in many ways. For the gloss on the word sacerdotum
in 2, q. 6, c. Omnis seems to assert this when
it says, "Therefore, that an appeal can be made from a
secular judge to the pope, is true when the imperial
throne is unoccupied, as in Extra, De foro
competenti, c. Licet, at other times not,
Extra, De appellationibus, c. Si duobus." |
||||
Again, the
gloss on the words in commune in the same
chapter says, "That is publicly”, so that a secular
judge may hear secular cases and an ecclesiastical judge
ecclesiastical cases. And so what is said in the text is
plain, namely when Anacletus says, “Let ecclesiastical
business be judged before the patriarch or primate and
secular business before a nobleman." We gather from
these words that in secular affairs there should be no
appeal to the pope from a secular judge, nor
consequently from the emperor. |
||||
Student If in
accordance with the first gloss it is
permitted to appeal to the pope when the imperial throne
is unoccupied, then the pope has the power to make
dispositions for the empire, and consequently the
emperor, by reason of the empire, is inferior to the
pope. And so even when the imperial throne is not
unoccupied it is permitted to appeal from the emperor to
the pope, even in secular cases. |
||||
Master The reply
to you is that when the imperial throne is unoccupied
the pope does not have the power to make dispositions
for the empire, except by the authority of the emperor
appointing him as his vicar or by the authority of
others, that is of the Romans or of princes to whom the
power of arranging who ought to act in place of the
emperor when the imperial throne is unoccupied has been
committed. And therefore if it is possible to appeal to
the pope when the imperial throne is unoccupied, this is
with respect to the fact that the pope acts as a
surrogate for the emperor and occupies the emperor's
place. He who acts as a surrogate for another, however,
and occupies his place is inferior to him by this very
fact, because a vicar is always inferior to the one
whose vicar he is. Therefore the pope in this is
inferior to and less than the emperor, and consequently
it is not permitted to appeal from the emperor to the
pope. |
||||
Student Even if
that example seems apparently to be excluded, it still
seems possible to show, nevertheless, that it is
permitted to appeal from the emperor and other secular
judges to the pope in relation to secular business or
cases. For it is permitted to appeal to someone who can
alleviate a faulty case. But if a secular case in a
secular forum or before a secular judge is faulty,
because, for example, the emperor or another secular
judge does not want to execute justice fully, the pope
can alleviate a case made faulty like this, and recourse
should be had to him or to another ecclesiastical judge
in order to obtain justice (Extra, De foro competenti,
c. Ex transmissa, c. Verum, c. Licet,
c, Ex tenore). Therefore it is permitted to
appeal from the emperor and other secular judges to the
pope. |
||||
Master The reply
to this is that even in the decretals which seem to
bestow greater jurisdiction and authority on the pope
and ecclesiastical judges we nowhere find that if the
emperor has neglected to do justice in a secular case
the pope can, by that very fact, fully execute justice
in that case on the authority of his papal office
and by the decree of Christ. Even if by a custom
which the emperor knows and approves, or at least knows
and does not prohibit but supports, the pope and
ecclesiastical judges may do this in certain regions,
just as in certain regions they judge purely secular
crimes without any secular judge being sought,
nevertheless this does not belong to them by divine
right. Hence it is that it is by custom that the pope
and ecclesiastical judges acquire the right for recourse
to be had to them when a secular judge neglects to do
justice. If the secular judges in those regions are
notably negligent that custom can indeed be reasonable
and prescribed, especially if the emperor knows this
thinks it should be tolerated. |
||||
Now when you
say that it is permitted to appeal to someone who can
alleviate a faulty case, the reply is that this is not
generally true if you mean by ‘faulty case’ any case
which is not concluded with a just sentence, because an
appeal should always be made to one who is greater. But
someone who is subordinate can sometimes alleviate such
a faulty case, that is one not concluded justly, by
making good the negligence of his superior, just as in
conferring benefits and disposing of other things a
subordinate can also make good the negligence of his
superior (Extra, De electione, c. Cum in
cunctis, Extra, De concessione praebende,
c. Nulla and c. Quia diversitatem, Extra,
De institutionibus, c. Grave, 9, q. 3, c.
Cum simus, and dist. 89, c. Volumus,
where the gloss says, "An argument that if a prelate
does not want or neglects to do those things that he
ought to do, those things should be made good by his
subjects.)" We gather this also from the Council of
Sardinia, found in the last chapter of dist. 65 where
the gloss says, "An argument that if subjects neglect to
do what they should, those things ought to be made good
by someone who is greater than them, either himself or
though someone else, and conversely." |
||||
It is clear
from these and very many other canons that those who are
inferior can make good the negligence of their superior,
especially since they can often correct their superiors
and even punish them. Pope Iginius attests to this when
he says, as we find in 9, q. 3, c. Salvo,
"Saving the privilege of the Roman church in all
matters, let no archbishop, except at the insistence of
the rest of the bishops of his province, hear any of
their cases, because the ones dealt with will be void
[reading ‘acte quam’ with Gratian Na and Ve rather than
‘antequam’] unless they are discussed in the sight of
all of them, and let him be punished by his brothers if
he does so." |
||||
Pope
Anterius seems to agree with this. In the same causa
and quaestio c. Si autem he says,
"However, if any metropolitan is haughty and, without
all his provincials present or without the advice of his
bishops, wants to treat either their cases or other
cases, with the exception only of those cases which
pertain to his own parish, or wants to oppress them, let
him be severely corrected by all of them so that he will
not dare to undertake such things thereafter. Certainly
if he appears incorrigible and disobedient to them, let
his contumacy be referred to this apostolic see, to
which all the judgements of bishops have been ordered to
be referred, so that punishment may be inflicted on
him." We gather from these that a lesser person can make
good the negligence of a greater one. |
||||
And
therefore it is not always the one who is greater who
can alleviate a faulty case, and consequently there
cannot always be appeal to him. Even if the pope makes
good the negligence of secular judges, therefore, even
if he were to make good the negligence of the emperor by
concluding a case which the emperor neglected to
conclude, it could not be shown by this either that
appeal is permitted from the emperor to the pope or that
the emperor is subordinate to the pope in such matters. |
||||
Student That a
subordinate can make good the negligence of his superior
is only on the basis of the authority of a canon
produced by a council which is superior to that
subordinate who can make good the negligence of his
superior (Extra, De concessione praebende, c. Quia
diversitatem). But it is not on the basis of the
authority of such a canon or law that the pope makes
good the negligence of secular judges or of the emperor,
but it is on the basis of his own authority. It is by
virtue of his office, therefore, that in such cases of
negligence the pope is greater than the emperor and all
other secular judges. |
||||
Master The reply
to this is that just as subordinates make good the
negligence of their superior on the basis of the
authority of law, so it is by virtue of custom, which is
equivalent to law, that the pope makes good the
negligence of secular judges. Therefore it is not on the
basis of the authority of his office that he makes good
such negligence. Hence he is not greater in cases of
this kind than secular judges. |
||||
Student By whose
authority or consent can such a custom, which bestows on
the pope power of this kind, be introduced? |
||||
Master There are
three ways of replying to this question. One way is that
such a custom can be introduced with the tacit or
express authority or consent of the emperor and the
secular judges, to whom it can be soothing that the pope
makes good their negligence, or they can knowingly
tolerate the pope's doing this. In another way it is
said that it can be introduced on the authority of the
people who want the pope to have or agree to his having
power of this kind. In another way it is said that it
can be introduced on the authority of natural reason
which prescribes that justice should not be neglected
but rather is always to be preserved in a community. |
||||
Student Could the
emperor and secular judges abolish such a custom? |
||||
Master The reply
to this is that according to the assertion which posits
that such a custom can be introduced with the tacit or
express agreement of the emperor and secular judges, the
emperor could abolish it but not the secular judges. For
because that determination derives from imperial law and
not from subordinate judges, the pope cannot as a result
make a determination against the emperor in this matter,
if the latter expressly and with sure knowledge
abolishes a custom of this kind. But the pope can make a
determination against other subordinate secular judges.
Nevertheless, if the emperor were to revoke such a
custom and were to neglect to uphold justice and were
even to permit other subordinate judges to neglect
justice and were not to uphold the right of the pope or
someone else to make good so baleful a negligence and
were to appear wholly incorrigible, he should be deposed
from the imperial dignity as a destroyer and perverter
of justice. |
||||
Chapter 23 Student The first argument
that we began in chapter 17 to prove that the emperor is
the judge of the pope and that the pope is subordinate
to him with respect to coercive jurisdiction has been
considered copiously. Would you therefore now bring
forward some other arguments? |
||||
Master Another
argument, which comprises two points touched on in
chapters 4 and 5 of
book 6 of the first part of this Dialogue, is as
follows. The pope is not more exempt from the coercive
jurisdiction of the emperor and other secular judges
than were Christ and the apostles; but Christ, as a
mortal man, and the apostles were subject to the emperor
with respect to his coercive jurisdiction; therefore the
pope is also. |
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The major
premise is manifest; both parts of the minor premise are
proved. For it is proved that as far as coercive
jurisdiction was concerned Christ was
subordinate to the emperor and other secular judges,
because anyone who can be accused and against whom
others can testify is able to face judgement. But Christ
was able to be accused, as he himself testifies when he
says in John 8:46, "Which of you convicts me of sin?"
With these words Christ granted to others the power to
accuse him. Innocent III also attests to this, saying in
Extra, De haereticis, c. Cum ex iniuncto,
"And let no one defend the rashness of his presumption
by that example in which we read that an ass reproved
the prophet or that in which the Lord said, `Which of
you convicts me of sin?' ... Besides it is a different
matter when a prelate who relies willingly on his own
innocence submits himself to the accusations of his
subjects; the above words of the Lord should be
understood as such a case." We understand from these
words that Christ was able to be accused. Therefore he
was also able to be judged by the one before whom he
could be accused. |
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Student That is not
conclusive for its purpose; indeed from it we draw the
opposite conclusion from it because, as the above words
imply, it was only of his own free will that Christ
submitted himself to the accusations of his subjects.
And so Christ could be judged only if he wanted to be.
And consequently the judges were not superior to Christ.
From this we infer that from the example of Christ it
cannot be concluded of the pope that he is bound to
submit to the judgement of the emperor, but that the
pope can submit of his own free will to the accusations
of others, as many sacred canons attest. |
||||
Master It seems to
others that the above words do establish their purpose,
namely that Christ was able to be accused, because the
judges, who were obliged to listen to his accusers,
could have excluded those wanting to accuse Christ only
for a reason, (if, for instance, they did not seem
[reading ‘apparerent’] to be legitimate accusers or they
were in some other way excluded from making an
accusation according to the laws,) because Christ gave
the power of accusing him to those wanting to accuse
him. And consequently, by virtue of that power given by
Christ the judges were superior to Christ, in so far as
he was a mortal man, and Christ was thus subordinate to
them, although by his own free will, just as also by his
own free will he was mortal and able to suffer. |
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Student How is it
proved that others were able to testify against Christ? |
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Master Christ
himself asserts this, it seems, in connection with the
soldier who struck his face and spoke to him. He spoke
as follows to the priest, "If I have spoken wrongly,
testify to the wrong." (John 18:23) Gratian also seems
to think this. As we read in 2, q. 7, para Ecce
ostensum est, he says, "Although Christ was the
shepherd of his sheep, whom he fed by teaching and
example, nevertheless he did not carry on a pastoral
office among his people in respect of that distribution
of offices as a result of which some people rule over
others in the church today, with some called prelates
and some called subjects. For he had not been anointed
with a mystic and visible anointing either as a king or
a priest, which persons alone laid claim to the name of
a prelature among that people." We gather from these
words that as a mortal man Christ was subject to those
who were in command among that people. |
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Student This seems
to be inconsistent with what Gratian says in this same
text, "Christ allowed the Jews to accuse him out of the
perfection of his humility, not in accord with the
strictness of the law. For if they had been allowed to
accuse him in accordance with the rigour of the law, the
guilty and notorious on this precedent would be obliged
to be accepted in an accusation against those who are
devout, because they were very wicked men who in dealing
with the death of Christ wanted to condemn an innocent
man." We understand from these words that Christ could
not have been accused on the basis of the strictness of
the law, but only out of the perfection of his humility. |
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Master The reply
to this is that Christ could not have been accused on
the basis of the strictness of the law imposing its
necessity on him, because, as God, Christ was above
every such law; nevertheless, as a man, he willingly
subjected himself to such a law out of the perfection of
his humility, with the result that he could be accused
by him who should have received him in public, and so,
as a man, Christ was subject to the law. Nevertheless,
because also as a man he was willingly subject to a law
of this kind, he was as a result to a certain extent
above that law because it was in his power to be able to
be accused and not to be able to be accused; and yet
just as long as he wished to do so out of the perfection
of his humility, he could be accused. It follows from
this that he was subject to those judges who were judges
among the people just as long as he wished to be out of
the perfection of his humility. |
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Student That very
much applies to the pope, because, just as Christ was
subject to the secular judges who used to judge in those
parts just as long as he wished to be, so also can the
pope submit himself to the judgement of laymen if he
wishes to do so. But he does not submit himself
necessarily, and so, since he is the vicar of Christ, he
is not subject to anyone unless he willingly wishes to
be. |
||||
Master There is
not a complete similarity between Christ and the pope.
For because the pope is [only] the vicar of Christ, he
does not, as a result, have all the power that Christ,
even as a man, had. For it was as a man that Christ
established the sacraments and did so of his own free
will, with the result that he could grant dispensation
from them, something that the pope cannot do. Since the
pope is only the vicar of Christ, therefore, he is bound
to observe those things which by teaching and example
Christ taught should be observed. Therefore since in
subjecting himself to others, Christ taught by this
example that subjection should be tendered to judges,
the pope is bound to observe subjection of this kind. |
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Student Can it be
proved in another way that Christ was subject to the
emperor and to other judges? |
||||
Master This is
proved in another way by the fact that Christ was
subject to his mother and his putative father, as we
read in Luke 2:51. Therefore he was subject to those who
were the superiors and lords of his putative father and
his mother, and these were the Romans. Hence too, as we
read in Luke 2[:4-5], Joseph went up from Galilee to
Bethlehem to be registered and to make himself and Mary,
to whom he was engaged, subject to the emperor. As a
mortal man, therefore, Christ was subject to the
emperor, although of his own free will and voluntarily,
just as of his own free will too he was carried by the
devil to a mountain and even to Jerusalem where he stood
upon the pinnacle of the temple. |
||||
Student You have
adduced some arguments to prove that in so far as he was
a mortal man, Christ was subject to the emperor in
respect of his coercive jurisdiction. Now try to prove
this of the apostles. |
||||
Master It seems
provable in many ways that the apostles and all other
Christians and disciples of Christ were subject to the
emperor in respect of his coercive jurisdiction. For the
Christian religion, and consequently Christ, did not
deprive anyone, even someone secular and unbelieving, of
his right. But before they were apostles, the apostles
were subject to the emperor and other secular and
unbelieving powers; after they were apostles, therefore,
they were subject to the same people and in the same
matters. |
||||
The minor
premise of this argument seems manifest, because before
their conversion and their apostolate the apostles were
not more exempt from the jurisdiction of the emperor
than were other Jews; yet the latter were subject to the
emperor and other secular powers. |
||||
Now the
major premise is shown in many ways. For Ambrose writing
about the letter to Titus says, "Advise them to be
subject to princes and powers. Although you do indeed
have a spiritual empire, yet advise them to be subject
to princes, that is kings, dukes and lesser powers,”
because the Christian religion deprives no one of his
right. |
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Again,
writing on John, Augustine says, "My kingdom is not of
this world; you have been deceived; I am not impeding
your domination in the world, so you fear and rage
vainly." |
||||
Again, Pope
Leo in his sermon on epiphany says, "The Lord of the
world does not seek a temporal kingdom; he offers one
which is eternal." Again, the church sings as follows,
"He who gives celestial kingdoms does not snatch at
mortal ones." |
||||
We gather
from all these texts that neither Christ nor the
Christian religion removes anyone's right, even an
unbeliever's. In short, neither the emperor nor others
subject to him completely lost any right which they had
because of the fact that anyone, whether an apostle or
not, becomes or became a Christian in the time of
Christ. |
||||
This is
implied in the words of the apostle in 1 Tim. 6[:1],
when he says, "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."
For these words seem to maintain that when those subject
to unbelieving masters became Christians they were
obliged to serve and obey their masters in everything as
before, so that their masters would not say that the
Christian religion was wrongful and was trying to
inflict a wrong on the masters of converts. |
||||
Augustine
seems clearly to affirm this when he expounds those
words. For he says, "It should be known that certain
people preached that in Christ freedom was common to
everyone. This is certainly true about spiritual
freedom, not about carnal freedom, which is what those
people meant; therefore the apostle speaks against them
here by ordering slaves to be subject to their masters.
So Christian slaves do not demand what is said of the
Hebrews, that they serve six years and be freely
released to freedom. This is mystical. The apostle adds
below why he issues this command: ‘so that the name of
the Lord is not blasphemed’ as one who takes possession
of what belongs to others, and so that Christian
teaching does not preach what is unjust and against the
laws, but rather so that unbelieving masters are
converted by the obedience of believing slaves." We
conclude from these words that by the conversion of the
apostles and their assumption into the apostolate their
unbelieving masters lost no right over them that they
had had before, and so they remained subject to them in
everything just as before. |
||||
Further,
that all the apostles, at least those other than Peter,
were subject to the emperor and other secular lords is
proved by what Peter says in 1 Peter 2[:13], "For the
Lord's sake accept the authority of every human
institution, whether of the emperor as highest, or of
governors as sent by him to punish those who do wrong
and to praise those who do right." We gather from these
words that blessed Peter wanted all those who were
subject to him in spiritual matters to be subject as
before their conversion to every creature that had
previously had power over them. For as Innocent III
attests in Extra, De maioritate et obedientia,
c. Solitae blessed Peter at that point was
writing “to his subjects and challenging them to the
merit of humility". But the apostles were subjects of
blessed Peter; therefore blessed Peter wanted the
apostles to be subject to the kings and governors to
whom they had been subject before they were Christians. |
||||
Student Would you
bring forward even more arguments to prove that the
emperor is a judge? Third argument for Opinion 2A |
||||
Master We adduce
as follows another argument, which is based on the
scriptures. If, as has been shown above, the Christian
religion does not deprive any unbelieving lord, prince,
emperor or anyone other unbeliever of his right, it is
much more the case that it does not deprive a believing
emperor and other believing lords of their right, as the
apostle clearly seems to imply in 1 Tim. 6[:1-2]. After
he has said, "Let all who are under the yoke of slavery
regard their masters as worthy of all honour," he
immediately added, "Those who have believing masters
must not be disrespectful to them on the grounds that
they are brothers; rather they must serve them all the
more since they are brothers and beloved." Therefore a
believing emperor lost no right because of the Christian
religion. So the pope is subject to the emperor in all
those matters in which he was subject before his papacy. |
||||
Student Even before
his papacy the pope was not subject to the emperor
because he was a bishop or cleric, and therefore the
emperor was not his judge. |
||||
Master That reply
is excluded firstly by the fact that bishops are subject
to the emperor. But perhaps you will ask about that
later. Therefore it is excluded secondly by the fact
that a pure slave of the emperor, even if he were not to
have the clerical tonsure, could be elected as pope, and
so, since the emperor should not be deprived of his
right by the church, such a pope would remain subject to
the emperor, and consequently the pope is not exempt
from the jurisdiction of the emperor by reason of his
papacy. |
||||
Student A lesser
dignity than the papacy frees one from paternal power
and even from a lord’s power; much more is it the case,
therefore, that one elected as pope is by that very fact
freed from all jurisdiction of the emperor. |
||||
Master Some say
that that objection is not at all valid. For that a
lesser dignity than the papacy frees one from paternal
power and a lord’s power is a result of human
regulation, not divine regulation, and so one elected as
pope can by the emperor's regulation be released from
the power of inferior judges. But he is not released as
a result of divine ordinance. |
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This is also
proved by the following argument. No more should someone
be deprived unwillingly of a right which he has in
someone in order that some ecclesiastical dignity,
without which he can be saved, be conferred on the
latter, than someone should be deprived of a right which
he has in his son in order that baptism, without which
he cannot be saved, be conferred on that son. But Jews
and other unbelievers should not be unwillingly deprived
of the right which they have in their children, so that
they may be baptised, and those children should not be
baptised lest their fathers be deprived of a right which
they have in them. It is much more the case, therefore,
that whenever someone who was the slave of the emperor
or was otherwise subject to him becomes pope, the
emperor will not be unwillingly deprived [of his right
in him]. |
and
/pubs/dialogus/31dEndnotes.pdf
p.370-2.