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ON ECCLESIASTICAL IMMUNITY OR THE EXEMPTION OF CLERICS FROM THE JURISDICTION OF TEMPORAL PRINCES
HE truth of the dogma of ecclesiastical immunity, or of the exemption of clerics from the jurisdiction of temporal princes, we have often assumed in preceding disussions and we promised at the beginning of this work, and in chapter 11 of the previous book, to explain, establish, and defend it in the present book. For we judge it necessary for the completion of this work and for a full response to the complaints and objections of the King of England. Also at the end of his Apology for the oath of fidelity, and in his Preface to Christian princes, drawing out that dogma in amazement (as he himself says) from the books of Bellarmine, he has dared to invent and reprehend not only audacity and temerity in the Cardinal but also novelty in the doctrine itself. And thence he strives greatly to excite and provoke Catholic kings against the Pope because, p. 25, “it is in their chief interest that nothing of their legal prerogatives be taken away.” Hence he thus speaks to them, p. 27: “If each the most powerful among you deeply and seriously considers that almost a third of your people and your soil is dedicated to the Church, will not your souls, I ask, be struck by the sense of that loss which subtracts from your right so much of men and of estates, because colonies and provinces for the Pope are established everywhere?” And he pursues other matters which we will refer to below; for they contain certain objections which we must answer in the discourse of this book. First, then, we will concern ourselves with explaining, in accord with the true principles of theology and canon right, the Catholic dogma about the true liberty or immunity of the Church and the exemption of clerics, and with establishing it, to our poor ability, by theological evidences and reasons. Next we will bring to the center not only the king's objections but also weightier ones which may have arisen, and, as I hope, we will so satisfy them that it will be agreed that in this dogma what Chrysostom elsewhere said (Hom. 51 on John) has place, “Nothing is clearer than the truth, nothing simpler, if we do not intend to be malicious.”
INDEX TO THE CHAPTERS OF BOOK IV
1. WHAT IS MEANT BY THE TERMS ECCLESIASTICAL IMMUNITY, FREEDOM, AND EXEMPTION?
2. WHETHER CLERICS ARE BY DIVINE RIGHT EXEMPT FROM THE POWER OF SECULAR PRINCES IN MATTERS SPIRITUAL AND ECCLESIASTICAL
3. WHETHER CLERICS CAN BE AND ARE EXEMPT FROM THE JURISDICTION OF PRINCES EVEN IN MATTERS AND CAUSES TEMPORAL
4. WHETHER THE SUPREME PONTIFF IS EXEMPT BY EVERY DIVINE AND HUMAN RIGHT FROM ALL JURISDICTION OF SECULAR PRINCES
5. CONSIDERATION OF THE PLACE IN MATTHEW, “GIVE TO THEM FOR ME AND FOR YOU” ON BEHALF OF THE SUPREME PONTIFF
6. SATISFACTION IS MADE TO OBJECTIONS AGAINST THE SOLUTION OF THE PRECEDING CHAPTERS
7. SATISFACTION IS MADE TO THE SIXTH OBJECTION, AND THE QUESTION IS TREATED WHETHER THE POPE CAN SUBMIT HIMSELF TO HUMAN JUDGMENT
8. WHETHER ALL CLERICS EXISTING UNDER THE PONTIFF ARE EXEMPT BY DIVINE RIGHT FROM THE JURISDICTION OF TEMPORAL PRINCES, AND TWO CONTRARY OPINIONS ARE TREATED OF
9. THE PRIVILEGE OF COURTROOM FOR CLERICS IS FOUNDED ON DIVINE AND HUMAN RIGHT, AND THE WAY THIS IS TO BE UNDERSTOOD
10. HOW ECCLESIASTICAL EXEMPTION IS, BY DIVINE RIGHT, FITTING FOR INDIVIDUAL CLERICS OR ECCLESIASTICAL PERSONS
11. WHETHER, IF DIVINE RIGHT IS SET ASIDE, THE EXEMPTION OF CLERICS COULD HAVE BEEN IMMEDIATELY INTRODUCTED BY CANON RIGHT WITHOUT AID OF CIVIL RIGHT
12. WHETHER THE PRIVILEGE OF COURTROOM FOR CLERICS IS ALSO FOUNDED ON CIVIL RIGHT
13. A DIFFICULTY THAT ARISES FROM THE PRECEEDING CHAPTER IS MET, AND HOW THE CHURCH HAS USED THE PRIVILEGE OF COURTROOM AT DIFFERENT TIMES IS EXPLAINED
14. WHAT SORT OF EXEMPTION THERE IS FOR CLERICS IN CIVIL CASES
15. WHAT SORT OF EXEMPTION THERE IS FOR CLERICS IN CRIMINAL CASES
16. WHETHER THE PRIVILEGE OF THE COURTROOM INCLUDES EXEMPTION FROM CIVIL LAWS, AND OF WHAT SORT THE PRIVILEGE IS
17. WHAT SORT OF PRIVILEGE THERE IS FOR CHURCHES AS TO THEIR OWN EXEMPTION AND THAT OF THEIR GOODS FROM BURDENS AND FROM SECULAR POWER
18. WHETHER EXEMPTION FROM SECULAR TAXES IS PROPER TO CHURCHES AND THEIR GOODS, INSOFAR AS THEY ARE THE PATRIMONY OF CHRIST
19. WHETHER EXEMPTION FROM SECULAR TAXES IS FITTING TO THE CHURCH AND TO SACRED THINGS BECAUSE OF THEIR SPECIAL SANCTITY OR CONSECRATION
20. WHETHER ANY GOOD WHATEVER, WHEN IT BECOMES ECCLESIASTICAL, iS BY THAT VERY FACT EXEMPT FROM ALL TAXES AND CIVIL BURDENS ATTACHING THERETO
21. CERTAIN OBJECTIONS ARE MET, AND EXPLANATION IS GIVEN BY THE BY OF HOW ANCIENT THE EXEMPTIONOF ECCLESIASTICAL GOODS IS
22. OF WHAT SORT ECCLESIASTICAL EXEMPTION IS AS REGARD TO THE PERSONAL BURDENS OF CLERICS
23. WHETHER THE ECCLESIASTICAL REVENUES OF CLERICS ARE EXEMPT FROM TAXES
24. WHETHER THE PATRIMONIAL AND, IN GENERAL, THE TEMPORAL GOODS OF CLERICS ARE INCLUDED UNDER THE COMMON LAWS OF SECULAR TAXES
25. WHETHER CLERICS ARE HELD TO PAY THE REAL BURDENS THAT ATTACH TO IMMOVABLE THINGS
26. WHETHER CLERICS ARE HELD TO CONTRIBUTE TO THE COMMON EXPENDITURES OF CITIZENS
27. WHETHER ALL CLERICS, THOSE ORDAINED AS WELL IN SACRED ORDERS AS IN MINOR ORDERS, AND WHO CONTINUE IN THE CLERICAL STATE, HAVE FULL ENJOYMENT OF ECCLESIASTICAL LIBERTY
28. WHETHER MARRIED CLERICS ENJOY THE PRIVILEGE OF ECCLESIASTICAL EXEMPTION
29. WHETHER OTHER ECCLESIASTICAL PERSONS WHO DO NOT HAVE ORDERS ENJOY COMPLETELY THE EXEMPTION OF COURTROOM
30. WHETHER THE PRIVILEGE OF IMMUNITY FOR CLERICS CAN BE REVOKED BY ANY HUMAN BEING
31. WHETHER THE PRIVILEGE OF CLERICS CAN BE LOST OR LESSENED BY RENUNCIATION
32. WHETHER THE PRIVILEGE OF CLERICS CAN BE LOST OR LESSENED BY CUSTOM
33. IN WHAT WAYS ECCLESIASTICAL IMMUNITY CAN BE VIOLATED
34. IN WHAT WAYS ACTIONS AGAINST ECCLESIASTICAL LIBERTY ARE WONT TO BE EXCUSED, AND WHAT JUDGMENT SHOULD BE MADE ABOUT THEM
SUMMARY OF THE PRECEDING BOOK
WHAT IS MEANT BY THE TERMS ECCLESIASTICAL IMMUNITY, FREEDOM, AND EXEMPTION?SUMMARY
1. Method to be followed in this Book. 2. Description of immunity. 3. Immunity is threefold: of places, of persons, of goods. In what the immunity of places consists. 4. What ecclesiastical liberty is. First opinion. 5. Second opinion. 6. The second opinion is preferred. 7. Difference among canons punishing offences against the immunity or liberty of the Church. 8 - 9. When the offence is done against the immunity and when against the liberty of the Church. 10. What is meant by ecclesiastical exemption. 11 - 13. Whether a privilege specially conceded to some person belongs to the immunity of the Church. 14. Which immunity this work deals with.
INCE the matter of this book embraces the doctrine not only of the faith but also of morals, we must so treat of it that we both show the truth of the faith of the Catholic Church and are able to be of service for Catholic use and practice. And for that reason we will diligently consider and weigh not only the witness of the sacred page but also laws both canon and civil, for on these the greatest doctrine, especially moral doctrine, depends. In the first place, then, the terms that authorities are accustomed to use when speaking on this matter must be explained, so that in this way the thing itself and the authorities may be able the better to be understood. But these terms are especially those three which we put forth in the title, which we will in this chapter briefly declare.
2. The first term is immunity, which taken generally can be described as being the privilege whereby some thing or person is exempted from some common obligation or burden. I take this description from the Digest, 1 Munus 18ff. on the signification of words, where duty (munus) is said to signify burden, among other things, to which Paulus I. C. subjoins, “When it is remitted it provides release from military service and duty (munus), whence it is said to be named im-mun-ity.” Here the term “military service” seems posited for sake of example, insofar as duty is something burdensome; but immunity in general is said to be release from a duty undertaken for some burden, which release is given by a certain remission or concession; this lack or taking away of a burden, therefore, when applied to the Church, is said to be immunity ecclesiastical. But what is denoted by this last adjective will be clear what is to be said. Now in this immunity can be considered either the act of remitting, or the special right whereby someone is exempted from a common burden, or the effect of that right, which is the lack of or release from such burden and obligation. Each can be signified by the name of immunity, as can be taken from the title De Immunitate nemini conced. Code Book X. Immunity, therefore, as it signifies a right of being released from burdens, is a privilege we say that excuses from a common burden. But we use the name of privilege in a broad sense as can comprehend a natural or divine right especially agreeing with some person by contrast with others (as we will more explain in what follows). But immunity taken for the effect itself of the privilege can be called freedom or excuse from a burden, especially when legitimate and founded on some right. And perhaps in this way can be distinguished the two titles of civil law in the Digest “De vacat. et excusat. munerum,” and “de iure immunitatis.” But about this elsewhere. At present therefore the immunity which is called ecclesiastical can be taken in both ways, in that it exempts ecclesiastical things or persons from burdens common to other things or persons and is a concession to the decency and reverence of such things or persons.
3. Now this immunity is accustomed to be distinguished in a double or triple way on the part of the subjects or things it is conceded to and to which it as it were adheres. One is the immunity of places or temples or churches, another is the immunity of persons or clerics, a third is immunity of goods, which can be referred to the two prior ones because the goods are either of churches or of clerics and are exempted from burdens and tributes by reason of those. The first immunity, that of sacred places, consists of two things: first of release from profane actions that are repugnant to the sanctity of such places or that pollute them; second of the fact that they are places of refuge and security and protection, both for accused persons who flee to them and for goods which are placed in them. So much is taken from the titles 'De Immunitat. Ecclesiarum,' and from pretty much the whole of Decretals 17 q. 4, and the Gloss has specially noted the fact in the chapter “Cum devotissima” 12 q. 2 the word “Pro violata immunitate.” But we have spoken largely about this kind of immunity in our De Religione vol. 2, the whole of Book III, and nothing occurs that needs to be added in this place, mainly because nothing is pertinent to the present dispute. But the other two immunities, of persons and of goods, belong most of all to the present consideration and the King of England touches on each, since he complains that a huge part of persons and estates has been subtracted from his royal right. For that reason we will speak of both.
4. Now, from the declaration of this word it is easily understood what ecclesiastical liberty is; for some think these words to be synonymous, others set up some difference between them. As may be seen in Cajetan’s Summa, in the word “immunity,” where though he first confounds these words, yet at the end, in order to understand the canons, he so distinguishes them that by the name of ecclesiastical liberty he wishes only the immunity of persons in themselves and their goods to be meant, by the name of ecclesiastical immunity only the exemption of places, and therefore he does not deem him who violates the immunity of a temple to be acting against ecclesiastical liberty, nor to incur the censures laid down against violators of ecclesiastical liberty. To confirm this fact Cajetan considers the words of Benedict XII in Extravag. 1 “De Privileg.,” where, referring to reserved cases, he distinctly numbers violators of the immunity of churches and of ecclesiastical liberty; therefore he thinks that by these words diverse privileges of the Church are signified.
5. Nevertheless, that these words signify the same thing is taught by Covarruvubias Decretals II.20, at the beginning, and he is followed by Tusco, ver. “Ecclesiae immunitas,” concl. 8, n. 9. The point can also be urged from the description of immunity, because immunity is only a certain lack of subjection and burden, which lack is also signified by the name of liberty, as liberty too is wont to signify lack of servitude and necessity. Therefore, if there be added the same determination for ecclesiastical liberty and immunity, the same thing will be signified by each word. Hence Covarrubias in the aforementioned Extravag. 1 considers that the same determination is not added but varied when it is said “immunity of churches and ecclesiastical liberty,” for the words “churches” and “ecclesiastical”do not signify the same thing, because by the name “churches” is there signified temples, according to common usage, and thus, in that compound phrase, only the immunity of sacred places is there signified. But when “ecclesiastical liberty” is mentioned the word “ecclesiastical' is taken by the Church in a general way, mostly by reason of ecclesiastical status, and hence it there properly signifies the exemption of ecclesiastical persons, both in themselves and in their goods. But this liberty is also rightly called ecclesiastical immunity in the Decretals, chapter Adversus, about the immunity of churches, joined to the chapter Non minus, in the same. Therefore, with this determination of ecclesiastical liberty and immunity in place, the same thing is signified by each word. Hence in the common usage of the Doctors those words are used as synonyms, as may be seen in John Lopez, Tractate on Ecclesiastical Liberty, throughout from the beginning, and especially 1 p. q. 3, and 2 p. q. 11, Rebuffe, Tractate on Immunity and Jerome Albano in another tractate on Immunity and in the rest in the Rubrics On Immunity.
6. For which reason this second opinion is in true force and is rightly approved, with due attention to the use and propriety of words. Nor is Cajetan simply in opposition, for he confesses that those words are often confused; he adds, though, that in the usage of the canons that lay down censures against violators of ecclesiastical immunity or against ecclesiastical liberty that difference is observed, because the former canons punish those who injure scared places but the latter those who act against the immunity of persons. Even this difference is not constant, for the first part has place in the heading, when there is in the canon talk of ecclesiastical immunity, for then ordinarily by the name of churches is signified temples, as I said, and from that addition the canon is determined to sacred places. But if the canon is making disposition against violators of ecclesiastical immunity, plainly it comprehends everything, unless from the action which it punishes or from other circumstances it is clear that it is specially talking of the immunity of places or of persons. Thus the word is in itself indifferent and comprehends everything, unless it is determined by something else. And the same is true if the canon speaks of the immunity of the Church in the singular, both because the word “Church” alone of itself generally determines the immunity conceded to the Church, whether in places or in persons, and also because the word is wont especially to signify the congregation of the faithful, unless there is determination by something else, or it is clear from the context, that a material temple is being talked of.
7. But another difference can be considered between the canons that punish those who do something against the immunity or the freedom of the Church. For immunity can be violated in two ways. First, by the mere fact or the mere usurpation of a right; second under the pretext of another right of legitimate power. In the prior way he acts against immunity who burns a church, or infringes or spoils or purloins the goods of the Church; in the second way a judge acts against immunity who drags an accused person from a church. Hence this second way is not wont to be committed except by someone who wields public power, or does so under some color or pretext of it; but the prior way can be committed, when power is lacking, by anyone by force. Now in each of these ways something is done against immunity, but it is only in the prior way that something seems to be committed against liberty. For thus he who lays violent hands on a cleric seems to act against ecclesiastical immunity but he does not seem to act against ecclesiastical liberty; on the other hand, however, a secular judge who usurps judgment against a cleric is properly and, so to say, specifically a violator of ecclesiastical liberty, although there too a violation of immunity is generally included, because the right of immunity cannot be violated without an act contrary to immunity.
8. In a similar way, he who, by private authority, through force and injury alone, drags some person from a church, acts against the immunity only of the church; but he who does it by title of public authority and jurisdiction, or who makes determination that churches are not to have the privilege of safety and asylum for offenders fleeing to them, he violates ecclesiastical liberty also, because he tries to rob the Church not only of the use but also of the right of immunity. And in this way the words of Benedict XII above cited seem best understood. A reason too can be given, that less is required for acting against the immunity than against the liberty of the Church, and hence acting against immunity extends more broadly than acting against liberty; for everyone who infringes liberty detracts also from immunity, but not conversely, for he who denies obedience to the Church in deed only will at most be a schismatic. Further, by this reason too Cardinal Zabarella, Repetit. ch. “Perpendimus,”On Sentence of Excommunication, n. 2, opposit. 7, said that it was more hateful for a cleric to be judged by a layman than to be struck by someone of a private capacity, namely because the former act is against ecclesiastical liberty but the latter seems only to be against immunity. It has a foundation too in the chapter 'Si vero' on Sentence of Excommunication, where the striking of a cleric done by a minister of power, not as a minister but as a private person, and without usurpation of jurisdiction, is not always deemed to incur a censure reserved to the Pope; but a striking done by an official in power, by his capacity indeed as minister of it, is always declared to be reserved, the reason for which seems to be no other than that this latter is a graver and more hateful act, because contrary to the liberty of the Church and not merely, as the former, to immunity. Lastly, this difference seems also in agreement with the propriety of the words, for he properly acts against someone's liberty who wishes to reduce him to servitude and impose on him the burden of servitude; but he who inflicts on someone only an injury in fact, and strikes him as if he were a servant, does not properly act against his liberty.
9. However, on this point, we cannot indeed deny that these two ways of violating ecclesiastical immunity are distinct, and that an offense is graver in its kind when immunity is disrupted not only in fact but also by pretended right, just as it is far graver to deny the Church the right to tithes than not to pay tithes. But nevertheless this fact does not prevent its being the case that in both ways ecclesiastical liberty is violated as well as immunity, because (as I showed) ecclesiastical immunity and liberty, being determined in the same way, are the same in reality. Further, although it also be true that the name violation of ecclesiastical liberty can easily be applied, as by antonomasia, to signifying the mode of the violation – which mode rests not only on violence but also on a presumed and usurped right, in that by the name of liberty the right itself seems more to be signified, and because authorities seem frequently to signify this violation of immunity to be against ecclesiastical liberty, as in the cited chapter 'Non minus' and as one may see in many censures of the Bull Coenae — nevertheless we cannot affirm that that difference is constant in law, nor that it constitutes as it were a rule that the censure laid down against violators of ecclesiastical liberty does not comprehend all violators of immunity, unless such a limitation be gathered from the words or the matter of the law. For that rule or difference is not sufficiently founded in law, nor in the use of doctors, as is clear from what is collected by John Lopez, tractate On Ecclesiastical Liberty p. 1, ch. 10, and from the others enumerated by William Luverano in his tractate On the Tree of Jurisdictions in declaration no. 15, and from Rebuffe in Concordat, the title on firm and irrevocable agreement, section at the second to last term, “I ask, which are statutes.”
10. Next, there is left explained from these the third term, that of ecclesiastical exemption, for in reality it signifies the same as immunity or liberty, and thus one term is commonly explained or described by another. However, the term exemption seems more one of fact than of right, and so to signify more the effect of the privilege of immunity than the privilege itself. Hence one can not unworthily enquire whether every exemption conceded by privilege to ecclesiastical temples, things, or persons, is deemed to pertain to ecclesiastical immunity or liberty, such that he who violates any exemption of this sort is deemed to act against ecclesiastical immunity or liberty and to incur the censures laid down against usurpers of the liberty of the same. For such privilege can be double: one is general, conceded to all churches insofar as they are churches, or to ecclesiastical persons insofar as they are such, and of this privilege it is certain that it pertains to ecclesiastical immunity, for all agree in this fact, as will be plain from what is to be said. But the other can be exemption by a particular privilege given to such and such a church or dignity or ecclesiastical person by a particular way of considering it.
11. About this exemption there is doubt whether it pertains to ecclesiastical immunity such that a violation of it is a violation of ecclesiastical immunity. For Rebuffe in Concordat, the place just cited, openly affirms the fact with many references; Cardinal Tusco follows him, at the term “Ecclesiastical liberty,” conclusion 341 no. 17 ff., where he alleges others; and Roque Curcio seems to think the same, tractate On Customs sect. 5, about the second part of Gloss no. 2, and John Lopez in the mentioned tractate On Ecclesiastical Liberty p. 1, q. 10, case 12 and 16. These doctors could have been influenced either by the fact that ecclesiastical immunity comprehends all privileges conceded to churches or ecclesiastical persons, or by the fact that, in order to act against ecclesiastical liberty, it is enough to act against the liberty of one church. For the statutes against the Church that are private to one republic harm the churches only of that territory, and yet they are against ecclesiastical liberty because in the one church all churches are offended, just as in the striking of one cleric the whole clergy is offended and made more fearful.
12. Nevertheless it must be said that, according to legal usage and ecclesiastical custom, only that exemption belongs to ecclesiastical immunity and liberty which flows from the general privilege given to the Church, whether for the honor and reverence of temples, or because of the decency and dignity of ecclesiastical status or clerical order. This is the common opinion of legal experts, Decretals ch. “Noverit” on sentence of excommunication, and on Authent. “Cassa' ch. on Ecclesiastical Sacrosanctity, as is evidenced by Panormitanus in the said ch. “Let him know” no. 2 and Book I Councils, 83 no. 1, and Decio on the word Authent. “Cassa'” no. 18, Julio Claro, Book V, last section, q. 77, no. 28, Sylvester on the term excommunication “Excommunication' 10, and Lapus allegat. 3, and others I referred to and followed vol. 5 De Censuris. disp. 21, sect. 2, nos. 89, 90, where I have given fuller explanation. Cajetan thought the same in his Summa on the term immunity; for he says, as regards punishments of law, that they do not come under immunity, except for exemptions which belong to the Church by general privilege; but as regards guilt there can, for the same reason, be violation of an exemption given by special privilege to a particular church along with violation of the immunity conceded commonly to the Church, although the former guilt is not punished in law in the way that the latter one is. Hence he thinks, and rightly, that the exemption by special privilege of some church is in the thing itself truly a sort of ecclesiastical immunity and liberty. For it is a liberty from a burden, which the term of immunity generally signifies, but it is conceded to a sacred thing, insofar as it is such, and hence is a religious thing, and can in its own way deservedly be called sacred; therefore violation of it is irreligious, sacrilegious, and consequently of the same species with violation of a like immunity conceded to the Church by general privilege. Nevertheless, the laws do not punish these violations of special privileges, nor do they deal with them when they protect ecclesiastical immunity and liberty but with things that concern the Church and the ecclesiastical state in general. That is why we said that in legal usage only exemptions flowing from universal privileges are included under ecclesiastical immunity.
13. Hence it happens that the determination of immunity, when it is called ecclesiastical, bespeaks a relationship to the Church according to its common nature. For a privilege ought not to be conceded to the universal Church in all its members, for this is not necessary, as is evident, but so as to regard the whole Church on behalf of those members or places which are capable of such immunity. Hence again Cajetan rightly noted that for violation of this immunity it is not necessary that the immunity be violated in the whole Church or all its members, or in places it belongs to, but enough that it be violated in one person or in any place to which it belongs by force of general privilege. And this alone proves the foundation of the contrary opinion; and some of the earlier authors mean nothing else, especially Roque Curcio, and the others he refers to. The fact is manifest from the laws which he himself alleges ch. 2 “De Reb. eccles. non alienan.” and ch. 2, “De Foro compet.,” where the reason is also given, that an injury inflicted on one person against the general privilege of the community and granted on account of the community, redounds on the whole community, and for that reason the violation of immunity which the laws punish is violation proper. Hence also it is by the by understood that, although it could happen that a violation of a special privilege is, as regards its guilt, of the same kind as violation of immunity of the Church proper, yet, of its kind or by its own mode, a violation of immunity has this peculiar to it, that it is as it were a common injury and redounds by a special title on the community; thus therefore immunity properly means some exemption common to the Church.
14. From these things the conclusion is at last drawn that the treatment at present is only of ecclesiastical immunity or liberty proper, and that, because we have now excluded immunity of places, our discussion is only of the immunity of persons, whether in themselves or in their things. But it is to be added that a double immunity or a double general privilege has been conceded to ecclesiastical persons: one is called privilege of the canon and the other privilege of the courtroom. The first is the privilege (so to speak) of the security and indemnity of ecclesiastical persons, by which, through the canon “Si quis suadente” 17 q. 4, a caution carrying a special censure is given against striking clerics. About this immunity we have no controversy with the King of England and besides the matter of that canon has been treated by us elsewhere, and therefore there will be no talk in the present about that exemption and immunity. But the privilege of the courtroom is called that whereby exemption from lay jurisdiction is conceded to clerics, to which there is consequently annexed exemption from taxes, and the whole controversy turns on these matters.
WHETHER CLERICS ARE BY DIVINE RIGHT EXEMPT FROM THE POWER OF SECULAR PRINCES IN MATTERS SPIRITUAL AND ECCLESIASTICAL
1. An error of some heretics. The foundation of the error. 2. Conclusion de fide. 3. The assertion is proved by reason. 4. The conclusion is shown from Scriptures. 5 - 7. It is confirmed from the Supreme Pontiffs. 8. From the secular power are also exempt all spiritual causes. 9. Solution to the foundation of the contrary error. 10. Response to the confirmation. 11 - 12. Objection. Solution.
HIS point was defined virtually in the principles laid down in the previous book; but we here pass it over; both because the king of England contends that the clergy will in his kingdom be subject to himself in all matters and causes, and he affirms the same respectively about other kings and kingdoms, in common with Marsilius of Padua and others like him; and also because, once this error is rejected, it will be evident with greater clarity and certitude what the proper immunity and exemption of clerics is based on. The foundation, therefore, of the aforesaid error is: either that there is no spiritual power in the Church of Christ but only a civil or temporal one by which all things, both secular and ecclesiastical, are to be governed and all laws to be passed and all judges decided, whatever matter they be about. For all things both ecclesiastical and civil are included under the political order and regime, nor do they otherwise fall under human power, but the whole political order falls under the royal power. Or certainly that the followers of this error, if they recognize a certain spiritual power, wish it, more or less on the basis of the same foundation, to be at its highest level in kings, that the whole order of the Church is only political, that is, on account of the external ecclesiastical polity, which makes one body with the civil polity; and therefore it is necessary that it be wholly subject to the same supreme king. Hence, to confirm this point, they judge that Paul placed everything which concerns human rule without exception under the king, when he says in Romans 13:2, “Whosoever therefore resisteth the power resisteth the ordinance of God.” From these words a certain person inferred that secular princes have authority for passing laws in every matter and obligatory on all persons, in accordance with Proverbs 8.15, "By me kings reign and princes decree justice.” The confirmation is that the Emperor Theodosius in his Code, and Justinian afterwards in his, gave many laws about spiritual things, as about sacrosanct churches, about bishops, about clerics &c. And Alfonsus king of Spain has many similar ones in his laws, Partidas p. 1. Therefore “whosoever therefore resisteth him (Paul’s witness), resisteth the ordinance of God.”
2. Catholic truth nevertheless is that clerics are in causes spiritual and ecclesiastical altogether immune from the jurisdiction of temporal princes. Thus do all Catholic writers teach in the places mentioned below, and they all agree that the immunity of clerics as far as this part is concerned is of divine right; this matter I believe to be as equally certain as to be de fide because it rests on the same principles and foundations. Now these principles are principally three, which were proved in the previous book. One is that there is in the Church a governing spiritual power distinct from the civil power and of a superior order, given to the Church itself by the singular institution and donation of Christ, beyond the right of nature. This principle was proved in ch. 6 of the previous book. Another principle is that this power is not in kings or temporal princes but in the pastors given by Christ to the Church, and especially in the Supreme Pontiff, who is the Roman Bishop, and this principle was proved in the previous book, from ch.10. The third principle is that this spiritual power is not subordinate to the power of kings but rather has that power subject to itself, which was copiously proved and defended in the same book, from ch. 20.
3. From these principles, therefore, the conclusion thus follows: spiritual causes are to be established and defined by the spiritual power; but this spiritual power is neither in kings nor subordinate to their power; therefore such causes are outside the courtroom and power of secular princes both directly and indirectly; therefore ecclesiastical persons with respect to these causes are by force of divine right constituted outside the jurisdiction of princes, and hence by the same divine right they enjoy an exemption and immunity of this kind. The major is evident per se on the supposition of the first principle, because if the spiritual and temporal powers of jurisdiction are distinguished, it is necessary that they deal with distinct matters, and that each claim a matter proportionate to itself and be confined to it; therefore spiritual matter as regard all disposition and rule pertains to the spiritual power and, conversely, spiritual power operates in spiritual matter as in its proper sphere and has it for its proper and adequate object. The minor is proved in the second and third principles. But the first inference is evidently inferred from the premises, because no power operates directly save on its own matter, nor does it extend indirectly save to the matter of a power subordinate to itself; but the civil power has neither of these with respect to spiritual matter, as has been shown; therefore spiritual matter is altogether outside the jurisdiction of temporal princes. Thence finally is evidently concluded the second inference because, in the first place, clerics, insofar as they are clerics, pertain to spiritual matter by virtue of an order which is spiritual and from Christ’s institution. Next, persons are allotted a courtroom by reason of matters or causes, because an act of jurisdiction is proximately concerned with some matter which it prescribes or restricts for a subject person, and therefore, if the matter is outside someone's jurisdiction, the persons also, to whom such matter pertains, will, by such reason, be immune from the same jurisdiction.
4. With this manifest proof in place, therefore, from principles of the faith already proved, this truth is shown from Scripture in no other way than from those places where the rule of the Church is shown to have been committed by Christ to the pastors of the Church, “Feed my sheep” [John 21:16], “Whatsoever thou shalt bind &c.” [Matthew 16:19], “He who hears you hears me, and he who rejects you, rejects me.,” “If he neglect to hear the Church let him be unto thee as an heathen man and a publican” [Luke, Matthew 18.17]. Also from those places where it is shown from the institution of Christ that there is in the Church judicial power and ecclesiastical tribunal, according to that verse, “What will ye? That I come to you with a rod? &c.” and the verse, “For I verily, as absent in the body but present in the spirit, have judged already as though I were present, him that hath so done this deed.” And that, “For what have I to do to judge them also that are without? Do not ye judge them that are within?” [1 Cor. 4:21, 5:3, 12’. And that, “Having in a readiness to revenge all disobedience,” and later, “For though I should boast somewhat more of our authority which the Lord hath given us for edification, and not for your destruction, I should not be ashamed.” And again, “Therefore I write these things being absent, lest being present I should use sharpness, according to the power which the Lord hath given me,” [2 Cor. 10:6, 8. 13:10]. Again that, “Obey them that have the rule over you, and submit yourselves,” [Hebrews 13:17}. For in these places his speech is about spiritual power, and it is said to be given for ruling the Church, most of all in spiritual things, and for the spiritual edification of the faithful. And the fact that rule over clerics pertains to this power is sufficiently declared from the words of St. Paul to Timothy [1 Tim. 5:19], “Against a priest receive not an accusation, but before two or three witnesses.” For thus is it sufficiently clear that the causes of clerics, insofar as they are clerics, pertain to the prelates of the Church and to them alone. For although it is not there expressly added that this power is exclusive, the fact is sufficiently gathered from here that the power belongs to a superior order and has not been given to others save to the pastors of the Church, nor has it been subordinated to an inferior power, as I have said (§3).
5. In this way, then, has this truth been taken by the holy Pontiffs and Councils from the doctrine of Christ and the Apostles. For thither have regard the words of Pope John, “If an Emperor is Catholic, he is a son and not a lord of the Church.' And later, 'So that he should not ungratefully usurp anything from the benefits of God contrary to the disposition of the heavenly order; for God has wished that the disposition of the things of the Church pertain to priests and not to the princes of the world &c.” About whom he again says, “Not by them but by the pontiffs and priests has Almighty God wished the clerics and priests of the Church to be ordered and restricted.” In these words he openly declares that this institution is of divine right; and that word “restricted” is to be weighed, for thence it is clear that the causes of clerics pertain by divine right to the ecclesiastical courtroom alone; which must at any rate be understood of ecclesiastical and clerical causes insofar as they are clerics. The same doctrine is approved and confirmed by Popes Gelasius, Nicholas I, and Symmachus in various synodal decrees (as mentioned in the same distinction 69). Pope Felix also, and Nicholas I again, in ch. “Certum est” and ch. “Imperium,” and ch. “Quoniam,” dist. 10, and Innocent III in ch. “Ecclesia” De Constit., and in ch. “Solitae”, De Mariorit. et obedien., and in ch. “Novit.,” De Iudiciis, and in the same place ch. 2. The same is got from the Council of Rheims under Eugenius, and from Pope Honorius, in ch. 2 De Iurament. calum.
6. I know indeed that the king of England along with his Protestants despises the authority of such great Popes, and refuses to have them as judges in his own cause. Yet as I already said in the preceding book, their ignorance or perversity cannot diminish the authority of the Popes, which is founded on the words and promises of Christ. Especially is this so because not only the Roman Pontiffs but also the most ancient fathers agree in the same truth, as has been proved at large in the previous Book, chs. 9ff., from Ambrose, Gregory Nazianzen, and many others, and so I judge it superfluous to refer to their opinions again. But if it be said about all these that they were bishops and priests and speaking in their own cause, certainly the Church has never had other pastors or doctors by whom it might be taught and through whom it might receive the divine and apostolic traditions and be preserved in the purity of the faith and the sound interpretation of the Scriptures. “For the perfecting of the saints, for the work of ministry, for the edifying of the body of Christ, until we all come in the unity of the faith and of the knowledge of the Son of God, unto a perfect man, unto the measure of the stature of the fullness of Christ,” as St. Paul says in Ephesians 4:12 - 13. It is impious, therefore, to think that they have imposed on the Church in this cause or have spoken by human affection, but that they have defended the cause of the Church, which could not be separated from their own, not arrogating to themselves a new power but the power they received from Christ through the apostles and their successors, preserving it and defending it for their posterity to the advantage of the Church.
green 7. With the Catholic claim thus confirmed both by infallible authority and by firm reason, there can also be understood from the same proof, first, that this immunity or exemption of clerics is not by way of taking away or diminishing the jurisdiction that was before in princes, but by way of negation, because princes never had such jurisdiction, nor could they show whence they had it. For (as I have often said) Christ the Lord, in founding his new spiritual republic, gave no power to temporal princes (for where or when did he confer it?), but gave it to the pastors of the Church; and that is why temporal princes have no power over ecclesiastical persons or their causes, insofar as they are such; nor are persons of this sort, with respect to such causes, subject to kings, and it is in this way that they are said to be exempt, not because they are removed from their jurisdiction, but because kings themselves never received power over them. The fact is best shown from the time of the primitive church, when temporal princes were infidels, for no one would say that they then had power for judging the ecclesiastical causes of clerics, and yet the Church did not then lack perfect power for governing itself and for passing judgment in cases of this sort and about persons of this sort, which in no way pertained to secular princes. But secular princes, because of their conversion to the faith, did not acquire any new jurisdiction over the Church (for who would have conferred it on them?); therefore they do not have it now. Rightly, therefore, are clerics said to be exempt in these things, not by a removal proper and by a new privilege as it were, but because princes themselves lack, of themselves, such power over clerics as regard such causes.
8. Secondly, I gather from what has been said that although this exemption is especially clear in clerics, because they are both sacred persons and are specially dedicated to the divine cult; and therefore they are principally governed by canon rights and, as a result, ecclesiastical causes have place in them most of all and as it were in their proper subject; nevertheless, the same exemption can be seen in the rest of the faithful insofar as spiritual causes can also pertain to them, because it arises not only from the proper status of an ecclesiastical person but also from the general nature of such causes, as was shown. But all those causes are called spiritual which pertain to the faith, to sacraments, to sacrifice, and universally to the divine cult, and to the salvation of the soul and of its cure and remedy from sins, as we said at large in De Legibus Book IV, which is about canon rights, and as the doctors treat it in the stated chapter “Ecclesia,” De Constit., and various examples can be seen in Tusco, under the term “ecclesiastical liberty,” ch. 1, and we will add some things about this point below in chs. 15 and 16.
9. Finally, from what has been said a response to the foundation of the contrary error is evident. For the principles on which it is founded are heretical and have been sufficiently refuted above. But the words of Paul, “whosoever therefore resisteth the power, resisteth the ordinance of God,” and the words of Wisdom, “By Me kings reign,” are very absurdly adduced. For Paul speaks of the power in its own courtroom, and of its giving commands within its own limits. For when he said, “Let every soul be subject to the higher powers,” he did not understand that every man ought to be subject to any king at all, but to his own king, for neither is a Spaniard bound to obey or to be subject to the King of France; therefore each one is commanded to be subject to his own king; therefore also in this way he is said to resist the ordination of God who resists the power or the superior, and resists one giving commands in ordered fashion or in matter subject to him. Nor Paul did say that one should obey the king in every matter, but spoke simply, just as he also said elsewhere, “Obey those placed over you.” That is also why it was not necessary to add the limitation or exemption, for in the very nature of obedience is intrinsically included respect for the superior as he is superior and as he legitimately gives commands. In another place too, just as the wise man said, kings rule through wisdom, so he at once added, “and law givers decree justice.”
10. As for the confirmation about the laws of Justinian in matter of canon right (§1), I said in the abovementioned Book IV of De Legibus, ch. 11, that they are not true laws but that they can be held to by way of instruction, not by way of right; and therefore, that in those things where they contradict the canons they are of no use was also declared in the Code 1 Privilegia and Authent. “Cassa”, the Code De Sacrosanct. Eccl. The thing was even specifically stated about ecclesiastical causes by the same Justinian, Novel. 38, which is contained in collat. 6, tit. 11, “ut clerici apud proprios episcopos &c.”
11. But there is one objection remaining against that part where is it said that this immunity is of divine right, for by that fact it would be made immutable and incapable of being lessened or diminished by the Pontiff, which is false. For by the consensus of the doctors the Pontiff can commit ecclesiastical causes and spiritual jurisdiction to laymen; therefore it could be that clerics are subject to kings even in those same causes. I reply that this exemption, as I said, is negatively of divine right, insofar as divine right has not given to kings spiritual power over clerics or churches or ecclesiastical causes. Hence, to this extent, it is absolutely an immutable divine institution, for it could not happen that a king, by force of his regal power, could give judgment about a cleric in causes of this sort. For neither could this honor be given by any dispensation, for it involves a repugnance to natural reason. Hence it is forbidden by divine right that anyone, by sole regal jurisdiction without higher jurisdiction, usurp such judgment; on this, then, no dispensation or limitation falls.
12. But the same divine right does not thus prohibit spiritual jurisdiction from being committed to laymen; and therefore although the canons prohibit this and it does not regularly happen by usual dispensation, nevertheless by the absolute power of the Pontiff there is no repugnance in its happening, as we said along with common opinion in our books De Censuris and De Legibus. Panormus too and Felino and other expositors commonly hand it down in the chapter “Ecclesia sanctae Mariae,” De Constitutionibus. But I reckon that this is to be understood of delegated jurisdiction, or in some particular case, for I do not reckon that the ordinary rule of the Church can be committed to kings or laymen, because by divine right it has been established that the Church be governed by bishops, as is clear from Acts 2. For the same reason also I reckon that it cannot happen that clerics in their proper and ecclesiastical matters and causes be by ordinary right subjected to secular princes, even by concession of the Pontiff; for in this way much of the ordinary rule of the Church, rule established by Christ, would be overthrown, and it is not possible to give a just and reasonable cause on account of which it might seem possible validly to be done.
WHETHER CLERICS CAN BE AND ARE EXEMPT FROM THE JURISDICTION OF PRINCES EVEN IN MATTERS AND CAUSES TEMPORAL?
(1 - 4. Paragraph titles are not given).5. Confirmation. 6. The true and Catholic opinion about the exemption of clerics. The first way is proved. 7. A reason against this mode of concession is solved. 8. By the exemption of clerics kings are deprived of jurisdiction over them. 9. The second mode of exemption is proved. 10. Objection. Response. 11. The Pontiff can exempt clerics by his direct power over kings. 12. The third mode of exemption is proved. 13. Exemption is an act of voluntary jurisdiction. 14 - 15. The exemption of clerics is repugnant neither to justice nor to natural reason. 16. It is intrinsically evil so to exempt someone that he be subjected to no one. 17. Arguments against this mode of exemption are solved. 18 - 19. Response to the confirmation. An ecclesiastical judge can impose the penalty of death. 20 - 23. Final assertion. The exemption of clerics is ancient and holy. Proof. 24. Conclusion, that exemption has de facto been conceded to clerics.
HERE is on this point a special controversy with these schismatics who, although they do not deny the primacy of the Roman Pontiff as regard spiritual power, nevertheless they attribute the primacy in temporal matters, both civil and criminal, even as regard clerics, to temporal kings, and therefore we propose to investigate the thing first in general, whether there is such an exemption, so that afterward we may declare its origin, properties, and effects in particular. But in the question proposed there are two things insinuated: one is about the power, that is, whether clerics can be exempted from the jurisdiction of kings in matters temporal, the other is whether they are in fact exempt. For the heretical followers of Marsilius of Padua, and Illiricus, and other inventors of new schisms, constantly deny that in the Church an exemption has been made for clerics which supreme temporal princes are required to observe. But in order to find some foundation for this assertion they deny as a result that such an exemption could have been made in the Church without grave lapse and error against divine and natural right. This reason for constructing this error is the one that a certain Paul Servita and other secret writers against ecclesiastical liberty seem to have had, who a few years ago spread about certain libels against the Apostolic See on the occasion, known to all, of the disturbance in Venice, and Barclay seems to be numbered among them, to whom the most illustrious Bellarmine is very recently responding; and these people the king of England praises and imitates.
2. But to make persuasion of this their foundation they use only those testimonies of Scripture where kings are said to be ministers of God, and their power said to be from God, and therefore obedience to them is prescribed as necessary by right of nature, “for conscience’s sake,” Romans 13, Proverbs 8, and similar. From these they establish this principle too as certain, that kings have power and care immediately imposed by God for governing all men under their sway. Finally they infer from this that the exemption of clerics from the king in any kingdom is repugnant to divine and natural law and for that reason impossible. Now this last inference could in this way be deduced by us so as to seem to have a certain shadow of reason; for this exemption could be made either by God or by some man; but neither can be asserted; therefore neither can simply be introduced. The minor as to the first part about God is proved, because, first, God is not contrary to himself; if therefore he has himself prescribed to kings that they should have the care of all men who are born and live under their empire, and has prescribed to all of these that they should obey their kings, it could not happen that he could take power away from kings over subject clerics, or (which is the same) that he could exempt clerics from the power of princes. Also, because this exemption is contrary to natural right, which Paul has taught us; but God cannot dispense from natural right either at all or certainly he does not do it by his ordinary power, especially in the law of grace and by a dispensation so universal.
3. The second part about man is proved first of all by universal reason, because a man can overthrow natural right much less than God. Next I use another dilemma, because, if some man could have made such an exemption, it would be either the Pope, or the Emperor, or a king, or any prince at all who was supreme in his territory; for if these cannot, certainly much less can inferiors. But that the Pope could not concede this exemption to clerics is proved because he cannot deprive kings of their power nor detract from royal prerogatives, as the king of England says, for there is the same reason of the whole as of the part. If therefore the Pope cannot deprive any Christian king of his whole jurisdiction neither therefore could he deprive him of any part of it, especially so great and notable a part as would be “a third part of the men and estates,” as the same king complains. There is confirmation also of the fact, because the Pope could not concede this exemption to clerics with respect to a heathen and unbaptized prince, if there were clerics subject to him, as is now the case for example in Japan or China; therefore neither could he do it with respect to Christian princes. The proof of the consequence is that Christian kings are not less supreme in temporal matters than heathen kings; and although we grant that Christian princes are spiritually subject to the Supreme Pontiff (which the king of England and Protestants do not admit), this contributes nothing to enable him to deprive them of their temporal jurisdiction; therefore in this they are on an equality with heathen princes and in no way subject to the Church. Perhaps someone will say, to prove this summarily, that Pontiffs could not have done this against the will of Christian princes but they could have done it with their consent. But in the first place this does not suffice to refute the adversaries, for thence schismatics will infer that the exemption of clerics is not per se settled but depends always on the consent of princes and thus can be revoked on the choice of the same. Next the king of England will say that he is supreme in temporal matters and has never consented but has resisted, not only he but also his predecessors. Finally also it needs still to be seen whether kings themselves could have consented, for to consent is the same as to do; but we will prove that kings could not have conceded this exemption; therefore neither could the Pontiffs have introduced it by the consent of kings.
4. The proof, then, that a temporal king could not concede the privilege of such exemption to the clerics of his kingdom so as to make them not subject to himself, is taken in the first place from the principle received by experts in jurisprudence, that princes cannot concede a privilege which is directly contrary to the royal dignity, because they cannot diminish it or take anything from it, for it was not made for their utility principally, nor have they received an absolute dominion over it, but so that they might preserve it unimpaired for their successors. For because of this cause also the Supreme Pontiff cannot diminish his own dignity, nor concede a privilege which would take anything from his dignity. Hence Navarrus inferred, ch. “Novit.,” De Iudiciis, coroll. 69 n.166, that no king could concede to his kingdom or his subordinate dominions a privilege such that they should be bound to obey neither him nor his magistrates. He also confirms the point, both because such a privilege would be contrary to the law of nature which dictates that one should obey princes and superiors, and because the republic itself, if it retained in itself the supreme power given to it by God, could not exempt any member of the republic from the law to obey it, because it could not abdicate from that natural power which it has received from nature over its citizens as long as the relation and union of the citizens with the city remains the same, as of the members with the body. Therefore neither could a king do that now, since his power, which preceded him in the republic and was transferred to him, is the same.
5. Finally we can confirm this by an example taken from the Supreme Pontiff, who cannot exempt any baptized man from his jurisdiction such that he should not be bound to obey him; for it seems the same should be said of a temporal king, that he is compared in temporal rule to his kingdom and to its persons as the Pope in spiritual rule is compared to the Church. Now the reason is common to both cases, that God has committed both to the king and to the Pope the care of their subjects, and has prescribed that they should give them justice and should continue in office by punishing the bad and defending the good; therefore a king could not exempt persons committed to him by God and leave them free, because this would be contrary to divine institution and contrary to the natural obligation of his office. And this is what the king of England and others claim when they say that this exemption is against natural law. Lastly, there is confirmation of this part, together with the preceding one, that such an exemption would not be to the edification but to the detriment of the Church, therefore it could be introduced neither by a king nor by the Pope. The King of England seems to have this reason in mind when he warns princes to consider, “how many thorns and thistles (he says) are left in the middle of your kingdoms when it is claimed that so powerful a party of men is born, educated, and able to enjoy copious booty, that is immune from your power and not subject by any right to your laws and judgments.” Now Paul of Venice tries to show that this inconvenience follows because, since ecclesiastical prelates cannot use the material sword against their subjects by exacting from them the penalty of death, hence it happens that vices and sins increase in the Church. Therefore he concludes that this liberty, which ecclesiastics pretend to, is nothing other than a liberty for sinning.
6. Nevertheless the true and Catholic opinion is that clerics could justly be exempted from the jurisdiction of temporal princes. This assertion, to the extent it must be founded on the authority of the Church, depends on a fact that has not yet been stated; and for that reason we will first show the truth itself by way of possibility and afterwards we will prove its certitude in fact. We say, therefore, that this exemption could justly have been made, there being three modes in argumentation touched on, namely from God, from the Pope too, from the Emperor or kings. The first part is indeed so evident that it could be denied by no one without great blindness and impiety; for God is absolute Lord of life and death, as of human liberty; therefore by most justly using his power and right, he can make any man slave or master and subject or superior of another, and similarly he can deprive any man of his proper dominion and power and give it as he may please to another. For that reason Daniel says, 2:20 - 21: “Blessed be the name of the Lord for ever and ever: for wisdom and might are his: and he changeth the times and the seasons: he removeth kings, and setteth up kings.” Therefore with the same facility he could transfer clerics to be under the power of the Pope, taking away from kings the power which they could have over them and conferring it on the Pope.
7. Nor is the reason, which was made to the contrary, of any moment, because through an exemption or change or transfer of this sort no change has to come about in God himself, for, remaining himself unchanged, he changes empires and the states of human things; and in this way in the Church itself he has wished that there be distinct modes of governance for diverse times, according to the counsel of his will, without any change or contrariety in the same will. For although God bestows a kingdom or other power on someone, he is not compelled to preserve it perpetually, but he can take it away according to the reason of his own providence and give it to another, not because he retracts his former will but because from the beginning he disposed all things under that law and condition and as depending on his own will. Nor, lastly, does any dispensation in natural right intervene in this business, but only a certain change in the matter of it, which can be done not only by God but even by man, as has elsewhere been by me largely treated of, and I will also immediately touch on it.
8. So then two things are here briefly to be distinguished which our adversaries confound, so that they involve the thing in obscurity when, however, it is very clear and manifest to anyone with a little learning. For it is one thing to exempt someone from someone's obedience by taking from the other jurisdiction, or all right of a superior, with respect to such person, even though he retain power over other persons. But it is another thing, while preserving in a prince or prelate the same jurisdiction over such a person and the same right of giving commands, to remove nevertheless from the subject the obligation to obey. Exemption, therefore, as explained in this latter sense (which we can, in the theological manner, call the composite sense), can most justly be said to be contrary to natural right as regard this indispensable thing, because it involves an open repugnance and contradiction even in the divine will itself. For thus it would happen that God wants at the same time that the superior be able truly to command, and hence effectually to bind the subject, and that the subject nevertheless be able licitly not to obey, and consequently that he be at the same time both subject and not subject, and again that there be a war that is just on both sides, not as founded in ignorance but in the thing itself, which is an intolerable and incredible perplexity. But who ever understood so the exemption of clerics? No one, to be sure, who is of sound mind. The other mode of exemption, therefore, is not only possible but also very easy, nay it exists daily in those powers which are given by men and can be taken away or limited by the same. For thus a king can exempt some noble from the jurisdiction of an inferior magistrate, and the Pope can exempt a religious from the jurisdiction of a bishop. In this way, therefore, God could exempt clerics from the jurisdiction of kings without any dispensation in natural law, because there is no natural law that commands kings to have jurisdiction over clerics, or over all inhabitants of their kingdoms; but rather, since kings are ministers of God and have from him power over what subjects he pleases, the same natural reason dictates that God could diminish that power and exempt from it whichever of the subjects he should please.
9. The second part (§3) was that it is not impossible nor contrary to natural reason that this exemption could be efficaciously made by the Supreme Pontiff so that it is just and valid and secular princes are held to admit and preserve it. This part demands a proper disputation, which we will give in ch.11 where we will show it directly by authority and by reason; now it only needs to be explained so that it is clear it has in it nothing repugnant. It can therefore be understood in two ways: that the Pontiff confers this liberty on clerics first by human or merely natural power, or second in some way by divine power, that is, by supernatural power divinely given. We confess that in the former way the Pontiff could not introduce this exemption, for the thing is at any rate proved by the reason given, that the Pontiff could not by human right or by natural or acquired power take away or diminish the power of kings since they are supreme in their order and are not subject to him according to natural power.
10. Someone will perhaps say that the title of prescription is human and natural, and that the Pontiff could by custom have prescribed against temporal kings this right of exempting clerics from their power. The reply will be that this title does not have place in the present matter, nor are Pontiffs founded upon it, as the king of England seems sometimes to have supposed and as he indicates in his words. But a reason can be given. Either a general one, that those things which belong to the intrinsic nature of supreme power cannot be prescribed against a supreme prince, as is the common opinion of the jurists with Bartolo, 1 “In omnibus,” about diverse and temporal prescriptions, and Panormitanus, ch. “Cum nobis,” De Preascript., and others whom Covarrubias in his practices, ch. 4, and in the Rule “Possessor,” p. 2, sect. 2, n. 8. Or the reason can be a particular and proper one, that the exemption of clerics, setting aside the concession and will of the secular princes themselves, could not be justly begun on human reason or title alone, or on good faith, and hence it is necessary that the power not proceed from custom but rather, on the contrary, that legitimate custom rest on the power and begin from it.
11. It is necessary, therefore, that this power be supernatural and specially introduced by Christ; and it is evident in this way that there is no repugnance in Christ having given this power to his Vicar through a certain participation in his own dominion and power which is in himself by essence or excellence. For what reason is there that this could not happen? Or what deformity or malice against natural reason could be discovered in it? For, once the Pontiff has been conceded such power, he is by it constituted superior to kings as the minister of God of a superior order, and hence the exemption made by power of this sort will be indeed a certain mere right of nature and not however against it. Nor do I see that there could be a question on this matter, but only on this other, whether Christ has in fact given this power to the Pontiff, which question we will deal with in the place cited (sc. ch. 11); and there we will reply directly to the objections posed on this point, for these are especially aimed at it, to show that in fact this power has not been given to the Pontiff. We therefore say now briefly that those arguments only prove that the Pontiff could not confer this exemption on clerics by a direct power that he has in temporal matters over the kings of the earth, but do not prove that this exceeds his spiritual power insofar as by it he is, at least indirectly and in order to spiritual things, superior to temporal kings. This power has place in many cases even over heathen kings, as was shown in the previous book. But how this indirect power is sufficient for effecting exemption we will see in the place mentioned.
12. The third part posited above (§3) was about temporal kings, about whom we said that they could licitly renounce their right, and that, although they may be compelled by no superior virtue or power, they could abdicate from the temporal jurisdiction which they had over clerics and transfer it to the Roman Pontiff or to other ecclesiastical prelates. This part is supposed as certain by many civil and canon rights, and by their interpreters commonly, and by doctors of theology, as we will mention at large in the following chapters. Now the reason is plain: because a supreme king is also true lord and has the free power of using his jurisdiction in any way that is neither intrinsically evil nor prohibited to him; but the act of exempting clerics from lay jurisdiction is an act of lordship and of the same voluntary jurisdiction which was never prohibited to kings, nor is it intrinsically evil; therefore it could validly and licitly be done by any supreme king. The consequence is very good and legitimate. Also, the King of England will not deny the major, for it is favorable to kings, and indeed deservedly, for it is a thing clear and evident from the things said above about regal power. For although a king is not so made lord of the republic that he can use his power at will and convert everything to his own utility, yet he is a true lord insofar as he has a true and proper right of commanding, judging, governing, and disposing of things for the common utility of his kingdom; and the jurists thus call this the lordship of jurisdiction because in the supreme prince it has, per se and in its kind, independence from every other superior beneath God, and therefore it has the most ample and free faculty for every use that is not prohibited or not repugnant to right reason.
13. It remains, therefore, that we prove that the concession of the exemption we are dealing with is of this kind. For it is a certain use of supreme jurisdiction, for (as I said), exemption is a certain privilege, but the concession of a privilege is an act of voluntary jurisdiction, as we treated of at large in De Legibus, Book VIII. Rightly therefore is it said that this exemption is a use of a voluntary jurisdiction which must be supreme in its own order, so that a supreme prince could exempt even from himself the one privileged. By another argument too this act can be said to be a use of jurisdiction, because it is a certain donation of jurisdiction; for no one can give a jurisdiction unless he possess it. But peculiar to this way of conceding jurisdiction which happens through this exemption is that the prince, who concedes it to another, deprives himself of it, because he exempts the subject from his own power; something which is not found in other modes of delegating or granting jurisdiction, nor in an exemption from an inferior magistrate which the prince concedes. Hence if that exemption be considered as it is a conferring of jurisdiction it is rightly called an act of jurisdiction; but if it be looked on as an abdication of proper right it seems more to be an act of dominion and liberality; but under both reasons it falls in the best way to the supreme governor and lord. That this use, therefore, of his jurisdiction is not prohibited to a supreme prince by positive law is manifest, because he does not have a superior by whom that law could have been passed. For we suppose that that law is not a positive divine law, for nowhere has it been passed or can be pointed to. Also, next, that it is not a canon right we take to be as it were self evident. And for that reason we are speaking only directly of a superior when we deny that a king has a superior by whom that law could have been passed, because it would have to be a human and civil law which in temporal matters could be directly made by a supreme prince alone. Nor can it be feigned to have been passed by the king himself, because a supreme prince cannot per se and primarily oblige himself by his own law, but, in sum, it is by a certain consequence when a law imposed on the community possesses a similar nature of obliging the prince; but this law, if it were given, would be imposed not on the community but on the prince alone, and for that reason it could not be passed by the very same prince. Nor lastly can it be feigned that it was a law passed by the republic; for after a republic has transferred its own power to a king, it is inferior to him so that it cannot oblige him by positive laws.
14. It only remains to show that that use is not evil intrinsically and per se, or what is the same, that the privilege is not against justice or natural reason. But the thing seems indeed to be self evident, because it favors faith and religion, and harms no one, and it is not prejudicial, except to the prince himself who concedes the privilege, which he can do voluntarily and piously if he does it for the stated end and without harm to anyone. The thing is shown also in this way, because either that use is per se evil, because it is against the compact entered into with the republic when it first transferred its power to the king, or because it is against the natural law of justice by which the king is bound to have care for his subjects, or for all the inhabitants of his kingdom, in accord with the demands of his office which he has received from the republic; but each of these is thought up without foundation and can easily be excluded; therefore there is no true nature of intrinsic malice in such a privilege.
15. The first part of the minor is proved because that there was such a compact between the republic and the king is gratuitously feigned, I mean that the republic transferred its power to the king under the condition or limitation that he could not concede such a privilege of exemption to any citizens. For whence could such a condition be proved, or what sign of it could be pointed to? Besides the republic itself would not have its power so limited, because it received it not from any like compact but from God himself as congenital with its nature and under the condition only that it use it justly and according to right reason; therefore it transferred it in the same way to the king, and anything else that is feigned is arbitrary and impertinent. Especially so because if the human republic be considered in the state of the law of nature, in which it could rule itself by right reason, whether natural only or illumined by faith, it could also have instituted temporal kings for itself and priests particularly dedicated to the cult of God, and it could exempt the priests from the power of the kings and constitute them under another governor supreme in his own order; for in this type of institution there is no repugnance or deformity; therefore the king too, although he has simply received the whole of his power from the republic, could afterwards concede a similar privilege to priests; therefore it is superfluous to feign that that compact and condition or limitation has been imposed on itself by the republic, since it is not necessary for the convenient governing of the republic. Nay rather, if that condition be extended so as to have place also with respect to priests or Pontiffs instituted in a supernatural way by Christ, in this way it could not even have come into the mind of a human republic viewed in itself, and it would be against reason and public honor, and hence it would be of no moment or worth. Therefore the power of kings is on this head not tied down so as to prevent them being able rightly and validly to give this privilege to clerics, even if these did not have the privilege from elsewhere.
16. Thence lastly the second member [sc. of the minor] may easily be proved, namely that this privilege is not contrary to the natural law of justice whereby the king is bound to have care for all the citizens so that they may be agreeably governed. For by conceding this privilege the king does not give up this care but provides for it in a deeper and more agreeable way. Hence there are two ways in which a king can be thought to exempt from his jurisdiction someone subject to him. The first way is by removing from himself all power and jurisdiction with respect to him and not subjecting him to anyone else but leaving him a vagabond, so to say, and without law and government. And this manner of privilege we confess to be most disordered and intrinsically evil, because it is contrary to good morals and very pernicious of itself to the community of the republic. But the exemption of clerics we are now supposing is not of this sort. In another way a king can exempt a subject from his jurisdiction, by granting or leaving power over him to another; and this way is not evil but can have an agreeable reason, because it is not contrary to the good morals of the subjects since they are not left without a sufficient government; and government from elsewhere can be more fitting and more agreeable to the common good on account of the peculiar status of certain citizens. But the exemption of clerics is of such a kind, as we will prove below; therefore to concede it was not contrary to the good use of regal jurisdiction and power, and consequently neither is such a privilege repugnant to natural reason, nor does it exceed the power of a supreme prince.
17. Nor even do the arguments proposed in the third place above (§2) stand against this. For what is said first, that a prince cannot diminish his jurisdiction or power by communicating it to another, is not universally true when such a division or communication of jurisdiction is judged agreeable to the good of the republic, because that power is of itself changeable and is ordered to the common good of the republic; and, for this reason, that a change of this sort should occur in it is not repugnant to any right. Especially so because by this privilege the republic is not deprived of such jurisdiction in itself or over all its members, but the jurisdiction is transferred from one to another, which can happen for many reasons, as is evident. Nor must an equivalence with the jurisdiction of the Supreme Pontiff be here admitted, because the pontifical dignity has a higher institution by reason of which it is immutable, as I said above, and for that reason it cannot happen that any baptized person should be exempted from it, since he is subject to it by divine right; but it is otherwise in the case of regal power, which is simply and proximately from human institution. Now that which Navarrus and other jurists say, that a king cannot exempt anyone from his obedience, must be understood of merely private exemption, that is, one which leaves the subject without law and governor, but not of an exemption that transfers jurisdiction to another, as has been shown. And this very fact is confirmed by the example which Navarrus introduces about the republic itself, as is evident even from what he said.
18. To the final confirmation (§2), I reply that the remark of Paul of Venice, that ecclesiastical liberty is nothing other than a liberty or license for sinning, is impious and blasphemous; for the liberty which the Pontiffs have taught, and which the sacred canons defend, and for which many holy Pontiffs have fought for with their blood, and which Emperors and Catholic kings along with the Church have piously and faithfully received and praised, is not a license for sinning freely and without impunity, but it is a certain veneration of ecclesiastical order and an agreeable distribution of jurisdictions, so that everything in the Church may be done in order and decently. Nor is the argument of Paul of any moment. First because an ecclesiastical judge or the Pontiff can impose the corporal punishment even of death, although on account of decency and lenity he does not do it of himself, as Innocent indicated in ch. 1 De Maiorit. et Obed., and Baldus in the same place, and as Bernard Diaz notes in Pract. criminal. ch. 61, and Covarrubias Variar. II.20, no.10, where he devotes De Homicid. ch. 1, n. 6, to this fact, when a Pontiff imposes the penalty of loss of trust on account of homicide committed by assassins, which loss of trust virtually includes the penalty of death, as he there declares. Hence the fact that an ecclesiastical judge does not of himself use the sword nor pronounces of himself a sentence of blood is not because he, or at least a Pontiff or one who has received singular power from him, cannot, but because it is not fitting. Yet, nevertheless, when the gravity of the offence demands, an ecclesiastical judge hands over a criminal cleric to the secular arm so that he may be punished by it in accord with the rigor of the laws; therefore, from this part, there is not given to clerics impunity in committing like offences. Next, outside the case of penalty of death, clerics can (as Panormitas notes in ch. “Cum non ab homine,” De Iudic., no. 26) can be inflicted with very grave penalties by the Church, for they are sometimes condemned to perpetual incarceration, and of such a strictness that it could be deemed to be rather perpetual death than life, as is understood from ch. “Novimus” sect. 1, on the signification of words. Next, also a sufficiently grave punishment is perpetual and burdensome exile, condemnation to the galleys, grave beating, and others similar.
19. Last of all, although perhaps some perverse men take occasion of sinning from the greater benignity and lenity of an ecclesiastical court, the privilege of ecclesiastical exemption is not thereby damnable, because that fact is accidental and against the intention of the Church, and many greater and necessary advantages follow from it, as we will show below; also there is no good thing which perverse men may not sometimes use badly and it is not for that reason to be condemned. Just as in a secular court itself there is some distinction between laymen made, for those who are nobles are exempted by the privilege of nobility from the graver torments and from shameful punishments, which many of them abuse as a license for sinning, and the privilege itself is not disapproved for that reason, but those who use it badly are deemed worthy to be deprived of it; why, then, is not the same said analogously of ecclesiastical liberty since the clerical order is of its kind constituted at a higher level of dignity and nobility?
20. Finally therefore we conclude that the exemption of clerics could have not only been with justice conceded but also has in fact been with holiness conceded and that it is very ancient in the Church. This assertion we believe to be not only true and pious but also Catholic so that it cannot be denied without error in the faith. But because in the discourse of this book it must be treated and defended at large now too we will briefly thus prove it. For, in the first place, that this exemption is to be preserved in the Church has been taught by the Pontiffs and the Councils almost from the beginning of the Church up to the present day, as is clear from Alexander I, Epistle to all the Orthodox, who was on the see in the year 109 A. D., and he testifies that it had been observed from the times of the apostles, which fact Pope Caius also afterwards taught, Letter to Bishop Felix 283 A. D, and Marcellinus, Epistle 2 to all the Bishops of the East, in the year 196 A. D, Pope Sylvester, in a certain Roman Council, which is placed as the first in order under him, canon 4, the year 314 A. D, Gelasius in Gratian, ch. “Christianis”, and ch. “Sylvester,” 11, q. 1, and Boniface V in a letter to the Bishops of France, as Gratian above reports in ch. “Nullus,” for it is not found in the original, and the chapter seems more to have been taken from Authentica “Nullus,” the body of the text on bishops and clerics. Gregory hands on the same, as Gratian reports in the same place from Epistles IX, indict. 4, epistle 32, to the Roman defender of Sicily, and epistle 74, to Boniface defender of Corsica, has the same, where he speaks thus, ch. “Pervenit,” 11, q. 1, “It has come to us that certain of the clerics, while you were posted there, were held by laymen. If this thing is so, you know that the guilt is considered to be yours, because this should not have happened, if you were a man. And for this reason you must, for the rest, take care that you do not permit it to happen; but if anyone has a cause against any cleric, let him go to his bishop &c.” I pass over the later Pontiffs because the thing is manifest about them, and it is apparent from the custom of promulgating every year the Bull Coenae Domini.
21. I add older and graver witnesses, whom Gratian omits. One is Leo I in epistle 36 to the Bishops and priests of Thrace, whose words are to be noted, “The powers of the age, even those whom the divine power has commanded to preside over territories under the name of Emperor, have excelled with so much reverence with respect to the sacerdotal order that they have allowed to the holy Bishops the right of distinguishing occupations in accord with the divine constitutions. But although it be confirmed by the formulas of ancient right and more frequently by unimpaired laws, we find, however, that at the present time it has by many been trampled on. For, having omitted sacerdotal judgment, they have everywhere passed over to secular examination. For which reason it has seemed to us that a full separation avenge for the present this insult of sacred law and of our order and establish for the future that the formula is to be observed &c.” The other is Telesphorus, ninth Pope in succession from Peter, who in his letter to all the faithful speaks thus, “The life of clerics should be distinct from the association of laymen; and just as laymen and secular men do not wish to accept them in their own accusations and infamies, so clerics ought not to accept them in their own instigations.” — Showing by these words how great a distinction there then was between each courtroom.
22. Besides many sacred Councils, general and provincial, ancient and more recent, have handed down that clerics are not to be judged by laymen but by Bishops or by provincial Councils, as is clear from the Council of Chalcedon, act 15, ch. 9, and from the 3rd Council of Carthage that met before in the year 397, ch. 9, where, among other things, it is said that a cleric who seeks help from a secular court is thinking ill of the Church. Also, in ch. 38, occasion is sought from the same Council for imploring the secular arm against a certain incorrigible Bishop, and Aurelius responds, with the consent of others, that this is not contrary to the form of discipline when a cleric, after having been admonished, has been stubborn and contemptuous of it. Also, in the 3rd Council of Toledo, ch. 13, clerics are punished who abandon the ecclesiastical courts and go to secular ones. The same is held too at the Council of Agde in the time of Symmachus, chs. 8 and 32, the 3rd Council of Orleans, ch. 31, Malea, ch. 19, the 1st of Macon, chs. 8 and 32, and more broadly at the 2nd of Macon, chs. 9 and 10, where these words are to be noted, “The most reverend canons and the most sacred laws, in the very beginning almost of Christianity, have pronounced judgment about the Episcopal tribunal, but because the same has been disregarded, human temerity has proceeded against the priests of God, &c.” These words are to be especially noted, both for the antiquity of the exemption and because in them is insinuated that it is declared and defended rather than instituted by the canons and laws; for the fact is indicated by this manner of speaking, “have pronounced judgment for the Episcopal tribunal.”
23. he same is taken from the Council of Paris, ch. 2, about the competent courtroom, and from the Lateran Council under Alexander III, ch. “Si clericus,” the same title in which many things are decreed about the distinction between each courtroom, and more in ch. “Qualiter, et quando,” and ch. “Clerici,” and ch. “Cum non ab homine,” De Iudiciis. Next in the 1st Council of Cologne, p. 9, ch. 20, it is said that “this immunity is very ancient,” and in the Lateran Council under Leo X, sess. 9, in the Bull of reformation, all the apostolic sanctions in favor of ecclesiastical liberty are renewed. “Since,” it says, “no power over ecclesiastical persons has been bestowed on laymen by either divine or human right.” And lastly the Council of Trent, sess. 25, ch. 20, about the Reformation, speaks thus, “The Holy Synod decrees and prescribes that all the sacred canons and all the general Councils and also the other ecclesiastical sanctions in favor of ecclesiastical persons and ecclesiastical liberty and issued against violators of it, which are all renewed also by the present decree, must be observed exactly by all.” In addition, civil laws agree with these canonical decrees, which we will afterwards refer to.
24. From these testimonies the conclusion is evidently drawn that there has been given to clerics in the Church of Christ a privilege of exemption from the secular power. For it is impossible that so many holy and wise Pontiffs, of whom many were also martyrs, and so many Councils could in this matter have been deceived. Hence also it is incredible that clerics have usurped this privilege against Emperors and kings through tyranny and injury. Rather it ought to be held certain de fide that the institution and observance of this privilege has been and is honorable and holy. The fact is gathered in this way from the principles of faith and the testimonies cited. For it is de fide that the Church cannot err in the precepts of morals which are commanded to be observed by the universal authority of Pontiffs or general Councils, but this privilege of exemption for clerics has been approved and has been commanded to be observed by many laws canonical and universal, and they were very recently renewed and confirmed by the Council of Trent in the place cited; therefore it is certain de fide that both this Council and the above decrees have in this point not erred; therefore it is in the same way certain de fide both that this privilege is just and valid and that it has been agreeably instituted. But by what reasons it was conceded we will see in what follows by investigation of what the right is by which it has been introduced. For it is plain from the things said in this chapter that it could have been give in three ways, namely by divine, canon, and civil right, and therefore from which of them it has emanated remains to be inquired.
WHETHER THE SUPREME PONTIFF IS EXEMPT BY EVERY DIVINE AND HUMAN RIGHT FROM ALL JURISDICTION OF SECULAR PRINCES
1. Sense of the question. 2. The error of Protestants. The opinion of Palatius is not to be admitted. 3. First conclusion. 4 - 5. It is proved first from canon law. 6. When something may be said to be by divine right, natural or positive. The exemption of the Supreme Pontiff is by natural and positive divine right. 7. The preceding assertion is proved as to its first part. 8. A difficulty about the proposed proof. 9 - 11. Resolution of the aforesaid difficulty.
LTHOUGH the privilege of exemption be common to the Supreme Pontiff in company with the rest of the clerics, since he himself is not only a cleric but also prince and head of all clerics and of the whole Church, yet because in him, on account of his singular eminence, the origin of such privilege is more known, and because knowledge of it can prepare the way for investigating the origin of the immunity of other ecclesiastics, we will for that reason organize our talk first about the Pope in particular. About him even heretics do not deny that he is de facto exempt from all secular power, because he himself possesses, joined to his pontifical office, a temporal kingdom in which he recognizes no superior; but because that kingdom is not immediately from God but he has attained it from the devotion of men or by some other similar title, therefore such exemption is not per se joined to the pontifical dignity, nor does it draw its origin from divine but from human right, or to be sure it follows from the nature of the thing on the supposition of such status of temporal prince, just as it does in other kings, who are exempt by force of their status because they do not have a superior. Hence, in order to respond to the question posed, the regal dignity must be cut away from the person of the Pontiff and he must be considered solely as Pontiff, in the way Peter was and his successors before Constantine.
2. In this way, then, do both Protestants and the king of England deny openly that the Roman Pontiff has this exemption., either because they believe he is no more than some private bishop or at most a patriarch; but they hold the view about all bishops and archbishops that they are subject to their kings in temporal matters, or certainly because the Pontiff is not exempt either by divine right, as appears in Peter and the other apostles, to whom Christ never conceded such a privilege, or by canon right, because the Pontiff could not assume this privilege by his own authority alone, but canon right rests for its support principally on pontifical authority. In civil right, however, nothing singular is said about the Roman Pontiff more than about the rest. Hence even among Catholics Palacio, in 4, dist. 25, has dared to assert that the Pope is not exempt from the civil power by divine or canon right but only by civil right, or by privilege of the Emperors. For he thinks the same about other ecclesiastics and attributes to the Pontiff nothing singular as regard this privilege. But this opinion, insofar as it takes this whole privilege back to the sole gift of the Emperors, is pernicious even for the other clerics who are inferior to the Pope, and is not at all to be approved, as I will show below; about the Supreme Pontiff, however, it is altogether to be rejected and not at all to be tolerated.
3. One must say, therefore, that the Supreme Pontiff has by divine right exemption and immunity from every secular court and jurisdiction, even those of Emperors and kings. This assertion is maintained in the first place by all Catholic doctors, who generally affirm that this exemption exists by divine right in the whole ecclesiastical state, and we will refer to them in ch.8. Besides them, however, those who either deny it about inferiors or are doubtful frankly confess it about the Supreme Pontiff on account of his singular dignity, Soto, Book V De Iustit., q. 4, a 1; Bañez thinks the same, 2.2, q. 67, a. 1, dub. 3, and it is taken from Cajetan in the same place and in Opuscula, vol. I., tract. 1 De Potestate Papae et Concillii ch. 27, ad. 2. It is expressly noted and proved by Torquemada, Summa II.93, and Bellarmine, De Sum. Pontif., II.26, who are followed by Molina, De Iustit. vol. I, disp.31, Valentia, 3 par., disp. 5, q. 11, punct.1 , Henry, De Indulgent. VII.24, and Driedo, De Libert. Christian., I.9 near the middle, and ch. 15 near the end.
4. This assertion can in general be proved from canon right, insofar as therein it is simply asserted that the Pope does not have a superior on earth by whom he could be judged or coerced. Thus is it handed down from the Roman Council under Sylvester, can. 20, “No one,” it says,“will judge the first see, since all sees desire to have justice moderated by the first see.'” And lest anyone consider that that council is speaking of the court alone, or of the judicial power, there is immediately subjoined, “Neither by Augustus, nor by any cleric, nor by kings, nor by the people will the judge be judged.” It is almost these words that Gratian refers to, 9. q. 3, from Pope Innocent, “No one will judge the first see &c.” Also the same words from Sylvester are reported by Pope Nicolas, Epist. 1, elsewhere numbered 8, to the Emperor Michael, § Consonat autem. And in the following § he refers to the similar words of the Council convened in the case of Marcellinus, namely, “The first see will not be judged by anyone,” and he confirms this opinion with many testimonies and arguments. Finally he himself concludes, “It has been shown with sufficient evidence that the Pontiff cannot be at all bound or loosed by the secular power.” Hence, when a sedition in the time of Leo III was started at Rome against him, and Charlemagne had come to Rome to put the sedition down and, in the Basilica of St. Peter, with all the people and the clergy of all the Bishops who had convened there from the whole of Italy and France standing by, started to ask for their opinions and votes about the life and morals of the Pontiff, the response came from all with one voice, “the Apostolic See, the head of all the churches, ought to be judged by no one (especially not by a layman),” and Charlemagne, having heard so weighty a response, dropped the question. Thus reports Platina in his life of Leo, and it is found in vol. 3 of the Councils. The same opinion is also proved by the deacon Ennodius in his book for the defense of Symmachus, which was received and approved in the fifth Roman Synod under the same Symmachus. The same is reported from the words of the martyr Boniface by Gratian in ch. Si Papa, dist. 40, and he took them from Cardinal Deusdedit in his history De Rebus Ecclesiastic. V.231, since it is reported at large in the Gregorian decree under the said chapter Si Papa. Lastly in the eighth General Synod of Constantinople, can. 21, the opinion is singularly enriched, because not only about the Pope but about the other patriarchs too it is said, “None at all of the powers of the world can take away their honor or move them from their proper throne,” and there is added, “especially indeed the most holy Pope of Old Rome.” And later, “But neither may anyone else file or prepare documents or words against the most holy Pope of Old Rome as if on the occasion of certain divulged crimes.” It also later says that even a general synod cannot give sentence against the Supreme Pontiffs of Old Rome.
5. From this dogma, therefore, so ancient and constant, we collect that this privilege of the Supreme Pontiff is not human but divine, because he would not in fact dare to arrogate it to himself unless he could have done it by right; for it would not have been admitted with so much facility and agreement by the Church and by Christian princes without any force or coercion (which to be sure neither could the Pontiffs themselves have effected); nor could the Pontiff have sought it by right either unless he had power and authority for it which he had received, by reason of his dignity, from Christ. But if he has authority from Christ himself for deflecting all human jurisdiction, certainly he is exempt from it by divine right. Nor is it credible that he had received this right from the Emperors; both because the dogma is known in the Church in advance of the Christian Emperors, as we said of the time of Marcellinus, and because the Emperor could not concede this privilege for all the kings and peoples not subject to him, although in the cited Roman synod that opinion is pronounced generally and with respect to all. Finally also because the Councils and Pontiffs do not found that dogma on any favor of the Emperor but on the eminence of the dignity of the Roman See. And that is why they deem that such a privilege is perpetual and altogether firm and immutable, which it could not be if it had its origin from the Emperor. In this matter I consider too the fact that neither is the Emperor himself or a king exempt on earth in this way from all temporal jurisdiction that he can in no case be judged or coerced by men or by the whole community, because, as was said in Book III, the power of any temporal monarch whatever flows from the republic with a certain limitation and condition included; but the exemption of the Pontiff is much greater and higher; therefore it could not be founded on the concession of Emperors or kings; therefore such a privilege was given by God himself. Hence Ennodius says, ch. “Aliorum,” 9, q. 3, above, “The causes of other men God has wished men to put a final settlement to, but the causes of the see of that Superior he has reserved without question to his own decision.”
6. Now so as by some reason to declare more distinctly where and when Christ conferred this privilege immediately on the Pontiff, it is necessary to distinguish two ways in which this privilege may be understood to be divine, namely either by natural right or by positive right. But in the present matter one must understand that natural right is not considered in its pure condition in respect of human nature; for in this way it is known per se that this exemption is not by natural right; but by natural is meant in the present what is connatural to some grace or to a supernatural dignity conferred on man, that is, once such dignity is posited, what necessarily follows from it according to natural reason. But there will be said to be such a privilege by divine positive right if the point is established that it was per se and directly, or by his proper and particular will, conferred by Christ the Lord on his Vicar. We say, then, that it is true in both ways, which must be shown one by one.
7. In the first place, that this exemption is by divine natural right is signified by Pope Nicolas, ch. 'Patet', 9, q. 3, in the letter cited, “It is certainly clear that the judgment of the Apostolic See, than whose authority there is not a greater, is to be retracted by no one and that it is not licit for anyone to judge its judgment.” And later, “No one has ever thrown his hands with daring against the apostolic summit, no one has stood up a rebel in this, except he who of himself wished to be judged.” As if he were to say that the Pontiff, by force of his apostolic summit and authority, than which there is not a greater, is exempt from human judgment. Ennodius too in the place next cited founds this exemption on the words of Christ, “Thou art Peter” and “Whatever you loose &c.” As if he were to say that Christ had given this exemption there to Peter where he created him his Vicar and supreme Pastor of the Church, even if he had said nothing else express; because, surely, from the nature of the thing this privilege accompanies such dignity, and therefore it belongs to such dignity by natural divine right, although simply and in itself it be of supernatural divine right, because in its root (so to speak) it can be said also to be positive right. But the reason for this consequence or natural right must be that Peter was by that dignity set above everyone not only in spiritual things but also in temporal, as was seen above; therefore by that very fact he is exempt from the power and subjection of all.
8. Yet this inference is not so evident that it may not suffer some difficulty. For the Pontiff is not by force of his dignity directly superior to everyone in temporal things, but rather he has by force of divine right no directly temporal jurisdiction but a spiritual one alone, which is extended to temporal ones only indirectly; therefore there is no repugnance in his being subject directly to temporal jurisdiction and having indirect power over the temporal king; therefore, conversely, that exemption in temporal things does not follow intrinsically from the spiritual dignity. This latter consequence is evident and the antecedent was proved in the previous book. But the former consequence is shown because these two things, subjection and preferment, are of different natures, and so they are not opposed, nor is there repugnance in their coming together at the same time in the same person. The demonstration is that they are not referred to according to the same nature, nor in respect of the same thing, nor according to the same thing; for although the Pontiff, as Pontiff, be superior in his order, as a man he can be a subject in a lower order. Again, because the Pope can only use his indirect power in temporal matters when, for instance, a king abuses his power in order to a spiritual end, therefore this does not prevent him from being able to be justly subject to the Emperor who is punishing him through his own direct power. Finally it is clear by other examples that there is no conflict in him who is superior to a second in one title being subject to him under another, as when, if someone has a son for king, he is superior to him by the natural title of father and nevertheless he will be subject to him as king.
9. Nevertheless the connection of such a privilege with such dignity is very much in agreement with reason, and it can be shown in various ways. First because just as the giver of form in natural things gives the things that are consequent to the form, so in moral things the giver of jurisdiction is deemed to give all that is necessary to the due use and administration of it. But in the present matter, so that the Pontiff be able to exercise his supreme power and indirect jurisdiction in temporal matters over all temporal princes, it is necessary, morally speaking, that he be directly subject to none of them in temporal causes that pertain to the person of the Pontiff himself by some title or in some way; therefore such exemption has been given to the Pontiff by the force of his dignity. For, since God disposes all things most wisely and sweetly, it is not probable that he has given exemption and power without the exemption that is necessary or agreeable to the due use of such power. But that such dignity demand such exemption can be shown both because it was least fitting that the supreme head of the Church, to whom all the kings of the earth ought to be subject, could be judged, coerced, and punished by the same; and because it would have been a perpetual seed of divisions and schisms; and also because the Pontiffs would not be able with due liberty and authority to use their jurisdiction and power over the kings and princes of the earth if they had been subject in another way to them and could be thrown into chains and be punished by them.
10. Second, this fact is declared further because the Pontiff by force of his dignity and supreme power could dispose of all temporal rights and even of the supreme secular power itself, insofar as it was necessary for the convenient government of spiritual things, as shown above; therefore the same Pontiff by force of the same spiritual jurisdiction has the authority to give commands to any king at all lest he dare to extend his hand or exercise his power against his person, and he can annul and hold as naught whatever a secular power may have attempted to the contrary, because without doubt this greatly pertains to the spiritual good of the Church and the reverence due to Christ and to the person carrying out his functions on earth; therefore it is plainly repugnant for the Pontiff to be subject to a temporal king as regards his coercive power, because coercive power requires such a power over another that he cannot be hindered or restrained from it by a superior power. The confirmation is that by this reason we will show in what follows that a Pontiff can exempt other clerics from secular jurisdiction without having waited for the agreement of temporal princes; therefore much more could he exempt himself; but this is the same as to be exempt by force of dignity and received power; for he who has it in his will and faculty not to be subject to the coercion of another is surely immune and exempt from it.
11. Third, there is the explanation that it is impossible for a temporal magistrate to have coercive power over a king directly superior to him on whom he depends in the use of his own power; therefore it is no less repugnant that a Pontiff be subjected in that way to the temporal power. The antecedent is fully accepted by the jurists cited above, and it is taken from ch. “Cum inferior,” de Maiorit. et Obed., where it is said that an inferior cannot restrain a superior. And the reason is an open one, that it is repugnant for the same person at the same time to be with respect to another inferior and superior on the basis of the same involuntary and coercive jurisdiction. But the reason for this is that coercion cannot happen by the proper virtue of him who is coerced and, consequently, not by an inferior power which depends on a superior power existing in him who is to be coerced. But the proof of the consequence is that although the power of the Pontiff be not directly temporal, nor of the same order with the power of kings, nevertheless it eminently contains that power and all the efficaciousness of it with respect even to temporal matter which has a sufficient relation to a spiritual matter, such as we have shown judgment about the person itself of the Pope to be; therefore it is equally repugnant for the Pontiff to be subject to the tribunal of a temporal prince whom in this way he has subordinate and subject to himself. Therefore by the same divine right by which temporal princes are thus subjected to the Pope, by the same right, I say, the Pontiff himself is exempt from their jurisdiction. It remains for the other part to be proved, about divine positive right, which we will pursue in the next chapter.
CONSIDERATION OF THE PLACE IN MATTHEW, “GIVE TO THEM FOR ME AND FOR YOU” ON BEHALF OF THE SUPREME PONTIFF
1. In what sense the exemption of the Pontiff is by divine positive right. This assertion is proved. A certain inference of heretics is rejected. 2. First doubt about which sons Christ the Lord had spoken. First reason for the doubt. 3. Second reason. 4 - 5. Resolution of the first doubt. 6. To the second. 7. Christ the Lord, even as man, is natural Son of God. 8. To the third doubt. Solution. First opinion: it is rejected. 9 - 10. The apostles thought that Peter was superior to themselves in some temporal dignity. 11. Opinion of others. The privilege of Peter passes to his successors. 12. In the words referred to Christ demonstrates the privilege of exempting others from tribute. 13. Objection. Response. Immunity from secular power is rightly gathered from the immunity from tribute.
E 1 call divine positive right here a privilege conceded by Christ by a particular and direct will. I state the fact thus so that this part may not seem contrary to the preceding; for speaking strictly positive right is said to be what is not natural but added by the free will of God, and it seems to be a repugnance that this privilege is at the same time by divine right both natural and positive. For that reason, therefore, we say that here positive right is taken broadly for any right at all founded on the express and direct will of Christ, even if it could also be founded on another remote will, through the medium of natural discourse or reason. Hence this positive right can also be said to be declaring rather a right that was already connatural to the idea of the earlier dignity than conceding it again. With the term thus explained, then, the assertion proposed is proved from the words of Christ, Matt. 17:24 - 27, when the exactors of the tribute, which at that time the Jews used to pay individually to Augustus, had asked Peter, “Doth not your master pay tribute?” and he had responded by saying yes, Christ afterwards, so as to teach Peter and his Church in him, asks him, “Of whom do the kings of the earth take custom or tribute? Of their own children, or of strangers?” Peter responds, “Of strangers”; hence Christ inferred, “then are the children free. Notwithstanding, lest we should offend them, go thou to the sea, and cast an hook, and take up the fish that first cometh up; and when thou hast opened his mouth, thou shalt find a piece of money; that take, and give unto them for me and thee.” From this fact the heretics not only do not conclude to the immunity of Peter from payment of tributes, but infer rather that Christ was also debtor to the tribute when he commanded him to pay it on his behalf. But they are manifestly in error, both because Christ wanted to conclude from his argument that he was immune from payment of tribute, since the sons of an earthly king are immune from tributes, and also because he afterwards expressly said, “lest we should offend them,” as if he were to say, although we are not debtors to the tribute, pay it for me and for you so that they not be offended. The place was so understood by Jerome, Chrysostom, and everyone, and Augustine, serm. 6 De Verb. Apost., ch. 7, says of Christ: “He did not owe it and he paid it”; and Ambrose in his notes on Exodus ch. 31, says, “The Son of God did not owe it, Peter did not owe it; but lest they be offended, he says &c.”
2. 2 However, before we conclude from this sentence of Christ to this privilege of the Apostolic See, we must inquire which sons Christ spoke about and what the force of his argumentation is and what the implication of his words. For either he spoke about proper and natural sons alone or more broadly about adoptive and improper sons as well; the latter cannot be asserted, otherwise all the just would be exempt from the tributes of princes because all are adoptive sons; also, because it is impossible to be certain about the eternal justice of individual men, all Christians will be exempt because all are in the status of sons, or they can have as much of it as exists by force of their profession, and they do have it as begun through faith and baptism; and on this account all the faithful are accustomed to be called saints in Scripture, especially by Paul. Nay further, all men could claim the same exemption from subjection to other men because all are sons of God by creation, for this title is enough to make them all able to call on God as Father.
3. But if Christ the Lord spoke of natural sons alone two doubts arise: one is how Christ may rightly infer that he himself was free, because he was not himself a natural son of Augustus Caesar so that by this title he might be immune from the tribute which was paid to Caesar. For the natural son of one king is not exempt from paying tribute to any king at all but only to his father; for if the son of one king were to live in foreign provinces beyond his father's sway, he could become a tribute payer to another king. But, saving proportion, it may very well be accommodated to Christ who, although as God he be natural son of the King and as such, therefore, free from tribute with respect to his Father, and a fortiori with respect to all human kings because all are subject to his Father's sway and are themselves, as a result, subject to him too; yet he is not, as man, natural son of God with that property, but he is a son by grace; therefore, when he speaks of himself as man, he could not justly infer from the title of his sonship that he was free and only paid tribute to avoid scandal. Also, just as many think that, though Christ, as God, is King and Lord of all men, yet he was not King as man nor had lordship over temporal kingdoms, therefore, by the same reason, his natural sonship was not an obstacle to his being, as man, a debtor to the tribute. The second and greater doubt is that Christ seems to associate Peter in this exemption along with himself, and by force of the same principle, that sons are free, makes him equally immune, seeing that he next inferred, “lest we offend them…give unto them for me and thee”; for it was as if he were to say: we are both free but it is expedient not to scandalize them and therefore pay it for both of us. But this inference had no foundation in Peter, because he was in no way a natural son.
4. To the first question, Augustine, Quaest. Evangelicar., I q. 23, indicates that when Christ inferred “then are the children free,” he spoke not only of natural sons but also of sons by adoption or by grace, for he says, “What he said: ‘then are the children free' is to be understood in every kingdom, that the sons of the kingdom are free, that is, not tribute payers; much more, therefore, ought they to be free in any earthly kingdom who are sons of that kingdom under which all kingdoms are.” But they are not sons of the Supreme King, that is of God, in the earthly kingdom save by grace; therefore Augustine extends Christ's inference also to sons by grace. Nevertheless, it must without doubt be said that Christ spoke of proper and natural sons, for the reasons made above give clear conviction of the fact. Because in addition too Christ did not ask Peter save about those sons about whom Peter himself could understand the words that were simply spoken, but Peter without doubt did not understand the question except about natural sons, because either he was not then able to understand it about sons by grace or at least he could not then ascend to that thought from that simple and common saying. Just as when he responded “Of strangers” he did not think anything about the unjust or sinners but only about foreigners, who are not natural sons.
5. Hence Chrysostom there in Hom. 59 proves from those words that Christ is the natural Son of God, saying, “You note how he distinguished sons from non-sons; for if he were not a son, he would not surely have used the example of kings. But is anyone a son, you will say, but not a proper son? He is not a son, then; but if not a son, then neither proper, nor his at all, but alien. In this way the example will have no force. For he is not disputing about sons simply but about proper sons and heirs of kings. And, distinguishing in this way, he put strangers opposite, by which term he called those who were not born from kings themselves; their own sons, however, they begat from themselves.” This very fact Hilary indicated too, canon 17 on Matthew, saying, “Is there any doubt that the sons of kings are not liable to tribute, and that those who have the truth of the kingdom are free from servitude?” For by the truth of the kingdom he indicated true and natural royal origin. And later Chrysostom, using the argument almost, says, “In order to show that he was not subject to the law, and in order to testify to the glory of the paternal dignity in himself, he posed the example of an earthly kingdom, that the sons of kings are not bound by census or tribute.” Christ’s argument, therefore, is taken from natural sons. But Augustine either took it in a mystical sense for the sons of God by grace, and passed from that to their immunity from servitude to sin and paying tribute to the devil, as St. Thomas noted about Origen in the same place from Matthew. Or Augustine also certainly spoke of natural sons; for although the Son of God is the only natural son, he could have spoken in the plural so as to keep to the words of Christ, for it would be just the same even if there were several such sons of God, as Jansen noted, ch. 69 Concordiae, and Salmeron, vol. VI De Miraculis Christi, tract. 37.
6. But to the first doubt all the mentioned fathers, and the rest of the expositors, respond in the second place that Christ's argument is taken a fortiori from natural sons of temporal kings for the natural son of that king under whom are all earthly kingdoms, as Augustine said above. Hence we will respond to the objection made to the contrary, that it is indeed true that the son of an earthly king is only immune from tribute in his father's kingdom, not however with respect to another king, if he be subject to him for any reason, or is living under his sway. Nay in his father's kingdom too the son is not exempt from his father's jurisdiction but is, by his will, exempt from all his ministers and from the exaction of tribute and from all other jurisdiction which is exercised by his father's ministers. But we deny the consequence, or the likeness of the reasoning to Christ the son of the heavenly King. For each earthly king is limited and does not have other supreme kings subject to him; but God is King of all kings, and therefore his natural son is also above them all, and hence he is free and immune from every tribute and exempt from their jurisdiction, since they are only certain ministers of the supreme King, his father.
7. 6. But to the reply that this proceeds of Christ as he is God and not as he is man, we will respond by denying the assumption; for Christ, even as man, is natural Son of God on account of the grace of union, by which his natural sonship itself is substantially conjoined to his humanity, and so too created grace is made to be connatural to that man. And hence also by the same reason Christ was endowed not only with being free as man from all power and tribute of the earthly king but also with being by a certain singular excellence King of kings and Lord of lords, as is said of him in Revelation ch. 17. For the property and dominion of this kingdom, which he now has in heaven, he always had on earth by reason of union, although he did not receive the use of it in his mortal life. In this way are they to be understood who deny that Christ as man was King; or perhaps they are speaking of a proper temporal and perishable kingdom, which it is true that Christ did not receive nor did he have it by right of inheritance. But he had over all earthly kingdoms a kingdom and dominion of a higher nature and a power of excellence, and for that reason also he had an innate liberty from all tribute due a mortal king or Emperor; and this immunity he has by reason of his natural sonship, and therefore he argued in the best way about himself, even as man.
8. The greater difficulty is in the second doubt, which demands why Christ joined Peter with himself in this liberty and made him as it were his equal, when he said to him, “lest they be offended…give unto them for me and thee.“Some deny that this can be collected from the quoted words or that there is some mystery hid in those words, but they say that Christ spoke in the plural to Peter, [lit., “lest we give them scandal”], not because Peter was bound only by reason of avoiding scandal to pay tribute, but because he could easily have spoken of his own person in this way, using the plural for the singular, or because the scandal of Christ would redound on Peter and the other Apostles. And in this way they say Christ commanded Peter to pay the tribute, even for himself, with the coin found in the fish's mouth, because, since Peter was a debtor to the tribute, Christ wanted at the same time to come to his aid, and perhaps to his aid alone, because the other Apostles were not then present. This opinion heretics gladly seize upon; but to me it is not probable. For, in the first place, when these expositors say that the other Apostles were not present at that time, they speak without any foundation but make guesses. Next, the manner itself in which the exactors of tribute questioned Peter in the plural, “Does your (pl.) master pay the tribute?” sufficiently indicates that not only Peter but the other Apostles too were then with Christ, hence the fathers commonly assume the fact, as I will immediately report.
9. I add further that it is not probable that Christ intended no mystery in that fact or did not show some particular regard toward Peter. For when Christ there taught that he was natural Son of God and for that reason was not liable to the payment of tribute but only commanded that it be paid on account of avoiding scandal, and when he specially joined Peter to himself in this prerogative and way of paying the tribute, he wished without doubt to signify that he would communicate to Peter some participation in his own privilege, by reason of which he too would not be a debtor to the tribute except on account of avoiding scandal. Also Chrysostom at that point adds that Christ joined Peter with himself in paying the tribute in reward for the faith by which he complied at once to a thing by nature so incredible; and he calls that reward the excellence of honor, which Christ showed to Peter, saying, 'Give unto them for me and thee.' Hence also the other Apostles understood that Christ had in that fact preferred Peter to themselves. For thus arose the occasion of their asking Christ, “Who is the greatest in the kingdom of heaven?” as Matthew immediately reports at the beginning of ch. 18, and as Jerome there expounds, saying, “After finding the coin, and the payment of tribute, what does the sudden question of the Apostles mean?” and he responds, “Because they had seen that the same tribute had been paid for Peter and the Lord, they thought that, from the equality of the price, Peter, who had been put on a par with Christ in the paying of tribute, was preferred to all the Apostles.” In which fact, if they had rightly understood it, they were not deceived, but they erred think that that excellence of dignity was to exist in some temporal kingdom in a human way, and they asked out of envy. For that reason too Jerome adds, “Jesus seeing their thoughts and understanding the causes of their error, wishes to cure their desire for glory with a striving for humility, saying, ‘Verily I say unto you, Except ye be converted, and become as little children, ye shall not enter into the kingdom of heaven’” [Matt. 18:3].
10. The same doctrine is in Chrysostom too, homil. 59 on Matthew, saying that the disciples had suffered something human in their questioning, and to signify the fact the Evangelist added “At the same time” [18:1], when, that is, he preferred Peter to all the rest. And he says later that the disciples were inflamed for many reasons, and he numbers the singular promise, “I will give you the keys…” and “Blessed art thou, Simon bar Jona,” and to these he added the present words, “Give unto them for me and thee,'” thinking that a singular excellence and prerogative was signified through them. Origen conveys the same, tract. 5 on John, judging that remark “At the same time” in the same way, and saying, “I think, since they were judging this to be a very great honor conferred on Peter by Christ, as if he had indicated by it that Peter was better than the rest of the disciples, they desired to learn cautiously what they suspected &c.” The same too is found in the name of Augustine, in the book of Quaestionum novi et veteris testamenti, q. 75, where he says that Christ had commanded payment for Peter individually because he had decided to make him head of the other Apostles and Pastor of his flock, and he compares those words with these, “I will ask for you.” Lyranus, Matt. 17 and 18, notes the fact too, and almost all Catholic doctors confess that a special prerogative of Peter is there signified, although all do not agree in the explanation of it.
green 11. Some therefore judge that Christ had there shown a particular love and care for Peter but not an exemption. But this is of little moment in a thing so marvelous, and observed with so much diligence by the evangelist, and emphasized by the fathers. Others, recognizing some deeper mystery, turning to mystical senses, as Augustine seems, in sermon 6 on the words of the Apostle, saying that, “Peter represented the Church, for which Christ paid an undue death so as to free it from the debt of sin,” which Anselm and St. Thomas follow. But this is to be so received that the literal sense is not passed over. Therefore it cannot be denied that Christ specially commanded that tribute be paid for the person of Peter, just as also for himself, for this is peculiarly signified by the words, “Give unto them for me and thee,”and the fact is noted by the fathers above cited, by making these words equivalent with those, “I will give you the keys,” and “I will ask for you”; for in all those passages the pronoun indicates the individual person of Peter. Therefore Christ signified in those words that Peter would be exempt from payment of tribute as he himself was. In this way too we believe that from this place can be collected at least that Christ conceded to Peter this privilege of exemption, because he was to be the Prince of the Church, and Vicar of Christ. Hence the consequence is made that this privilege was not personal but real in Peter, by reason of his dignity, and that it passes to his successors by force of divine right and of the particular institution or will of Christ. This opinion is sufficiently indicated by Jerome, Chrysostom, Theophylact, Eutymius, and others, insofar as they say that that privilege was conceded to Peter because he was the head of the Apostles, and insofar as they equate this place with others in which Christ, when speaking to Peter, is speaking with him and his successors.
12. But to the difficulty posed, how Christ extends that inference to Peter who was not natural Son of God, many respond that Christ tacitly assumed another principle, namely that under sons of kings are comprehended their domestics and intimates, for these too are wont to be exempt from tribute by reason of the sons to whom they adhere. But we will speak later about this reason; for if it is true, that privilege, as it is divine, is extended not only to the Pontiff but also to others. I say, therefore, that Christ signified that not only was he himself immune from payment of tribute, but also that he could communicate that privilege to Peter, as being most closely joined to him and very similar in the power which he was going to concede to him over the whole Church and over all the kings of the earth. Therefore when, after making that inference“then are the children free,” Christ added, “Lest they be offended…give unto them for me and thee,” it is not necessary that these later words be understood to be joined by force of the former inference, but by way of new declaration and extension from the special will of Christ. Or certainly it could be said, because the argument of Christ was from the lesser to the greater, as I declared above, that for that reason Christ was not content with inferring that he was himself immune from tributes, but also that he had joined Peter with him, so as to show that he, as natural Son of God, was immune in a far higher way than are the sons of the kings of the earth, because he is not only immune from them but is also superior to them all and was able so to communicate to Peter his own power or participation in it that he made him participate in the same exemption as well.
13. 11. But someone will finally insist: although we concede that exemption from tributes can be gathered from this place, to gather exemption also from all subjection and coercive power of princes does not follow. For the son of an earthly king, though he be free from paying tribute to his father, is not free from the directive power of his father, because he is bound to keep his laws; nor is he free from his coercive power, for a king can punish his son in accord with the equity of justice. I reply by conceding that the inference is not, as they say, formal, because it does not hold in all matter, as the argument made proves. Yet still in Christ himself, just as from his natural sonship is inferred immunity from tribute, so is inferred immunity from all subjection and jurisdiction of temporal princes; because sonship, which is the reason for one exemption, is necessarily also the reason for the other, because it is a reason for domination and excellence over all kings. In a similar way, therefore, or by accommodation of proportion, we understand that this privilege was communicated to Peter, and therefore from immunity from tributes we gather exemption from all temporal subjection and jurisdiction, because it has been communicated to him by reason of his dignity and power over very kings.
SATISFACTION IS MADE TO OBJECTIONS AGAINST THE SOLUTION OF THE PRECEDING CHAPTERS
1. First objection. Solution.2. Second objection. 3. Response. 4. The Supreme Pontiffs have always been exempt. 5. Exposition of the words of St. Paul. 6. And of St. John Chrysostom. 7. To the reason given in the same objection. 8. Third objection from the deeds of the Emperors. Response. Why a vote to elect the Pontiff does not impart to the Emperor any jurisdiction over him. 9. Deposing the Pontiff cannot be done by the civil power. 10. Fourth objection from Matt. ch. 18. Solution. Instance. 11. Solution. The Church has no coercive power over the Pontiff. 12. How fraternal correction may be exercised toward the Pontiff. 13. Objection. 14 - 16. Solution. The Church has no coercive power over the Pontiff. The objection is turned back on the King of England. 17. Various ways of protecting Pontiffs foreseen by Christ. 18. A Pontiff waging unjust war can be resisted.
INCE the exemption of the Supreme Pontiff is conjoined to his dignity and power over temporal kings, therefore almost the same objections are opposed to this exemption as to his power; and because we dealt with almost all of them in the previous book, therefore, while touching on them briefly, we will add one or two that are held to be more proper to this place. The first objection is taken from the Old Law, in which the Supreme Pontiff was not exempt from the jurisdiction of the king; rather he could be punished by him, as the deed of Solomon shows, 3 Kings ch. 2, where Solomon dismissed Abiathar from his authority for the crime of treason, punishing him with his royal authority. But we replied to this objection above, that the assumption is not sufficiently proved from the deed, both because Solomon perhaps did it not as king but as prophet, and also because one deed does not show the right, since many things are done by kings through violence. Hence since the subjection of the Pontiff to the king in the Old Law is not proved from other places of Scripture, the upshot is that either the antecedent is false or that it is at least uncertain. Next we joined thereto that, whatever was the case in the Old Law, no argument can thence be taken about the Pontiff of the Law of Grace, who is of a far higher order. So there occurs now only to be added that a similar objection was made four hundred years ago by the Emperor of Constantinople in a letter to Innocent III, whence is taken the chapter “Solitae” De Maior et obedient., who argued not about Solomon but about David, that King David “surpassed” the Pontiff Abiathar. To whom Innocent responded in the same ways, saying, “Although David possessed the crown of kingship, he ruled not so much with royal as with prophetic authority. But whichever of these was the case in the Old Testament, it is different now in the New, whereby Christ is made a priest according to the order of Melchisedech.” And he concludes, “Chiefly so as regards him who is successor of Peter and Vicar of Jesus Christ.”
2. Secondly it can be objected that those things which were constituted by Christ of divine right had their effect at once from the beginning of the Church; but the Roman Pontiffs, not only from the beginning of the Church but also during the whole time when the Roman Emperors were heathen, were not exempt from their jurisdiction; therefore they did not from Christ have exemption of this sort. The minor proposition is proved from Paul in his Epistle to the Romans, 13:1, saying, “Let every soul be subject unto the higher powers.” In that place Paul is speaking principally of political principality and of obedience due to the king, as the expositors there note, and Augustine, letter 54 to Macedonius, and Basil, Constitutiones Monasticae, ch. 23. And Paul himself later openly shows the fact when he says, 13:4, “he beareth not the sword in vain,” and when he adds, 13:6, “for this cause pay ye tribute also.” Therefore, as the same fathers advert, he specially made that warning against certain persons who had at that time begun to preach that Christians were not held to obedience to temporal princes; but he himself teaches the opposite about all Christians, and, so as to except no one, he says, “Let every soul &c.,” and Chrysostom there expounds, homil. 23, saying, “Showing that those things are commanded to everyone, both priests and monks and not only seculars, he declares at once in the introduction itself, when he says ‘Let every soul be subject unto the higher powers,’ even if you be an apostle or an evangelist or a prophet, or whoever in short you may be, for that subjection does not even subvert piety.” In the same way too does Theodoret speak in that palce, and Theophylact and Oecumenius. So, according to the opinion of the Apostle there expounded, even Peter was then subject to the higher powers. For since Chyrsostom said that even apostles were subject, and since he expanded the opinion, saying, “Or whoever in short you may be,.” he certainly seems to have included Peter too. With much greater reason, therefore, were the Pontiffs, the successors of Peter, subject to the Emperors as long, at any rate, as they were not Christians. The fact can also be confirmed by reason, because a heathen prince is not subject to the Pontiff; therefore he could be superior to him; therefore in fact he was superior, because he had universal power over all, and did not have a subjection by reason of which he might be deprived of power over Peter or his successors.
3. The reply will be by conceding that this privilege, insofar as it was conceded by Christ the Lord to Peter and his successors, had its proximate effect as soon as Christ conferred on Peter the pontifical dignity, because that privilege was either conjoined intrinsically to that dignity and as it were flows from it, or was given by special will of Christ, which will was efficacious and could not be impeded by any temporal power. It also included exemption from subjection in respect of the infidel princes no less than of the faithful, both because in Matt. ch. 17 Christ spoke absolutely and the occasion of his speaking was taken from the tribute which was paid to the heathen Emperor, and because the reason is no greater about a faithful than about an infidel prince. Nay, if the Pontiff Sylvester, for example, had been subject to Constantine before Constantine’s conversion, he would remain subject after the conversion, because, as I said above, no infidel king ipso facto loses any jurisdiction because of his conversion to the faith. Finally, when the Councils and the fathers teach that the Pontiff does not have a superior on earth, they exclude everyone, whether he be faithful or infidel.
4. I say, therefore, that Peter and his successors were in the whole time of the heathen Emperors exempt from their jurisdiction as far as the privilege was concerned, although they did not at that time have the use of the privilege, which was not repugnant to divine right. Just as they also at that time had dignity and power over all Emperors given to them by Christ, without his having waited for the consent of temporal princes, but Peter or his successors did not, as regard the same princes, have the use and exercise of that power, because it was dependent, in accordance with the ordination of the same Christ, on voluntary acceptance of the faith; therefore the reason is the same about the privilege that is accessory to the dignity, for Christ conceded it on his own without dependence on the consent of princes or of other men, but the use of it was dependent partly on the will and partly on the power and deeds of men.
5. Nor do the words of St. Paul, however general they may seem, exclude a special privilege conceded by Christ, for the rule of right is that a general right is limited by a special one, even if the special one be more ancient; which rule can here satisfactorily be accommodated. Especially so because St. Paul is there only explaining an ancient and natural right, and he teaches that it is to be observed by Christians, and so he hands down (as Theophylact there says), that the Gospel does not teach defection or disobedience toward princes but control and obedience. Now this natural right is not violated but its matter is partly altered by the privilege of exemption conceded by Christ, which Paul did not there exclude, nor did he make mention of it, because it was not necessary. Although if the words of Paul are carefully considered, it can be understood from the form of them that he did not comprehend the Vicar of Christ under them, for he says, “Let every soul be subject unto the higher powers.” These words are circumspect, and they comprehend both private men with respect to those who are immediately set over them, and the magistrates of lower orders with respect to superior powers. But, in truth, by comparison with the Vicar of Christ there is no higher power on earth, and therefore the opinion of Paul does not there have place.
6. As to Chyrsostom, however, we will, with respect to what concerns the present question, reply in a similar way, that he spoke generally and did not there exclude the special privilege of Peter, nor did he handle the question whether the Vicar of Christ has on earth a higher power whom, by force of natural and divine right, he may be held to obey. But as for what concerns the other special examples, which he induces about apostles, priests, and monks, it must be dealt with directly below, whether they have exemption by divine or human right. Now we only say that whatever be the case even with the other apostles, there is a special reason about Peter as Vicar of Christ, both because of his special dignity, and because of the words of Christ exempting him specially from the debt of paying the tribute. Wherefore this right of exemption was equal in the Pontiffs with respect to heathen and Christian princes, because the privilege, as I said, did not depend on the subjects’ faith, although without it the use could not exist.
7. Nor is the reason made to the contrary a barrier, because although an infidel prince, as to that status, is not directly subjected to Peter, nevertheless he is held by divine right to be subjected to him by receiving faith and baptism, through which every one is made part of the flock of Christ and consequently subject to Peter. In addition, even before baptism this sort of prince is indirectly subject to Peter who has the right to coerce infidel princes lest they impede the preaching of the gospel in their lands and lest they compel their subjects to deny or not receive the faith, or in some way be hostile to the Christian religion. By this reason, therefore, Pontiffs were made by Christ simply immune from the power of temporal princes, whether faithful or infidel; for infidelity does not make them to have a better condition nor does it increase their jurisdiction; as regard use, however, the Pontiffs could not, in the times of infidel princes, escape their judgments, just as also they could not vindicate themselves or their dignity from all injury; which ought not to be wondered at since even under faithful princes they have sometimes suffered similar things, God permitting it either to prove them or for greater confirmation of the faith.
8. From this is easily solved the third objection, which is often inculcated by the King of England and by other schismatics and supporters of schismatics; it is also taken from the deeds of certain Emperors who often exercised a superior power over the Supreme Pontiffs, either by electing them, or placing them in their sees, and confirming them or punishing them or dismissing them from authority. They especially bring in for this purpose the deed of Otho I, who they say was a very pious Emperor, who deposed John XII, or elsewhere John XIII, from his see because of his perverse morals. But about this argument I said a great deal in the last chapter of the previous book, to which place we send the reader, for here we have only mentioned it lest we leave untouched a frequent objection on this point. Yet we can add that the first part of the objection does not in any way belong to the present cause. For what if we were to grant that Emperors or kings could be electors of the Pontiff, surely they could not on that account be their legislators or judges? Or their superiors because of some jurisdiction over them? Surely Cardinals are electors of the Pontiffs and yet, after they have elected the Pontiff, they have no power or jurisdiction over him, nay rather they are completely subject to him. But the reason is that, when they cast votes, they nominate or elect someone equal to themselves; but he who is duly elected is at once invested by Christ himself and made superior to his electors, to whom he was before equal or perhaps inferior. Add the fact that the electors themselves have the power of election from the Apostolic See as if from a superior, and from the Vicar of Christ, whose concern it is to prescribe the manner of electing a successor to himself. The same must therefore proportionally be said of the Emperor, even if he was allowed to elect the Pontiff or to confirm his election by his consent; because he is not by that fact made superior to the Pontiff but remains always inferior to a Pontiff already established, just as he was also subject to him from whom he received such a prerogative.
9. About the second part of the objection, however, I showed in the place cited that the histories in which that fact and others like it are reported are both uncertain and varying, or discrepant among themselves, and are not reported which sufficient fidelity. For from then it can not only not be gathered that an Emperor had rightly deposed any Pontiff, but also not even that he had in fact attempted it by force of his proper jurisdiction or judgment or sentence, but either by the open force or tyranny by which other Christian princes threw violent hands on the Pontiff, or in sum by securing, through their industry and authority, that some synod be convened which would pass sentence of deposition against the Pontiff, whatever may be the case about the power of such a synod or whether it proceeded from error or malice; for that so in fact it happened with John XII I showed in the place cited. And to be sure, although the punishment of deposition is canonical, it has in it a peculiar deformity and repugnance, because it may be imposed by the secular power. Nor could anyone fall into that error except he who thought there was nothing supernatural or spiritual to the pontifical dignity but that it was only political or civil. Therefore if any Emperor or faithful by rash daring and indiscrete zeal undertook to judge the Pontiff, he was, as I said, careful to depose him not by himself but by some gathering which seemed to have an appearance at least of spiritual power. But because that deposition is, in its kind, the highest spiritual punishment and reaches divine right, from which the pontifical dignity immediately and per se is, therefore it requires on the part of the Pontiff the greatest cause, such as only heresy is, which in some way takes away the foundation of such dignity; but on the part of the Church it requires the sentence, not of any synod whatever, but of a legitimate and universal one, and nevertheless there is need on the part of God that he himself take away the dignity which he himself of himself conferred.
10. A fourth objection is taken by heretics from the words of Christ, Matt. 18:15 - 17, “If thy brother shall trespass against thee, go and tell him his fault…”and lastly, “…tell it unto the Church; but if he neglect to hear the Church, let him be unto thee as an heathen man and a publican.” For they deem this sentence and law of Christ to proceed no less of the Pontiff than of the other faithful, because even the Pope is a man and can offend in their presence and with their scandal and injury; therefore he can and should be rebuked, either in secret or in the presence of witnesses; and if he refused to emend he could be denounced to the Church, which if he neglected to hear he could be excommunicated by it, and be held by others as a heathen man and a publican; therefore the Pontiff is subject to the coercive power of the Church. You will say, to follow hence to the sum of it, that the Pontiff is not altogether exempt from the spiritual power, but not that he is not exempt from the temporal power. But on the contrary, for from the first the second can be inferred, at least as far as it is by force of divine right; because, if the Pope is not exempt by divine right from the ecclesiastical courtroom, he does not have that supreme dignity in which we principally found the divine right of his exemption from the secular power. Again, because if the Pontiff can be excommunicated by the Church, he could, by the same reason, be more gravely punished according to the quality of the offence; therefore he could even be degraded and remitted to the secular arm; therefore he is not altogether exempt by divine right from secular jurisdiction, otherwise he could not again be subjected by the Church to the secular power.
11. I reply in the first place that these latter arguments are not effective, because, one, although it is imagined that the Pontiff is subject to some ecclesiastical tribunal, e.g. a General Council, nevertheless he could be exempt by divine right from seculars, either by a special privilege of Christ or because he always remains above secular princes, even if, per impossibile, he be subject, in the order of spiritual powers, to a Council. Two, because the same arguments can be made about bishops and inferior clerics, of whom we will speak afterwards. Again, I add that, even if those arguments be allowed, they rather show things inconvenient and absurd, which follow from the first antecedent, than they confirm it. We deny, therefore, that the Church can exercise coercive power over the Pontiff, whether by censure or in any other way, unless he first fall from the pontificate, either by voluntary renunciation accepted by the Church or by the guilt of heresy juridically declared by the Church. For as long as that person exists as true Pope, he has jurisdiction over the whole Church, even when taken together; and therefore of necessity he is by divine right spiritually exempt, that is, not subject to a higher spiritual power outside Christ, because there is none such found in the world, as was sufficiently treated of in the previous Book.
12. Hence I respond to the objection that fraternal correction can have place toward the supreme Pontiff insofar as it is an office of charity and rests within it; for in this way sometimes a greater can be admonished by a lesser, as a Prelate by a subject, just as Paul conducted himself with Peter, as Augustine explained, epist. 19 to Jerome, and Gregory, hom. 18 on Ezechiel. But the progress of correction ceases when it passes over to force of coercion. Therefore the Pontiff can be rebuked or admonished with reverence, first alone if the crime be secret, then in the presence of others if the thing and necessity demand. But as to what is further said, 'Tell it unto the Church,' does not have place in him, because there by the name of 'Church' is understood not the body of the Church but the prelates of it, for not even can a sinner be denounced to the whole body of the Church, but to his pastor. Hence it is necessary that it be understood relatively or with due proportion, in the way that any sinner may be denounced to his pastor and prelate; for an outsider cannot effectively rebuke or compel someone not subject to him. Because therefore the Pontiff does not have a superior prelate, in him that denunciation has no place, but rather because he himself is supreme Pastor of the whole Church, his sin is sufficiently said to the Chruch when it is said to himself. But, with respect to the Pontiff, not badly could his confessor be understood by the name of “Church,” who can warn him and in his own manner rebuke and in a special way bind him in his own courtroom. But as for what follows, “but if he neglect to hear the Church, let him be unto thee as an heathen man and a publican,” it cannot properly have place in the Pontiff, because he cannot be excommunicated, since he does not have a coercive superior. Nor is this an inconvenience, because that precept is an affirmative one, and is binding with respect to each one according to his capacity.
13. But a fifth objection at once arises against this, for it follows that Christ has not sufficiently provided for his Church, nor conveniently established its regime. For as we say, he gave supreme power in the Church to one man, and set him “over the nations and over the kingdoms, to root out, and to pull down, and to destroy, and to throw down, to build, and to plant,” Jeremiah 1:10. Now such the Pope can be, so that he may use his power in destruction, for he is left to his own liberty, and he can be a sinner; therefore if there is in the Church no power to coerce him the Church is imperfectly established and has been insufficiently provided for. For what sort of body is it which could not by any violence purge a rotten member, or, if this be not enough, cut it off, lest it corrupt the whole body? Therefore since the Church is one mystical body and the Pope is one member of it, which can so much the more damage it the more powerful and principal it is, there is necessity, for the preservation of the Church, that there be in it some power which by right and deed can resist an unjust Pontiff, and compel him, or even cut him off, if it be necessary; but this power is no other than the royal and imperial power; therefore &c.
14. I reply that they have used this argument who reckoned that a General Council was above the Pontiff, and that it could depose him, not only in case of heresy, but also on account of other crimes extremely damaging to the Church. And indeed if the argument had so much efficacy that because of it some other power would have to be admitted in the Church that was coercive of Pontiffs who were abusing their power to the ruin of the Church, that power should rather be posited as a spiritual than a temporal one, placed rather in a General Council than in any particular person. And in this way the objection would not progress, for the last proposition assumed is denied, namely that a power of this sort could only be royal or imperial. Nevertheless, the true response is that there is in the Church no such power over the Pontiff, neither spiritual nor temporal power, as has been sufficiently proved above. But the objection can be turned back against the King of England with much greater reason; for he himself wishes so to be head in his rule that he have a superior neither in spiritual nor in temporal matters, and he is compelled to affirm the same of any supreme king, lest he should seem to be usurping so great a dignity for his own lust alone. Surely, therefore, it is much more inconvenient that in the Church of Christ, which ought to be one body, there be many heads supreme in such a way that any one of them may judge its subjects and itself be judged by no one, than that there be one such head having this singular privilege especially established under the direction of the Holy Spirit?
15. I say, therefore, that in this is rather shown the singular providence of Christ for his Church. For earthly kingdoms are divided among themselves and not subordinate, because in temporal and civil things they do not have unity; and although in each kingdom inconveniences can follow from the fact that the supreme king can be judged or punished by no one in temporal matters, those inconveniences are either tolerated because of conveniences that are greater (which is something that in human providence must often happen, and it pertains to rightness of prudence), or each republic has its own laws and just means whereby to meet these inconveniences. But in truth, with respect to the Church of Christ, it was not convenient that there be many heads simply supreme within it, nor several kings so supreme in temporal matters that they be subordinate to no superior head, at least in order to a spiritual end, and for that reason the best establishment demanded one supreme head. Also for greater unity and an easier and sweeter regime it was necessary that it be a single person, and for removing schisms it was also convenient that under no reason it be subject to its subjects. Hence finally it was necessary that that one head could by God alone be punished or deposed by coercion and superior power.
16. But if it happen that herefrom certain defects or inconveniences follow, the thing is not to be wondered at, because although this institution be divine, it deals with men and is exercised by them, and therefore necessarily it participates in some respect in human providence, which does not always escape every inconvenience but chooses the lesser. Hence that imperfection cannot be attributed to Christ, but to man; for Christ, as far as is in him, provides sufficient means for avoiding these inconveniences. The greater ones, indeed, which could stain the faith or the sanctity of the Church, he has altogether prevented and taken away, by giving to his Vicar a certain and infallible direction in defining things pertaining to faith and morals. Again, because heresy creeps as a cancer and takes away the foundation of the Church, he also established a right, by virtue of which a Pope may fall from his dignity if he be a heretic, giving also power to the Church so as to take cognizance of such a crime, and so as to be able to pronounce sentence declaring the fact and the divine deposition that follows therefrom. However, in the other things, which pertain to morals, it did not pertain to the sweet and wise providence of Christ either to deprive all Pontiffs of moral freedom or to confirm them in grace, and for that reason he has allowed sins in them too. Yet he did not wish that they could be coerced or punished by men, lest the due order of providence and government be inverted and greater evils and disturbances follow.
17. Nevertheless he did also provide various remedies whereby this evil might either be prevented or relieved insofar as it could be. First and principal is the internal help of the Holy Spirit, which we believe to be in a far greater and special way readied for the Pontiff, accompanied at the same time with a singular and more excellent angelic guardian. The second is the prayer both of the universal Church and of the individual faithful, which for the head himself ought always to be greater and more frequent, and it ought then to be more fervent when the head happens to fail. The third and best means is secret admonition or, if the sins have been scandalous, even public, saving due reverence and humility; and if necessity demand it, sometimes this admonition can be made by temporal kings and princes, whose authority can and should weigh much with Pontiffs if it have joined with it the aforesaid modesty and submission of spirit.
18. A fourth remedy, not indeed unjust but more human and dangerous, and therefore not to be used without extreme necessity, is just defense; for if the Pontiff brings to bear manifest violence and unjust force, he can be resisted by way of defense within the limits of a guiltless protection; because to repel force with force is a natural remedy and denied to no one, and it does not require a superior power or jurisdiction in him who defends himself but only right and strength for self protection. For if he bring evil to bear on another, he does not punish him, but in that way justly escapes his own evil. Wherefore if the Pontiff bring corporal force to bear by aggression or unjust war, he can be resisted by the like action, for purposes of defense and not offense. But if the violence is spiritual, by commanding injustice or profaning or destroying sacred things, he can be resisted in a proportionate way, by ensuring that such things are not put into execution. These things, however, are rare and, if this license is to be taken, they must be very evident. Lastly (which is a thing very much to be noted) the Church has been governed in this way for 1,600 years, acknowledging in the Pontiff this power and exemption, and deferring to him this honor and reverence, and tolerating the unjust ones, who were few in comparison with the holy and good ones; and the Church has not suffered in this toleration as many inconveniences as it has sustained in the times of schism and rebellion of temporal powers against the Pontiffs: therefore gratuitously and without foundation do the heretics invent imperfection and defect in this institution, which rather experience itself, besides the other things which we have adduced, show to be worthy of God.
SATISFACTION IS MADE TO THE SIXTH OBJECTION, AND THE QUESTION IS TREATED WHETHER THE POPE CAN SUBMIT HIMSELF TO HUMAN JUDGMENT
1. Sixth objection against ecclesiastical immunity. 2. First conclusion: the Pontiff cannot subject himself to human jurisdiction. Proof. Solution to the sixth objection. The Pontiff cannot renounce his exemption. 3. Second conclusion: the Pontiff cannot submit himself to a spiritual power as concerns coercive force. The assertion is proved. 4. The Pontiff does not have coercive power over himself. 5. In case of heresy the deposition of the Pontiff is done by God alone. 6. Last conclusion: the Pontiff can submit himself to another as to an arbiter. 7 - 8. Objection. Solution. 9. The Pontiff cannot be compelled to a penalty imposed by an arbiter. 10. Solution to the objection posed in the beginning. 11. Why the Pontiff subjects himself to the judgment of a confessor and not of another. It is more probable that the Pontiff attributes jurisdiction to his confessor. 12. Whether Christ subjected himself to Pilate.
HE final objection remains, that the Roman Pontiff can at least by his own will renounce this privilege, not only by renouncing the Papacy (which is clear), but also when the dignity is retained, therefore it is a sign that this exemption is not of divine right; nor is the exemption conjoined necessarily by the nature of the thing to the dignity, for if such it were it could neither be changed nor removed by human will. The antecedent is proved from the use, for Leo IV did it by subjecting himself to the judgment of the Emperor Michael and his legates, as is reported in ch “'Nos si incompetenter” 2, q. 7, and Symmachus submitted himself to the judgment of a temporal king, as is taken from the third Roman Council under the same; and Pope Gregory, in ch. “Si quis” 42, 2, q. 7, speaks thus, as Gratian reports, “If anyone wishes to argue with us on these things, or contends that we are acting outside authority, let him come to the Apostolic See,…so that he may justly contend with me before the confession of St. Peter, as far as there one of us may receive his sentence,” where he commits himself to another's judgment. And Sixtus III, in ch. “Mandasti” 2, quaest. 5, says, when he was unjustly accused, that he had purged himself in the presence of Valentinianus Augustus and the synod, and he adds, “But not by making form and giving example to others who did not wish or did not willingly choose this.'” The same is reported of Leo III in ch. “Auditum”in the same case and question. See the Gregorian decree, and Paulus Aemilius, Book III, De Gestis Francorum. About Marcellinus too it is clear that he submitted to the judgment of a certain synod. Finally, in the sacrament of confession the Pontiff submits himself to the jurisdiction of a private confessor; why therefore could he not also submit himself in a civil or temporal cause? Some even bring in the example of Christ, who placed himself under the power of Pilate, giving him true power over himself, as his words in John 19.11 show, “Thou couldest have no power at all against me, except it were given thee from above.” St. Thomas uses this example, 2.2, q. 67, a.1, ad 2, to prove that a superior can be subjected to the judgment of an inferior, where he even simply says that Pope Leo subjected himself to the judgment of the Emperor.
2. This point is treated at large by theologians on [The Sentences] 4. dd. 18 and 19, namely by Thomas, Paludanus, Bonaventure, Richard, Albert, and others, and by Cajetan, aforesaid q. 67, art. 1, and by the canonists in ch. “Ecclesia Sanctae Mariae,” De Constitut., where it is treated at large by Panormus, n. 7, and Felinus, 2, and Baldus, in 1.“Est receptum,” Code De Iurisdict. omn. iud. In brief, however, as it concerns the present matter, it must be said in the first place that the Pope cannot so submit himself to the Emperor that he remain truly subject to his temporal or civil jurisdiction and able to be compelled by him or obliged by reason of such jurisdiction. The authors mentioned agree in this; and there is a proof that the Emperor does not have civil jurisdiction over the Pontiff, for Christ took it away from him by exempting the Pontiff. Also, neither can the Pontiff give it to him, because the Pontiff, insofar as he is Pontiff (for that is how we are now speaking of him) does not have direct temporal jurisdiction even over others, much less over himself; therefore he cannot give it to the Emperor over himself, because he does not give in this class what he does not have; therefore he cannot submit himself to the jurisdiction of a secular Emperor. The proof of the consequence is that he could not submit himself except by giving him such jurisdiction, because the Emperor himself does not already have it; therefore although the Pontiff wish to be judged by him, if he give him not jurisdiction, he is not submitted to his jurisdiction; nor could the Emperor judge the Pontiff as if having jurisdiction over him. But I am speaking of temporal jurisdiction, because only subjection with respect to temporal jurisdiction is contrary to the exemption about which we are now treating. The fact can be confirmed too from the other principle, that no one can renounce a privilege conceded in favor of the community and the dignity; but such is the exemption of the Pope, for it is not given in regard of his person but for the honor of Christ himself, about which argument more below. The objection made proves this also, and it is thereby solved; for we deny that the Pontiff can renounce his exemption by subjecting himself to another, especially to a layman; for the Pontiff could not be subject to such jurisdiction, as I said, because he cannot give it to one who does not have it. Nor can he make to be extended to him the jurisdiction of temporal kings over which Christ has constituted him his Vicar. Thus therefore is the objection sufficiently satisfied.
green 3. 3But because the things adduced in the objection prove that the Pontiff can in some way voluntarily submit himself to another's judgment, there is need to declare how it is to be understood. I say further, then, that the Pontiff cannot submit himself in the external courtroom to ecclesiastical or spiritual jurisdiction committed to another as regard coercive force over him, whether directly in spiritual causes or indirectly in temporal ones, both all and singly, either in one cause or a second. So do many of the authors cited think, and Bellarmine best, De Conciliis, II.8, and Torquemada, Summ., II.104 and 105, Cajetan too thinks the same, tract. 2, De Potest. Papae. The proof is clear, because there cannot exist in anyone outside the Pontiff an ecclesiastical distinction which does not depend or flow from the Pontiff himself; therefore never can the Pontiff be subject to him as to coercive force. We assume the antecedent, for although it be not certain that all Episcopal jurisdiction flows from the Pontiff, it is however more probable. Besides it is certain that all jurisdiction of this sort depends on the Pontiff and can be amplified or restrained by him as to causes, persons, and places; which is now enough for us. Nay, though we were to imagine that some ecclesiastical jurisdiction not dependent on the Pontiff has been given to someone by divine right, that is, which could not be taken away or limited by him, yet that would not suffice for judging the Pontiff, because, as we assume, he is by divine right exempt from every human superior; that jurisdiction, therefore, though it be by divine right, would not have been given over the Pontiff, nor over the whole Church, because this has been committed only to Peter, but at the most it would be in this or that episcopacy, and in some lower grade. Therefore it cannot be thought that the Pontiff is judged by anyone through spiritual power unless it be through a power flowing from himself.
green 4. Hence therefore the conclusion is evident that this jurisdiction cannot be proper and coercive. The first proof is that the Pontiff has not received such power over himself; for no one has coercive power against himself, because although he could punish himself, he does it willingly, and so is not compelled; therefore neither could he communicate such power to another. Second, because the causes of the Pontiff are reserved to divine judgment, as the canons say which most speak in order to the external and coercive courtroom; therefore the Pontiff could not commit those causes to another as to the same genus of coercive judgment, because an inferior cannot give jurisdiction in cases or causes reserved to a superior. Third, because the Pope cannot so commit some cause to an inferior that he not remain himself always superior in that cause, and consequently he could either recall the jurisdiction, if he wished, or judge of the sentence given by the inferior, because the whole of it is intrinsic to the pontifical dignity; and for that reason it so exists in the Pontiff by force of divine right that he could never remove it from himself, except by renouncing his whole pontificate. Therefore although the Pontiff may feign that he is giving jurisdiction over himself to another, that jurisdiction could not really be coercive, because it depends on the will of the Pontiff both in duration and in execution; but what is thus voluntary cannot be coerced. This reason proceeds equally in all cases and in single ones; for in none can the Pontiff remove from himself the supreme jurisdiction which he has.
5. The confirmation is that the Pontiff can in no case, even if he wished to subject himself to another, be compelled through censure, as is the common consensus of theologians on [The Sentences] 4, dd. 18 amd 19, and as we said at large in the tractate De Censuris. But there is no other reason save that he always remains superior to him to whom he has committed jurisdiction, and therefore he cannot be insubordinate in respect of man, nor be bound by censure, nor afflicted with any violent punishment, nor deposed. For though in a case of heresy he could be deposed, he is not in truth then deposed by man but by God himself, after the declaration of a legitimate Council has preceded, as I said; and in this way no voluntary subjection of the person of the Pontiff, nor even involuntary coercion, there intercedes as long as he is Pontiff, but only knowledge and examination of the cause, which he himself in that case cannot justly impede, because it has been conceded by God as a just and necessary defense.
6. Therefore I conclude lastly, as regards what concerns external human judgment, that the Pontiff can only submit himself to the judgment of another as to an arbiter, not as to a proper judge who uses jurisdiction over the person itself of the Pontiff. Thus St. Thomas explained his opinion in the solution cited, ad 2, and the others mentioned follow him. The thing also follows from a sufficient enumeration of parts; for the Pontiff can in some way submit himself to the judgment of others, even in personal causes, about which we are principally treating, as the things prove that we adduced in the objection, but he cannot be subjected to the proper jurisdiction of another, as we showed; therefore at least he can submit himself to the judgment of another as an arbiter, because there is no other way for a voluntary subjection. But I say “voluntary” because although the Pontiff could be judged by someone by force or tyranny or usurped jurisdiction, and the Pontiff himself could even permit it, as Paul perhaps did, when he appealed to Caesar, nevertheless that submission is simply involuntary, and the judgment about him is violent and unjust; but in the voluntary subjection of which we are treating judgment can be made about him without any force or injury. But the reason has already been touched on, that now no juridical sentence is given that is founded on jurisdiction or superiority, but an arbiter's sentence founded on fact or some agreement. And so in that act the Pontiff does not conduct himself as Pontiff by giving commission of his jurisdiction, but as a man who voluntarily wishes to do what any private man can perform.
7. You will say that after the Pontiff has subjected himself to the judgment of another he is held in conscience, and sometimes in justice, to obey the sentence passed, if it is just; therefore it proceeds from superior power and coercive force, because every necessity is a sort of coercion. Cajetan agrees to this in the place cited, that there some superior power, at least in a certain respect, intercedes, and in the same way he says that coercive force is preserved there; and lastly he judges that the sentence is passed in virtue of jurisdiction committed by the Pontiff. But this last point is, as I said, not to be admitted, but in the rest there can be equivocation in the words, which we must beware of. And so I reply briefly that in an arbiter's sentence there is not required the power of a superior but the pure judgment of the arbiter, nor is coercive force necessary; and that is why St. Thomas said in the same place that in arbitration the use of punishment is a custom because the judge has no coercion. Which is so far true that he cannot even compel to the punishment itself. Hence although the Pope, when he submits himself to the judgment of another, can promise to stand under some punishment from the sentence, he cannot be compelled to the punishment, although in conscience he could sometimes be obligated to it.
8. As to the argument, therefore, I deny the consequence, because the necessity of obligation in conscience does not arise from coercive but from directive force, which can be admitted in such a sentence. However I draw attention to the fact that this is to be understood of ostensive rather than of effective virtue; because such a sentence with respect to the Pontiff does not have the force of a precept that could oblige the Pontiff in conscience, which we call directive force in the effective sense, but it has the force of a purely ostensive sentence pointing out the due of justice, which from an injury or an agreement or another similar title can fall on the Pontiff by force of natural law; and in this way the thing is clear. And for that reason I do not consider the distinction of Cajetan necessary when he says that the Pope can subject himself to the judgment of others in some causes and not in others; for it is more truly and more easily said that in all of them he can subject himself as regard directive force in the way explained, but in none of them as regard coercive force.
9. Therefore the response to the principal objection is that in the aforesaid mode of voluntary subjection no renunciation of the privilege of exemption intervenes, as is clear. But to the first example of Leo IV the response is that he did not exceed the aforesaid mode of sentence of an arbiter, as is clear from the text and from the histories. The same is to be said of Symmachus, in which fact however must be considered that when Theodoric wished to misuse the modesty of the Pontiff and to judge by way of superior, the Council cried out that the Pontiff could be judged by no one, at least in that way, even if he himself was consenting, just like the cry that was also made in the other Council about Marcellinus. In like manner too, the other facts of Sixtus and Leo III are clearer, because in them the Pontiffs did not submit to the judgment of others, but only perhaps for taking away scandal did they wish voluntarily to purge themselves, at least by showing their innocence either by public oath or by other proofs and reasons.
10. But as to the words of Gregory, which are reported by Gratian in the cited chapter “Si quis,” and they are the words of Gregory IV in epist. unic. to the Bishops of Europe which is reported at the end of the volume of decretal letters, they make nothing to the present cause; more exactly, however, their sense cannot be understood sufficiently unless both the end of the letter and the words preceding are considered. For the Pontiff wrote that letter in defense of Bishop Aldric who, having been accused perhaps by some people, had fled to the Apostolic See and had implored its help. And on this occasion the Pontiff there decrees that it is the privilege of the Apostolic See that all are permitted to appeal to it, and that “nothing may be decreed about him who flees to the bosom of the Holy Roman Church and implores its aid before a commandment has been made by the authority of the same Church.” But after he has gravely established these very true principles, he subjoins, “If anyone wishes to argue with us on these things, or contends that we are acting outside authority, let him come to the Apostolic See &c.” which we reported above. Hence it is clear that he is not treating of any personal cause or judgment of his person, but of the dogmas of the faith and of the authority of the Apostolic See, to whose judgment, not to another human judgment, he makes summons, as is plain, when he says, “Let him come to the Apostolic See, whither all ecclesiastical matters that there is question about are commanded to flow.” But to demonstrate his confidence in the virtue of the doctrine, the same Pontiff adds, “so that he may justly contend with me before the confession of St. Peter,” certainly not in decision of law but in inquiry of truth, and not by witnesses confirming some fact but by the authority of Pontiffs, Councils, and custom. He concludes, “as far as there one of us may receive his sentence,” that is, that he may conquer who has better proved his sentence. He does not, however, so speak in doubt but, as I said, certain of his truth.
11. To the example about the courtroom of confession, we reply that the reason is in many respects dissimilar. First, because the Pontiff is not by any right exempt from the judgment of sacramental confession, since he is a man and a sinner and is obligated by the same precept of penance or confession. Second, because that judgment is higher and more divine than any external judgment; hence in it the principal judge is God alone and the confessor is only the instrument of God and immediately represents him. Third, some say that the confessor has jurisdiction in that courtroom immediately from God, but that the Pontiff only supplies the matter or chooses the confessor, which is probable, especially in that special case. But it is more probable to me that the Pope gives the confessor jurisdiction over himself as over a sinner but that the jurisdiction is dissimilar in this respect that it is not at all coercive but medicinal, the sign of which is that the confessor cannot at all compel the penitent to satisfactory penance, but the penitent must voluntarily accept it. Again, there is another dissimilarity, that the judgment of that courtroom, though insofar as it is immediately given by man and depends on him for its continuance because it can be revoked by him, yet in itself it is higher and more divine, because he judges even of things the most secret and that lie hid in the heart, and he pronounces final judgment about them all, from which judgment there can be no appeal either to the Pontiff or to any man.
12. To the example about Christ the Lord, some consider that Christ truly subjected himself to the jurisdiction of Pilate, giving him true power over himself as man; to this opinion inclines Toletus, on John 19, annotat. 4, and he refers to Irenaeus, IV.34. But I draw attention to the fact that it is one thing to speak about the power of Pilate and another about power with respect to Christ, which can also be the respect either of right or of fact. The power itself, therefore, which Pilate in fact used against Christ was from God, and can thus be understood as not only permissive but also as positive, because Christ said, “Thou couldest have no power at all against me, except it were given thee from above,” as Augustine tract. 116 there thinks, and Bernard epist. 42. But that power as referred to Christ was not given over him as over a subject, because that power viewed in and of itself did not fall on him as on a subject, as Christ’s words in Matt. 17 sufficiently prove, which also on that point we dealt with in the preceding chapter. So it happened only by the violence of the Jews and the ignorance of Pilate that that power was exercised over Christ, and in this regard the power's being from God is to be understood only in a permissive sense, as is rightly taught by Chrysostom, hom. 83, and Cyril, XII.22, and certainly not otherwise by Irenaeus. Wherefore the subjection of Christ the Lord was on his part only of tolerance and permission, and not of any concession of power or jurisdiction, nor of renunciation of any privilege, and for that reason the example is of no service to the proposition.
WHETHER ALL CLERICS EXISTING UNDER THE PONTIFF ARE EXEMPT BY DIVINE RIGHT FROM THE JURISDICTION OF TEMPORAL PRINCES, AND TWO CONTRARY OPINIONS ARE TREATED OF
1 - 2. First opinion to the negative. 3 - 5. First basis. 6. Second basis. First confirmation. 7. Second confirmation. A certain evasion is refuted. 8. Third confirmation. Evasion. It is attacked. 9. Second opinion to the affirmative. 10 - 12. Triple basis of this opinion. 13. Bases bestowing immunity by natural right. 14. Reason for this part. 15. First confirmation. Second confirmation. 16. Bases bestowing exemption by divine positive right. 17. Objection. Response. 18. Corroboration from the tradition of the Church.
N this point there are two contrary and very common opinions, which I will briefly report with their bases in this chapter, but in the second I will introduce my own opinion, of whatever sort it be. The first opinion, then, absolutely denies that this immunity is of divine right. Many doctors hold it, among whom some affirm that it is of human right, and they indicate implicitly that it is exclusive. Others declare either generally or specifically that it is not of natural right. Thus St. Thomas is referred to on behalf of this opinion, on Romans 13, lectio 1, where he says that priests are immune from paying tributes by a concession of princes in accord with natural equity; but there is the same or even greater reason for exemption from the courtroom or jurisdiction of princes, as was touched on above and will be said in what follows. Henry too, Quodlib. 9, q. 31, says that the immunity of clerics is from the statutes of the Pope and the Emperors; where, although he does not expressly state the negative part, namely that it is not of divine right, he sufficiently indicates it when he attributes the origin of this immunity to human statutes. It is more expressly held by Almain, on [Sentences] 4. d. 25, q. 1, where he refers to Ockham and the common opinion of those in Paris.
2. The opinion is more widely held by modern theologians, Medina, Code “De Restitut.” q. 15, where he mainly deals with exemption from tributes but extends his discussion to everything. The same is held by Vitoria, in Relect. 1. “De Potestate Ecclesiast.” q. 6, conclus. 2, by Soto, on [Sentences] 4, d. 25, q. 2, a. 2, by Ledesma, 2. part. quart. q. 20, a .4, versic. “Haesitabit,”conclus. 2 amd 3, by Palacios, on [Sentences] 4, d. 25, disput.3, near the end, by Salon, 2.2, q. 67, a. 1, controv .1, ch. 4, and by Bañez, ibid., dub. 2. Albert Pighi, Ecclesiasticae Hierarch. V.7, uses this reason to establish a difference among heathen and infidel princes, because clerics were under the jurisdiction of secular princes as long as they were heathen, or because they now still are in kingdoms where the kings are gentiles, and they are not subject to Christian princes. But the reason for the difference is that heathen princes have not ceased from their right nor are subject to the ecclesiastical laws in the way Christian princes are. This doctrine openly supposes that this exemption is only of human right, and it is followed by Jansen, ch. 69 “Concord.,” and is declared by Maldonado, Matt. 17, while expounding Jerome, but more expressly by Salmeron, vol. VI, in Evangel. tract. 87, towards the end. The same opinion is also held by Molina, 1. De Iust., disp.31, Henry, De Indulg., VII.24. Among the canonists Innocent thinks the same, ch. 2, De Maiorit. et Obedien. For although he speaks under a distinction, yet he places this part second and more inclines toward it. The same is held by Covarrubias, Practicarum Questionum, ch. 31, where he refers to others.
3. The basis for this opinion can be explained in two ways, namely negatively and positively. The negative argument is that this divine right is satisfactorily proved neither by authority nor by reason. And this negative argument is effective on the supposition of the antecedent, because precepts of divine right are not to be accepted without sufficiently certain testimony or cogent reason. But the declaration that this does not hold is that either the right is positive, and no testimony gives sufficient proof for this; or that it is natural, and this requires convincing reason, which is not easy to find. The proof of the first part is that only one place of the Gospel is accustomed to be adduced to prove this divine positive right, namely the words of Christ, Matt.17, “then are the children free,” which do not seem effective, because we said above that they are understood of natural sons and that Christ, because of the singular participation in his own dignity which he bestowed on Peter, extended them to him. But it is insisted that it can, by another consideration, be extended to the whole clergy, because they are as it were the special family of Christ, and the exemption of the natural son is wont to be extended to family members.
4. But this introduction of the words of Christ does not seem to urge much, both because there is no necessity by the nature of the thing that when the natural son is exempted the family be exempted too but this depends on the will of the father or the prince; and this will Christ did not there declare toward the others in the way that he did toward Peter, nay by especially singling out Peter he seemed to exclude the others, or not to include them; and also because, although a family is very often exempted along with its patron, it is not so always, nay rarely in equal manner: in what way, then, can an equal exemption from the power of secular principles be concluded therefrom for all the clergy along with Peter, or even with Christ? Or if equality is not inferred, how much of it is collected? Especially because a certain difficulty touched on above is more pressing, that the talk there is only of exemption from tributes; but an exemption for the family from courtroom and jurisdiction is much more difficult, since it is not wont to be conceded even to sons themselves.
5. The proof for the second part about natural right is that this right ought to be founded on some supernatural property, because, as I explained above about the Pontiff, this right is not regulated by merely natural light but by light illumined through faith, some supernatural property or dignity being presupposed. But in the present case there seems to be no supernatural property on which such exemption may necessarily follow. The proof is that if there were one it would most of all be the clerical character; but this does not seem to be the case, first because a slave ordained against the will of his master is not immediately by force of that character freed from servitude, according to Decretals, ch. 2 and the ch. second to last, about non-ordained slaves, nor do all who have the character enjoy this privilege but many are deprived of it, as we will see below. Then also because through the clerical character a man is not only dedicated in a peculiar way to the divine cult, or not only receives a peculiar power for serving therein, but also, from the nature of the thing, there is no repugnance in someone being in a peculiar way deputed to the divine service and at the same time being subject to a temporal prince in those things not repugnant to the divine service. Also again, because otherwise a handle would be given to those who say that all Christians are exempt from the jurisdiction of temporal princes by force of the baptismal character and are consecrated to the divine cult in a way very different from the rest of mankind. Besides also, because there are many clerics who do not have the character, as those who only have the tonsure, and yet, if the other necessary conditions are present, they have the same exemption as other clerics; therefore here is a sign that it does not arise from natural right. And the same argument is assumed from other ecclesiastical persons who enjoy this exemption even if they do not have the tonsure either, as do lay or convert religious, and women religious, and any others of this sort. Finally too because what is by divine right in this way is necessary in such a way that the contrary is intrinsically evil; but a cleric being judged by lay jurisdiction is not intrinsically evil; therefore its opposite, namely that a cleric be exempt from such jurisdiction, is not of divine natural right.
6. This last reason also seems to give persuasion to this opinion not only in a negative but also in a positive way (which is what I proposed second). For what is against divine right is never licit; but subjection contrary to this exemption is often licit; therefore here is a sign that this exemption is not of divine right. A first confirmation is that clerics have not always in the Church been exempt from the courtroom of the secular court, as is gathered from Paul, Romans 13, with the exposition of Chrysostom and others; therefore it is not of divine right, otherwise it would have come into existence at the same time with the Church. And the argument can be explained in this way, that clerics from the beginning of the nascent Church were in a far different way exempt from the secular courtroom in spiritual causes than in temporal. For in the former they were in no way bound in conscience to obey laymen, nor could they have recourse to their tribunals to expedite such causes. But in the latter they were bound to obey them, and could have recourse to them, as far as the force of jurisdiction was concerned. Therefore here is a sign that the distinction of courtroom in spiritual things is of divine right in a far other way than the distinction of courtroom in temporal ones. Therefore here is a sign that this privilege is not, as regard temporal things, immediately and per se of divine right.
7. A second confirmation is that the Church sometimes hands over a cleric to the secular arm so that, once a declaration has preceded that deprives the cleric of the privilege of the courtroom, he may be punished by it even with death; and there are certain causes of right whereby clerics are deprived of such privilege; here then is a sign that the privilege is not of divine right. For things that are established by divine right cannot be changed or taken away. Nor will he do enough who says that the privilege is not then taken away nor divine right changed because the secular judge does not as principal cause (so to say) punish the cleric but as minister of the Church and by its power. This, I say, is not enough, both because the laws and the doctors everywhere say that the cleric is then deprived of his privilege of the courtroom, or (which is the same) that he does not enjoy ecclesiastical immunity; and also because when the judge uses the material sword for the punishment of death assuredly he does not give command by spiritual jurisdiction but by temporal, because spiritual jurisdiction does not extend to this sort of punishment, except permissively, so to say; wherefore it does not then conduct itself as a cause with an influence per se (so to explain the thing), but as removing a prohibition, at least by taking away the privilege for that case and abolishing the precept which prohibits a layman from judging a cleric; therefore here is a sign that it is not of divine right.
8. Finally, a similar confirmation can be taken from the fact that, if this exemption were of divine right, it would be equal in all clerics, because divine natural right does not make any distinction among them; but the case is not so, because in the first place married clerics do not enjoy this privilege the way others do, as is clear from the law. Again, minor clerics, although they not be married, do not, unless they have an ecclesiastical benefice or bear the tonsure and the clerical habit, enjoy the privilege of the courtroom. Next, although a cleric cannot be brought before a lay judge, yet he can be brought there on appeal, at least in a civil case though not in a criminal, as Sylvester notes from Ius, verb. Iudex, n. 4. Again in a feudal cause exemption is not preserved nor in certain other causes, and especially in the case of law the exception is wont to be added, 'unless the consent of the prelate accedes,' ch. 2, De Iudiciis; therefore there is no uniformity nor equality in this exemption. But if someone says that if divine right alone is attended to the exemption is uniform about all and for all but that the variety has been introduced by human right, this works to the contrary, for it seems to be a sufficient sign that the immunity itself is not absolutely of divine right, otherwise it could not so be varied by human right; just as we gathered that the jurisdiction of Bishops is not immediately of divine right because it can be limited, amplified, and varied by man.
9. Nevertheless there is a second opinion, which simply affirms that the exemption of clerics is of divine right, and which is sufficiently common, though the authors of it hardly explain whether they are speaking of divine positive or natural right; several of them, however, seem to speak of natural right, as far as can be collected from the reasons and the things they allege, although some touch on something also of divine positive right. So on behalf of this opinion, therefore, can be alleged in the first place the Gloss on ch. “Si imperator,” at the word “Et discuti,” distinct. 69 , which openly says that the constitutions of the Church exempting clerics from the secular courtroom are declarations of divine right which conceded such exemption to them before all constitution of the Church. Yet that Gloss does not declare of what sort the divine right is, nor does it even speak expressly of exemption in temporal causes. And it can be understood of ecclesiastical causes, about which the text itself seems most to be speaking. Toward the same opinion inclines the Gloss on ch. “Quanquam,” at the word “Divisio,” De Censibus, on 6, where the text too is favorable, when it says that churches and priests are exempt from the yoke of temporal tributes not only by human but also by divine right. These two Glosses on those places are commonly received, as Covarrubias above cited reports, along with many other doctors. Again Innocent does not reject the opinion in ch. 2, de Maiorit. et obedient. It is held by the Rota, at the title “De Consuet.” decis. 3 and 10 in Antiquis, by Abbas in ch. “Ecclesia Sanctae Mariae,” De Constit. num. 6, where Felinus, also num. 6, alleges several others and declares more expressly that it is contrary to natural reason for clerics to be judged by laymen. Rebuffe more broadly declares the same referring to others in Concordat., last title. And the same is held by Navarro, ch. “Novit.,” De Iudic., notab. 6, num. 30, at any rate as regard exemption in criminal causes, about which he thinks the same as about exemption in spiritual cases, although he thinks otherwise about civil ones. Among theologians it is held by Almain, De Potest. Ecclesiast. ch. 8, where he judges this opinion more probable and refers to a certain Carlerius in tractat. Contra Bohemos, who defends it. The same is held by Bellarmine in De Cleric. I.28, proposit. 5, and ch. 29, and more at large in Disp. Speciali, vol. II at the end, and finally in his book Recognit. around the same places, and around De Pontif. II.29. Julius Clarus holds the same, referring to others, Book V § fin. q. 36, and Cenedus, collect. 37, and Sylvester points it out, at the word “Immunitas” 1, q. 4, and Angelus at the same word, n. 33.
10. As to the bases for this opinion, certain are general and they abstract from both divine positive and natural right; others mention natural right, but others positive right. First in order we put the canon rights which have this significance, and there are many laws accustomed to be alleged in this order, which I referred to above in ch.2; but I omit them because they speak of exemption in spiritual causes and therefore cannot strictly be extended to exemption in temporal ones. Many are also brought to bear which I adduced at the end of ch.3, and I similarly pass over these, because although they affirm exemption in temporal things they say nothing about its origin; but in what way they can be introduced I will declare below. From ancient decrees, then, I find only ch. “Relatum,” 11, q. 1, from Pope Alexander, epist. 1, which can be introduced for this side, insofar as it concludes against violators of the immunity of ecclesiastical persons in this way, “Those who have prevaricated thus have prevaricated against their God, and are not obeying his precepts. Secondly there is a text that makes for it from the Lateran Council under Innocent III, in ch. “Nimis,” on oaths, which has this, “Some laymen strive to usurp too much from divine right when they compel ecclesiastical men, to whom they have provided nothing temporal for possession, to oaths of fidelity to themselves.”
11. Third there makes for it ch. “Quanquam,” De Censibus, on 6, insofar as it says, “Churches and ecclesiastical persons and their possessions are immune from the exactions of secular persons not only by human right but rather by divine right too.” Although here the talk be of exemption from tributes an argument can be taken from it for the privilege of the courtroom, either by parity of reason, or because Paul, Romans 13:4, says, “For he beareth not the sword in vain, for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” And he adds later, v. 6, “For for this cause pay ye tribute also: for they are God’s ministers, attending continually on this very thing,” signifying that those two things are conjoined, the right of ruling temporally and of exacting tribute, and consequently it can be inferred by the converse that if divine right has exempted clerics from tributes it has also exempted them from civil subjection. Fourth can be induced the chs. “Continua” 11, q. 1, and “Futuram,” 12, q. 1, insofar as in them the words of the Emperor Constantine are referred to, who said to the Bishops at the Council of Nicea, “You can be judged by no one, but you are reserved to God’s judgment;” for he seems to have spoken in force of divine right since at that time no human right on this point had yet been sufficiently settled.
12. Fifth, from more recent General Councils there is a very fine witness from the Lateran Council under Leo X, in session nine, in the Bull for the reform of the Curia, saying,
“Since by both divine and human right no power has been attributed to laymen over ecclesiastical persons &c.” For if laymen do not have power over clerics by any right they assuredly do not have it, because they cannot have it without just title and without foundation in any right; therefore just as laymen lack this power to the extent it is by force of divine right, so clerics are exempt from it by force of the same right, because no one is subject to one who lacks power. Sixth, this is strongly confirmed by the Council of Trent, sess. 25, ch. 20, “De Reformatione,” saying that, “The immunity of the Church and of ecclesiastical persons has been established by ordinance of God and by canonical sanctions.” But that is said to be of divine right which is decreed by ordinance of God. Finally the words of the Council of Cologne make for the same thing, part 1, ch. 20, saying that this “very ancient” immunity “was introduced equally by divine as by human right.”
13. Second in order are to be put those bases which give persuasion that this right is divine natural right. And although, as I said, this right is not of purely natural order but is by way of connaturality to a supernatural priesthood, nevertheless from pure nature itself there is assumed a strong indication and as it were an a fortiori argument. For, among infidels, their own priests of whatever sort were, as if by guidance of the natural light, exempted from the burdens of the laity; much more therefore will this exemption be by divine natural right in the law of grace. This argument was almost used by the Pontiff in ch. “Non minus,” about the immunity of churches, adducing the example of Pharaoh, “who,” he says, “did not have knowledge of the divine law and yet, with everyone else subjected to servitude, he left the priests and their possessions in their pristine liberty, and assigned them nourishment from what was public,” Genesis 47:22. A similar thing was also done by Artaxerxes, who made the Levitical priests and other ministers of the house of God free of the taxes, tributes, and corn contributions, Ezra 7:24. Finally Pope Anacletus, epist .2, brings in for this purpose the verse of Zechariah 2:8, “he that toucheth you toucheth the apple of his eye.” With this agrees the verse of Psalm  105:15, “Touch not mine anointed,” that is, the priests. For in these words is declared a peculiar reverence which is due to priests by the dictate of natural right, because they are peculiarly dedicated to and joined with God, according to the verse of Numbers 3:12, “Therefore the Levites shall be mine,” and at 18:6 they are said to be handed over “as a gift to the Lord;” for that reason too in Joshua 13.:3 the Lord is said to be the possession of the tribe of Levi. As therefore natural reason dictates that priests are to be peculiarly reverenced, so too does it dictate that they are not to be subjected to secular judges.
14. But this kind of argument has assuredly a greater force in the status of clerics of the Law of grace, because they are consecrated to God in a more excellent way. Hence we can argue in this way: ecclesiastical persons are dedicated to God and rendered sacred by a special consecration; therefore by the right of nature a peculiar reverence pertaining to religion is owed to them; therefore also the exemption of such persons from the yoke of secular power is as if connatural, or due by the right of nature to the status of such persons, especially as regard their criminal and personal causes. Just as a golden or silver vessel which could, of itself, licitly serve a common use, by the very fact of being consecrated as a chalice remains, from the nature of the thing, immune from such use, nor can without sacrilege be transferred to that use, according to rule 51, De Regul. Iur. on 6, “Once it has been dedicated to God it is not to be transferred to human uses,” with similar rules; so must it be said, it seems therefore, of a person who is consecrated to God with respect to subjection to the secular tribunal. For the use of such subjection could not fail to lead to great irreverence for such persons and for the whole ecclesiastical state.
15. This reason is confirmed by the jurists, first, because a priest is, by force of his status, superior to a layman, distinct. 96, ch. 'Duo sunt'; but by the nature of the thing an inferior owes honor to a superior; therefore a layman too to a cleric. But the opposite to this honor due to clerics happens if they are called to a secular court, and from the nature of the thing it redounds to the cheapening and ignominy of ecclesiastical dignity and gives the common people occasion for despising the clergy; therefore, by the status of such persons, such exemption follows from the nature of the thing. This reason is very well declared and confirmed by the words of the 2nd Council of Macon, ch. 9, where the Council, rebuking acts of violence of secular judges against clerics, adds this reason, “For it is impious that a Bishop should be dragged from a church by the hands or command of him for whom he always prays to God and to whom, after having invoked the name of the Lord, he has often held out the Eucharist for the salvation of body and soul.” For one must note that, in order to prove it “impious,” he does not adduce a positive law but sacerdotal dignity and the reason founded on it. A second confirmation is that it is against reason that an inferior judge a superior, ch. “Cum inferior,” and ch. “Solitae,” De Maiorit. et Obedient., and, for that reason, by no custom can it be introduced that an inferior acquire jurisdiction over a superior, as the doctors gather from the ch. “Inferior,” dist. 21. Therefore it is contrary to natural reason that a lay inferior judge a priest superior to him. This is rightly confirmed by the words of Gregory VII, bk. VIII, epist.21, which Gratian reports, dist. 96, ch. 9, “Who may doubt that the priests of Christ are deemed to be the fathers and masters of kings and princes and all the faithful? Is it not thought to be a mark of miserable insanity if a son try to subjugate to himself his father, a disciple try to subjugate his master, and subject, with unjust obligations, him to his power by whom he believes he can be bound and loosed not only on earth but also in heaven?” Finally Felinus and Rebuffe add that it is against reason for anyone to be taken to a tribunal that is suspected of hatred and enmities; but laymen are ordinarily hostile to clerics, ch. “Laicos” 2, q. 7, ch. “Clericos” De Immunit. Ecclesiae on 6. Therefore &c.
16. In the last place there are bases introduced which give persuasion that this exemption is of divine positive right; there are three very powerful ones. The first is taken from the words of Christ already treated of, Matt. 17, “then are the children free,” where the fact that under “children” are comprehended clerics as the family members of Christ is indicated there by Jerome, saying, “He both bore the cross for us and rendered tribute; we do not return tribute for his love and as sons of the king we are immune from taxation;” for under that pronoun “we'”he seems to comprehend himself and other priests or clerics alone, because it is not likely that he is speaking of all Christians. The same exposition is also wont to be attributed to Augustine, Quaestionum Evangelicar. I q. 23, as far as it is inferred from his stated words, “in any earthly kingdom whatever, all the sons of the supreme King, under whom are all earthly kingdoms, are free;” for by sons of the supreme King he cannot mean all the just; and therefore it is likely that he understood Bishops, priests, and clerics, in that such are in command in the kingdom of God as sons of the king, as Cajetan expounded Matt. 17. But, in truth, this was not the mind of those fathers, as I said above, nor does it have a basis in the words of Christ, and therefore those words are introduced in a different way, by a certain extension. For the sons of the king are free such that their family members are also exempted along with them, but clerics are in a peculiar way the family members of God and the Savior, as Pope Thelesphorus said in his epistle to all the faithful; therefore in those words Christ comprehended them along with himself, and under Peter, when we said to him, “Give unto them for me and thee,” because Peter was then bearing the vicariate for the whole ecclesiastical state, as Augustine indicated, sermon 6 on the words of the Apostle.
17. You will say that this extension is not contained in the words of Christ, nor was any precept or institution there delivered which could be of divine right. Also neither is the exemption of the family along with the natural son founded on any natural right, but in a certain congruity and human usage, and therefore the said divine institution cannot thence be sufficiently inferred. They reply that it is true that Christ did not say openly that the family was free along with the sons, nor even that it follows by a necessary and evident consequence, for that is why the aforesaid opinion is, as far as concerns this part, neither de fide nor altogether certain. Yet nevertheless it is very probable that the extension is of the mind of Christ; both because he argues a fortiori from the natural sons of men to himself, and so, if in others the privilege is extended to the family, it should in a more excellent way be extended to the family of Christ, because his privilege too ought to be greater by reason of his very great dignity, and his family is nobler and more excellent; also too because, although the joining of the family in the exemption does not seem necessary by strictness of right or of natural consequence, yet it is very consonant to reason; and it is per se credible that Christ assumed the privilege of exemption in the best way and in the way more consonant to reason.
18. A second proof is added from the tradition of the Church. For when tradition is constant and perpetual it is wont to display divine right, especially when no reason appears for attributing it to apostolic institution; but such seems to be the tradition of this exemption, for it is very ancient, so that there is no beginning known for it; for it was observed always according to opportunity of times, but especially after the times of the Christian Emperors, as we will see at large in ch. 12. But under heathen Emperors it could not indeed be entrusted to execution as regards infidel magistrates, who did not obey the Church, which execution pertains to the fact but the right was not absent to the Church; a sign is that ecclesiastical prelates always made this right of immunity to be observed insofar as it could be among the faithful themselves. And the fact is shown by the ancient canons mentioned at the end of ch.3, which never refer this custom to any apostolic institution but venerate and study to observe it as divine. In these ways, then, both these opinions are founded as probable.
THE PRIVILEGE OF COURTROOM FOR CLERICS IS FOUNDED ON DIVINE AND HUMAN RIGHT, AND THE WAY THIS IS TO BE UNDERSTOOD
1. Conclusion. Human right is double. 2. First explanation of this conclusion. 3. Proof of this sort of exposition. 4. Second explanation of the same conclusion. 5. This declaration is further elucidated. 6. Divine right does not immediately provide individual clerics with exemption. First basis. 7. Second basis. 8. Third basis. 9. Third exposition of the conclusion. 10. The exemption of clerics is, as regards its manner, subject to the Pontiff. 11 - 12. How divine institution subsists along with dependence of the exemption on the Pontiff. 13 - 14. An exemption of this sort could be conceded by Christ in a twofold way. 15 - 17. Confirmation. 18. Clerics are exempt as regards both directive and coercive force. 19 - 20. This exemption is in all strictness by divine right. 21 - 22. The same is further confirmed from the priesthood of the Old Law. 23. Why Scripture numbers only twelve tribes. 24 - 25. The final declaration of the conclusion is to be preferred to the second. 26. The bases for the second declaration are taken away.
HE certain and indubitable resolution of this matter is that clerics are exempt from the civil power by divine and human right equally: for this is taught almost in these very words by the canon rights above referred to, and by the sacred Councils, especially the Lateran one under Innocent III, the other under Leo X, that of Trent, and that of Cologne, which I cited above. Hence it is necessary that all the authors alleged in the preceding chapter for both opinions agree in this general resolution. The bases of both opinions also prove it, for in truth they prove that this privilege is in some way founded in both rights. But how this is to be understood, that is, what is to attributed to the individual rights in this business, needs to be explained as best we can; and hence it will also be clear what the diversity is between the aforesaid opinions, or whether they can be reduced to concord. But since human right is twofold, namely civil and canon, and since we must directly speak about them in chapters 11 and 12, therefore in brief now I assume that this exemption does not depend per se on civil right, because of itself it precedes it, but yet it does depend on it, either as on what contains and approves it, or as on what bestows it, as far as its side is concerned or should there be need, or as on what prescribes to lay judges the observance of immunity for clerics. But it is certain by canon right and sufficiently proved that it prescribes observance of this immunity. But whether it prescribes this by conferring it, or only by declaring what God has conferred and wishes to be observed, depends on the manner in which such jurisdiction could be by divine right, and therefore it will at the same time be explained. But whether canon right alone would be sufficient per se to confer this privilege, even if it had not been given by God and civil right was not cooperative but resistant, we will see in chapter 11.
2. The first explanation of the resolution posed, then, could be that by human right be understood civil right, but by divine right be understood canon right, which is sometimes called divine right insofar as it is has been passed by a power that is divine and supernaturally conferred, and because it chiefly makes disposition of things divine and pertaining to the good of the soul, and is frequently founded on the words and examples of Scripture. And thus is divine right expounded in the present matter by Hostiensis, ch. “Nimis,” De Iureiur., who interprets that chapter in this way, and he is followed by Salmeron, in the said tract.37, who thus expounds, ch. “Quanquam,” De Censibus, in 6. And according to this exposition the second opinion in the preceding chapter is altogether rejected; for that is why the authors mentioned in the said canons understand by divine right canon right, so that they may defend the view that this exemption is in no way by divine right proper, that is, by a right which draws its origin immediately from God himself.
3. But Panormitanus departs from this opinion in d. ch. “Nimis,” at the end; and certainly rightly. For, first, it is very improper for a merely canon right to be called divine, and the use is rarely or never found in canon right itself. Also because, although in one or another place that interpretation could be permitted, especially if other circumstances are in its favor, yet when so many rights and Councils agree in asserting divine right, the interpretation is very violent and incredible. Add that the Council of Trent, perhaps to exclude equivocation or abuse over the word, expressly distinguished between canon and divine right, saying that the immunity of ecclesiastical persons “has been established by ordinance of God and by canonical sanctions.” For what are “canonical sanctions'” save canon right? But those sanctions are also of divine ordinance, along with the mediation of the pastors of the Church; therefore they are distinguished from the divine ordinance which is immediately from God; but this is divine right proper; therefore that is what the Council is speaking of, and it is tacitly interpreting the other rights in the same way. The Lateran Council, too, under Leo X, when it says that neither by divine nor human right has power been given to laymen over clerics, must be speaking of divine right proper, otherwise it would not have sufficiently proved that laymen do not have such power, because someone could say that they have it by natural and divine right proper, as heretics contend. Let it be certain, then, that the proposed assertion or resolution is to be understood of divine right proper or immediate, and that, in particular, canon right is included under human right, although civil right is not excluded, because the Councils openly assert this, nor can they be otherwise suitably explained; and this is enough to require confessing simply that so it is, although in declaring the way that divine right concurs in conferring this privilege there can, among Catholics, be disagreement and difference without denial of the faith.
4. A second possible declaration of the assertion, therefore, is that the privilege of exemption has in part been established by divine right proximately and properly and in part by canon right. For it exists by divine right in two ways: first because it was given immediately to the Pontiff by Christ himself, second because power and divine precept was given to him to communicate that privilege to the whole clerical state. But this privilege is completed, as it were, and entrusted to execution by canon right in the particular and definite way of conferring it on the individual orders of clerics contained under the Pontiff, and thus this canon right determines, as it were, and entrusts to execution the general divine precept to exempt clerics from secular jurisdiction, which precept this opinion supposes and by which it differs most from the preceding opinion. Now such a precept can be understood to be of either divine positive or natural right. In the first way, it is either understood to be contained under the general precept given to Peter, “Feed my sheep,” individually, to be sure, according to their status and condition; or it is said to be divine because it is taken by imitation and likeness from the testimonies and examples of the Old Testament. Just as the precept of tithes is customarily said to have flowed from divine right, as in ch. “Tua Nobis,” 2, and ch. “Decimas,” 2, on tithes, see Bellarmine, De Clericis II.28, 29, 30. For that reason, just as the precept of tithes was, as to the quota, completed by canon right, so also was this privilege of exemption. But the precept can be considered to be of divine natural right most of all because, on the supposition of divine institution of the clerical order, it is deduced as evident by inference from natural principles, or as so necessary morally that, on this account, the supreme Prelate of the Church is obliged to confer the privilege on the inferior clergy and to establish it under a certain law and manner.
5. But so as to make the basis for this declaration or opinion understood, four assertions can be distinguished in it. The first is that canon right prescribes that clerics be exempt; and this part is very true, if we abstract for the moment from the mode of such precept, and thus the assertion above is proved, and it will be further confirmed in the next chapter. Second, this opinion supposes that there is in the Church a power for giving clerics this exemption, if the hypothesis be also granted that it was not made by divine right. And this too is easily conceded, about which we will speak in chapter 11. Third, this opinion affirms that this exemption has been prescribed by divine right, which we think to be altogether true not only of a precept improperly divine by imitation nor by mere moral deduction from the principles of divine right, which are completed by human constitution, but by a proper and strict precept laid down either immediately by Christ the Lord or at least through the medium of natural reason. The reason is that without this exemption the decency and dignity of the clerical state could not be maintained with due reverence and honor; therefore Christ certainly gave to him to whom he committed the care of that state the precept to have or to keep the clergy exempt from secular power, by prescribing it to him either explicitly or implicitly and by force of the office which he committed to him, wherefrom such an obligation is collected by morally evident inference.
6. Fourth, this opinion teaches that this privilege has not been given by God immediately to individual clerics or orders of clerics but to the Pontiff alone, so that by him it might be applied and distributed to the rest. On this point the opinion agrees with the first opinion reported in the preceding chapter, and so it rests on the same bases. Especially so, because use itself seems to declare the fact, for this exemption is not equal in all persons nor at all times nor for all cases and, further, it can vary; therefore here is a sign that it was not distributed immediately by divine right but was committed to the faithful dispensation of the Vicar of Christ. Again, because this suffices for the things that the canons teach about the exemption and that are, in sum, reduced to the words of the Council of Trent when it says that this exemption 'has been established by the ordinance of God and ecclesiastical sanctions.' For the first point, most appropriately, is made true by the said obligation and precept of divine right, and the second point by reason of the ecclesiastical execution.
7. It can also be shown from the similar question that is wont to be dealt with about the jurisdiction of Bishops, whether this is immediately of divine right or from the Pontiff. In that question the more probable solution is customarily that divine right does indeed immediately prescribe that the Church be governed by ordinary pastors and princes; and because they could not do this without jurisdiction, therefore it has been prescribed by the same divine right that sufficient jurisdiction be communicated to them, and that yet in the thing itself and in effect it is immediately communicated through the Pontiff. This way, then, is how this opinion makes affirmation about the bestowing of exemption on clerics. For there is no little likeness and proportion; for just as the exemption is, in its kind, of divine right, so the Episcopal office is of divine right; and, conversely, just as the jurisdiction of Bishops is not certain and determinate by divine right but can be amplified or restrained by the Pontiff, so also the exemption is not by divine right determinate for individual clerics, causes, places, or times, but can be varied, increased, and diminished by the Pontiffs. Therefore, just as the jurisdiction of Bishops, although it be of divine precept, yet is conferred immediately by the Pope that from the same it may receive definite mode and measure, so this privilege is left directly to the concession of the Pontiffs, that it may thereby receive definite mode and determination without which it could not in actuality be agreeably conferred, but left to them under obligation of their conferring it as faithful and prudent steward.
8. And this rule is general in other observances of the Church which do not have in particular a certain determination from divine right, although they do in general have a necessity from divine positive or natural right; for although such things can be said to be from divine right as regard general obligation, nevertheless, as regard proper and particular institution, they are accustomed to be immediately of human right. Thus may it be seen in censures, which have a basis in the divine right: “If he will not hear the Church, let him be to you as an heathen man and a publican;” and yet censures, as the Church puts them to use, are immediately from its institution. The same can be observed in many ecclesiastical rites and ceremonies; for divine right gives prescriptions in general, that sacraments and sacrifice for instance be done in a decent and decorous way; but because divine right does not immediately determine this, such institution is in effect ecclesiastical taking its origin from divine right; and many similar examples could be brought forward. But the general reason is that divine right does not immediately establish things that are liable to change and variation, and because a proper institution does not come about except in particular and with a certain mode and measure.
9. The third declaration of the proposed assertion is that the privilege of exemption for clerics is immediately and with all propriety of divine right, because it was not only promised and commanded by Christ, but also given and actually conceded; and yet it is also of canon right declaring divine right and preserving this privilege or moderating it as expedient. According to this declaration the former opinion, treated of in the previous chapter, is altogether refuted and the latter is fixed in a very proper and rigorous sense; and although few of the authors referred to for it declare it in this way, nevertheless many certainly seem to have thought thus, especially Carlerius whom Almainus refers to and follows. And the same was thought by Rebuffe and others who say that clerics have never by right been subjected to Emperors, even heathen ones, from the beginning of the Church, which Torquemada also thinks, Summae de Ecclesia II.96, ad. 3. This opinion and declaration of the aforesaid opinion is very pious and very much in agreement with reason, and therefore we must defend it and diligently explain it.
10. In the first place, although we admit that this privilege was given immediately by Christ to clerics, nevertheless we do not deny that it was subordinated to Peter and his successors as to the mode to be observed in using it, both on the part of the persons to whom the privilege was to be applied, and on the part of the things, causes, or businesses, in which such exemption ought to be observed. For manifest conviction is given for this by some of the arguments made for the prior opinion, and by others which can be taken from the use of the Church. For we see that a cleric in a civil cause, if he bear the person of prosecutor against an accused layman, is not exempt in such prosecution from the lay tribunal, but is held to follow the courtroom of the accused. But why is this so except because the Church has determined that the exemption of clerics be kept within those limits, and because it could have made disposition otherwise if it had judged it otherwise expedient? Similarly everyone concedes that clerics are obliged, in respect of directive force, to keep certain laws which regard the common and convenient state of the citizens; and this has not arisen from anywhere than from the Church judging it expedient so, as I showed elsewhere. Therefore the privilege of exemption, which by divine right is indifferent and as it were general, is subject, as regard determination, limitation, or expansion, to ecclesiastical power. But neither can it be said that all these things are only done by the Church by way of declaration of divine or natural right, because without doubt many are done by prudent human choice, and therefore they change at diverse times, as that married clerics enjoy this privilege in these things and not in those, and that minor clerics do with these circumstances and not without them; and that in such a crime a cleric is handed over to the secular arm and not in another sometimes graver one. Therefore these things are done by the power not only of interpreting, but also of establishing new right, or limiting or extending an old right.
11. But so as to explain how these things cohere, since the Church does not have power over divine right, I suppose from the tractate De Legibus that this name 'right' sometimes signifies a proper law or precept, but at other times, and properly and frequently enough, it signifies a faculty of using, or (so to say) a quasi right of fact, in the way rights of servitude or right in a thing or for a thing and the like are distinguished. In these two ways, then, can divine right also be received in the present case. For the privilege itself of exemption, insofar as it is a certain liberty from subjection to another, is a certain moral faculty for not obeying such a power, or for freely acting without respect to it or impediment from it; this faculty, then, given by God himself, is said to be divine right, not as a precept but as a gift from God. Just as liberty from servitude, which is natural to man, is very well said to be, in this sense, by divine natural right. But once such privilege is posited, there also follows a divine prescriptive law that no force or coercion be brought to bear on him who has such privilege but that his immunity be preserved; and thus there intervenes also in such exemption a divine prescriptive right which is acted against by violating the exemption of clerics.
12. Now that which, by this double right, consists in the general faculty and is, as it were, a certain good which is properly called a privilege, I say that it, though divine, namely given by God, can be subject to loss or change for just causes; just as life itself and the members of the body and the natural right of liberty are given by God and are said to be by right of nature, and yet they can, for just cause, be taken away or lessened by human power, and this we understand to have been conceded by God, because thus it was expedient for the common good of the human republic. In this way, therefore, should it be understood that, though the privilege of exemption has been given to clerics by God himself, nevertheless, for just cause and by legitimate power, it can be lessened or taken away, for thus was it necessary for the common good of the Church. Hence as a result it happens that the other divine right prescribing observance of such privilege does not contain an absolute prohibition that such privilege cannot be lessened or taken away, but, so that it not be done without legitimate power and just cause, we speak of of natural liberty.
13. But that power is only in the Pontiff, because it is a power that is spiritual, supernatural, dispensing the mysteries of God, a power of binding and loosing, and supreme in its order. But a legitimate cause, generally speaking, will exist whenever some limitation or privation of this exemption will be judged necessary or convenient for the convenient and decent order of the Church, or for the good morals of the Ecclesiastical state; and this judgment is also committed to the prudence of him to whom the keys have also been given. Thus therefore it is easily understood that not withstanding the variety which we see in the legitimate use of this exemption it could be of divine right, because by that variety there is no going against some divine precept, nor is there dispensation made from it, but the precept itself includes such a limitation or condition accommodated to such privilege and to the condition of it, as has been explained. And in this way can easily be solved the arguments which the first opinion made in objection to this direct and positive divine right.
14. But this privilege as thus explained can be understood to have been given by Christ the Lord to the clerical state in two ways, namely either because he instituted his Church and the diverse orders and acts of it and its mode of government in such a way that it would obtain therefrom this privilege by natural and necessary consecration; or also because he conceded this exemption to clerics by a particular and express will. This second way is made sufficiently probable by the words of Christ, Matthew 17, insofar as we expounded them in the preceding chapter on behalf of the second opinion, with the addition too of ecclesiastical tradition, which is the best interpreter of the words and laws of Christ. And this part is further confirmed from the first one; for the reason that this privilege is deduced from the institution itself of the Church and of the clerical state also gives persuasion that Christ, in the words, “then are the children free,” wished to comprehend the whole clerical state. Therefore, that this privilege, at least in the first way, is by divine natural right, provided divine institution of the ecclesiastical status and of the whole Church is presupposed, is thus proved; because clerics, both as to their body and their soul, are specially subject to Peter by divine evangelical right; therefore by the same right they are exempt from the jurisdiction of secular princes.
15. The assumed proposition is made plain from the doctrine of St. Jerome, which is referred to in ch. “Duo sunt,” 12, q. 1, where he distinguishes two kinds of Christians, one that is delivered over to the divine office and is given to contemplation and prayer, as is the state of clerics and religious; the other kind is that of lay Christians, who, though they are appointed to divine service by general reason, attend principally to temporal things in accordance with their common mode of life. Since, therefore, all Christians are subject to Peter in spiritual things by divine right, as was shown in Book III, and since that subjection can be said to exist as regard the soul, because it is only in spiritual things and things pertaining to the cult of God; we say of clerics that they have been subjected to Peter by the same divine right not only as regard the soul but also as regard their bodies. The fact is proved from the said doctrine, because clerics are specially dedicated and handed over to God and to his cult not only as to the soul but also as to their bodies; therefore as a result they are also as regard both subject to Peter. The proof of the consequence is that by the very fact that clerics are dedicated to God according to body and soul they belong in each way to the particular right of God; and they are said to be handed over to the gift of the Lord with greater reason, and therefore with greater title said to be of God, than the Levites, matters spoken of at Numbers 3 and 18. Therefore by that very fact they are, in accord with each reason, constituted under the proper jurisdiction conferred on Peter as Vicar of Christ; for Christ's particular property, and whatever belongs to the particular right of it, he has committed to his Vicar as proper manager and steward.
16. There is also confirmation, for the goods of churches and sacred things are committed by divine right to ecclesiastical prelates, and especially to Peter, as regard their care and distribution, no doubt because they pertain in a particular way to the dominion of God and the patrimony of Christ; therefore by the same and greater reason the whole government of clerics, both in what regards the body and temporal life and in what regards the soul, has been specially committed to Peter by Christ. The antecedent is expressly handed down in the fourth Roman synod under Symmachus. For it is said that laymen, even religious and men of power, cannot make any decree in any way at all about ecclesiastical faculties, “the care of disposing of which has been indubitably given by God to his priests.” But the consequence seems to be no less certain, both because the persons themselves pertain to Christ and to ecclesiastical things more than do ecclesiastical faculties; and also because the universal care of the divine cult is by divine right under the jurisdiction of Peter, because it is immediately ordered to a spiritual end; and by this reason all things which are dedicated to the cult of God are simply and absolutely under the jurisdiction and administration of the Church, among which things dedicated to God the persons of clerics hold first place; therefore simply and absolutely and according to every reason are they committed by divine right to the jurisdiction and disposition of Peter.
17. Having set this down, therefore, the first consequence, namely that if they are committed to Peter they have been as a result exempted from the jurisdiction of temporal princes, is per se evident from that evangelical dogma of Matthew 6:24, “No man can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and despise the other.” For a similar inability and moral repugnance is found in clerics being in the same respect, that is in respect of their body, subject to the Pontiff and to the king, because these could sometimes prescribe contrary things, and it would be necessary to obey one and despise the other; as, for example, a king could prescribe to a cleric to go to war or be busy with other temporal actions, but the Pontiff could prohibit these actions or prescribe other things that were repugnant to them. Again, since clerics should, as to the actions of the body, be devoted to divine ministries and be removed from secular businesses, it is necessary they have a rule and way of living and operating and of using temporal things or offices from the Pontiff; therefore they cannot at the same time be under the jurisdiction of temporal princes, even as regard things that pertain to the body; just as vessels sacred to God are by that very fact and by the nature of the thing exempt from profane uses, and just as a contract of marriage consecrated into a sacrament has by that very fact passed into the ecclesiastical courtroom and is exempt from the secular one.
18. Therefore it is hence very well inferred that clerics are absolutely exempt from the jurisdiction of temporal princes, because this jurisdiction deals especially with those subject by reason of their bodies and so with all those things that are ordered to the convenient preservation of bodily life, as was shown at large in book 3. Therefore, if clerics are exempt from the jurisdiction of princes also in respect of their bodies, they are certainly exempt from their temporal jurisdiction. Hence the conclusion is also drawn that clerics are not only exempt from the power of princes as to its directive force, at least in disposing and governing them in things that regard the actions of the present life, but also as to coercive force; both because one subjection is not separate from the other, nor can it rightly be considered without the other, and therefore as regard both they are by divine right subject to the Pontiff and as a result exempted from others; and also because this exemption is no less necessary than the other for the cult of God and the convenient use of things dedicated to the divine cult. Therefore deservedly did Pope Nicholas say in his letter to the Emperor Michael, “How those, to whom it has been permitted only to rule over human things and not divine, presume to judge about those by whom divine things are administered, we are altogether ignorant.” This too is strongly confirmed by the words of the Lateran Council under Leo X, “By a right as well divine as human no power over ecclesiastical persons has been bestowed on laymen.” In these words I note first that the talk is about all power, and hence it comprehends not only spiritual power but also temporal, nay this power especially because about the other there was no controversy. Next the Council supposes that laymen cannot have any jurisdiction over ecclesiastical persons, unless it be conceded to them by some divine or human right. Hence it must either be supposing that laymen do not have it by natural right, or must certainly be including under divine right both positive and natural right, otherwise it would be proceeding incompletely and concluding nothing. Therefore the intention of the Council is that laymen do not by divine right have such jurisdiction over clerics, because neither has divine positive right attributed it to them, as is clear of itself, nor has natural right permitted it but has exempted clerics from the jurisdiction of laymen by the very fact that they are subject by a special title to the Pontiff. Finally, I advert to the fact that the other part too about natural right can be understood most of canon right, about which that opinion is manifest. But the Council did not seem to have any reasoning about civil right, because it supposes that there is no power in temporal princes for establishing such a valid right, since they do not have for this very thing power by divine right.
19. To these can be added other General Councils besides, and the provincial Councils adduced above, which constantly teach that this exemption is of divine right; but this can and must be properly understood in accord with the capacity of the matter. And it is not properly said to be of divine right, because its immediate establishment is from the Church even if it takes its origin from a precept or power given by divine right. Just as royal power is not, nor can properly be said to be, of divine right, even if it takes its origin from natural law and power. And for that reason neither are ecclesiastical ceremonies, outside the Sacraments, said to be of divine right; neither even is the jurisdiction of Bishops said to be so, according to the opinion of those who think that it is conferred immediately by the Pontiff. Since therefore the Councils say of this exemption so constantly and absolutely that it is of divine right, surely they are to be taken in the more proper sense. Similarly too the Council of Trent — it says that this exemption is by divine ordinance — is most correctly understood in the common manner of rights, that the exemption is ordered and instituted by God himself and declared and made firm by canonical sanctions. Add too that the very Emperors seem to have been led, not by human right indeed or ecclesiastical, but by reason illumined by faith, to recognize rather than to concede this exemption.
20. So Charlemagne, in his capitulary, VI.109, when he gave sanction thus: “Clerics are reserved not to secular courts but to Episcopal audience,” explains the reason by saying, “For it is not holy that the ministers of divine duty be subject to the judgment of temporal powers.” But “holy” [fas] means, on the evidence of Isidore, a divine law that both pertains to God and descends from some natural equity; such therefore did Charlemagne think the right of exemption of clerics to be. In agreement with this is what is said in the Council of Macon, 2, ch. 9, that it is “unholy” [nefas] to violate the immunity of Bishops, which is, in can.1 0, extended to other clerics. One must also attentively weigh what is said at the beginning of that ch. 9, “the most reverend canons and the most sacred have given sentence about the Episcopal audience almost from the very beginning of Christianity.” For the Council speaks very openly of an audience with respect to temporal and personal causes, as it at once explains, and it does not say that human laws have introduced it but gave opinion for it as declaratory of a quasi connatural right of Episcopal jurisdiction and ecclesiastical exemption. Emperor Theodosius too, as Ambrose, epist. 32, elsewhere bk. II2 epist. 13, to Valentinian, reports, gave equal sanction that, “in a cause of faith or of any ecclesiastical order he should be judge who is neither unequal in duty nor dissimilar in right. That is,” says Ambrose, “priests judge of priests,” as if both were of the same divine right. Constantine also thought this in fact and in his oft repeated words, from Gregory, bk. IV, epist. 13, indict. 13, elsewhere ch.7 5, from Ruffinus, and from other ecclesiastical histories.
21. There can to these be added conjectures taken from the right of the Old Law. For if priests and Levites were in that Law exempt from temporal power, no one will deny that the same is to be said in the New Law by force of divine right, at any rate natural divine right; both because this pertains to the greater perfection of the priesthood of the New Law; and also because if such an exemption was found in the people of Israel, certainly it was not by any human law, for no such law is either read in Scripture or can with a basis be thought of, especially since these sorts of laws were at that time very rare, because everything was minutely prescribed in the law of God itself. Therefore from the priestly state itself, and from the general words by which the tribe of Levi was assumed into it, there was collection made that the tribe had been given to God and wholly subjected and subordinated to the power of the Pontiff; therefore in the same way must be gathered a similar divine right in the New Law. Not because the ancient Law, insofar as it was ceremonial, is obligatory in the New Law, but because that ancient right followed the priesthood, not in force of the ceremonial law, but in force of the moral law. Therefore in a similar way, from the supposition of a better priesthood has followed the same moral divine right in the New Law. But that the right of exemption existed in the Old Law is made very likely from the way of speaking of Scripture, Numbers ch. 3, “And they shall be my Levites,” at least by peculiar title and gift, about which it is said in ch. 8:10 - 11: “And thou shalt bring the Levites before the Lord: and the children of Israel shall put their hands upon the Levites: And Aaron shall offer the Levites before the Lord for an offering of the children of Israel, that they may exercise the service of the Lord.” And later, 13 - 14, “And thou shalt offer the Levites for an offering unto the Lord. Thus shalt thou separate Levites from among the children of Israel: and the Levites shall be mine.” And later, 16, “For they are wholly given unto me from among the children of Israel.” And later, 18 - 19, “And I have taken the Levites…And I have given the Levites to Aaron and to his sons from among the children of Israel, to do the service…” Similar things are also repeated in ch.1 8, and to Aaron it is said, 3, “And the Levites shall keep thy charge.”
22. From these, therefore, and from similar ways of speaking it is gathered with sufficient probability that the tribe of Levi, by force of its being separated and deputed to the ministry of the temple, was exempt from civil jurisdiction that, from the nature of the thing, was in the community of that people. First because, by giving up that part from itself and donating it to God, it deprived itself of some power and dominion, as it were, and transferred it to God; but this power could not be other than power of jurisdiction, because there was no other power of dominion in that community with respect to that part; and consequently God, by accepting the donation, reserved that right for himself by a special title, and committed it to the Pontiff of that people. Second because from the force of that separation the priests and Levites were rendered immune from merely secular burdens and duties that could either distract the Levites from the ministry of the temple or would be incongruent and unfitting to that state. The sign thereof is Numbers 1:47 - 48, when God commanded the people to be numbered, “But the Levites…were not numbered among them. For the Lord had spoken to Moses, saying, Only thou shalt not number the tribe of Levi.” "Because" (says Josephus, Antiquit. III.11), “the Levites are holy and immune from military service.” And immune, for the same reason, from other secular duties and tributes, as Abulensis also thought, q. 25, on Numbers 1, saying that the tribe of Levi, since it was instituted for the ministry of the tabernacle, could not be at leisure for the other burdens and necessities of the people. And for that reason the Levites did not receive part in the promised land, but in place of it they received the rights of the sanctuary, Numbers 18, Deuteronomy 18, Joshua 13. Hence Abulensis also adds in the same place that the Levites were not numbered with the rest of the multitude, because they did not make one people with them. “For,” he said, “all ten tribes were one people and communicated with all, and divided all the land among themselves, and were at leisure for purely secular things; but the Levites came together with the people in nothing.” Hence also the tribe of Levi was as if separate from the others, and the twelve tribes of the people were accustomed to be numbered apart from them. For thus in the cited Numbers 1, the twelve tribes are numbered with the exception of Levi, because, as Josephus notes above, Manasseh was put for Levi among the head of the tribes, and for Joseph was put Ephraim, whom Jacob secured in adoption from Joseph, Genesis 48.
23. One must consider that, although according to the said computation and adoption there were thirteen tribes, never in Scripture, because of the perfection of the number, are there numbered other than twelve. Now it has been observed that whenever the tribes are numbered in order to things spiritual, the tribe of Levi is numbered, and either the tribes of Ephraim and Manasseh are reduced to the one tribe of Joseph, as Genesis 46, Exodus 28, Deuteronomy 27, or one is excluded, as in Revelation 7 the tribe of Dan, because of the Antichrist, is omitted. But when the tribes are reckoned in order to secular or temporal things, the tribe of Levi is omitted and Manasseh and Ephraim are distinguished into two, as Numbers 1, Deuteronomy 18 &c., because in order to temporal things the tribe of Levi was as if separate from the others. And in the same way, when under Jeroboam the twelve tribes were divided and two, namely Judah and Benjamin, remained under Roboam and the remaining ten passed over to Jeroboam, Levi is not numbered among them, as is taken openly from 2 Kings [2 Samuel] 11 and 2 Chronicles 11, because no doubt (as one may conjecture) it did not pertain to the temporal kingdom. From these, then, is collected with probability the exemption of the priestly tribe from the jurisdiction of kings in the Old Law. And no little confirmation comes from the authority and power of prescribing given to the Pontiff of that law, Deuteronomy 17; about which there was discussion in the previous book. With much greater reason, therefore, should such an exemption be believed to have been conceded to the clerical state by divine right in the New Law.
24. Finally, having rejected the first opinion reported in the preceding chapter, and the first declaration of the Catholic assertion posited in this chapter, which coincides with the said first opinion, and comparing this last declaration with the second, that this last is to be preferred can be declared by moral reason thus. For those two declarations or opinions agree that the privilege of ecclesiastical immunity is of divine and human right, for which the reason can be given that it was necessary for such privilege to be perpetual, fixed, and unchangeable, and therefore it ought to be of divine right; and at the same time it was necessary that it be in part changeable or variable, and therefore it ought also in some way to be put under human right. But the joining together of each right about such a privilege could be thought of or happen in two ways: first, that divine right would prescribe such privilege only remotely, but human right would establish it by choice of men. Second, conversely, that divine right conferred it proximately but committed it to man so that he could moderate and accommodate it in the particular case. But, of these two ways, the latter is more convenient; therefore it is to be believed that in this way was this privilege given by Christ to his Church.
25. The declaration of the minor is from two properties which can be considered in this privilege, namely stability and a certain variety; for the former will be much greater and more secure if this privilege has been established and conceded immediately by divine right itself. For thus by no human power, whether temporal or ecclesiastical, could that be altogether taken away which was necessary for the preservation of the ecclesiastical state and for the reverence due to the divine cult. Again, in this way no usurpation or presumed human prescription could prevail against this immunity, which was also very convenient and almost necessary for restraining the force and ambition of temporal kings. Lastly, in this way even the Pastors themselves of the Church will be more cautious in making changes in these privileges, and they will be able with greater title to resist the importunate prayers of secular princes lest, by in some way taking away faculties and licenses from this privilege, they might yield to them without very grave and urgent causes. But in the second part, in the use of this necessary privilege, namely so that it could sometimes vary and be changed in particular cases or persons, very sufficient provision was made by subordinating the privilege, as regard the need to make this change for a cause, to the power of the Pontiff; therefore this institution was the most convenient. Therefore, the third opinion, which declares this privilege in this way, is to be preferred to the second.
26. For this reason this privilege is not rightly put on a par with other ecclesiastical observances or ceremonies, whose institution in a particular case is of human right although the general precept of them be of divine right; for in many of them there is an unlikeness of reason. First, because their institution could not be done in general by divine right, abstracting that is from particular ceremonies, because institution is a certain act or effect which cannot deal with the kind but only with the particulars; but a precept could very well be given in general, by committing a particular institution or determination to the decision of another. For to do this immediately by divine right was not expedient or necessary, except as regard the substantial rights of the sacraments and the divine sacrifice. But an exemption could very well be conceded absolutely by divine right in general, or universally, so to say, because generality does not there consist in abstraction from particulars but in comprehension of all ecclesiastical persons and of all effects of immunity, or of total liberty from temporal jurisdiction; and so we say that it was in fact instituted by divine right, by giving clerics absolute exemption from all jurisdiction of laymen, which clerics would have even if the Church had made no disposition about it. Second, because the other ceremonies and rites of the Church are not so proximately of the dictate of natural right, nor do they follow immediately from some prior divine institution, as this exemption does, as has been sufficiently declared. Third, because the other particular rites were not so necessary to the good governance of the Church and to the splendor and decency of religion, as was this privilege. And for the same reason the example of the jurisdiction of Bishops is not similar. Because the fact that Bishops receive jurisdiction immediately from Christ is not found written or sufficiently insinuated in Scripture, nor does it have a necessary connection with another prior institution of Christ, nor was it so necessary or convenient for the good governance of the Church that the whole spiritual jurisdiction be given without any limitation to all and each; and it could not be conceded with variety and limitation immediately by Christ, and for that reason it was more convenient that he should submit its distribution to his Vicar. Apart from the fact that it was much more convenient for greater union and subordination of the members with the head that in this all the inferior Bishops should depend on the Vicar of Christ. But in the exemption the reason is far different in all these respects, as has been declared.
HOW ECCLESIASTICAL EXEMPTION IS, BY DIVINE RIGHT, FITTING FOR INDIVIDUAL CLERICS OR ECCLESIASTICAL PERSONS
1. The various grades of persons enjoying exemption. 2. A first opinion to the negative. First foundation of this opinion. 3. A second opinion to the affirmative. And a third. 4. A second affirmative view. 5. The foundations of the contrary opinion are dissolved. 6 - 8. Whether Bishops are exempt. 9. Of the exemption of priests. 10. Whether inferior clerics are by divine right exempt. First opinion denying this.11. The opinion of Navarrus is preferred. His own objection. 12. His own response. 13. Navarrus' solution is further declared. And confirmed. 14. Response of the author. 15 - 16. This exemption is enjoyed by any person in an ecclesiastical state established by the Church.
N order to make more luminous the truth confirmed in the previous chapter, it has seemed worthwhile to explicate it of the individual states and orders of ecclesiastical persons, and to assess the reasons for this privilege proper to each case; for greater and more compelling reasons could be found for some of them than for others, although they are for all of them sufficient. Various grades of ecclesiastical persons can, therefore, be distinguished under Peter, for about Peter and his successors we have already spoken. In the first and chief grade were the apostles other than Peter; in the second are bishops, who succeeded to the apostles not as apostles but as bishops. Under these are priests, of whom some are parish priests and pastors of souls, others are simple priests, whether altogether so or established in some dignity. Under priests are the inferior clerics of sacred things, and under these are others established in minor orders, married or not married. And lastly there are others persons who, although they do not have orders or the tonsure, are reckoned to be ecclesiastics by reason of their status, and who enjoy the canonical privilege. About all of them, then, we must speak one by one.
2. A first doubt is whether the apostles other than Peter had this privilege such that it was by right licit for them not to obey the Emperors, if in fact they were able to, and whether, conversely, secular magistrates were, on account of usurped jurisdiction, unjustly judging them, unless by chance their ignorance of the privilege excused them. For the King of England, in his Preface, p. 139, persistently denies this exemption of the apostles, saying that “in the times of the primitive Church it had never been called into doubt.” Which opinion is, with saner mind indeed and not with so much exaggeration, defended also by some Catholics. They seem to be favored by Chrysostom and Theophylact on Romans 13 who say that even the apostles were not exempt from obedience and subjection to temporal magistrates, and who speak not only with respect to directive power but also with respect to coercive, as the Apostle too spoke. And among other modern authors this is expressly taught by Albert Pighi and Jansen in the places already cited. They base themselves generally on the fact that clerics were not exempt from the power of heathen princes when they lived within their realms, because those princes were not under the jurisdiction of the Church; and this reason holds also of the apostles. However, the reason does not prove, but supposes, that this privilege was not conceded by Christ to the apostles; for if Christ wanted to concede it there could be no obstacle in the fact that infidel princes were not directly subject to Peter or the Church, because they were subject to Christ himself, and therefore he could exempt from their jurisdiction those whom he wished, as he exempted Peter.
3. If therefore the apostles did not have this sort of privilege, it is not because infidel princes were outside the jurisdiction of the Church, but because this depended on the will of Christ, and about this no certainty is given by revelation, written or unwritten; but an extraordinary and supernatural privilege is not to be asserted nor believed without the testimony of the will of the prince. Second, because such a privilege would have been useless to the apostles, because they were never in fact going to use or to have such privilege. Third, the addition is wont to be made that Paul in Acts 25 appealed to Caesar as to his judge and legitimate superior in the criminal case in which he was involved. This place is strongly urged by the king of England, and in this way was it understood by Albert Pighi and was at one time approved by Bellarmine whom Lorinus has followed. And the proof can be that otherwise Paul would not have acted well in appealing to a judge who was not his own, and in tacitly renouncing his privilege to one whom no prelate can renounce it to. Lastly an argument can be taken from Matthew 17 where Christ paid the tribute only for himself and Peter, and thereby the other apostles understood (as I reported above from the Fathers) that some special privilege had been conferred on Peter; there is no reason then for us to say that it was common to the other apostles.
green 4. The contrary opinion is supposed by Torquemada in the place cited, and Bellarmine ultimately preferred it; both of them for this reason say that Paul did not appeal to Caesar in right but in fact, not as to his superior, for he was exempt from his jurisdiction, namely by divine right, but because he could not by any other reason escape the snares of his enemies; nor does that place strictly require more, as I will immediately say. Hence this opinion is altogether to be preferred and, besides the general foundations for the whole clerical state, confirmation can be given, first, by the things we have said about Peter; for although Peter in respect of the apostles was their superior, nevertheless they had, in respect of the Church and all temporal princes and the whole world, a certain equality with Peter and had immediately from Christ himself a direct or indirect jurisdiction over all the princes of the earth; therefore, by force of that excellence, they were exempt from the jurisdiction of temporal princes. For it is preposterous and improper for superior princes to be judged by inferior, and for pastors to be subject to the sheep. Hence too the words of Christ, “then are the children free,” can be extended to the apostles with greater reason certainly than to any other clerics whatever. Both because they were more properly and strictly of the family of Christ the Son of God, for they were more closely connected to him and composed with him one college, and their board and any other temporal goods they had were common to them all. And also because they participated in a singular way in the excellence and power which Christ had over men, and therefore they ought to imitate him also in exemption from human powers; and so they are, under the name of sons, as accessories to the principal. In these ways, then, Christ’s will seems sufficiently clear.
5. Nor does it matter that the apostles were never going to use that liberty, for it was connatural as it were, or certainly very fitting, to their dignity; and therefore they ought not to have been deprived of that nobility (so to say) or status, even if, because of the ignorance or malice of men, they were not to be permitted to enjoy it, as must also be said of Peter. And thus could it also have happened in the case of Paul, about which Cardinal Bellarmine very recently and very well proves, in ch. 13 of his Apology, that the court presider was not a legitimate judge, because Paul’s cause, which was then being dealt with, was not a civil one but a matter of religion, namely about Paul’s preaching to the gentiles, Acts 22, about the resurrection of the dead, ch. 23, and that he was a defender of the sect of the Nazarenes, ch. 24, and “certain questions of their own superstition and of one Jesus,” as the president said, 25:19. But in a cause of religion a layman and a heathen man could not be legitimate judge. Nor for that reason did he act wrongly by appealing to the a lay and infidel judge, because a court like the one in which he had already been placed under an inferior judge, who was also a layman and infidel, could not be avoided; and therefore he acted prudently by appealing to the legitimate superior of the same inferior judge and of his accusers, whose unjust disturbance he in this way atoned for. Especially because Paul could also have appealed to Caesar with the intention of imploring his help in the best way he was able. For thus does his deed seem to be interpreted by Athanasius in his Apologia ad Constantinum; but to implore the help of a secular prince against the violence and injury inflicted by an inferior lay judge is not illicit, nor repugnant to ecclesiastical liberty; nay it is very much in conformity with it, as Athanasius in the same place intended to signify, and as Augustine taught in epist. 48, 50, and 204 against the Donatists. And this is signified by the words of Paul in Acts 28:19: “I was constrained to appeal unto Caesar," namely to rescue him from the hands of the Jews, from whom he feared he could not be freed by the president alone.
6. In the second place we must speak about bishops, in whom can be considered the power of order, wherein they are equal to the apostles and superior to priests; hence under this title some greater reason for this privilege can be considered in them than in priests, but a greater reason is taken from their pastoral function. For, besides the power of order, there can and ought to be considered in bishops the dignity of pastor and the power of Episcopal jurisdiction, by reason of which they are spiritual princes of the Church, not indeed universal ones, like the apostles, but in their dioceses, because of which they are said to be the successors of the apostles. By this reason, then, it seems to be efficaciously proved that, after the apostles, bishops have from Christ the Lord this privilege of the secular courtroom. For to them can be proportionally applied the reasons made about the apostles. Because they are of the family of Christ in a higher way than the rest, and are specially called, along with the Pontiff, to partake in his care, and therefore are they called by him brothers; therefore rightly can they be judged to be comprehended by Christ among his sons, when he said: “then are the children free.” And also because bishops are fathers of secular princes and their superiors simply, and therefore it is unworthy and improper that they should be judged by them.
7. Hence Pope Anacletus, speaking about bishops in epist. 2 ch. 2, says as follows: “Hence is it proved that the supreme priests, that is the bishops, are to be judged by God, and are not to be slandered by human beings or by men of corrupt life, but rather are to be borne by all the faithful, the Lord himself giving example when he ejected the buyers and sellers from the temple by himself and not by another,” and the rest which he pursues. And the same is very well confirmed by the words of Gregory VII in Book VIII, epist.21, which I already reported above: “Who doubts that the priests of Christ are held fathers and masters of kings and all faithful princes? Surely it is acknowledged to be a wretched insanity if a son should try to subjugate to himself his father, a disciple his master, and to subject by his power with unjust obligations him by whom he believes he can be bound and loosed not only on earth but also in heaven?” Where it is clear that he is chiefly speaking of bishops, to whom belongs the power of binding and loosing in the exterior courtroom or the ecclesiastical court.
8. Hence at once the same Pontiff reports from Gregory II, Book IV, epist. 31. ch.7 5, the history touched on above about Constantine, who in the Council of Nicea “presumed to give no opinion of a judge above the bishops, but calling them even Gods, judged that he ought to submit, not to his own judgment, but to make himself dependent on their decision.” Further, Pope Melchiades, ch. “Futuram” 2 q.1, said that Constantine “reserved bishops to the judgment of the throne of God.” Adversaries collect therefrom that those words of Constantine were a sign of urbanity only, since otherwise bishops could not be judged by the Pope either. But Pope Melchiades explains this far otherwise and confirms it in his epistle to the bishops of Spain when he says, “the bishops, whom the Lord chose for himself as his eyes and whom he wished to be the pillars of the Church, to whom also he gave the power of binding and loosing, he reserved to his own judgment, and committed this privilege only to the key-bearer, blessed Peter, his vicar.” In these words he seems to make all the bishops similar in this respect to the Pope, because God reserved them to his own judgment. Hence, as to this part, they were by divine ordination exempt from merely human or secular judgment. They differ, however, from the Pontiff because they have a judge on earth to whom God committed his vicariate; the Pontiff, by contrast, has no man his superior by whom he may be judged. All these things proceed a fortiori of the apostles as well, and seem to argue much for this side.
9. Third we must speak of priests, in whom is not found the special reason we considered in bishops, because they do not have a proper ecclesiastical jurisdiction in the external courtroom, and therefore they are not princes of the Church, nor are they superior to lay princes as to power of commanding and judging in the external courtroom. They do have, however, more dignity than them in status and grade, and they represent the person of Christ in his ministers in a more excellent way, especially in the oblation of the great sacrament and in the absolution of sins, when they bear the person of Christ, and they are deputed to those functions by force of their order and status. And so, in the words "then are the children free" priests are rightly to be regarded as included, because by a peculiar title and manner they are of the family of Christ, although not in as excellent a grade as bishops. But as regards what pertains to natural right, it seems to have in them too a greater appropriateness than in inferiors, by reason of the priestly character. First indeed because it gives power over the true body of Christ, for by it they participate very much in the priesthood of Christ and by it things very sacred are brought to be, and therefore they are by that very fact removed from secular jurisdiction and subjected to spiritual power. Next is added power over the mystical body of Christ, by reason of which they become spiritual fathers of the laity and judges in the place of God in spiritual causes that most regard God, and especially in the sacred courtroom. By reason of these powers, especially fitting to priests of the Law of Grace are the titles of kings and Gods, which Scripture is wont to adorn priests with, as even the canon rights above cited emphasize for considering how improper it is for priests to be judged by the laity. Which impropriety is present in them from the nature of the thing, and is founded on the excellence of the sacerdotal character; therefore it is very credible that they are exempt by force of it.
10. And hence finally is clear what must be said about inferior clerics. For some said that they were not by divine right exempt, even if those consecrated in major orders do have exemption by divine right, which is the opinion of Bernard Diaz de Lugo, in Pract. ch. 65, and John Lupus, tract. De Libertate Christiana p. 2 q .5. But this is not altogether agreeable, both because the fact that some order is reputed to be in a special way greater or sacred depends on divine right, accord to ch. “Miramur” about not ordaining slaves; and also because the rights above mentioned speak generally and without distinction. Finally too because not only clerics constituted in minor orders but also ecclesiastical persons generally, who receive a character either by some order that is a true sacrament or by some other right or mode instituted by the Church, can have discussion of the fact proportionally applied to them. For all are included under the peculiar family of Christ, and all pertain to the order of sacred and ecclesiastical things, and more and less do not vary the species; just as some ecclesiastical goods are more proper than others, and some sacred things are more sacred than others, and yet all are equally committed to the Church and are by divine right exempt from secular power. Therefore the same will hold of persons.
11. Navarrus, therefore, is better, when in ch. “Novit.”, De Iudiciis Notabilibius 6 num. 30, in his response to the sixth argument, num. 15, he says absolutely that by force of the clerical character there follows, from the nature of the thing, an exemption from lay jurisdiction for the person thus made sacred, not only insofar as he is sacred but also insofar as he is a man. An objection he raises, however, against himself is that it would follow that every Christian was by force of the baptismal character exempt from lay power, because by that character he is consecrated to God.
12. But if the reply be that it is true that a Christian qua being signed with the character is subject to spiritual and not secular power, namely in things that pertain to Christianity, yet qua man he is subject to secular power; the easy response will be that the same may be said of a cleric as affected by the clerical character. Hence Navarrus himself labors to assign a difference, and, having rejected the opinions of others, he at length responds by denying the inference and by setting up a distinction between each character, “because the baptismal character” he says, “does not distinguish between Christians but rather gathers them into one body; but the clerical character distinguishes between the clergy and the Christian people.” However he does not further declare the thing, but says rather that he is omitting certain objections that he had made in another edition because their solution is easy.
13. Yet nevertheless the thing seems to need exposition, because the difficulty does not seem to be solved. For in the first place, every form constituting and uniting in some way all who have a like form distinguishes them from others who lack that form, and thus the baptismal character distinguishes from heathens or infidels not subject to the Church; hence it differs from the clerical character only in that the baptismal character only distinguishes from those who are altogether outside the Church while the clerical distinguishes among the faithful. But this does not seem enough for one of them to be exempt and not the other, because even the priestly character distinguishes not only among the faithful but also among clerics of a higher or lower order; therefore although the priestly character brings exemption along with it, it will not be the same in inferiors, or certainly not equally so. A like argument can be made in the case of inferiors, especially by distinguishing clerics in sacred orders from minor clerics. Or certainly, if the priestly character in the first grade, or even the first tonsure, which is what, through a certain special consecration, first distinguishes a cleric from a non-cleric, by that very fact introduces exemption of the person; then the baptismal character too, since it makes the first distinction of a Christian from a non-Christian, by consecrating the baptized person to Christ, brings with it a like privilege. The difficulty is also increased by the fact that the baptismal character would at least introduce exemption from the power of heathen princes, which, as was seen above, cannot be said. The consequence is clear; for the character of order, which distinguishes a cleric from a layman, exempts the person of the cleric from lay judgment; therefore, keeping the same proportion, the baptismal character, by distinguishing Christian from heathen, would exempt the same from the latter's jurisdiction. There is a confirmation too, that no less impropriety and no less danger is found in one of the faithful being judged by an infidel than in a cleric being judged by a layman; and therefore Paul, 1 Corinthians 6 reprehends the faithful who were bringing suits before infidels and not before the saints, that is, the faithful; where St. Thomas adduces various reasons of impropriety and danger, which, saving proportion, can be applied equally to each case, as will easily be clear to one who reads and considers. Hence Pope Alexander takes thence the converse argument to prove the exemption of clerics, ch. “Relatum” 11 q. 1.
14. But notwithstanding these things, and supposing what we have said about the priestly character, we reply that the same must be said of every character of order. For asserting which not a little help is given by the opinion of Alexander I in the canon just mentioned, along with others that we reported above. Now the reason is that although those characters differ according to more and less, yet they agree in this, that they consecrate the person by dedicating him to the divine cult and to some sacred ministry, by beginning from something inferior and of itself ordered to something supreme, which is priestly and episcopal, and by this reason such a character at once establishes a person as sacred and exempts him from secular things. And in this respect a distinction can be established between the character of order and of baptism; for the character of baptism does not make a person sacred by deputing him to a sacred ministry, but only signs him to Christ, and specially obliges him to keeping his faith, and it is of itself common to all men, and it is by accident that it does not exist in some people. And therefore it does not per se distinguish between faithful and infidel in things which have regard to temporal life and political status; and for that reason it does not bring with it exemption from jurisdiction for the faithful in the same civil and human matters in the way that the character of order exempts the cleric from the power of the laity; because, by dedicating a person to sacred ministry, that character per se distinguishes both the clerical and the lay state; and this perhaps is the difference that Navarrus wished to indicate in the said ch. “Novit.”
15. Hence also finally the same thing, it seems, must be said about other persons who in some other way instituted or determined by the Church are established in an ecclesiastical state. Which is what Navarrus thought above when conjoining the status of monk with that of the clergy; for the status of monk does not impress a character and does exist by institution and determination of the Church. And the same can be said of the first tonsure, which is the beginning of the clerical state without the impression of a character, and of any others that are similar. A confirmation can also be given from the ch. “Duo Sunt,” 12 q.1 , where two types of Christians are distinguished, and one is said to be “that which, having been delivered over to the divine office and given to contemplation and prayer, is fittingly removed from all the tumult of temporal things, such as are clerics and those devoted to God.” From which words one may collect that the same reason for exemption exists in the whole class of persons, because the whole class is dedicated to God and to the divine cult, which is the foundation for exemption, although the mode of consecration be diverse; therefore all these persons are deemed to have the same right as regards exemption.
16. And in this way will divine positive right be able to be applied to the whole class of persons, because from the whole class of persons the full family of Christ is completed, according to the opinion of Pope Thelesphorus in his epistle, where he speaks of all ecclesiastical persons under the name of clerics, and calls them the family members of Christ. Divine natural right can also be applied to them all, insofar as it is founded on the general reason of consecration or dedication to the divine cult, as I said. Nor is it an obstacle that the mode of this consecration or dedication to the divine cult exists in many of these persons by institution of the Church, because nevertheless, once the institution has been made, a natural right can result. Just as, although the consecration of the chalice is by ecclesiastical right, the exemption of the consecrated chalice from all common and non-sacred use follows by natural right. Or as we said in the matter of simony, although the consecration or benediction of some thing be by ecclesiastical right, nevertheless the fact that it cannot be sold insofar as it is consecrated is by natural right; thus therefore can it be said to be in the present case.
WHETHER, IF DIVINE RIGHT IS SET ASIDE, THE EXEMPTION OF CLERICS COULD HAVE BEEN IMMEDIATELY INTRODUCTED BY CANON RIGHT WITHOUT AID OF CIVIL RIGHT
1 - 2. Sense of the question. 3 - 4. Confirmation. 5. Sure and true sense of this question. 6. First proof. Evasion. 7. The evasion is refuted. 8. Second proof. 9. The argument is strengthened. 10. A question. It is resolved. Whether bishops in their dioceses are able by themselves to confer this exemption on clerics. Reason for doubt on the affirmative side. 11. Reason for doubt on the negative side. Confirmation. 12. The negative side is preferred. 13. Bishops can prohibit clerics from having recourse to secular courts. 14. Foundation of the contrary opinion. The indirect use of spiritual power is necessary even apart from the crimes of secular princes. 15. A servant initiated into sacred orders is exempted from servitude. 16. The Church is able, against the will of heathen princes, to exempt clerics from their jurisdiction. 17. Response to the confirmation. 18. A heathen prince ought not to be admitted to the faith under the condition of not observing the exemption of clerics. First reason. 19 - 20. Second reason.
HIS simply and absolutely posed question is not a necessary one, since we showed in the preceding chapter that this privilege was conceded immediately by divine right, and since above in chapter 3 proof was also given that it has been confirmed by canon right; yet nevertheless the question proposed must be treated ex hypothesi by us, both to complete the subject, lest we leave any question untouched and undiscussed, and also to protect the ecclesiastical power and make satisfaction to certain objections that militate against the above solution. For we ask whether, when the immediate concession of this privilege by divine right has been removed, the Supreme Pontiff could concede it by his supreme power without the consent of secular princes, or whether he is only able to prescribe and protect the observation of it on the supposition of their gift or consent. On this point not only do Marsilius of Padua and other heretics and schismatics, who follow his doctrine, deny that ecclesiastical power is sufficient for this without consent of the secular power, but also some Catholics seem to agree with them in this respect. For those suppose it who say that this immunity is primarily of civil right, as is the opinion of Medina, ch. “De Restitut.” q. 15, who says that this privilege is by concession of the secular power, signifying that otherwise it could not have been introduced. The same is also openly thought by Palacios, On Sentences Book IV, dist. 25 disput. 3, near the end, and it had been handed on before by Hostiensis on Summa Book III, title “De Immunitat. Ecclesiar.” § “Sed nec alia” near the end, where he says, “Now the Emperor could not have been compelled from the beginning to grant privileges, but once he had granted them he could not take them away;” and, as Rebuffe and Covarrubias, who are to be mentioned, reported, Peter of Ferrara expressly taught that opinion in his Practic. in the form of a little book, s. v. “Plenam.”
2. The foundation for this opinion could be that secular princes had from the beginning by the right of nature, or at least of nations, civil jurisdiction over the persons of clerics, and they were not immediately deprived of it by God himself, as they themselves think and as we allow for the sake of disputation. Therefore neither can they be deprived of it by the Pontiff; because just as they cannot be deprived of their dominion, so neither of a part of it, such as is this jurisdiction and, as it were, dominion over the persons of clerics; therefore neither can the Pontiff concede the privilege of exemption, because it could not subsist unless princes were deprived of jurisdiction. You will say that although the Pontiff may not directly deprive a secular prince of his dominion, he could sometimes do it indirectly by spiritual power, and in this way he could concede this privilege. But on the contrary, because this use of indirect power only has place as it were per accidens, either by way of defense of the subject faithful, when the prince is pernicious and an occasion for ruin, or by way of ecclesiastical punishment, when a criminal and incorrigible prince is deserving of such punishment — in which cases the Pontiff can even exempt the subject laity from subjection to such princes — here, however, we are speaking per se and when there is no intervening cause or guilt on the part of the prince. And this argument is particularly compelling in the case of infidel princes, because they are not subject to ecclesiastical power, whether directly or even indirectly; but it extends to faithful princes, because conversion does not make them to be of a worse condition nor deprive them of any part of their jurisdiction.
3. There can also be a confirmation for both. For faithful princes indeed, because we read that bishops either requested judgment from Emperors as long as these did not give up their right, as is plainly shown by the oft mentioned act of Constantine and of the bishops at the Council of Nicea; or that they secured this privilege from the Emperors, when they had desired to have it, as is collected from Novella 83 “Ut clerici apud proprios episcopos &c.” title 11 collat.6, where Justinian says that he has written several laws whereby he wished ecclesiastics to be judged by bishops alone, and afterwards he subjoins, “We have been petitioned by Menna, an archbishop dear to God, to give this privilege to the most reverend clerics &c.” And in many other laws, which we will refer to in the next chapter, the Emperors signify that this privilege was given by them and depends on their will. Nay, the third Council of Toledo ch. 21 requested the privilege of exemption for the servants of the churches, of bishops and priests, from the King of Spain, as is contained in ch. “Ecclesiarum Servos” 12 q. 2.
4. But about infidel princes there can be argument, because before they are converted to the faith they can expressly demand the condition, and be converted on the agreement, that none of their subjects be exempted from their jurisdiction, whether he be cleric or lay. But if the kings of Japan, China, or others similar seek baptism under that condition and refuse to receive it otherwise, they are not to be denied it for that reason; because that condition is neither intrinsically evil nor repugnant to the intention to believe all things necessary for salvation and to obey them. Therefore the condition is to be accepted, or at any rate tolerated, because of so great a good as is the complete conversion of the kingdom; but once the condition has been accepted it should be kept, since it is not unjust; therefore it is a sign that temporal princes have the right that, although they be converted to the faith, they are not deprived of their subjects or of a part of them; and consequently, although they do not expressly lay down the condition, they implicitly include or suppose it, because no one is to be judged to renounce his right unless he is sufficiently express in making it plain.
5. Nevertheless the true and sure opinion, whether or not this privilege of exemption has been conferred on all clerics immediately by Christ himself, is that Pontiffs could have conferred it and prescribed its observance to secular princes, and compelled them to agree. Thus did Innocent teach, in ch. 2 “De Maiorit. et Obedient.” For, when he proposes the question as to who exempts clerics, he first says that “the Pope, with the consent of the Emperor,” afterwards that “they are exempt by God,” and finally he says, “Or say that the Pope, even without the consent of the Emperor. could have exempted them from the jurisdiction of the Emperor by his constitutions, because since clerics are spiritual things, and have wholly given their body and soul to the service and lot of Christ, they are consequently subject to the judgment and constitutions of the Pope.” And the same opinion is common to the canonists in ch. “Ecclesia Sanctae Mariae,” De Constitut., especially Panormitanus, Felinus, Decius, Rebuffe in Concordat., last title, where he calls the opinion of Peter of Ferrara false and condemned; and the same is held by Alvarus Pelagius at De Planct. Eccles. I.44, at the end reporting and following to the letter the opinion of Innocent. The same is held by Driedo, De Libertate Christiana I.9, and Covarrubias, Practicar. ch. 31 concl.3 amd 4, Soto, Sentences IV dist. 25 q. 2 a. 2 concl. 6, Molina vol. I tract. 1 De Iustit., disput. 31 § Tertia vero, and Henry, De Indul. VII.24.
6. The proof is first from the decrees whereby the observance of this immunity is prescribed under censure even to temporal princes themselves, as is clear from ch. “Noverit” and ch. “Gravem,” De Sentent. Excommun., and last chapter “De Rebus Eccles. non Alienand.” and ch. “Quamquam,” De Censib. on 6, and in almost the whole chapter about ecclesiastical immunity in the Decretals, and in Sextus and from the Bull “Coena Domini” repeated so many times by so many Pontiffs; for in it they defend this ecclesiastical liberty through various articles and with automatic infliction of very grave censures even against temporal princes and kings. But perhaps someone could say that all these decrees are rather new and presuppose a privilege of exemption previously conferred by the Emperors, and so they also presuppose the consent of the temporal prince, which once given cannot be retracted; and therefore, on the supposition of that fact, all those precepts have place; yet nevertheless at the beginning the consent of princes was necessary, and without it the Church could not have enjoined the like precepts.
7. But this is surely incredible, both because the said Pontiffs do not found themselves on the principle that a privilege given to the Church by the Emperor cannot be revoked by him; for although it be true, as we will see below, it is yet not as certain as it is certain that the decrees and censures obligate all princes, even supreme ones, to not violating ecclesiastical immunity. The Pontiffs therefore do not rest for support on that principle, but either on divine right or on the supreme power, which they have from Christ, for ruling the Church and in particular sacred and ecclesiastical things, as they have judged is expedient for the divine cult and for the supernatural end of men. Hence many also of the older Pontiffs forbade clerics to be judged by laymen or to bring cases before them, even during those times when the Emperors were infidels, as is clear from ch. “Relatum” 11 q. 1, and from the others that we mentioned in chapters 3 and 4. But in particular this truth is confirmed by the Council of Trent sess. 25 ch. 20 “De Reformat.,” because, without making any mention of civil right, it says that “the immunity of the Church and of ecclesiastical persons has been established by divine ordination and ecclesiastical sanctions.” Wherein it openly supposes that this immunity has not drawn its origin from civil right or from the confessions of secular princes, otherwise it would have kept silent about the proper and immediate cause of this immunity and the doctrine would, in strictness, have been false or greatly diminished. But next it admonishes the Emperor, kings &c. that “the more they are adorned with temporal goods and with power over others, with the more holiness should they venerate the things that are of ecclesiastical right, as being the chief things of God and guarded by his protection, and should give due observance to the sacred constitutions of the Supreme Pontiffs and the Councils.”
8. Now this truth is by reason and at the same time by the authority of Scripture founded on the power given to Peter for governing the Church and for binding and loosing in all things that might be necessary for the good of the Christian religion and for the convenient governance of the Church. For this exemption, speaking per se and as from the nature of the thing, is very necessary for the Christian religion, so that ecclesiastical things and the divine cult may be treated with due reverence; therefore, on account of this end, power was given to Peter and to the Pontiff for loosing or exempting clerics from the civil power, and for binding the civil power itself, so that it may keep this immunity for ecclesiastical persons. This consequence is evident from what was said above about the power of the Pontiff about temporal affairs in order to a spiritual end; for it was shown there that this power is divine and supernatural, and accordingly per se sufficient so as to work effectively in its own sphere, not on the expected consent of the subjects, even if they be temporal princes, but by obliging them to consent and, if necessary, compelling them. Now the antecedent continues to have been declared and proved from the two preceding chapters. For if this exemption is properly and completely of divine positive or natural right, it is clear that the Pontiff can and should compel Christian princes to observe that right. But if this immunity is at least very close to natural right, and very much in conformity with the divine right and consent of all nations, as all the doctors without dissent admit, it certainly cannot be denied that this exemption is by the nature of the thing so necessary to religion and the divine cult that the latter could not be conveniently administered without it.
9. This can also be further declared by the reason touched on above, which on this point was even indicated by Innocent above; because sacred things are by force of consecration so subject to ecclesiastical power that this power not only makes disposition about consecration itself but also about the material and its appropriate use when already consecrated; and such that it prohibits not only things that are intrinsically evil but also things that can tend frequently and morally to irreverence for sacred things; but ecclesiastical persons are things very sacred and they can, by subjection to secular jurisdiction, be much distracted from the divine cult and be treated irreverently and despised by secular men, if their crimes are introduced publicly among laymen before the common tribunals; therefore such exemption has regard per se to spiritual power on account of the spiritual end. Lastly for this cause the Church could make disposition about marriage, not only as it is a sacrament, but also as it is a certain contract, because it is already matter for a sacred thing; and thus the Church makes disposition too about the goods of churches, and about tithes, and about many other things that, in their matter, are temporal; therefore it has the same power over this matter of exemption, which is also in its own way sacred and no less necessary for the divine cult.
10. But someone may ask whether the Pontiff alone has this power not only with respect to the whole Church but also with respect to individual episcopates. For in the prior way it is clear that only the Pontiff has this universal power for the whole Church, whereby we do not exclude a General Council for the Pontifical authority ought to be in it and it should be confirmed thereby, so that it can pass laws binding the universal Church. Therefore it can only be asked whether this privilege was not given by Christ or by the Pontiff generally to the clerics in the whole Church, or whether individual bishops in their own dioceses can confer it on their clerics. Now a reason in favor of the affirmative side can be that on each bishop is incumbent the care for making disposition about everything in his church that has regard to its convenient governance; and for this end each bishop can do in his diocese whatever is not forbidden him or otherwise prescribed by a superior; but this is not found to be forbidden them; therefore, on the supposition that the exemption had not been introduced by the Pontiffs, each bishop could bestow it in his diocese.
11. But there is to the contrary that bishops cannot in their dioceses do whatever is not forbidden them but only what is conceded to them, because they do not have jurisdiction of divine right but from the Pontiff; but it is not read that this was conceded to them. Next, the greater causes are reserved to the Pontiff, as is said in ch. “Maiores,” De Baptism. But the exemption of clerics, whereby supreme temporal princes are in part deprived of their jurisdiction, is a very grave thing and needs great authority and power; therefore either it was done by Christ or was reserved to his Vicar. There is also a confirmation, that bishops cannot in their dioceses increase this exemption; therefore neither could they introduce it if it did not exist. Lastly, from this sort of exemption scandals and disturbances could arise between princes and prelates, unless it be done with great prudence and authority; therefore whatever establishment can be made about this privilege must be believed to pertain to the authority and power of the Pontiff.
12. This second part, then, is more likely, which the practice of the Church also confirms. For the Pontiffs have used the greatest care in making disposition of all things that pertain to this exemption, nor have they left this faculty to bishops. There is also a very good reason, that this privilege (as is said in ch. “Si Diligenti,” De Foro Compet.) was introduced not for the favor of this or that person, nor for the favor of this or that episcopate, but simply “for the favor of the whole ecclesiastical college”; therefore the power of conferring it exists in the universal head alone of the whole college, who is the Supreme Pontiff. But this must be understood of this privilege as it is purely canonical and conceded by spiritual power alone independently of the consent or donation of secular princes.
13. Now there are two ways that bishops could prescribe exemption in their bishoprics even if it had not been generally introduced. First on the part of clerics alone, by prescribing to the clerics subject to them that in all court cases that they themselves introduce, or where they are free to choose the judge, they should avoid a lay judge and appear before their own bishop. For this would be a just precept and would not in strictness derogate from the jurisdiction of laymen; therefore it would not exceed the ordinary power of bishops. For just as Paul, 1 Corinthians 6, reprehended the faithful, who were bringing court cases among themselves, because they were conducting them before infidels, and whether he reprehended it because it was evil or because it was little fitting and dangerous, there is no doubt that he could prohibit it; so too bishops could forbid clerics from litigating, as far as was in their power, before laymen, even if they were not otherwise exempt, because just as it is not fitting for one of the faithful to conduct a case before an infidel, so, with preservation of proportion, it is unfitting and dangerous for clerics to be judged by laymen, by the argument of ch. “Relatum” 11 q. 1. In another way any bishop at all could prescribe in his diocese the observance of some exemption by accepting some privilege conceded by the prince or the supreme lord of the territory, which is per se manifest because such a privilege would be to the Church a benefit which it is licit for a layman to give and for a bishop to accept, and, once it has been accepted, the bishop has the power of prescribing its observance, because in that case he is not now depriving a layman of his power but guarding and defending an ecclesiastical thing.
14. To the foundation for the contrary opinion the response here, ex hypothesi, is that, because Christ did not of himself confer this privilege on clerics, the Pontiffs could by spiritual power have conceded it and, as a result and as it were indirectly, take from secular princes the jurisdiction that they had over the persons of clerics, or should have had were they not clerics. But to the reply here made, that this indirect use of spiritual power only has place per accidens because of the crimes or the tyranny of the prince, let the assumption be denied; for spiritual power also extends to temporal affairs even if there intervenes on the part of the secular prince no guilt but a sufficient cause on the part of the matter, as is the connection, whether the sufficient conjunction of the material thing with the spiritual or such relation to a spiritual end, such that, by reason of it, it is expedient for it to be directed or ordered by the spiritual power. For then the Pontiff has about such things the rights of heavenly and earthly rule, as Pope Nicholas II said in ch. 1 dist. 22. And in this sense there is no repugnance in the use of this spiritual power being per se, although it is indirect; for it is called per se because it is not by way of punishment nor by occasion of some evil by chance arising, but because, on the supposition of the human condition and of such an institution of ecclesiastical status, exemption is morally necessary for the spiritual end; and nevertheless the use is called indirect, because it is not on account of a temporal but a spiritual end, as was declared above.
15. Now the reason is that this power was per se given for the ordinary and convenient governance of the ecclesiastical monarchy, and therefore it is per se capable of whatever is morally expedient for its end, even if there is need to dispose or change something in temporal affairs. Most of all so indeed, because power was not given to temporal kings for their own advantage but for the agreeable government of the republic. Therefore, if in the republic itself such a change is made by reason of which exempting some persons from the jurisdiction of princes is expedient for the greater good of the republic, there is no marvel that the prince of the Church, who has a higher care and providence for the same republic when it has been raised to a higher order and state, could, on account of the same end, supply exemption. Especially since this ecclesiastical republic, as it has been instituted by Christ, is supernatural and has respect principally to the divine cult, for which this immunity is chiefly ordered. This fact can also be declared by an example. For if a servant receives sacred orders, he is sometimes freed from servitude, ch. “Per venerabilem,” Qui Filii sint Exempti, and ch. “Si Servus” 54 dist. ch. “Miramur,” De Servis non Ordinandis. Which thing the Church could establish for the due use and fittingness of the sacrament of order and of ministry even by depriving the master of the power which he before had over the servant, whether payment is given or even not given, when the master consents to the ordination. There is no marvel then that, by reason of orders, clerics could be freed by ecclesiastical power from temporal jurisdiction; for lordship over a servant is greater in its kind than lordship over jurisdiction alone; and secular princes, especially the faithful, give their consent, whether expressly or tacitly, to such ordination; and the Church has the right not to give them ministry in spiritual things except as it were under this agreement and condition (which is most just) that they should enjoy the immunity that agrees with such a state; therefore rightly can the Pontiff by his sole authority confirm this immunity and oblige secular princes to the observance of it.
16. But because at the end of that argument it is said that it has the greatest force with respect to infidel princes, the addition must be made that even at the time of the infidel princes the Church was able, and is able even now, in kingdoms and provinces of infidel princes, wherein churches have been founded – able (I say) to concede, against the will of princes, this privilege to clerics. But the power must be distinguished from the fact, or the right from the use. For we are speaking about right and power, and we are resting on the same principle and on the reasons given. There is a declaration too, for above we said with St. Thomas that the Church can, on account of danger, exempt all the faithful from the power of infidels; therefore by greater reason it could exempt priests and clerics on account of reverence for the divine cult. For the power of the Pontiff, in order to its end, extends even over infidels, and therefore it has the right of instituting what pertains to the true cult of God and what is fitting and expedient for it, even against the will of infidel princes. Just as it could prescribe that secular courts not be set up in temples, even by secular magistrates, and has the right of coercing them, if it can, to the observance thereof. For as regards what pertains to the fact or the use, the Church cannot with fruit and effect use this power with infidel princes; because they do not recognize in the Pope a power in any way superior, nor can they be compelled by censures or by the spiritual sword; but to use the material sword of war is difficult or sometimes more hurtful, and therefore the Church could more easily dissemble itself at that time. But how it should behave now, or could behave, we shall inquire below.
17. To the first part of the confirmation, which was about the ancient use by prelates of the Church of requesting from the Emperors either judgment in causes and controversies or the privilege of exemption for their clergy, the response can in the first place be made that it did perhaps have place at the beginning of the Church, because then the exemption of clerics had not been sufficiently introduced in use, or was not sufficiently known to an Emperor recently converted to the faith, as Constantine was at the time of the Council of Nicea; and therefore then a bishop could willingly and not by compulsion have requested judgment from him. Or it can also be said that the bishops did not approach Constantine as a judge having jurisdiction over them, but either as a defender and protector, which is the office of an Emperor, or certainly, which appears more likely, as an arbiter whom they voluntarily chose, because it was not then forbidden; but he himself, because of reverence for bishops, refused to accept that office. And for the same reason bishops could once have asked this privilege from the Emperors, not because it did not by right belong to bishops themselves, but either because it was not permitted to them in fact, even by faithful magistrates, to whom then perhaps the right of clerics was not sufficiently known; or certainly it was from urbanity and to make the thing to be done more sweetly that they asked for the consent of the prince. And finally some Emperors speak in this way in their laws, as if they were the authors of this privilege, because perhaps they so thought through ignorance, or to show that they were altogether renouncing their right and, as far as it was from them, giving it in such a way as if it depended on their sole will and power.
18. In the second part of the confirmation it is asked whether an infidel prince could be admitted to baptism who did not wish to permit the exemption of clerics in his kingdom, nay demanding under condition and agreement that he could not be deprived of such jurisdiction. On which point we say in the first place that even if we grant that the Pontiff can permit it in such a case, because it is not intrinsically evil, and accordingly such a prince can be disposed for faith and baptism, nevertheless it does not thence follow that this immunity depends per se and by right on the will of princes, but it only follows that the Pontiff can sometimes make dissemblance and not use his power for conceding or implementing such privilege in fact, on account of avoiding greater evils. But I add further that the condition is so unjust and contrary to divine right, whether immediately or at least indirectly, that it is not to be permitted, nor is baptism to be conceded to any prince under such an agreement. First because a Pope can never renounce the power that he has for conceding this privilege, or renounce the use of it, as often as he has judged it expedient for the universal Church or a particular church; but by that agreement he would seem to renounce this power, otherwise the condition would be frivolous and of none effect; therefore to allow it is never licit. Nay, although he may under that condition receive some prince into the Church, he would not afterwards be held to keep it, both because it would be against the good morals of the Church, and also because it was extorted by unjust force, as is the condition of paying usury in the case of loans.
19. Hence arises a second reason why this is not licit, namely that such a prince is indisposed to receive baptism, both because he sins gravely in imposing that force on the Church, and also because he seems to prefer his temporal status to baptism, since he does not wish to allow it unless such a condition has been conceded to him. And finally because, from the allowance of that condition in one kingdom, the Church could be troubled in other provinces already Catholic, and also, in the one that is newly converted, ecclesiastical immunity could never be conveniently introduced, and disturbances and scandals could always be feared. Wherefore, absolutely speaking, a condition of this sort seems unjust and in no way to be allowed, especially in an absolute way and without proposal of determination of time or other decent limit.
20. But if these things are true (as they really are) when the Church does not seem to have acquired right over a not yet baptized prince, assuredly for far greater reason such resistance is not to be permitted in a prince already faithful or baptized, who is subject to the Church and is bound to obey its just laws. Nor is it true that the condition is implicitly included in the voluntary reception of baptism; for since it is unjust and to be rejected if it is by chance expressed, how can it be implicitly included? The condition, therefore, that can be thought to be implicit is only that a temporal prince may not be deprived of his rights in all things that are not repugnant to faith and ecclesiastical obedience.
WHETHER THE PRIVILEGE OF COURTROOM FOR CLERICS IS ALSO FOUNDED ON CIVIL RIGHT
1. Sense of the question. 2. First conclusion. The exemption of clerics is also of divine right. By whom the aforesaid exemption was introduced. 3 - 4. Constantine conceded the exemption of clerics. 5 - 6. Constantius also conceded the same privileges to clerics. 7 - 8. The other Emperors too confirmed the same exemption. Valentinianus deprived clerics of exemption. 9. The privilege of courtroom was conceded to clerics before Justinian. 10. Justinian wished clerics to be judged by laymen in criminal matters. Whether the privilege of courtroom was restored by Charlemagne. 11. The privilege of courtroom in civil and criminal matters was very fully established by Frederick. In various civil laws too this privilege was introduced in Spain.
HE sense of this title or question is to be taken from the doctrine of the preceding chapter; for we are not now asking whether the first origin or principle, or the necessary cause, of this privilege is civil law or will, or the donation of secular princes, but whether in fact it was introduced with their consent, or at least whether it is of civil right in the way it was possible or expedient for it to be, whatever that way ultimately is.
2. With this sense proposed, then, the assertion is certain, and has been received by common consent, that this privilege was also conceded by civil right, or by temporal princes, which is to be understood from the time that princes became Christians; for before then it is clear that infidel princes conceded no privilege to clerics; but as soon as the Emperors began to be Christians they conceded immunity to clerics. Hence Constantine is first believed to have allowed this privilege (for no account is available about Philip because of his brief time). And some have said that at the time of the Pontiff Julius I Constantine gave assent to this privilege, as Almain reports on Sentences 4 d. 25 q. 1, whom he himself also follows; but it cannot be proved nor does it consist with the truth of the histories. For Constantine died at the beginning of the pontificate of Julius I; hence it is probable that those authors intended to speak about Constantius. But others consider that Constantine began this ecclesiastical privilege at the Council of Nicea, when he said to the bishops that they were to be judged by God alone; which is signified by Palatius on Sentences 4 d. 25 disput. 3. But in truth it is not collected from the words of Constantine that Constantine gave a new privilege but that he wished to compose and with a word put to rest the dissensions of the bishops by honoring them at the same time; or at least that he recognized in the bishops some immunity divinely conceded to their dignity.
3. Besides there is no doubt that Constantine conceded the privileges of immunity to clerics, for Book I Code, “De Episcop. et Cleric.” he exempted clerics and their property from new taxes and from being compelled to billet soldiers; which law is contained also in the Theodosian Code XVI l. 8, but it is attributed to Constantine and these words are given to him which Justinian omits: “And if any of you wish to engage in business for the sake of maintenance, let him possess immunity.” And in law 1 “De Lustral. Collat.” in the same Theodosian Code the same Constantine removes clerics from any tribute that was called “lustral tribute,” perhaps because it was required every “lustrum” or every five years. Besides in law 1 “De Episcop. et Cleric.” in the same Theodosian Code the same Constantine confirms that “clerics may not be burdened, contrary to the privileges granted them, with nominations or undertakings,” and he is speaking of nominations to secular public offices and of civil functions, from which he wished clerics to be immune, as he more clearly explains in law 2 of the same title; and he adds a reason saying, “lest, by the sacrilegious spite of certain people, they be called away from divine service.” And a similar rescript of Constantine is reported by Eusebius, whereby he wanted the clerics of the African province “to be immune and absolved altogether from all common and civil ministries of public affairs.” Now he adds a reason common to all clerics, “so that in no way by error or sacrilege and profane lapse, which is wont to occur in business of this sort, may they be drawn away from the cult due to the divine majesty.” And the same Constantine supposes the same privilege and declares how it is to be kept in law 6 of the same title of the Theodosian Code.
4. But because in these laws no express mention is made of the privilege of courtroom, although it would seem to be connected with the others, law 7 is to be added from the same title and code wherein the same Constantine thus speaks: “Clerics who have been summoned to court by the injustice of heretics are to be absolved and are for the rest, in likeness with the East, not to be called into the courts, and are to possess the fullest immunity.” Where one should notice that, although mention is made of heretics in the rescript, because the privilege was given on the occasion of the persecution of the Donatists, nevertheless the privilege itself was given absolutely, and the supposition is made that it was conceded before in the East and extension is being made to the Western Church. Nay, what is most to be noted, is that sometimes Constantine deferred so much to the judgment of the bishops that he allowed everyone, even laymen, to appeal in civil causes to the bishops, and he placed their sentences before those of the secular magistrates, as is clear from law 1 “De Episcopali Iudicio” in the Theodosian Code and from Sozomen, Histor. I.9. See Baronius for the year of Christ 330 at the end.
5. Besides in the same Theodosian Code, title “De Episcop. et Cleric.” are contained various laws of the Emperor Constantine in which he concedes similar privileges to clerics; for in law 9 he exempts clerics from “curial duties and from all the worry of curial functions”; and in law 10 he conceded to them “immunity from the exaction of mean offices and from the expenses of business,” which seems to have been exemption from paying tributes from the gains they were making by their own industry; for this he signifies in the reason that he adds when he says: “Since it is certain that the profits which they gather from stores and workshops will be to the advantage of the poor.” And the addition is made: “Let the exaction of feudal services also in like manner cease,” and later: “We order them also to remain immune from the census.” And likewise in law 11 he exempts clerics from “curial functions.” But he adds a restriction worthy of note when he says, “clerics who possess nothing at all and have no profit from an inheritance,” because perhaps clerics were then professing that status.
6. However, in these laws the privilege of the courtroom is not sufficiently explicated, although sometimes it seems to be insinuated by the general words. But in law 12 the same Emperor forbids “bishops to be accused in public courts, lest,” he says, “the minds of officials have means free to accuse them;” and therefore he subjoins, “the causes of bishops are to be heard before bishops.” Baronius also conjectures that Constantius conceded this privilege on the petition of Hilary, who, in his book to the same, whose beginning is “Your beneficent nature,” speaks thus: “May your clemency see to it and decree that judges do not hereafter make presumption and usurpation and suppose that the causes of clerics belong to their cognizance &c.,” where I estimate that by the words “presumption” and “usurpation” he seems to be demanding that a privilege not so much new as ancient not be violated. And thus Constantius confirmed an ancient privilege rather than conceded a new one; and in the same way in law 13 of the same title he confirms, together with Julian, the privileges conceded to the clerics of the city of Rome, and in law 14 in the same place he confirms the clerical exemptions from taxes conceded by Constantine.
7. Besides, this immunity was confirmed by later Emperors, although sometimes they tried to restrict or change it. And indeed Valentinian I, as St. Ambrose reports, Book II, epist.13, elsewhere epist. 32, “not only responded in word but also ratified by his laws that, in a cause of the faith or of any ecclesiastical order, he ought to judge it who is neither unequal in function nor dissimilar in right. For these are the words of the rescript,” says Ambrose, “that is, he wished priests to judge priests. Moreover, if also elsewhere a bishop was accused, and a cause of morals was needing to be examined, he wished this cause as well to belong to the Episcopal court.” But afterwards, because many were, for the sake of avoiding official cares and obtaining the Church’s privileges, becoming clerics, the same Valentinian in “De Episcop. et Cler.” decided that only he who had continued in the clerical state for ten years might acquire the immunities of clerics, as is gathered from law 19 “De Episcop. et Cler.” in the Theodosian Code. Later, however, Gratian in the last law of “De Episcopal. Iudic.” established “that clerics are not to be dragged into secular courts.” And next Honorius restored absolutely to clerics the same privilege of the courtroom, as is clear from law 41 “De Episcop. et Cler.” in the Theodosian Code, when he says about the causes of clerics: “Only bishops should hear causes of this sort, carried out on the evidence of many witnesses”; and in laws 29, 30 and 38 he confirms all the privileges conceded to clerics by his predecessors, among which without doubt the privilege of the courtroom is contained. It is also more expressly collected from laws 45, 46 and 47 of the same title. Whence, that the same privilege was preserved under Theodosius the Younger, can be gathered from epist. 54 of Augustine, whose words we will report a little later. But afterwards Valentinian III altogether deprived clerics of the privilege of the courtroom, as is clear from the book of his Novellae, title 12.
8. Again Baronius reports for the year 455 n. 25 that Marcian, the successor of Valentinian, restored ecclesiastical persons to their ancient liberty, having revoked the laws against it promulgated by his predecessors; he only alleges, however, the novella of the same Emperor, which is the last in Book III of the Novellae in the Theodosian Code, and in the law “Generali” in the Code “De Sacros. Eccles.” But therein are only revoked the laws by which clerics were forbidden to take anything left in a will from widows, but about the privilege of the courtroom nothing is there read. But in a certain scholium to the novella of Valentinian it is noted that the revocation of the privilege was retracted by the Augustus Maiorianus, which fact is also noted by Baronius for the year of Christ 452 n. 22, where he says: “These things were indeed basely promulgated by Valentinian at Rome, but with what injustice and impiety was demonstrated by the ordinance passed against them by his successor Maioranus.” But these authors do not report the ordinance of Maioranus, nor is it contained among his novellas which are found, after the Theodosian Code, in Book IV of his Novellae. Nor do I find, from that time up to Justinian, anything more clearly established about the status of this privilege that I can affirm with certainty.
9. Now from what has been said the falsehood has been plainly exposed that certain supporters of schismatics have at this time been saying, that the distinction of courtroom between ecclesiastics and laity did not exist in the Church before Justinian. For it is shown from what was said that several Emperors conceded or allowed this distinction of courtroom, as we have shown about Constantine, Honorius, and Valentinian I. Again, much older than Justinian, is that grave opinion of Ambrose at the Council of Aquilea, that “laymen should not judge priests but rather priests laymen,” which is also contained in the said epist. 13 to the Augustus Valentinian, and therein the distinction of courtroom is signified. It is also supposed by Augustine in epist. 53 to Macedonius, Proconsul and secular judge, who, when he asked Augustine why priests were interceding for defendants in the secular courtroom, received reply in turn from Augustine himself: “I know that you yourself along with your friends in the Church at Carthage have interceded for the clergy against whom the bishop was rightly angry, and certainly there was in the harmless discipline there no fear of risk of bloodshed.” In which words he openly supposes and declares the distinction of courtroom that was already then in use. Nay rather, the 2nd Council of Macon ch. 9 asserted that this distinction “was introduced almost at the beginning of Christianity by intervention not only of the canons but also of the laws.”
10. Justinian, therefore, was not the author of the distinction of the ecclesiastical courtroom from the secular, nor was he himself the first to concede the privilege of courtroom to clerics. Nay rather, although he seemed to concede or to renew the ancient privileges about this courtroom, yet he limited them to civil causes. For in criminal causes, when the crimes were not ecclesiastical but common, as theft, murder &c., he wanted clerics to be judged and punished by laymen, as is clear from novella 83, otherwise Authentica “Ut clerici apud proprios episcopos &c.” and from Authentica “Cassa” and Authentica “Clericus,” Code “De Episcop. et Cleric.” But some think that the privilege of courtroom was again fully restored by Charlemagne in a certain law by which he renewed another law of Constantine and of Theodosius, which we reported above, whereby it was established that all causes even of laymen might be ended by the sentence of bishops, as Gratian reports in ch. “Omnes” 11 q. 1, and Baronius more extensively, vol. IX for the year 801 near the middle. But, in the first place, that law did not speak about criminal causes but civil, for it would be very foreign to the episcopal office to give sentence in the criminal causes of laymen. Next, by that law the privilege of courtroom was not conceded to clerics but rather the opportunity was given to laymen to enable them to treat and settle their own civil causes before bishops. Lastly, this very privilege was either not accepted or certainly did not last long but was abrogated in use, as is noted by the Gloss, Hugo, Torquemada, and other doctors in the said ch. “Omnes” and ch. “Quicumque”' 11 q. 1, and more broadly by the Gloss on ch. “Relatum,” same cause and question. Wherefore although it is clear from the histories that Charlemagne conferred many benefits and privileges on clerics and priests, yet whether he established something singular about the privilege of courtroom I do not find written down, nor about the other Emperors who were after him up to Frederick II.
11. 8. Now this Frederick under Honorius III conferred on clerics the fullest privilege of courtroom in both criminal and civil causes, as is clear from his constitution which is contained in the volume after the books of fiefs, and from the Authentica “Statuimus”' in the Code “De Episcop. et Cleric.,” from the Authentica “Cassa,” Code “De Sacrosanct. Eccles.” Which laws were accepted by the Pope at the end of the said constitution in these words: “We Bishop Honorius, servant of the servants of God, give to these laws, published for the utility of all Christians by Frederick, Emperor of the Romans our most dear son, praise, approval, and confirmation as eternally valid for the future.” And this right was thus received in the whole Christian world, from which it is sufficiently clear that this privilege was confirmed by common civil right. It was also imitated by the laws of particular kingdoms, especially of Spain, both in its more ancient laws, Partita Prima title 6 law 51 and following, and in its new compilation, bk.1 title 3 from the beginning, especially laws 11 and 12, and of Portugal, Book II of Ordinances, over various laws; and we judge the same of the laws of other Catholic kingdoms.
A DIFFICULTY THAT ARISES FROM THE PRECEEDING CHAPTER IS MET, AND HOW THE CHURCH HAS USED THE PRIVILEGE OF COURTROOM AT DIFFERENT TIMES IS EXPLAINED
1. First doubt about the use of the privilege of courtroom. Reasons for doubting. 2. Second doubt: whether clerics were by imperial power exempt. Reason for doubting on the negative side. 3. Reason on the affirmative side. 4. For the resolution, two periods of time are distinguished. 5 - 6. First conclusion. 7. In the use of the privilege of courtroom the Church has always acted prudently. 8. Heathen princes never had true jurisdiction over clerics. 9. Clerics, from among the other faithful, always enjoyed the privilege of courtroom. 10. The opinion of the Fathers who understand the statement of Paul about elders is not opposed to the resolution already delivered. 11 - 13. The Church could always have compelled the faithful to keep the exemption of clerics. 14 - 17. Second conclusion: Clerics under the Christian Emperors began to enjoy exemption. Proof. 18. The reasons for doubting posited in the first doubt are solved. 19. Satisfaction is made to the reasons posited in the second doubt. 20. A certain evasion is precluded. 21. The deed of Charles V.
ROM what has been said in the preceding chapter a doubt arises about the use of this privilege of courtroom, for it seems to follow that either the Church did not use this privilege fully and constantly before the times of Frederick II, or that at many times it observed it against the opposition of the Emperors; but the first seems to be a considerable inconvenience while the second is difficult to believe; what then is to be said of the antiquity and manner of the use? For the fact that the Pastors of the Church did not exercise this privilege against the will of the Emperors, but dissembled and yielded to their will and power, can be concluded both because, in their decrees, they frequently allege the consent of Emperors and kings or the agreement of civil rights; and also because we do not read that they fulminated their censures against any Emperor who, before Frederick II, took away the privilege of courtroom either altogether or from a part of the clergy, as we reported about Valentinian and Justinian. Nay, the Emperors themselves, who seem to have very much favored clerics in this privilege, sometimes assumed, even at the request of the very bishops and clerics, this jurisdiction in some causes, and the Pontiffs did not resist them but seemed rather, by seeing it and keeping silent, to give their consent.
2. And hence arises another difficulty which Barclay, ch. 35 in Bellarmine, has touched on, because although many Emperors conceded to clerics this exemption from their courts and magistrates, yet we do not read that they exempted them from their own proper and imperial power. For never did they make it clear, which however would seem necessary in so special a privilege. And they showed the opposite in their deeds, as I said. He himself also alleges the modern deed of Charles V, who ordered Herman, Archbishop of Cologne, to be summoned to court before him, so as to clear himself of certain crimes objected against him. He might also allege the difficult words of Justinian in Authentica “Nullus Episcopus,” Code “De Episco. et Cleric.,” which read thus: “Let no bishop be brought or produced before a civil or military judge in any cause unless the prince commands,” where it is clear that exemption from inferiors, not from the prince himself, was conceded. And the same can be taken from Authentica “Sed hodie” under the same title, at the place, “Except when they are, by order of the prince, called to other provinces.”
3. But there is to the contrary, first, that this is repugnant to the many Councils asserting that this immunity is very ancient and was observed from the beginning of Christianity. The fact is also proved by reason, because it seems incredible that the Church lacked for so long a time a use and observance of immunity absolutely necessary for the good of religion and the decency of the ecclesiastical state. Especially since it is proper and immediately of divine right, or at least so close to it that the right cannot be kept without it. Second, because it would hence follow that even now clerics do not enjoy complete exemption, because they will at least be subject to the jurisdiction of the Emperor, of kings, and of all supreme princes, because neither did Frederick II agree to this exemption in any other way than his predecessors did, but :he renewed, restored, and ordered to be kept” what they themselves did; the other Emperors and kings too after Frederick did not renounce more of their jurisdiction; but the consequent is an intolerable error, although Barclay insolently allows it.
4. On this point two periods of time must be briefly distinguished, one is from the beginning of the Church up to Constantine when temporal princes were heathen, the other is from Constantine up to Frederick II; but we omit the third time from Frederick up to our times, because about these four hundred years there is no doubt but that the Catholic Church fully and wholly kept this privilege without the contradiction of any Christian prince who was not held to be a heretic or schismatic. In addition, about the two first times, the other distinction given above must be passed over, about the right of using this privilege and about the fact of it or the effective use itself thereof; for often the one who has a privilege does not use it, although he might by right do so, because he is not able to do so in fact. But this inability in fact can exist either in individual private ecclesiastical persons, if they are compelled to attend secular courts, or in the Supreme Pontiff, if he cannot resist with effect or fruit the secular power that is inflicting this violence.
5. About the first time, then, we must say that this privilege could not have been fully observed or vindicated by the Church, not from defect of right, but from defect of capability in fact or from executive defect (so to say). This assertion was insinuated above and has, as to the first part about the right, been sufficiently proved, because this privilege was both immediately conceded by divine right and, had it not been, power was given to the Church, and obligation imposed on it, to introduce it. But a difference is to be noted between these two modes whereby this privilege could be by divine right, because in accord with them there can also be distinguished a double mode of having the right in respect of this privilege. For in the first way the right will exist in fact with respect to clerics all and singular; but in the second way it will exist only as a right to the fact. For if the privilege was conceded by Christ in the first way, all clerics at any time whatever were actually exempt from the jurisdiction of heathen princes, and this we call a right in fact, and consequently princes were also deprived of jurisdiction over clerics, because these two things are connected. From which it also follows that clerics at that time could in conscience have disobeyed the laws or pronouncements of heathen princes or judges, and, if they were coerced by them, could have repelled force with force, had they the power and strength; because if infidels did not have jurisdiction over them, clerics were suffering injury at their hands and were in conscience not bound to put up with it, save perhaps for avoiding scandal or some other like extrinsic reason.
6. If, however, the privilege exists only in the second way, that is, it was conceded through the Pontiffs in force of their power and the precept of divine right, clerics thus had at that first time only a certain right to the privilege but did not during it have the right, because they were not actually exempt until the Church instituted it or actually conceded it. And consequently infidel princes were not at that time deprived of their own jurisdiction which they had over the persons of clerics, because we do not read that the Church at that time used the power or the right which it had to exempt clerics, or to deprive princes of jurisdiction over them. Hence further it happens that clerics were at that time obliged in conscience to obey the laws and the pronouncements of magistrates even of heathen ones, because they proceeded from true jurisdiction. And for the same reason they were bound to be subject to their coercive force, if they used it justly in any way.
7. Now between these two ways of explaining this right, although the first is more probable, yet in each is very well made plain that the custom which the Church kept in the use of such privilege was always in conformity with reason and the prudent government of the Church. For although the Pontiffs had at that time the power and the precept to exempt clerics altogether from the jurisdiction of secular princes, yet they were acting prudently in not using that power, because it was not expedient for the Church, for they would be attempting it without fruit, and with scandal and impediment to the faith; and for that reason they were not transgressing divine right, because the precept was an affirmative one, whose nature it is not to be obligatory for every time, and so it did not oblige at that time. And likewise although the privilege of courtroom were conceded immediately by Christ in the first way, the very probable and prudent explanation is that it was given with such a dependence on the Pastor and Governor of the Church that, without his consent and determination, it was not licit for individual private persons to use the privilege according to their own choice. For this dependence cannot be denied, as I already said, both because it is proved by use and experience itself, and also because it was very necessary for the peace and good governance of the Church. Hence it happens that one must absolutely say that clerics could not at that time in conscience resist the jurisdiction of secular princes, because the Church had declared or established nothing on the matter, and, besides, those princes were using their right as something judged to be in good faith, although they were otherwise infidels. And this way of explaining this right is conformable to Paul in Romans 13, and to the opinions of the Fathers, especially of Chrysostom and of the Greeks when they are expounding Paul.
8. From which one may gather whether it should be said that clerics at that time were by right exempt, although they were not in fact, and (which is the same) were subject to the jurisdiction of princes in fact, not by right, and thereupon by usurped, not true, judgment; or whether they were rather in some way truly and rightly subject. For I think it should be said that clerics were, on their own part, by right exempt, because they enjoyed this privilege by divine right, as was said. And consequently secular heathen princes did not have proper jurisdiction over them; they could, however, have been excused from formal tyranny by ignorance. And nevertheless, for avoiding greater evils and lest a just war be by ignorance allowed to each side, the pastors of the Church then permitted ecclesiastical persons to obey temporal kings and magistrates; they also wanted them to be held as legitimate judges and superiors in temporal and honorable affairs; because it was a lesser evil to tolerate them, and as it were to commit to them office in their own stead, than either to disturb the ecclesiastical state or to leave clerics without legitimate judges in actual use. In this way, therefore, notwithstanding the immunity conceded to clerics by divine right, they could at that time be judged by laymen, not by a specially usurped right but by a true right, if the cause was otherwise a temporal one and was handled legitimately.
9. But there must further be added that clerics at that time did in some way have the use of this privilege within the Church itself in regard to the other faithful, the Church so disposing, as far as the state of the time permitted. The proof and the declaration are after this manner; that always the Church forbad the faithful to draw clerics before lay judges but before the ecclesiastical courtroom. Which law we find was passed, not only by many Councils that met after the times of Christian princes and that were mentioned at the end of chapter 3, but also by several of the older Pontiffs, especially by Alexander, Caius, and Marcellinus in their decretal epistles, which I cited in the same place. For although at that time infidel princes were exercising their jurisdiction, and therefore their magistrates could be true judges in the causes of clerics after the manner declared, and a cleric accused or cited before an infidel lay judge would be held to appear at the command of such a judge, nevertheless the Church could set up an episcopal courtroom wherein the causes of clerics, as far as was possible on the part of the Church, would be dealt with. For it always had both the power for this purpose given by Christ and the opportunity to exercise it. And therefore from the time of the apostles it already had the use of it, and it is openly taken from the verse of 1 Timothy 5:19, “Against an elder receive not an accusation, but before two or three witnesses,” which words suppose that already then an episcopal tribunal for judging the causes of clerics had been set up.
10. One must also carefully consider that Paul does not speak of ecclesiastical causes but of complaints against clerics in criminal causes; for an accusation is proper in those; and since Paul speaks indefinitely and simply, his opinion is not restricted to ecclesiastical crimes; about any crime at all, therefore, could and should an elder then be accused in an ecclesiastical tribunal. Nor does it matter that Chrysostom, Theophylact, and the Greeks apply the word 'presbyter [elder]' not to the dignity of the priest but to the time of old age. This, I say, is not an obstacle; both because in that sense an ecclesiastical tribunal is proved from that place for the causes of the faithful, and with greater reason for the causes of clerics, for these could not be of a worse condition if the others were allowed, which fact we are not now examining because it is of little importance for the present cause. And also because the more probable exposition is that of Ambrose, if the commentaries are his, and of Jerome, with the same correction, of Anselm, of St. Thomas, and the Latins who interpret that place as about priests. For Paul was speaking about them in the words that immediately precede, when he says, v. 17: “Let the elders that rule well be counted worthy of double honor, especially they who labor in the word and doctrine,” and immediately he subjoins, v. 19, “Against an elder receive not an accusation &c.” There was also greater reason to set up an ecclesiastical tribunal for clerics than for other faithful older laymen, because clerics are under the care and governance of prelates by a more special reason than are the common people of the faithful, for the reason that they are more especially dedicated to ecclesiastical ministries, as was said. And in this way there was from the beginning of the Church some discrimination of the ecclesiastical courtroom from the civil, not only for ecclesiastical causes, but even for others, and for the crimes at least of clerics, as was also noted above.
11. With this distinction supposed, then, the Church could at that time very well forbid clerics to be accused or brought before the tribunals of laymen by other clerics or by the faithful. For although it could not forbid this to infidels, among whom the faithful were then living, because they were not subject to the Church, nor was it able to compel them, and thus they could start a suit or an accusation before their own judge, whom alone they recognized to be legitimate; nevertheless the Church could prescribe to the subject faithful that, if they wished to accuse a presbyter, they should do it in an ecclesiastical tribunal, because thus was it very fitting and necessary for preserving divine right and for the honor of the Christian religion and the decency of the ecclesiastical state, which at all times, as far as the condition and state of the time allowed, the prelates of the Church were bound to provide for.
12. But the prohibition was just at that time, because although secular princes were exercising their jurisdiction, their faithful subjects were not held in any way to start an accusation or a suit before them, but were able to settle their own controversies or suits in any honorable way; therefore could the Church licitly and prudently forestall and bid the faithful to proceed against a cleric in an ecclesiastical and not in a secular court, and consequently could even gravely punish with ecclesiastical censures transgressors of this precept. Most of all, indeed, because although by this precept causes of this sort were in some way removed from lay judges and their jurisdiction was in part impeded, or taken away, it was altogether licit by force of divine privilege; but also because it fell at least indirectly under the spiritual power of the Church, because of the good of religion and the supernatural end; and the use of such power it could then exercise without scandal to the faithful, or impediment or disturbance to the faith. Rightly, therefore, did the Church thus forbid in fact, as it could by right, clerics to be brought before secular tribunals. The fact is confirmed by Pope Alexander, because if Paul prescribed (1 Corinthians 6) the causes of Christians to be brought before churches and there concluded, the Pontiffs too could prescribe priests to be accused before bishops alone; which argument is also used by the third Council of Carthage, ch. 9, and about it St. Thomas on the place from Paul can be looked at.
13. Thus therefore did the Church at that time, in the way it could, begin to rescue clerics from the court of seculars, and in the same way it began to guard their immunity, not indeed fully and in every part, because then it was not opportune, but, as I said, as much as it could on the part of the faithful. Hence rightly could that prohibition be called a certain privilege of courtroom for clerics, just as the prohibition under special censure against anyone daring to lay violent hands on a cleric is a great privilege for clerics, which is called a prohibition of the canon. For just as this prohibition of the canon was made for the sake of the ecclesiastical state, so also was the ancient prohibition put in place that clerics, as sacred and religious things, should be reserved also for a certain sacred court, as far as it could be done. This privilege was also increased at that time by another ecclesiastical law, whereby it was conceded to clerics that they could not be accused by laymen but only by clerics, or conversely laymen were prohibited from daring to accuse clerics; about which prohibition many decrees are reported by Gratian 2 q. 7, of which the more ancient are those of Evaristus in epist. 2, of Fabian, epist. 1 amd 2, of Eusebius, epist. 1 and 2. However this prohibition was afterwards made more plain or limited, as can be seen in the whole of that question. And these remarks are sufficient for the first period of time.
14. About the second period of time one must say that, almost from the beginning of the Christian Emperors, clerics were exempt from the secular courtroom, both by a proper right that was also really obtained through a privilege actually conceded, and also in fact, except when they were prevented or coerced by injury or tyranny. This assertion can easily be proved from what was said in the preceding chapter. And the first part is indeed well known because this privilege was conferred immediately by Christ himself. Nay, although some application by the Pontiff was necessary, it could be proved in this way. For the Church or the Pontiffs always wanted, insofar as was in them, to preserve this immunity of clerics, because they were held to it by divine law, and because it was most fitting for the good of religion; but, in the time of the heathen princes, they could not try to accomplish it because of their lack of ability; therefore, by the very fact that Christian princes readily submitted themselves to this immunity, Pontiffs introduced the use of it and perfectly established it. But we showed that Constantine, when he became a Christian, either acknowledged and allowed this immunity, or, if there was need, donated it; therefore at once too the Pastors of the Church both accepted the donation and, if anything more was necessary on their own part, added it; therefore, from then on clerics began to have not only the right to immunity but also the privilege itself and the actually conceded use of it.
15. Hence the second part of the assertion is easily proved, because as the observance of this privilege was not only introduced in right but also in fact, only the consent and authority of Christian princes was wanted; but Constantine, as we said, at once provided his consent, and established by his authority that it should be entrusted to execution; therefore nothing could stand in the way to prevent this immunity from being entrusted to execution in fact and in use. The same is also to be believed of the others who, together with succeeding Constantine in the empire, succeeded him in faith and piety, with a few exceptions who, either through ignorance or ambition, attempted something contrary to this immunity. Which fact is sufficiently confirmed by the rest of the things that we adduced about the other Emperors up to Frederick. And in the said title “De Episcopis et Clericis” many laws of the Emperors are found wherein civil magistrates are rebuked who did something against this immunity of clerics, and if any contrary customs were little by little introduced they were reproved and retracted; therefore here is a sign that, ordinarily and with just judges, the exemption was also preserved in fact. Hence the Emperor Frederick, who confirmed it more clearly and generally, did not decree it as a new thing but as already made firm “by imperial and canonical sanctions,” and therefore in the cited law he established that none should presume to bring a cleric into a secular court “contrary,” he says, “to the imperial and canonical injunctions”; therefore already before that fact it was presumptuous and unjust, and thereupon the contrary was legitimate and obligatory at that time.
16. And hence the last part of the assertion openly follows. For as to what concerns use, we cannot deny that, in the course of those times, many things were done and attempted against this immunity, not only by inferior magistrates, but also by the Emperors themselves; but it is not licit thence to infer that those deeds were either valid or licit, for secular judges are hostile to clerics, as is said of laymen in ch. “Laici,” together with similar ones, 2 q. 7. They also always study to increase their jurisdiction, either from their own human ambition or from desire to please temporal princes, or sometimes indeed from zeal for justice, but not according to knowledge. Whatever, therefore, was done at that time against the immunity by any Christian magistrate or prince was no less unjust and tyrannical than what in later times up to the present day has been or is being done. Because, after the privilege of exemption was conceded and established, whatever is done contrary to it is a work of usurped jurisdiction and power and thereupon unjust and tyrannical. And in this order must be put any retraction of previously conceded privilege whatever that has been done by secular power, even imperial power, because an Emperor cannot take away what Christ has given either immediately of himself or through his Vicar. Nor does it matter that the privilege was not given without the consent of the Emperor, because that consent was not the proper and per se cause of such privilege, nay was not even a condition simply necessary for its worth, but it was waited on for the use only by the kind and prudent providence of the Church; and therefore a retraction of that consent following afterwards cannot taken away or change the privilege. Nay, although this privilege were principally given by the Emperors, it could not afterwards be revoked by them, as I will show more at length below.
17. Wherefore, notwithstanding the revocation made by Valentinian or anyone else, this part of the assertion always had place and truth, because all the things which were at that time done afterwards were unjust and tyrannical; because the privilege to which they were contrary always subsisted, and because, since its revocation was made by tyranny, whatever was done in virtue of it participated in the same iniquity. But I speak always of the deed itself considered in itself, not of the persons, who perhaps could sometimes be excused by ignorance. For certainly the Emperors at that time do not seem to have known the proper origin and excellence of this privilege; for that is why they so speak of it as if it were a proper gift of the Emperors themselves, dependent, that is, on their decision; and so some of them, by human ignorance and without heresy, could think that they were able to take away a privilege once given. But however it may be with their guilt or excuse, the deed itself considered in itself was unjust and of no worth or efficacy. And therefore the Fathers of the Council of Anjou, who gathered in France after the revocation was made by Valentinian III, took no account of the law of Valentinian and, for the defense of immunity, established that it was not licit for clerics to resist the Episcopal court nor, without consulting the priests, to seek out the courts of seculars, as Baronius reports for the year 453 n. 3, for that Council is not contained in the volumes of the Councils. Also the Council of Chalcedon, which was celebrated immediately after Valentinian III, similarly prescribes, ch. 9, that the distinction of courtroom is to be kept by clerics. And although this Council seems to prescribe to priests alone that they are not to go before secular judges, nevertheless the 1st Council of Macon, celebrated a hundred and thirty years later, made disposition, ch. 7 , that even judges who presumed to judge clerics should be kept away from the doors of the Church. From which is sufficiently understood that the revocation was reckoned by the Fathers of the Church to be of no worth or moment. Which fact afterwards the Emperors too understood better, and therefore they restored ecclesiastical immunity to its former state.
18. To the first difficulty, then, posited at the beginning the response is easy; for we say that the Church always used the ecclesiastical courtroom for its clerics, but could not always equally exempt them from the secular courtroom, because at the time of the infidel Emperors, as I said, it did not exercise immunity with respect to them; because, although this could not be done without disadvantage, it was patiently to be endured, because it could not be avoided without greater disadvantage, or at least because it could not simply and effectively be delivered to execution. But after the times of the Christian Emperors the Church always retained its privilege intact; but, at the beginning, it waited on the consent of the Christian Emperor for the use of it, so that the thing might be done more sweetly and effectively in imitation of divine wisdom and prudence. And for the same cause the Pontiffs in their decrees allege the consent of the civil laws. And for the same cause, although some Emperors turned their back on it in those ancient times and did something contrary to this immunity, they were not at once condemned or punished by the Pontiffs, because the right and foundation of the exemption was not yet sufficiently known and explained to them, nor perhaps were they then capable of it; and therefore they could not be forcefully coerced without greater loss, but the Fathers judged it more opportune sometimes to make some dissemblance and teach the truth and introduce the use of immunity little by little. But never did the bishops or Pontiffs require secular judgment from the Emperors in ecclesiastical or clerical causes, unless perhaps they were heretics or schismatics; but Catholics only interposed the authority of the Emperors for obtaining, without impediment, a legitimate and ecclesiastical judgment. Which fact is rightly explained in few words in the Council of Milevis, ch. 19, “It has been adopted that anyone who has sought from the Emperor the cognizance of public judgments should be deprived of his proper honor. But if an Episcopal judgment is required by the Emperor, nothing should prevent it.” And the same is declared in the third Council of Carthage, ch. 38, and it is contained in the chapter “Petimus,” 11 q. 1; and something similar is contained in the same place in the following chapter, and it is taken from the chapter “Christianis,” 11 q. 1, which is from Pope Gelasius writing to a certain count that he should protect certain clerics from the violence of a certain secular prince, says “Let them be fortified by the protection of your Sublimity.” On which matter can also be seen epist. 68 of Augustine.
19. To the second difficulty, which Barclay started, the response is that, although perhaps some Emperors, through ignorance or error, so understood the privilege that they did not think clerics were exempted by it from their own supreme power, nevertheless they were deceived, because the Church has otherwise introduced or declared this exemption. For, in the said ch. “Placuit” just cited, the Council of Milevis expressly said that the judgment of clerics cannot be asked for “even from the Emperor,” and in the said ch. “Christianis” Pope Gelasius considers it to be against ecclesiastical immunity that a proceeding is made “by royal authority” against a cleric; and Pope Gregory, epist. IV.31, otherwise ch.75, writes to the Emperor Maurice: Let not lordship over clerics by earthly power be such that it does not devote due reverence to them.” Here he tacitly rebukes him, since at that time he was studying to exercise tyrannical empire over priests, as Gregory himself complains of on the Fourth Penitential Psalm (as I reported above), but he speaks moderately to him lest perhaps he be provoked to greater savagery. He did not, however, omit to propose to him the example of Constantine, who responded to the bishops where they were disagreeing among themselves, “Go and discuss among yourselves, because it is not proper for us to judge Gods.” Besides in many other decrees it is said absolutely that laymen do not have any jurisdiction over clerics, as is expressly said in the Council of Constance. sess. 31, and the Lateran Council under Leo X. sess. 9 and in others that we referred to above; but it is manifest that under the name of laymen Emperors too are included, for since they are not clerics they are assuredly laymen.
20. Next, even the Emperors themselves, although they do not speak about themselves in particular, yet often speak generally and with so much evidence that they signify the same sense. For Constantine in the said law 7 of the Theodosian Code “De Episcop. et Cleric.” determined that clerics in the West as in the East “should possess the fullest immunity;” and Theodosius in the last law of the same title confirms this privilege and says that the causes of clerics are reserved “for the audience of the bishop;” they are therefore exempt from every lay audience, even the imperial one. Nor can it be said that this is only understood of the first instance, but that by way of appeal it was always licit to call upon the Emperor; for this is both gratuitously said and has a proof of its falsity; both because never in the Church was appeal made from the bishops to the Emperor, but either to the metropolitans, or to the patriarchs, or ultimately to the Supreme Pontiff, as is expressly handed down in the Council of Chalcedon ch. 9; but from the Supreme Pontiff it was never licit to appeal to another tribunal, whether ecclesiastical or lay, as Pope Gelasius said to the bishops of Dardania and to Faustus, and as is handed down by the Council of Sardica canons 4 and 7, and by many other decrees of the Pontiffs and Councils which we reported in the previous book to prove the supreme authority of the Pontiff. Therefore the causes of clerics, by the very fact that they are reserved to bishops, are to be concluded within the ecclesiastical courtroom, and so they are set up outside every lay courtroom, right up to the very tribunal of the Emperor. And certainly the reason rendered by that last law makes this sufficiently firm: “For it is not right,” it says, “that the ministers of divine office should be subject to the decision of temporal powers”; for assuredly the imperial power is also a temporal power; therefore it too is comprehended under the indefinite term, which is equivalent to a universal. And lastly in the same way, by an indefinite and general locution, the same privilege was conceded by Frederick II and confirmed by Honorius III.
21. But as for the deeds of Emperors that are alleged, or can be alleged, to the contrary, we reply in general that perhaps many of them were not exercises of an act or jurisdiction but of intercession or assistance, which the secular arm is wont to grant to the ecclesiastical, as we said above about Constantine and others. Or certainly they could sometimes be excused because they were not giving judgment by their own authority, but on petition of the prelates themselves and as a sort of arbiter between them, or rather they were composing quarrels; and then if any of these deeds could not be excused even by other reasons, one must reply that they went too far in usurping jurisdiction, as Gregory cited a little before said about Maurice, and as we have already said about Valentinian III, and as Baronius shows at large for the years 452 and 453. Now as to the very recent deed of Charles V, whom we know to have been a signal protector and observer of ecclesiastical liberty, we reply that Charles could have summoned the Archbishop Herman to him, not as Archbishop, but as a prince of the empire. Again that he could have issued the summons not as judge but as protector of the clergy and of the academy of Cologne. For Surius, who reports that deed for the year 1545 in his commentary, says at the same time, “In the month of June of this year Caesar received under his patronage the clergy and academy of Cologne.” In order therefore to protect the afflicted, he could summon the bishop so as to discern the truth and avoid harms to the Church, until the Pope should draw the cause to himself; which he did do a little later, in the following month of July, by citing Herman, whom afterwards the Pontiff even deposed, with the cooperation of Charles, as the same author reports at the beginning of the year 1547. Lastly as to the words of Justinian in those Authentics I find nothing said by the Glosses or by the jurists; but it does seem to me that he went to excess in fashioning laws about ecclesiastical matters, and did not hold the force and origin of ecclesiastical immunity with sufficiently clarity, and so he made many dispositions about it through error and without legitimate power, as was already touched on above, and as will occur time and time again in what follows.
WHAT SORT OF EXEMPTION THERE IS FOR CLERICS IN CIVIL CASES
1. Formal cause of the privilege of courtroom. The material of the privilege of courtroom is double. 2. First conclusion: clerics in civil causes are exempt from the secular court. 3. Proof also by reason. 4. Clerics enjoy the aforesaid exemption only when they are defendants. 5. Whether the Church could concede the privilege of courtroom without limitation. First reason for the negative side. 6. Triple confirmation. 7. Second conclusion: the Church could exempt also a cleric who is a plaintiff. 8. Proof. 9. The contrary reasons are solved. 10. To the doctrine of Bartolus. 11. Whether the rule put in the preceding paragraph allows an exception to the privilege of courtroom. First exception. It is rejected. 12. Second exception. 13. Third exception. 14. Fourth exception. 15. He who unjustly seizes the goods of the Church ought to be arraigned before an ecclesiastical judge. A certain objection is refuted. 16. Fifth exception. 17. By no custom can a defendant cleric be brought before a secular court. 18. Sixth exception. It is made plain. 19. Whether, because of the negligence of the ecclesiastical judge, a defendant cleric can be brought before a secular court. Reason for doubt. 20. The doubt is refuted. 21. Why the negligenc e of a secular judge can be supplied by an ecclesiastical judge but not conversely. The rights adduced to the contrary are expounded.
ITHERTO we have only shown that the immunity of clerics is fitting to them, or that the privilege of courtroom was conceded to them, and we have at the same time explained the origin of this privilege; and by giving the reason for it we have made plain the efficient and final cause of the same privilege; it consequently follows, therefore, that we should explain what this privilege is; which cannot be done except by inquiring what is conferred by a privilege of this sort; for the whole reason and essence of any privilege whatever consists in the right or power which is given by it according to its general idea; but the species is taken from the matter in which or about which it revolves. And thus also it will happen that whatever could be desired about the cause as the material cause of this privilege will be explained at the same time. For about the formal cause, indeed, there is nothing for us to say, because the liberty or immunity is itself as it were the moral or internal form, wherein the privilege itself consists; but the external form is nothing other than the concession itself which is done by the words of Scripture or of the canons; which words have been rather often dealt with and weighed in what we have said hitherto and in the course of the whole book. On the matter, then, most depends knowledge of the immunity, but this matter can be distinguished into two members: in one are contained the things, the actions or passions, or the functions and other like things from which exemption is given; under the other are included the persons to whom this exemption is given. We must, then, speak about them individually, and thus we will explain not only the essence and causes but also at the same time the effects of this privilege.
2. The first, then, and so to say most ancient matter of this privilege is the civil courtroom or the secular tribunal, wherein temporal lawsuits pertaining to the external goods of fortune are handled. It is certain, therefore, that clerics are exempt from the secular courtroom in civil causes. The proof is first from the canon De Foro Compet., ch. 2, where the discussion is in general terms; just as also 11 q. 1 chs.1 and 3 with many others similarly gives prescription indefinitely, that clerics are not to be brought before secular courts, and in the chapter “Nullus Clericus” a distributive addition is made: “All business of clerics in their bishop’ s &c." and in ch. “Nullus Episcopus” it is said specifically, “Nor for a civil cause”; and in ch. “Placuit,” "Whoever has sought from the Emperor the cognizance of the public courts;” and in ch. “Placuit” 2, at the place: “Or a civil cause has been brought,” and many like things are read in that question. And in ch. “Saeculares” De Foro Competent. in the sixth part it is said that secular judges are to be curbed by ecclesiastical censure who presume, when a cause has been heard and judged, to compel ecclesiastical persons to pay debts; which cause is without doubt a civil one.
3. The same is in addition certain and constant in the civil right of the ancient emperors, who speak indefinitely about the whole forum. And although the emperor Leo, with his colleagues, in the law “Omnes,” Code, De Episcopis et Clericis conceded in certain cases, and with certain conditions, that clerics could be arraigned in the secular forum, even in civil causes, this was afterwards revoked, first by Justinian, who spoke absolutely about civil causes in Authentica “Ut Clerici apud Proprios Episcopos,” collat. 6, otherwise novella 83, then especially by Frederick, who in his constitution spoke specifically about both causes, civil and criminal. And it is noted by the Gloss on Authentica “Statuimus,” at the word “Vel civili,” Code, De Episcop. et Cleric. And thus this part is indubitable among Catholic doctors. But the reason or congruence is that in this matter there is for this exemption the same, or greater, necessity as is found in any other matter, both because civil suits are wont to be more frequent, and also because there was greater danger that about these temporal things secular judges would be less favorable to clerics, or would at least be remiss in giving them justice in court, as is said in ch. “Cum sit Generale,” De Foro Competenti.
4. To this rule, however, a clarification must be added, namely that clerics are exempt in civil causes when they are defendants or are challenged to a suit at law; for if they are plaintiffs they should follow the courtroom of the defendant, as was determined by Pope Pelagius, reported in ch. “Experientia” and ch. “Si Quisquam” 11, alleging the general rule of each right, that the plaintiff follows the courtroom of the defendant, ch. “Neminem,” along with many others, 3 q. 6 last law, Code “Ubi in Rem Actio,” and in law 2 and law 4 “De Iurisdict. et ubi Quis Convenire Debeat” in the Theodosian Code. Hence this rule proceeds not only when a cleric challenges a cleric of a different diocese, or of a distinct ecclesiastical courtroom, but also when a cleric makes demand of a layman, for then he cannot use the privilege of courtroom, because he ought to follow the courtroom of the defendant.
5. But so as to give a reason for this clarification, the question can be asked whether the Church has thus limited this privilege because it could not concede a greater one, or only because it did not want to. For it seems the first should be asserted; for if the Church could remove clerics from secular courts, even when they are plaintiffs in civil suits, it would assuredly have done so; for the same necessity then intervenes, that no lesser harms could result for clerics, whether they be plaintiffs or defendants, from communication with laymen in secular courts; and there will be the same danger of losing causes and of having hostile secular judges, according to the rule ch. 2 “De Immunit. Ecclesiar.” at 6; therefore if the Church did not do it, it is because it could not. There is also a confirmation, that the Pontiff cannot usurp the jurisdiction of laymen, according to the ch. “Novit,” De Iudiciis, and the others dealt with above; but if he might exempt a cleric even when plaintiff from the secular court, he would be usurping the jurisdiction of laymen; therefore he cannot do it. Proof of the minor. First, because lay judges would be deprived of the jurisdiction which pertains to them. Second and better because the defendant would be compelled to appear before a judge not his own, namely an ecclesiastical judge, and so the Church would usurp jurisdiction over a layman.
6. Herein there is to be noted a difference between a plaintiff and a defendant; for the plaintiff comes to court not compelled but voluntarily starting it; and therefore, when he acts against a cleric, it is no wonder that he is compelled to go to a judge who is not per se his own but the cleric's, because he who is compelled ought to have a better condition than he who compels; but, however, when a layman is defendant he is compelled to appear, and therefore he cannot be compelled to appear except before his own direct judge, otherwise jurisdiction over him would be usurped; therefore for the same reason the privilege could not be conceded to a plaintiff cleric of bringing a layman before his own courtroom or (which is the same) outside the layman's courtroom. There is confirmation too from Bartolus, on the said law 3 “De Iurisdict. Omnium Iudic.,” where he asks whether it could be determined that the defendant follow the courtroom of the plaintiff; and he replies that a prince can make statutes of this sort for his subjects but that he cannot determine that a man not of his jurisdiction be held to follow the courtroom of the plaintiff, because no one can make determination about things which are not of his jurisdiction. Which decision of Bartolus and the reason for it seems to proceed equally in the present case, because a layman is not subject in temporal affairs to ecclesiastical jurisdiction. And it can be further confirmed, for if one of the faithful bring a civil suit against an infidel not subject to the Church, the Church cannot compel the infidel defendant to follow the courtroom of the faithful plaintiff; therefore the same will hold of the present case.
7. Nevertheless one should say that power is not lacking to the Church to exempt a cleric even as plaintiff from the secular courtroom, although by sweet providence and prudent government it has not done so, because of a certain natural equity to which it is agreeable that he who is accused and brought unwillingly to court should not be compelled to go outside his courtroom, lest he sustain a double disadvantage. For also because of this equity, "when the rights of the parties are obscure, the defendant is rather to be favored than the plaintiff," as the rule of right 11, at the sixth section, has it. The first part of the assertion can be taken from the Gloss on ch. “Si Clericus” at the word “De consuetudine” and in ch. “Ex Transmissa” at the beginning, De Foro Competent., insofar as it says that the Pope not only can, but also frequently does, concede rescripts and privileges to clerics, so that they may in any cause whatever, even when prosecuting a layman, compel him to come to their own courtroom; which opinion is also followed by Panormitanus, and he refers to Archidiaconus and Speculator. But Hostiensis in his Summa title “De Foro Compet,” § “Quibus ex Causis” vers. “Ex Praemissis” says that in the Roman curia a cleric obtains without distinction this favor against a layman.
8. From this common custom and opinion, then, the assertion is proved that the favorable privilege, which the Pope can concede to many clerics as individuals, he can also concede to all clerics, in favor of the whole community and clerical state, if he judge it expedient; but often he concedes it to many ecclesiastical persons, so that even when prosecuting they be exempt from the secular courtroom; therefore he could also concede it to the whole clerical state. The major is proved first because there is, as to what concerns the power, the same reason of the whole as of the part, if a proportionate cause subsist. Second, because the custom sufficiently shows that a privilege of this sort is not in its kind and form intrinsically evil, nor against natural justice; therefore neither could such iniquity be by probable reason shown with respect to the whole clergy. Which reason absolutely proves the assertion, and shows that the custom of conceding such privileges to certain persons is just and conformable to reason, which will be further proved by responding to the arguments. Add that, since it has been shown that this privilege of exemption was immediately conceded by divine right, it seems more difficult to explain how the Church could make this limitation than whether it could not make it; because the privilege, by standing on divine right, is altogether absolute and was conceded without limitation; therefore the Church could implement it and fully conserve its use. But because, as we have often said, this privilege was so given by Christ that it was committed to the disposition of the Pontiffs as to its regulation, extension, or particular alteration, therefore the Church could regulate it in the aforesaid way and in part cede its right for appropriate reasons, which will be more explained by solving the arguments, and the second part of the assertion will be proved.
9. To the first conjecture, then, we reply by denying the consequence, for not everything which can be done, or is licit, is expedient. Hence although it be true that there is no lack of appropriateness on the grounds of which the Church could concede this favor to the clergy, nevertheless the Pontiffs wanted to be in conformity with the civil laws in this rule, that the plaintiff follow the courtroom of the defendant, as is in said in the said ch. “Si Quisquam” 11 q. 1, both because this is very consonant with natural equity, as I said, and also because prosecutions of this sort, and the bringing of suits for temporal things, ordinarily proceed from too much affection for wealth, which does not become ecclesiastical persons, and therefore, speaking as a rule, clerics ought to avoid these sorts of prosecutions, especially for their own temporal goods, unless compelled by evident and grave reason. Lest, therefore, the Church seem to be favoring these sorts of suits, it did not wish to exempt clerics when acting as plaintiffs but only as defendants, because they are only defending themselves, which is both just and honorable. The Church could also thus act lest the ecclesiastical courts be burdened with very many suits from laymen, and so as not either to offend laymen and seem to have too much affection for forensic jurisdiction. And so, when private exceptions or favors from this rule are made through special privileges, they are not conceded only because of general reasons of fittingness or advantage to the clerical status, but when other special reasons are adjoined according to the occurrent circumstances.
10. To the second confirmation, and the doctrine of Bartolus, the response is that it can be turned back in the contrary direction; for if a prince can establish among his subjects, or grant the privilege, that the defendant follow the courtroom of the plaintiff, the Pope too can give the same privilege to clerics in respect of the other faithful; because they are all subject to him. Nor is it an obstacle that faithful laymen are not directly subject to the Pope in temporal things; for it is enough that they be indirectly subject; for just as spiritual power suffices for making disposition of temporal things when a spiritual end and reason require it, which is to make disposition indirectly, so too the same power suffices for conceding the privilege among those who are directly subject in spiritual things and indirectly in temporal ones. For which cause, when the Pope concedes these sorts of special privileges, he does not usurp the jurisdiction of the secular court but commits it to another by his superior power. Neither too is the defendant compelled to appear before a judge not his own, but the cause is transferred from one judge to another by him who has legitimate power. What, then, we say of particular privileges should be said too in general, if the concession is from the absolute power of the Pontiff. Hence I amplify it with a final addition, that this pontifical power extends of itself also to conceding this privilege with respect to infidels, if it be necessary for the good of the faith and to avoid moral dangers, as was said above; the use, however, of this power cannot be thus effectively entrusted to execution in the case of infidels, because they cannot be spiritually compelled as the faithful can, and there is often not enough force to compel them corporeally.
11. Now it can be asked whether the aforesaid rule or its declaration suffers any exception. To which we reply briefly in the affirmative. But one must note that this exception can be assigned on the part of the persons to whom this privilege is conceded, or on the part of the causes or the matters that are dealt with. We omit now, therefore, the first mode of exception; for we must deal with the persons below, and we will there say which of them enjoy this privilege simply and which with a certain limitation. In the second kind, then, a first exception is assigned by some people about real causes, that is causes founded on a reality merely temporal, without any personal action of the cleric himself intervening whereon the suit or cause is founded; because in that case the person is not under obligation, nor is he brought to court, but the thing which is merely temporal is. Now the privilege of courtroom only exempts the persons of clerics so that they cannot be arraigned civilly. But this exception is not a true one and derogates much from the privilege of clerics, and therefore it is commonly rejected, as Abbas well noted on ch. “Qualiter,” De Iudic. n. 8, and on ch. “Ecclesia,” De Constitut. n. 22, and use itself sufficiently condemns it. The reason is that a general rule of right exempts clerics from being able to be arraigned civilly in a secular court; but this is an exception from the rule that is proved by no right; therefore it is not to be admitted, especially because it is little consonant with other rights, as can be seen in Panormitanus above, in Felinus, and others.
12. Another exception, then, true and common, is about fiefs or feudal goods; for in causes that pertain to these goods, although the cleric is defendant and is arraigned by a layman, he ought to be arraigned before the lord of the fief, even if the lord be a layman; the reason for which is none other than that so in right is it disposed in favor of fiefs, ch. “Ex Transmissa” and ch. “Verum,” De Foro Competent., where see at large the expositors. Or certainly also the reason can be given that things that are given in fief are from the beginning conferred under a burden or condition, therefore the condition is to be kept.
13. Hence there is another general exception, which is sometimes handed down by the civil laws under these words, namely that a cleric is to be arraigned in a civil cause before an ecclesiastical judge “unless the goods, about which the suit is brought, are royal,” for they are reckoned to have been given under this condition. And it is the same whenever goods are from the beginning given to clerics or the Church under the condition that they always remain under the same courtroom under which they were at the time existing. For such a condition is not per se evil and can be voluntarily attached, and therefore it is to be kept, according to the rule commonly accepted by jurists that when goods are given to the Church under some condition or burden or contract that is not illicit, it is to be kept, because to keep a contract belongs to the right of nature, which canon right does not contradict; nay it expressly confirms it and in its proper form, ch. “Verum,” De Conditionib. Appositis, where the fact is noted by Panormitanus and other doctors, Joannes Andreas and Hostiensis on ch. “Verum,” De Foro Compet., Felinus on ch. “Ecclesia Sanctae Mariae,” De Constit. and Ancharrano cons. 223. Besides these exceptions, others are wont to be added that Navarrus has touched on, ch. “Novit.,” De Iudiciis Notabil. 6, from Stephanus Aufrerius, decis. 126 &and 167, and from William Benedictus in Repetition. ch. “Rainutius,” De Testam., but I omit them because they are not certain and because this matter pertains not so much to theologians as to jurists. Hence other exceptions are pursued at length by Gergorius Lopez on law 57 tit. 6 partit. 1.
14. But about this declaration of the assertion other exceptions can be noted. One is if the goods, about which the suit is brought, belong to the Church or a cleric, for in that case the cleric can bring the layman before an ecclesiastical judge. So is it held by Panormitanus in ch. 'Ecclesia Sanctae Mariae,' n.22, when he says it is a singular case in ch. “Si Clericus Laicum,” De Foro Compet., where he himself teaches the same, so interpreting the text. He also adds that it is so kept in the curia, as (he says) is reported and followed by Collector on ch. “Qualiter” and on ch. “Clerici,” De Iudiciis. However Felinus inclines to the contrary opinion in the said ch. “Si Clericus Laicum,” n. 4. His foundation is that this is not directly laid down in the said ch. “Si Clericus,” as is clear from its words: “If a cleric accuses a layman about his own goods or those of the Church, and the layman avers that the things themselves are not the Church’s or the cleric’s but his own property, he should by strict right be brought before a public judge.” In which words disposition is only made that when the layman denies that the things are the Church’s or the cleric’s he cannot be brought before an ecclesiastical court. But it cannot hence be inferred that when he does not deny it he cannot be brought before an ecclesiastical court. Which argument is not efficacious when such a sense is against other general rules of right, as it is in the present case, because a defendant is not be brought to the plaintiff's but to his own courtroom. And this opinion pleases me more.
15. A certain difference, however, can be noted between the goods of the Church and the goods of clerics. For if it is definitely clear that the goods of the Church have been seized, whether unjustly taken away or retained, then a layman can, by reason of the sacrilege, be arraigned before an ecclesiastical judge; but it will be otherwise if it is not clear that the goods are unjustly detained and the layman contends that he possesses them by some just title. And only this is proved in the said chapter and in ch. “Similiter” 16 q. 1, taken from the sixth Roman Council under Symmchus. But the goods of clerics are not sacred in the way that things of the Church are, and therefore they can, without sacrilege, be taken even unjustly; and therefore although a suit be brought about them for this cause, the lay defendant should be arraigned before a lay judge, unless some force committed against the cleric be alleged, which involves sacrilege, as Innocent thinks on ch. “Cum Sit,” De Foro Compet. Now it can be objected that, in the said synod under Symmachus, the things of bishops are made equal in this respect to the goods of the Church. But the reason of the Pontiff is to be considered: “Because the things of bishops are without doubt things of the Church.” And thus I understand the text according to the custom of that time, when the lordship of the goods of a bishop was reckoned to rest with the Church, but now a distinction of lordship is sufficiently well known, and therefore the reason is different.
16. Another exception is that by custom an ecclesiastical plaintiff can sometimes bring a defendant to his own courtroom, and thus an exception is made in this matter concerning the rule, because the plaintiff follows the courtroom of the defendant except where something else has by custom been introduced. This exception is wont to be collected from the chapter “Si Clericus,” De Foro Competenti, where, after Alexander III has said that the plaintiff by strict right should follow the courtroom of the defendant, he adds “Although in several places it is by custom held otherwise.” Which words can be understood in two ways: first, that the aforesaid rule and strict right be kept, even if a contrary custom is alleged, because it is contrary to all right, as the Gloss there says. Second, that the rule and strict right be kept except when there is by custom derogation from it. And this latter is the legitimate sense, as Hostiensis, Joannes Andreas, Panormitanus, and other expositors there recognize, and they found it on the aforesaid exception. Which is openly indicated by the very words of the Pontiff, which are thus read in the Lateran Council itself under Alexander III p. 8 ch. 7: “Although in several places it is by custom done otherwise,” which does not reprove the fact but rather approves it tacitly. And the reason is that the custom is not evil, nor contrary to natural right, as is clear from what has just been said; therefore to this extent it can derogate from positive right; but it is also, from a different direction, favorable to religion, and therefore it is rightly approved and kept.
17. There is to be noted here a difference between this custom and another (if it be anywhere introduced), that a lay plaintiff bring a challenged cleric to his own courtroom; for although the first is valid this one is not valid, because the first favors ecclesiastical liberty and increases it, but the latter is contrary to immunity, and derogates much from divine right. And, therefore, the fact that it is in right condemned is also noted by the same interpreters on the same chapter, and we will say more at large below in its own place. However, the Gloss says in the said ch. “Si Clericus” that this custom was introduced by occasion of the neglect of secular judges, because they were not giving justice to clerics, by the argument of ch. “Cum sit Generale &c.,\” ch. “Licet” and ch. “Ex Tenore' De Foro Competent.” But this pertains to the fact, for the custom could be introduced by the piety of laymen or even by a certain thoughtlessness. And, on whatever occasion it was introduced, the exception has place, because the text speaks simply and also the same reason holds. There can be a like exception too, that the plaintiff follow the courtroom of the defendant unless something else be legitimately conceded to him by a special privilege, which is sufficiently clear from what has been said, and nothing needs to be added except that the tenor of the privilege should be observed according to the common rules of privileges.
18. Another exception can in fact hence be added, namely that also when custom or privilege is removed, if a lay judge neglects to provide justice to a plaintiff cleric, the layman can be arraigned before an ecclesiastical judge. Thus the Gloss seems to think on ch. “Cum sit Generale” at the word “Remissi,” and on ch. “Licet” at the word “Vacante,” De Foro Competenti, which is there approved by the doctors, and they found it on those texts, although it be not sufficiently collected from them except in the cases expressly therein, namely in certain criminal causes, about which we must speak in the following chapter, or when the empire or a magistracy is unfilled, such that clerics fail to find a secular judge to whom to have recourse so that justice might be provided them. Yet nevertheless, by parity of reason, the exception is to be admitted. However, it seems it must be understood in this way, that, when a lay judge is negligent, a cleric can have recourse to an ecclesiastical judge who can compel the lay judge by censures to use his office justly, by the argument of ch. “Administratores” 23 q. 5, because the fault is grave and injurious to clerics, and therefore it pertains to an ecclesiastical judge to apply the remedy. Hence if a lay judge is stubborn, the ecclesiastical judge can rightly take the cause to himself, partly in punishment of the negligent and stubborn judge, partly in defense of the cleric. And thus too can the other exceptions be easily understood that are posited by the Gloss on the said ch. “Licet,” about which the expositors also thereon can be consulted.
19. Now it can be asked whether this exception about the negligence of a lay judge similarly has place when an ecclesiastical judge is negligent with respect to a lay plaintiff demanding his property from a cleric. For it seems it should be admitted, because Justinian in Authentica “De Sanctissimis Episcopis,” collation. 9, otherwise novella 123 ch. 21 § “Siquis autem Pecuniaria,” established that, in case of negligence by an ecclesiastical judge, it is licit for a lay plaintiff to summon the cleric before a secular judge. And in novella 83 or Authentica “Ut Clerici apud proprios Episcopos &c.” he extends it to other cases. It is also referred to in ch. “Siquis cum Clerico” 11 q. 1, and is favored by ch. “Filiis” 16 q. 7, where the Gloss, at the word '“Regis,” has the same opinion. However no account is to be taken in this of the decisions of Justinian, who could not limit the exemption of clerics, because this matter is not of civil right but of canon right, as I will say more generally below.
20. One must say, therefore, that it is not licit for a cleric, because of the negligence of the ecclesiastical judge, to be arraigned before a secular one. Thus did Innocent III determine in ch. “Qualiter et Quando,” De Iudiciis, where he prescribes to prelates that they act to provide full justice to laymen complaining about clerics, lest by this occasion clerics be brought by laymen before a secular court, “which (he says) we altogether forbid to be done.” Which prohibition is so to be understood that it not only simply forbids clerics to be brought before secular courts, which was already prohibited before, but also prohibits it from being done for that cause or occasion or under that color. And thus was the text understood by the Gloss thereon, and very well by Panormitanus at number 7, and the same is held by the Gloss on ch. “Placuit” 1, 11 q. 1, at the word “Petierit,” and Archdiaconus on the said ch. “Filiis.” Now the reason is that a secular judge has no jurisdiction over a defendant cleric, nor can the Emperor or a king give it; nor does he, because of the negligence of an ecclesiastical judge, ipso facto acquire it by force of natural, divine, or canon right; therefore without jurisdiction he cannot take up such a cause. Next, a lay judge is inferior to an ecclesiastical one; but an inferior cannot supply the defect of a superior. Therefore &c.
21. And from here is easily collected the difference between the secular and ecclesiastical judges; for the secular is inferior, and therefore his negligence can be supplied by the ecclesiastical, that is, by virtue of canon right, which is above civil, and thus he decides by the power which the Pontiff has for correcting defects of secular judges. But an ecclesiastical judge is superior, and therefore a secular judge cannot per se and (so to say) by his own virtue supply his defect; nor by virtue of civil right either, which also has no power over a cleric, whether direct or indirect. Nor did canon right wish to give such power to him, nor to permit it, on account of the decency of the clerics and prelates of the Church. In that case, then, remedy is to be demanded from the superior prelate. But as to what is said in the said ch. “Filiis,” that if the prelate be negligent the king can be asked for help, either it is understood only of a special case, when the goods of the Church are being squandered by clerics, on which that text speaks; or it is understood that an approach can be made to the king, not as to a judge, but as to a protector and defender, so that he might with his authority admonish the prelate, and might in the meantime guard and protect the things of the Church by his own power, until the Supreme Pontiff can be consulted. In which way are to be understood and reconciled the many rights that are reported by Gratian, 11 q.1 ch. “Si quis Clericus,” ch. “Placuit,” ch. “Christianis,” 23 q. 3 ch. “Ab Imperatoribus,” and q. 5 ch. “Regum,” and ch. “Administratores.” About which we will add something below in the last chapter.
WHAT SORT OF EXEMPTION THRE IS FOR CLERICS IN CRIMINAL CASES
1. First assertion. Canon rights which concede exemption absolutely from the secular courtroom. 2 - 4. Diverse readings of the canon about this sort of exemption. 5 - 6. What Gratian decided about the crimes of clerics. 7 - 8. The aforesaid laws of Justinian were nullities.9. Whether this assertion suffers exception. Conclusion. 10. The assertion is confirmed by reason. 11. Whether the rule already laid down may be extended. 12. Response. Even in criminal matters the prosecutor should follow the courtroom of the accused. 13. Those who commit wrongs against churches or strike clerics can be brought before the ecclesiastical court. 14. Whether the privilege of the courtroom may be extended to crimes committed prior to it. Reason for doubt on behalf of the negative side. 15. Reason for the affirmative side. 16. True resolution. 17 - 18. The limitation imposed by certain people is rejected.
HERE is a general rule that ecclesiastical persons enjoy immunity or privilege of the courtroom in criminal causes “not only in ecclesiastical crimes but also in civil ones,” to use the words of Justinian so distinguishing in the place immediately to be cited. This assertion is most certain and is received by all Catholic writers; and it cannot be denied except by denying some principle of faith. For it is so evidently handed down in canon right that no one who does not labor under great ignorance could deny the assertion, except he who has denied that there is in the Church a power for either guarding or conceding this sort of exemption; but this is repugnant to the principles of the faith, as we have shown. Now the ancient canon decrees on this matter are found in 11. q.1 Some of these indefinitely prohibit clerics from being transferred to the secular court, as ch. 1, ch. “Placuit,” and the like, and they comprehend, as I said above, all causes both civil and criminal. Others prohibit laymen from accusing, detaining, arresting, or punishing a cleric, as ch. 2, ch. “Nullus clericus,” ch. “Si quis clericus,” with others. But those words are proper to criminal causes. Others speak expressly and formally of criminal cause, ch. “Nullus episcopus,” ch. “Clericus nullus,” ch. “Placuit,” from the second Council of Carthage, ch. 9, and ch. “Clericum,'”from the third Council of Agde, ch. 3.
2. About this canon one must note that it is read differently in the Council itself than as cited by Gratian. For Gratian speaks of “cleric” in the accusative case: “Let no one presume to indict a cleric before a secular judge &c.” But in the Council “cleric” is said in the nominative case: “Let no cleric presume to indict anyone before a secular judge.” A similar decree is read in the same way in epist. 2 of Pope Marcellinus, whence the Council seems to have taken it. But those readings give very diverse senses, as is clear. Hence it is probable that Gratian himself had made use of some badly written Council, because it cannot be presumed that Gratian changed the words of the Council on purpose, nor is it as probable that an error occurred in the Pontiff’s letter and in the Council. But this is not an obstacle, both because other decrees are sufficient to confirm the truth, and also because other words are added in the same place which signify the same exemption. For Marcellinus, after he said, “Let not a cleric presume to bring anyone to a secular court,” added “Nor is it licit for a layman to accuse any cleric.” Which, if understood absolutely the way it sounds, is certainly a greater privilege for clerics; but if it be referred to the secular court only, as is probable in accord with the words just preceding, what is contained there is exemption of a cleric from the secular court in a criminal cause. For that it is why he cannot be accused, because he cannot be judged. But if he ought not to be accused by a layman, much less should he be so by a cleric, which is there supposed as known.
3. Also the Council, after it has prohibited a cleric from indicting another, adds,“But if he is indicted (to wit a cleric, for it is continuing to talk about him), let him not respond, nor propose, nor dare to present,” or “dare to propose” as Gratian rather reads, “a criminal proceeding in a secular court.” In accord with either sense, both are contained in that canon, namely that a cleric not accuse a layman before a secular court, especially on a criminal charge, without consulting his bishop, and that he not respond if accused or indicted. And so, as far as the sense is concerned, the reading of Gratian reduces to the same with the order changed. For when it says, in the first place, “Let no one presume &c.” it declares the privilege of the cleric; but when it says at the end. “Nor let a cleric dare to propose a criminal proceeding in a secular court,”it insinuates the other prohibition made to a cleric, against accusing a layman on a criminal charge without the license of his bishop. This was first handed down by Pope Fabian, epist. 2, and it is contained in ch. “Si quis sacerdotes,” 2, q.7; and a similar canon is contained in the Council of Orléans, 3, ch. 31.
4. Later decrees also decree the same immunity in criminal matters, ch. “Clerici,” and ch. “Qualiter et quando,” De Iudiciis, and ch. 2, and ch. “Si diligenti,” with similar ones about the competent courtroom. And in the said ch. “Clerici,” Alexander III says that in this respect civil right agrees with canon right, because it delivers laws in a general way, that a cleric should come in the case of any crime before an ecclesiastical judge. Which is true of modern civil right, for Frederick expressed it specially in his constitution and it is contained in Authentica “Statuimus,” De Episcop. et Cleric., and Honorius III accepted it, and it has been confirmed by all later rights of Catholic kingdoms.
5. But in the older civil right Justinian established the contrary, in the said novella, 83. There he distinguishes two crimes: certain ecclesiastical ones, as error in the faith, sacrilege, faults in administering orders or benefices; and about these he concedes that a cleric is to be summoned only before the ecclesiastical courtroom, which is not a concession (whatever he himself may seem to have thought), but a recognition, and a confession of divine right. Other crimes he calls civil faults, and about these he wanted judgment, even in the case of the persons of clerics, to belong to secular judges. But he adds a limitation in these words: “This fact is plain, that if the superior of the province thinks the one who has been summoned is guilty, and judges him worthy of punishment, he must first be despoiled of his sacerdotal dignity by the Bishop, and thus come to be under the hand of the laws.” He seems to have understood this with respect to the execution of the punishment, for no faculty or diligence of the Bishop was required for beginning and prosecuting the case and for taking cognizance of it. And so thinks the Gloss thereon.
6. However the same Gloss adds that, for passing sentence of condemnation, the despoiling and depriving of the priesthood had to have preceded, although a secular judge could pronounce a sentence of acquittal without the cooperation of the Bishop. But I do not see how a Bishop could degrade anyone (for that is what despoiling of the priesthood is) before sentence has been given about the crime and about the punishment to be inflicted because of it. Hence the words themselves indicate this fact, at the place: “if he thinks the one who has been summoned is guilty, and judges him worthy of punishment.” Therefore this judgment had to precede, at least a legal and authentic judgment, because it is pronounced by sentence of condemnation. When therefore it is subjoined that "he must first be despoiled", the implicit meaning must be: before the punishment is inflicted, not: before sentence is passed. So in fact is it declared in Authent. “Clericus,” Code, De Episcop. et Cler., at the place, “Nor may he however be punished, even if he has been found guilty.” For that reason, then, it does not seem it can be understood generally of every sentence of condemnation, nor of every punishment; but of a punishment of blood, or a corporal punishment, so severe or offensive that privation of the priesthood is required beforehand; for not every punishment requires this, as is clear in the case of exile, life imprisonment, fines, and the like. Therefore, by the force of that law, clerics are wholly deprived of the privilege of the courtroom in crimes that are non-canonical in their whole business and cause, besides the execution of certain punishments which demand a degradation made by the Bishop. But later the same Justinian, in Authentica De Sanctissimis Episcopis ch. 21, limited this and made these crimes of clerics to belong to a mixed courtroom; and when they were first summoned to the secular courtroom he established another order, which can there be seen. And before Justinian this had been established by Valens and his colleagues, in Book XXIII De Episcop. et Cleric. in the Theodosian Code.
7. However, these laws were not only repealed by the constitution of Frederick (as the Gloss noted in the said Authentica “Statuimus”), but also by canon rights, nay they were invalid and of no effect from the beginning; because they were against divine right, and against canon rights, and against concessions of previous Emperors, especially Constantine, bk.7, ch. De Episcop. et Cleric., which were renewed with other similar ones by Theodosius and Valentinian, in Books XLVI and XLVII of the same title. Where all the privileges in general are first renewed that were previously conceded to clerics by pious Emperors, there is however later added, “Clerics too, whom the unhappy usurper (to wit, Julian the Apostate) gave edict to be led indiscriminately before secular judges, we reserve to Episcopal audience. For it is not holy that the ministers of the divine office be subjected to the decision of temporal powers.”
8. There remains in the canon right only one scruple, from the Council of Macon, 1 ch. 7, where a general rule is first delivered in these words: “No cleric about any cause without discussion of his bishop is to suffer injury or be handed over to custody by a secular judge.” But afterwards an exception is added wherein there is a difficulty: “But if any judge of anything has perhaps presumed to do this to a cleric without criminal cause, that is, homicide, theft, or malfeasance, he is to be kept away from the doors of the church as long as it seems good to the Bishop of that place.”Here, when it says “without criminal cause,” it seems to establish an exception contrary to the rule we have set down. Hence it seems that that Council, which was celebrated a little after the times of Justinian, imitated the civil right of that time, or perhaps in France this was then the custom. However I draw attention to the fact that the Council does not there except every criminal judgment, otherwise it would be an exception contrary to the rule, but it excepts certain sins, which it calls crimes by antonomasia, which are of the sort it there enumerates. And in this way the exception could have been tolerable at that time and only in that province in which then perhaps the Bishops could give similar faculty to laymen, as we will see below. But now this is neither licit for Bishops, as I will also show below, nor is a similar exception to be admitted, as I will soon say.
9. Therefore it can be doubted whether the rule posited does admit any exception. This question, as I said in the preceding chapter, can be understood either on the part of the persons or on the part of the matter of the crimes. I will speak below about the persons, but now I suppose that no persons are excepted apart from those who are deprived of this privilege either by canon law or by just ecclesiastical sentence or by delegation of the Pontiff made to a lay judge. But about the crimes I say that, by force of common right, none are excepted from the aforesaid rule. The proof is that it is thus expressed in right, in ch. “Cum non ab homine,” De Iudiciis, at the place, “'Sive in furto, sive in homicidio, sive in periurio, sive in alio crimine &c.” Also in ch. “At si clerici,” under the same title, it is first said absolutely that clerics not only cannot be condemned for a crime by a secular judge but also that when cases are tried before such a judge, even if in them a cleric has been convicted or has confessed, he is not to be harmed in any way. And from that text and from the following section it is clear that both the greater and the lesser crimes of clerics pertain to the ecclesiastical judge. Also in ch. “Clerici,” it is said that the sacred canons generally imitate the laws stating that in the case of any crime a cleric should come before an ecclesiastical judge. Finally, no such exception is found in common right, nor can it be introduced even by a custom that might have the force of law, as is expressly said in the cited ch. “Clerici”; therefore such an exception cannot with foundation be affirmed.
10. There can also be added a sufficiently congruent reason; because if an exception be admitted, it would be either because of the gravity of the crime or because of its triviality; this latter no one will say because the lighter sins can more easily be taken cognizance of and punished by the proper ecclesiastical judge. But as for the graver crimes of clerics, it is more necessary that they not be dealt with by laymen; nay not even be taken cognizance of or known, were doing that possible; and besides they can by an ecclesiastical judge be sufficiently cured and vindicated. But if secular power were necessary for this, the judgment of such crimes should not for that reason be committed to seculars; for it is much more agreeable that they themselves not introduce themselves until they are summoned and, as requested by the ecclesiastical judge, are held to lend their aid, according to the ch. “Ut famae,” De Sentent. Excommunication. Nevertheless I have said that this is to be understood to be of common right; for in certain kingdoms certain crimes of clerics are accustomed by privilege to be excepted which the civil magistrates could take cognizance of, as the crime of treason, the fabrication of false money &c.; yet it is necessary that this privilege be pontifical, because no king or secular prince could give this privilege, as will be said below.
11. Second, the question can be asked whether this rule admits of any amplification. To which I briefly reply that it cannot be amplified on the part of the matter of the crimes, because it extends to all crimes, to which none can be added. But on the part of the court or the judge a double amplification can be noted. One is that neither directly nor by way of appeal can a lay judge take cognizance of the crime of a cleric, as John Lupus noted, tract. De Libert. Eccles., p. 2, q. 1, from ch. “Qualiter et quando,” De Iudiciis, in which I am expounding the phrase “we altogether prohibit” for to say “altogether” was the same as to say “in any way whatever.” Again it is amplified by the same author so that not even in case of negligence by an ecclesiastical judge can a secular take cognizance of any crime of a cleric, for this is proved a fortiori by the things said above at the end of the preceding chapter. But as to what the secular power can sometimes do about a clerical malefactor by way of defense or aid we will see below.
12. Third the question can be asked whether the declaration given in the preceding chapter about the prosecutor and the accused in civil matter has place in criminal matters. I reply that without doubt there is the same or greater reason about criminal causes as about civil. Thus do the authors brought forward in the preceding chapter teach. It can also be proved by the same rights, for besides what they say in general, it is said in ch. “Si quisquam,” 11, q.1 , that the canons imitate the laws in the said rule, because the prosecutor should follow the courtroom of the accused; but this rule is expressly handed down for criminal causes in 1 In criminali, Code, De Iurisdiction. Omn. Iudic., in 1. last code, “ubi in rem actio.” The reason made above also proceeds of criminal causes no less than of civil. Nay, a greater reason intervenes in criminal matters; because it is less fitting and more dangerous for a cleric to initiate against a layman a criminal action than a civil one, because in a criminal action there is introduced a certain vengeance and danger of hatred, and thus it can more easily generate scandal. This is so true that for this reason the old canons prohibited clerics from accusing a layman without consultation with the Bishop.
13. Yet nevertheless in this matter there is added a certain exception in ch. “Cum sit generale,” De Foro Compet., in these words: “It has been introduced for the favor of the Church that the rectors of venerable places can summon their malefactors, who are to be deemed sacrilegious, to whichever judge they please.” I only draw attention there to the fact that it does not exempt all malefactors against clerics, otherwise the exception would destroy the rule; therefore it excepts malefactors against churches, such as are robbers and the like, as the Gloss there notes. However it is true that even those who strike clerics can be delivered to an ecclesiastical court, not by reason of the person accusing, if he be a cleric, as if he himself drew the accused to his own courtroom, but by reason of the sacrilege, which belongs to the ecclesiastical or at least the mixed courtroom. The rest about this declaration can be seen in the Gloss and the doctors there. And the things we said above about the other moderating factor founded on negligence by a lay judge are to be applied here, as is clear.
14. Finally one can inquire here whether this privilege or exemption may be extended to the past, that is to crimes committed before becoming a cleric, or at a time when some person was, for whatever cause, not enjoying the privilege of the courtroom, even if he was otherwise a cleric. A reason for doubt is that he who in his status as cleric commits an offense, although afterwards he leaves the clerical state (as can happen in the case of clerics not ordained for sacred offices, or of religious who are not professed, or who are professed but have changed status by dispensation), he, I say, always enjoys the privilege as far as the offense is concerned which was committed while he was in that state, as is taught by Covarrubias, § final., q. 36, n. 11, and by Barbosa, in 1. “Titia” ff. solut. matrimon., who refer to others. And the basis is that for the enjoyment of the privilege the status of the time in which the offense was committed is attended to, according to 1.1ff., de Poenis. Again, because when the offense was committed he was immune from secular jurisdiction; therefore he is not subject to it even if the state is left. Because there is no canon right which imposes such a punishment, or which declares that loss of privilege by dismissal of status is to be retroactive to the past time during which the state existed, or to an offense then committed; but it is not without right or evident reason that the privilege is to be limited and that nothing is to be asserted which is penal and odious. Therefore, in a similar way, he who has left off the lay state and has afterward received orders or the ecclesiastical state, will not enjoy the privilege for those offenses which he committed earlier, when he was in the lay state. The proof of the consequence is both that it follows from the same principle, that for enjoying the privilege the time of the offense is to be attended to; therefore he who was not a cleric or, if he was, was not living in the clerical state, and he then committed an offense, although he be afterwards ordained or receive clerical insignia, he will be subject to a secular court as regard that offense. And also because the offense pertained from the beginning to the secular courtroom, and there is no right which draws it therefrom, or which makes the privilege apply retroactively to the effect; therefore And thus Covarrubias and Barbosa seem to think in the places mentioned.
15. But making to the contrary seems to be first that privileges, to the extent the propriety of the words allows, are to be amplified very greatly in favor of religion; but the rights conceding this privilege simply exempt the persons themselves signed with the character or dedicated to God in such a way, and they do not limit it to offenses committed after becoming a cleric or before; therefore the privilege is not to be limited but extended. Second, because although the offense preceded, it cannot fail to lead to the ignominy of the clergy that he, who is now a cleric, be punished or judged by a layman; therefore since the privilege regards more the decency of the clergy than the advantage of the person, it ought to have place even as regard a preceding offense. Just as he who before was a slave, if he be ordained, is exempted by right from servitude on account of the honor of the clergy, although not always in the same way, as is clear from the material about irregularity. Therefore in the present too, although someone be, by reason of his offense, liable to the secular courtroom, he will be liberated by ordination, at least from the courtroom, although not from the debt of some punishment. Third, he who flees to a material church after an offense enjoys immunity; what marvel, therefore, that he should enjoy it who flees to the spiritual level of the Church?
16. Panormitanus disputes at large on this point in ch. unic.de obligates ad rationcinia, and several others in that place and in the places which Felinus refers to copiously in the last chapter of the Constitution, n. 14, near the end, and Avendanus among the moderns in tractat. De Mandat. Reg. Exequend., ch. 22, and Covarrubias, in Pract, ch. 3, no.4 . They refer to various opinions and use many distinctions which to refer to and discuss here would be prolix and foreign to our stated purpose, especially because they do not adduce canon rights which make any clear disposition in this matter. Speaking about it in general and using conjecture, I am pleased with the opinion saying that ordination obtained after an offense exempts the person of the cleric from secular jurisdiction, even for that offense. First, for the reasons given; next arguing from similars and a fortiori from 1. “Hos accusare,” ff. De accusat., insofar as it says that the legate of a province is not be accused about that crime which he committed before becoming legate. Therefore by the same or greater reason a cleric who has abandoned the lay state is not to be accused of that crime in a secular court.
green 17. The jurists, however, are wont to apply a limitation, “unless he have assumed the clerical state in bad faith;” by bad faith they understand assuming the clerical state so as to flee the secular courtroom, whence they impose on the cleric himself the onus of proving that he did not have bad faith. But it certainly does not seem to belong to deceit or bad faith that someone assumes that state from the intention of exempting himself from that courtroom and protecting his person; just as it is not bad faith to flee to a church after an offense so as to save oneself; for that intention is not a bad one; hence if good faith is preserved by some, that does not seem to be an obstacle. Therefore I would understand by bad faith if someone fictitiously and by pretence had assumed that state for a time so as to avoid the courtroom. Wherefore, to this extent, I think that one must judge differently if someone is ordained for sacred offices or only for minor orders. For the first assumed a perpetual and unchangeable status, and therefore he cannot be presumed of that fiction, unless it is clearly apparent; and that is why I think that he remains immune, even if it be clear that he had done it on the occasion of the offense and so as to change courtroom, because that is not evil, nor does it bring grave disadvantage to the republic.
18. But he who only assumes minor orders could easily do it by bad faith, that is, not because he wanted truly to dedicate himself to the cult of God, but only for a time, so that he might more easily be freed and afterward change status; and then I think the prior limitation does proceed. And much more in a cleric already ordained in minor orders who was not wearing the habit or the tonsure at the time of the offense, and afterward assumes it and wishes to enjoy the privilege. For it can easily be feared that he is proceeding deceptively; then therefore he will not enjoy the privilege, unless he prove a contrary mind, which is very difficult. But the same doctors add another limitation, namely that “a cleric ordained in good faith can enjoy the privilege if the cause be intact;” for if it had already begun before a secular judge the reason would be different, according to ch. “Proposuisti,” De Foro Compet. Again they add that in other cases, in which this cleric is judged by a secular judge about a prior crime, he cannot be corporally punished but in other ways. About which and other similar points we refer the reader to the aforesaid authors.
WHETHER THE PRIVILEGE OF THE COURTROOM INCLUDES EXEMPTION FROM CIVIL LAWS, AND OF WHAT SORT THE PRIVILEGE IS
1. Laymen may in no way bind ecclesiastical persons by their laws. 2. Whether the privilege of the courtroom for clerics includes exemption from civil laws. 3. The force of civil law is double, directive and coercive, and what each is. 4. Several other effects of the civil laws are reduced to this directive and coercive force. 5. Distinction of civil laws on the part of the persons and on the part of the matter. 6. Civil laws passed for laymen alone do not oblige clerics. 7. Civil laws which make disposition in ecclesiastical matter introduce no obligation. 8. Objection. Confirmation of it. 9. Response. And to the confirmation. 10 - 11. Civil laws which make disposition about the goods of clerics or churches have no validity. Reason for the first part. 12. Reason for the second part. 13. First opinion. 14 - 15. Second opinion. 16. Opinion of the author. 17. Whether clerics are exempt from the directive force of civil laws. 18. Various opinions. The author’s view. 19 - 20. Civil laws, even non-noxious ones, do not oblige clerics as regard coercive force. 21. Objection. 22. Solution. 23. Whether civil laws are able to void the contracts of clerics.
E suppose that ecclesiastical immunity includes exemption from the obligation and bond of civil laws to the extent they have any force from human power and jurisdiction. This is most certain from canon right, although perhaps it may not be found expressly and particularly in civil right. Which fact, however, is no obstacle because canon right is sufficient, as I said above. Now this canon right is contained in ch. “Ecclesiae Sanctae Mariae,” De Constitut. and dist. 96, over many chapters; it is also said in these chapters that laymen have no power or jurisdiction over churches or ecclesiastical persons. The thing is also borne witness to by many Councils, as was proved in earlier chapters. But it is clear that no one can oblige by his law him over whom he has no jurisdiction; therefore neither can lay legislators bind clerics by their laws, because, as was said, they have no jurisdiction over them; but legislative jurisdiction is great; so since the Councils say no jurisdiction, they even deny this. And there is assistance from Authent. “Cassa,” Code, De Episcop. et Cleric. where all statutes of laymen contrary to ecclesiastical liberty are said to be null and void; for by the very fact that civil laws are made to bind clerics they are repugnant to ecclesiastical liberty. This therefore is certain in generality; but how it is to be understood, amplified, or limited remains to be explained.
2. But first I note that some people doubt whether the privilege of the courtroom too, just like ecclesiastical immunity, includes this exemption from the bond of the civil laws. I say, however, that this question is about the name alone. For, if the name of courtroom is strictly taken, it will seem only to comprehend exemption from judgments of the secular courtroom, as well in civil as in criminal causes, because 'courtroom' properly signifies the place where judgment is exercised, and consequently the judgment too itself, or the jurisdiction by which it is exercised. Hence, if the privilege of the courtroom is thus strictly taken, it does not comprehend the whole liberty of clerics. For the immunity or exemption of clerics, of which we are treating, comprehends more things, as I said at the beginning of this book, namely immunity from certain burdens, duties, tributes, and secular laws, all which are comprehended by ecclesiastical liberty. However, the privilege of the courtroom can be taken in the whole of this amplitude. For thus two privileges of clerics are accustomed to be distinguished, namely, of the canon and of the courtroom, of which the first alone signifies a special immunity from the violent imposition of hands, and for that reason all the remaining liberty of ecclesiastical persons has to be comprehended under the privilege of the courtroom, so as to make the enumeration adequate. And in this way Sylvester expressly speaks, at the word “Ecclesia,” 1, q. 5, verse “Primum.” Nor without basis, for the privilege of the courtroom, as we said, does not only exempt a cleric from the temporal jurisdiction of inferior magistrates but also from the supreme jurisdiction of kings and Emperors; because, therefore, all civil laws flow from that same jurisdiction, as well as all burdens which can be imposed by laws of this sort, hence it is that the privilege of the courtroom has been extended to signify exemption from all of them. Wherefore, now that we have explained exemption from courts, what is left so that we may clarify the privilege completely is that we expound exemption from the laws; for under this all the other immunities are included.
3. Now, in order to give this explanation, it is necessary to lay down that there is a multiple force to human, that is, civil law, about which we are specially speaking. There are, however, two chief heads to which the others are reduced, namely, directive force and coercive force. And lest there be equivocation in the words, as there is wont to be, we understand by directive force the power of giving commands that oblige not only by penalty but also in conscience. But coercive force is the force of compelling through penalty; for although this compulsion is ordinarily brought to execution through men, namely the judge and his ministers, yet it comes to be in its own way through law, and that doubly, namely either by merely imposing the debt or the guilt of a certain penalty on transgressors of the law, or also by inflicting the penalty itself, when it is such that it does not need human execution but can come to be through the law itself, if it is sufficiently expressed therein.
4. Beside these two powers of law, others can be numbered, as to value the price of things, which is best reduced to the directive power, because a reason of justice obliging on conscience results therefrom; again to invalidate contracts, or to prohibit them with that degree of rigor, or by instituting a courtroom without which they are not valid, which to some has seemed to be penal and for that reason to proceed from the coercive power. But this is not always so; for sometimes it is done for direction of morals alone and the good governance of the republic; and then it more pertains to the directive power. Again law has the force of imposing tribute, real or personal, and thither also has regard the imposition of any burden or secular office, especially a mean or base one or one that is more burden than honor. And, on this view, this virtue of law is reputed quasi coercive, although in truth it is not properly so, because per se these things are not imposed by way of penalty for guilt or transgression of law, but they are directly and per se imposed because they are necessary in the human republic. A declaration must therefore be given as to how clerics are exempted from all these by the privilege of the courtroom; but in this chapter we will speak only of laws as prescriptive or prohibitive, whether purely so or with a penalty added, and in the following chapters about other laws, especially the burdensome ones.
5. But first civil laws must again be distinguished, on the part of the persons and on the part of the matter. For commonly these laws are passed for all citizens generally, with abstraction from laymen and clerics; for both are citizens and make up the city. But sometimes they are passed for laymen alone; also they could sometimes be passed for clerics alone, I mean could in fact, but what we must say about the right we will see. Next, the matter of the law can sometimes be proper to clerics, which will rather be ecclesiastical than civil matter; sometimes it is proper to laymen, but often enough it is common to both. Again, sometimes the matter, or the disposition of the law, whether made in particular or in general, is burdensome to clerics, and less fitting to their state, but sometimes it is favorable, and sometimes indifferent. Because, although it be useful with respect to the community, nevertheless with respect to individual persons it can sometimes bring disadvantage with it, although more frequently it has the advantage of all in prospect; according therefore to this variety in laws, judgment about this exemption must also vary.
6. But we must collect from what has been said certain things which are clear and beyond controversy. The first is that civil laws passed for laymen alone do not oblige clerics. For this is true not only by reason of exemption but also because of the form of such a law; for no law obliges save the persons to whom it speaks or is directed. The second is that also the civil laws which make disposition in matter merely lay or secular, although they do not speak to lay persons in particular but are passed indefinitely, do not oblige clerics, just as civil laws giving order to secular courts do not oblige in the ecclesiastical courtroom; and so of other laws. The reason is clear, both because of exemption and also because the matter of the law restricts its obligation to those persons to whom such matter is proper, as is per se clear.
7. Third, it must be said that civil laws, if they make disposition in ecclesiastical matter, introduce no obligation, because of the exemption of such matter. This assertion is clear from things said above in chapter 2, where we showed that all ecclesiastical things and causes are exempt from the jurisdiction of laymen; therefore laws passed by laymen about matters of this sort are, by the right itself, null from defect of jurisdiction. About this matter I have spoken fully in De Legibus IV.2. Hence, fourth, it must be said that civil laws making disposition about the persons of clerics in particular, even if they seem to be making disposition in civil matter, do not oblige clerics by reason of the exemption of clerics. This assertion together with the preceding one is expressly handed down in ch. “Ecclesia Sanctae Mariae,” De Constitut., and ch. “Quae in ecclesiarum,” the same title, and the last chapter of De Rebus Eccles. non Alien., and in ch. “Bene quidem,” with the many that follow 96 dist. This matter has been broadly treated by authors in these places, especially Panormitanus, Felinus, Bartholus, on the law “Cunctos populos,” Code De Summa Trinitate. Now the reason is given in the same place, that no power over churches and ecclesiastical persons has been attributed to laymen "on whom there rests a necessity to obey, not an authority to give commands." For hence it comes about that these sorts of laws do not oblige clerics, not because they are valid and do not extend to them, but rather because they are null from defect of jurisdiction over the persons to whom they are directed.
8. You will say that this proceeds at most when such civil laws afflict clerics with some loss or burden but that it appears to be otherwise if they are favorable to clerics; because the privilege, which is given in their favor, ought not to be so extended that it harm the one privileged; but that these laws should be null, even if they are favorable to clerics, falls to their harm; therefore it is not probable that the privilege of exemption has extended to this effect. And there is a confirmation, for a lay prince can confer a valid privilege on a cleric, as is taken from ch. “Novit.,” De Iudiciis, and from many other canons and laws earlier mentioned, wherein Emperors confer privileges on churches and prelates and the ministers of them; but a privilege is a certain favorable law; therefore &c.
9. Nevertheless it must be said in the fourth place that such laws, even if they seem favorable, cannot oblige; for they are also spoken about in the cited chapter 'Ecclesia Sanctae Mariae,' as Panormitanus there well expounds at the beginning and at the end. And the reason in the text there is convincing, because such a law is not in truth a law, even if it seem favorable, because it does not proceed from jurisdiction; therefore it cannot oblige. The reason is again the best, because by the very fact that the law prohibits or prescribes to clerics in particular it presumes that it is exercising a superior power over them; therefore it presumes a power which does not exist and is therefore null. Nay, by that very fact it cannot be deemed favorable, because it harms more by usurping jurisdiction than it benefits by conferring something of advantage. The response to the confirmation is that it is different in the case of a privilege; for the concession of a privilege is not an act of jurisdiction but can be said to be an act of liberality and of dominion over the thing or the right which is given by the privilege; and for that reason someone could give a privilege, not to a subject, but even to a superior, and thus too can a layman concede a privilege to a cleric. Nor does the privilege have the proper nature of a law with respect to the one privileged, because per se it does not impose an obligation on him, and in this way it is not given by prohibiting or commanding the one privileged but by conceding; however, it is accustomed to prescribe observance of the privilege to others, and thus does the privilege have the proper nature of a law, as I have declared at large on the matter in De Legibus. And in this way civil laws conceding privileges to clerics do indeed favor clerics but do not bind them; but they oblige laymen to observe such privileges of clerics.
10. Fifth we can add by amplifying the above assertion, that even civil laws that make disposition in particular about the goods of churches or of clerics are not valid nor can they oblige churches or clerics. So teach the Gloss and the doctors, especially Abbas in the cited chapter “Ecclesia,” nos. 20 and 21. And what concerns ecclesiastical goods is contained expressly in that text, and in the cited chapter “Bene quidem,” whose decision Innocent III alleges in the previous chapter. For there the statute of a certain layman, Basil, because it was a statute in particular about the goods of the Church, even in their favor, was deemed to be void because it was not confirmed by apostolic authority. The same is taken from ch. “Quae in ecclesiarum,” the same title, and the last chapter De Rebus Eccles. non Alien., and from ch. “Decernimus,” De Iudiciis, where all ecclesiastical business is said to be exempt from the secular courtroom. Now the reason is that ecclesiastical goods are accounted among things sacred and for that reason they are wholly exempt from the jurisdiction of laymen, not only by human but also by divine right, according to what is handed down in the decrees in the whole of dist. 96, and which were treated above in chapter 2.
11. But the said reason does not militate against the case of the proper goods or patrimony of clerics, because the proper goods of clerics are not sacred as are the goods of churches, and therefore it is not necessary that they enjoy the same or as great exemption as ecclesiastical goods or the goods of churches. But a reason can be given for the difference, because ecclesiastical goods seem to be under the immediate dominion of God, and for that reason no one can make disposition about them except either God himself or the dispensers by him established of his mysteries and goods. But the goods of clerics are immediately under the dominion of men, those men, which dominion belongs to them, not as clerics, but as citizens or as men, and therefore about such goods it seems possible for civil laws to make disposition.
12. But nevertheless even in these goods of clerics I think the opinion of Panormitanus to be true, although the rights which he alleges do not directly make this disposition, yet by argument from similars, or by parity of reason, they may be brought to bear. But reason convinces of it, because civil law cannot make any disposition in particular about the goods of clerics without obliging clerics to observance of such law, because the goods attach to the persons and a law making disposition concerning goods cannot be observed except by some person. But civil law cannot oblige in particular the persons of clerics; therefore neither can it make disposition in particular about their goods. Again, a law is not passed without jurisdiction; but no one has jurisdiction or power of making disposition about the goods of someone unless he have jurisdiction over his person. Since, therefore, a temporal king does not have jurisdiction over the person of a cleric, neither can he have it over the goods which attach to the person as an accessory attaches to its principal; therefore a law made by the civil power in particular about the goods of clerics is null as having been made without jurisdiction. Now the reason to the contrary only proves that it is not as certain that the goods of clerics are by divine law exempt from civil power as it is that ecclesiastical goods are, for they are not thus immediately and as if per se exempt. For sacred things and the goods of the Church are exempt because of a certain sanctity which they share in by immediate relation to God; but the goods of clerics are exempt because of a relation to such exempt persons; but this is no obstacle to their participating in that exemption.
13. 12. Sixth must be added that civil laws, which speak to citizens generally, abstracting from clerics and laymen, and make disposition in temporal matter common to everyone that pertains to their mutual society and uniformity, do oblige clerics as to directive force. In this assertion agree all Catholics whom I referred to above, and I treated of it at large at De Legibus III.34. And the reason on the part of the final cause is that uniform observance of such laws is necessary for the peace of the republic and for preserving equity among the citizens; therefore too the directive obligation ought to be general to all. But on the part of the efficient cause, or of the power imposing such obligation, the same reason is not given by all. For many think that it comes forth from the force of the power and jurisdiction of the temporal prince; they say that as regard passing these laws he has retained jurisdiction over everyone, even clerics, because thus was it necessary for the convenient governing of the whole republic; and for that reason it is not required for clerics to be exempt as regard this part, since the use of such exemption would not be useful to the Christian republic and so it was not to be observed therein. Hence, as we said above, a cleric as prosecutor against a layman is liable to the secular court in a temporal cause, and therefore as regard this prosecution he is not exempt; in this way it is not agreeable for a cleric, who is communicating as a citizen with laymen in such common actions, to be exempt from the virtue and jurisdiction of civil law as regard its directive force. And this way of speaking has been avidly seized on by heretics and schismatics, and many Catholic doctors approve of it, whom I referred to in the place cited; and it is a not improbable one, setting aside the spirit and error of schismatics about the whole of the exemption of clerics.
14. However the opinion of others is that clerics are not obliged to observe these sort of laws from the force of the laws themselves, that is, from the force of jurisdiction, which civil legislators do not have over clerics, but from the force of reason, that is, because once such a just law has been posited about a thing pertaining to all, and it can be decently kept by priests and without special difficulty, natural reason dictates that it is to be kept by clerics too; either because they are parts of such community and a part is ugly that is not in concord with the whole in things where it can advantageously be so; or because due equity will not be kept between clerics and laymen if laymen keep these sort of laws and clerics do not. This latter reason has place most in laws that define the mean of justice, such as are those that value the worth and price of things; about which things no one for that reason doubts that they are, by force of natural justice, to be kept by clerics, whether they are obliged by the force of such laws or not. And the same reason holds of laws making disposition about certain human actions, quasi reciprocal ones and ones that include a certain mutual relation among the citizens themselves; because such laws cannot with security or equity be kept by laymen without being kept by clerics, as are laws prohibiting the carrying of such and such arms or at such and such a time or in such and such a place, or prohibiting the taking of such and such things or merchandise out of the kingdom, and the like. But the former reason could have place in laws that make disposition of other actions of citizens, wherein is not found this mutual respect of equity or security or conservation or abundance of things pertaining to all; but they only pertain to the agreeable manner of living of each according to political status, as are for example laws prohibiting games of chance and the like, to which there is regularly joined a reason of scandal if clerics do not keep them.
15. And this opinion, that laws of this sort do not oblige clerics by force of lay jurisdiction but by force of reason, is defended by Bellarmine in his Controversiae, especially in the last edition, and is rather often inculcated in his later opuscula, namely in his book Recognitiones, and in his book Against Barclay, and in his Apologies against the King of England. And for that reason the King himself rather often bites into this very article, as in his Preface, p. 25, and in his catalog of lies under the title Nova Dogmata, as at the end of his Apology. However neither is this opinion new nor is it peculiar to Bellarmine but is ancient and belongs to many grave authors, as I showed in the cited book De Legibus, and for that reason undeservedly does the king either accuse it of novelty or make complaint specially about Bellarmine. Also he does not bring forward any reason or any testimony of any moment, but only charges Bellarmine either with hatred or with less well disposed affection for temporal kings; which thing is very frivolous, except perhaps among those who think a truth repugnant to their inordinate affections to be hatred.
16. But the opinion is very well founded elsewhere in divine right simply conceding this privilege. Add too the testimonies from the Councils and the canons saying that there has been attributed to laymen no power or jurisdiction over clerics, without which they cannot oblige them directly and by force of law. Again, for this reason, kings cannot oblige clerics by laws particularly imposed on them; therefore for the same reason they cannot oblige them through common laws by the force of their command, because a law with respect to its force does not exceed the power of him who passes it. And thus this opinion, as regard this negative part, is more probable and true; but as regard the other part, of explaining the obligation from the sole force of reason, it is indeed probable; however if it is understood nakedly and precisely, it will often be found insufficient for convincing that the obligation is a serious one. And for that reason I am wont gladly to add that the obligation is also supported by virtue of the canons that dispose that these sort of laws are to be kept by clerics, which I referred to in the cited place, together with the authors who declare the obligation of such laws in this way, and together with the reasons that confirm this way of speaking. This opinion is not repugnant to the opinion that says these laws oblige by force of reason, because the latter does not exclude acceptance of the canons, or the virtue of them, nor does it prohibit recourse to it when the sole force of reason has not shown a serious obligation on clerics to observe civil laws of this kind.
17. But you will ask, on the supposition of this opinion that clerics are not obliged to observance of these laws from the force of them, whether clerics are simply to be said to be exempt, or instead not to be exempt from the directive force of such laws. The reason for doubting is that if they are not obliged by the force of them, it cannot be except by reason of the exemption from the jurisdiction by which these laws are passed, as was explained; therefore they must simply be said to be exempt from such laws. Again, he who is not held to obey from obedience to the law is certainly exempt from it; but clerics, if they are not obligated to such laws from the force of them, are not required to keep them by force of obedience due to the authors of them; therefore they are exempt from such laws. But to the contrary is that clerics are absolutely required to observe such laws; therefore they are not absolutely exempt from them, because absolutely exemption means liberty and absence of obligation; how therefore, when he remains obligated, can he be said to be exempt?
18. For these reasons authors are wont to speak in various ways. For some, although they say that clerics are not obligated to these laws by the force of them, deny nevertheless that they are exempt from them. But others think, as a consequence, that it must be said that they are exempt also from the directive force of such laws, since indeed they are not obliged by the force of them but by force of reason and canon right. To me, however, the controversy seems to be only about the way of speaking, and I consider that it can properly be said they are not exempt from observance of such laws, or from the obligation of doing what they prescribe and of refraining from what they prohibit. And nevertheless it can also be said that they are exempt from the virtue or the proper bond of the same laws; for these two things are not repugnant, and each is proved by the reasons made for each side. And thus it can be said about clerics that they observe these laws as being free from the yoke of them because they are not free from the yoke of natural reason, and of canon right, which pertains to perfect exemption and is consistent with their state.
19. Lastly it must be said that also civil laws common to all citizens and not noxious to clerics, nor unbecoming to them, do not oblige clerics as to coercive force, and hence exemption from the force of this sort of such laws belongs very much to the full liberty of ecclesiastics. The assertion is certain, and all the Catholic doctors agree in it whom we alleged in the place above cited. It also follows manifestly from the preceding; for if it is true that these laws do not oblige clerics by their own virtue, even with directive obligation, much less could they compel them with coercive force. Now the declaration is simply in this way, that a law binds by its coercive force to the extent that it imposes a penalty; this can be effected in two ways, namely, either by the very fact of inflicting the penalty or by prescribing through a judge that it is to be inflicted. In the former way a civil law cannot of its very self punish a cleric, because he is exempt in criminal cases from the secular courtroom, as we proved above, and this is true not only of the courtroom of an inferior judge but also of the supreme king, as I also showed; therefore a civil or a royal law does not proceed from a power that is coercive over a cleric; therefore it cannot of its very self punish him, because its virtue is commensurate with the power from which it proceeds. And the confirmation is that a temporal prince cannot in his actual or personal judgment pronounce sentence (which they call sentence from the man) against a cleric; therefore neither can he say that sentence has been passed on a cleric through the law, or that he is including a cleric under such sentence, because he would be declaring right outside his courtroom.
20. Nor too can laws that impose penalty in the latter way exercise their force over clerics, because they do not exercise it save through the medium of a judge; the judge therefore will be either a layman or a cleric. If the judge is a layman, not only can he not execute such penalty on a cleric, but he cannot even condemn him, nor take cognizance of his cause, or of his sin, even if he has transgressed a civil law, because he is not a competent judge of him in any cause whether civil or criminal to which a cleric may be taken as an accused, as has been shown; therefore the civil law cannot exercise its coercive force on a cleric through a secular judge. But if the judge be an ecclesiastic he is not required to impose on a cleric the penalty of the civil aw; both because it will often not be fitting or accommodated to the clerical state; and especially because an ecclesiastical judge is not required to judge or to impose penalties according to civil laws but according to canon right; but if there be therein no law designating the penalty to be inflicted for such an offense, the ecclesiastical judge may impose it at his discretion. And he could, indeed, if he judged it opportune and capable of being done without inconvenience, imitate the civil laws (for the canons themselves do not disdain doing this, as they themselves say); he is not, however, required to do so. For the civil law, by designating the penalty to be imposed through the judge, is instructing, by obligating, a secular judge, and not an ecclesiastical one, over whom it has no jurisdiction. And although the law, as imposing the penalty, speaks in a common way, abstracting from the secular or ecclesiastical judge, nevertheless it is, by that reason, not among those common laws that clerics are held to observe. For uniformity in punishments and in penalties in all members of the republic does not pertain to its good governance; and for that reason neither do the canons prescribe it, nor does natural reason dictate it, but rather it demands that transgressors be punished in different ways according to diversity of status. But to define penalties accommodated to clerics for any offense at all does not pertain to the civil laws but to the ecclesiastical, and, where there is deficiency, it is deservedly left to the discretion of the ecclesiastical judge, because he himself will judge better of the quality of the penalty to be imposed on a cleric than the civil power whether it is speaking through a sentence or through a law; therefore in no way does civil law comprehend a cleric under its coercive force.
21. You will say: therefore a cleric will not be able to be punished for transgression of the civil law, or at least an ecclesiastical judge will not be held to punish him for such offense; the consequence is utterly absurd, because the directive force would be utterly ineffective without any coercive force, and public offenses against the common good would remain unpunished. The proof of the former result is that a cleric is exempt from the coercive force of the civil law; therefore he is exempt not only from such kind of penalty but also from penalty simply, because otherwise that law would exercise some coercive force on the cleric, by binding him to the penalty, or by inflicting the debt of the penalty. And a fortiori the ecclesiastical judge will not be held to punish such offense, because either the culprit is by force of such law simply not subject to penalty, or certainly the judge himself is not held to judge according to such law, and so, just as he is not held to punish the culprit in such a way, so neither to punish him simply.
22. The response is by denying the result as to each part; for the transgressor of such law, although he be a cleric, by the very fact that he has transgressed the law which he was, by some title or other, held to keep, he has become debtor to the penalty, not by force of the civil law, but by force of natural right and the right of nations, whereby the sinner is made debtor to the penalty, not only before God, but also before men when the crime offends the republic. And so the reason to the contrary fails, because this liability to the penalty does not properly arise from the coercive force of the civil law as from its cause, but from the natural law; but civil law was only as if the remote occasion, because without the positing of that law, the action would not have been evil and consequently not worthy of penalty either. Similarly, I say to the second part that an ecclesiastical judge is held to judge a like offense in a cleric if he is brought before his court, not by force of the civil law, as the argument proves, but by force of the law of justice and of his office whereby he is held to vindicate and to correct the offenses of his subjects, whatever law they are committed against. Very much the more so, because the crime is more against canon or natural law than against the civil law, even though it requires first the existence of such a law.
23. Finally it can here be asked whether this exemption of clerics with respect to the civil laws extends to the force of voiding some human acts or contracts, which force these laws sometimes exercise; but this is to ask whether a civil law that voids contracts, which are wont to be made as well by clerics as by laymen, voids also those made by clerics, as for example whether a will made by a cleric with the solemnity required by the civil law is valid, &c. I reply briefly that one must make a distinction about voidance; for one is penal, as that which is imposed as penalty, or which results from some unfitness imposed, through the law, by the right itself as penalty for some crime; but another is voidance which happens per se for the common good, although the guilt of the doer not intervene. I say, therefore, that a civil law that voids, if it is properly penal, does not comprehend clerics as to its force or act of voiding. The proof is that the civil law does not bind a cleric as to coercive force, nor as to the penalty imposed by that fact, whatever it be, as was proved; but such voiding is made through the coercive force of the law and is imposed by way of some penalty; therefore it does not bind a cleric when it voids his act, just as too, if it imposes some unfitness on a similar act, it does not bring that upon a cleric, because all the reasons made about the other penalties proceed about these too.
24. But if the civil law directly per se voids an act because of the common good, it must be said that it does comprehend clerics as to its force of voiding, because then it does not pertain to coercive but to directive force. And this would be manifest if it were true that laws of this sort oblige clerics by force of law and jurisdiction, because then there is nothing which may exempt a cleric from the such effect of the law, since it would proceed from the same directive force of morals. However, even when holding that these laws only oblige clerics by force of reason, Vasquez asserted it, Book II, disp. 167, ch. 4, because, he says, such voidance is necessary so that the peace or the good governance of the republic may be sure. But this is not lacking in difficulty, because this positive voidance or voidance introduced by man is not done without jurisdiction and power over the person or the will whose act is voided. And for that reason we can deservedly add that the civil laws have this effect because they are simply accepted through canon right as to their directive force, and so the voidance is founded on ecclesiastical jurisdiction rather than on civil. Hence also the aforesaid assertion is to be limited so that it does not proceed when canon right sustains the act in another way, either in favor of the cleric or, so to say, in favor of the act itself, for then canon right with respect to clerics prevails. So, for example, the will of a cleric is valid without civil solemnity because canon right is content with less in favor of a last will, ch. “Cum esses,” De Testament., and it is the same in like cases.
WHAT SORT OF PRIVILEGE THERE IS FOR CHURCHES AS TO THEIR OWN EXEMPTION AND THAT OF THEIR GOODS FROM BURDENS AND FROM SECULAR POWER
1. Introduction. 2. Various understandings of “church.” 3. Which of these understandings is of service to the present purpose. 4 - 5. Various immunities of churches. 6. The goods of churches are twofold: some are specially consecrated, some are not. 7. Things dedicated to the divine cult are exempt from human uses. 8. All goods of churches enjoy the privilege of the courtroom. 9. Reason for this exemption. 10. Ecclesiastical goods are exempt also from the civil laws. 11. They are exempt too from secular courts.
T remains to speak of the other power of human law, which is to impose burdens or taxes on subjects; and since these are wont to be imposed sometimes on persons, sometimes on things themselves, therefore we must speak about them separately. But because not only clerics but also churches themselves enjoy this immunity, we will speak first about churches themselves and ecclesiastical goods, but afterwards about clerics and their goods. We distinguish, therefore, in the first place ecclesiastical goods from the goods of clerics; for the former, as I said above, are more sacred and religious, because they are per se ordered to the divine cult and to works of piety, but the goods of clerics are of themselves merely temporal, although they adhere as it were to ecclesiastical persons, and so we will speak about them afterwards.
2. Now about ecclesiastical goods one must further note that many things can be included under them, among which churches themselves hold the first place, from which the other sacred goods seem to be denominated as ecclesiastical. But it can be asked what we here understand by the name of 'churches' or of 'church'. For it can be understood as the temple itself which is dedicated and consecrated for the use of sacrifice, of sacraments, and for the faithful coming together therein for prayer and hearing the word of God; or by the name of church can be understood a particular college of clerics who are deputed to each church or temple for the service of it and of the divine cult, and for the care of the faithful, and for the guarding and administration of the other sacred things and goods. Or third, by the name of a particular church can be understood the whole congregation of the faithful who belong to the same church or temple insofar as they receive the sacraments in it, and are subject to its pastor in things that pertain to the soul, and possess, for that reason, a special spiritual union.
3. And though it be true that this term is in common use in all these significations, especially the first and third, yet this last is of no service to the present purpose. Because 'church' taken in that way does not have a special ecclesiastical exemption or liberty beyond that which has regard to spiritual governance, whereof we spoke in chapter 2. Nor does that congregation have other ecclesiastical goods besides those that have regard to the clergy and the temple. “Church” taken in the second way too, which is more frequently called the clergy or the chapter, if it be considered as a certain fictive person, has the same reason for exemption as clerics have, and so it is included under them; but if it be looked at as to the goods deputed for sacred use and for the use of the temple, and that are committed to its care, it does not in this way have any other exemption than that which we are going to explain about ecclesiastical goods. It remains for us, therefore, to speak about “church” as it is a sacred place, to whose service or decoration, and to the sacred ministries that exist in it, and to the remaining works of piety, other ecclesiastical goods are ordered.
4. Again, “church” taken in this way can be considered either under the general idea of sacred thing, and thus it has the exemptions or immunities common to other sacred things with which it agrees in that general idea, about which we will at once speak. Or it can also be considered under the proper idea of the place or dwelling which is ordered to guarding or protecting the persons that are in it or flee to it, or to guarding the things that are placed in it. And under this idea churches and sacred places have, insofar as they are such, certain privileges that are proper and are especially adapted to them. Which privileges are, taken generally, a result of natural reason, but taken particularly some of them are determined or declared by canon laws. For on the supposition of the sacred institution and benediction or dedication of such a place, natural reason itself dictates that it be kept immune from any action that is indecent or that is done contrary to the reverence due such a place. But which actions tend to the injury or irreverence of a sacred place, if they not be defined by ecclesiastical law, will have to be left to prudent decision.
5. Now in large part ecclesiastical law has determined this, by conferring the privileges of certain immunities on churches. First by defining by what actions a church is polluted according to ecclesiastical institution, and forbidding them. Second by prohibiting churches from being treated as lay houses by the receiving or admitting into them of common furniture without great necessity, ch. 2, De Custodia Eucharistiae. Third by providing churches with immunity and exemption from forensic actions that pertain to secular courts, or to the handling of the business of politics or war, or to commerce. Fourth by bestowing on a church a special power for guarding goods deposited in it or in some way placed there, so that they cannot be removed thence by injustice without special sacrilege. Lastly, to omit other things, a privilege has been given to temples of protecting culprits who flee to them, such that they cannot be taken by violence therefrom by the secular ministers of justice without injury and grave sacrilege. With which immunities I dealt at length in tract. 2 De Relig. in the whole of Book III, and especially with the last one from ch. 8 to the end, and therefore we pass over them now. For we have only touched on them so that it may be clear how a church, insofar as it is a sacred place, is exempt from the burdens or actions and, so to say, passions that are profane and prohibited by the Church. But about exemption from taxes with respect to a church in this acceptation there is no need to say anything, because, although it is an immovable thing, it is not, so to say, a thing fruitful in temporal goods or fruits, and therefore it is not capable of tax, in addition to the fact that, insofar as a church is a sacred thing, it has, as I said, every exemption common to the other goods and sacred things, about which we must now speak.
6. Besides churches, then, the other ecclesiastical goods can be divided into two members: some are what are properly called sacred things because they are consecrated by a special blessing or are instruments of the divine cult; but others are what retain the general name and are properly called ecclesiastical goods, whether movable or not, which, insofar as they are destined to the cult of God, the upkeep of ministries, the support of the poor, and other expenses of temples, are reckoned among sacred things, on the witness of St. Thomas , ST IIa IIae q. 99 a. 5, q. 185 a. 7. About the sacred things of the first order it is certain that they enjoy many immunities from common uses or ministries, and from all injury and unjust alienation. For this type of immunity is founded on natural reason, because holy things should be treated in a holy way; but things that are dedicated to God, partake of a certain sanctity; therefore reason itself dictates that they are not to be transferred to profane uses. And thus in the Old Law the vessels of the temple were in great veneration and were therefore specially consecrated, as St. Thomas says, S. T. Ia IIae q. 103 a. 4 a. 9; and for that reason they could not be applied to other profane or common uses. Hence in Daniel 5 Belshazzar, King of Babylon, who dared to profane the vessels of the temple in a certain feast of his, felt at once the divine vengeance, as there Jerome and Theodoret note, and Pope Stephen I, epist. 1 to Hilary ch. 3, and it is contained in ch. “Vestimenta,” De Consecrat. dist. 1 Nay even among the gentiles in their own way this right of sacred things was preserved, as we collect from the law “Inter Stipulantem” § “Sacra” ff. De Verborum Obligat., but it is now especially confirmed by canon law, as is clear from ch. “Ligna,” with many that follow, De Consecrat. dist.1 and ch. “Quae semel” and following 19 q.3, and from the rule “Semel” from Regulae Iuris on 6, and this has been declared even by a new civil right in the law “Sancimus, ”Code. De Sacrosanct. Eccles.
7. For this immunity pertains to a certain veneration or complimentary cult of this sort for sacred things, and therefore it has been explained in the material De Adoratione. And for the same reason this immunity does not in this way agree to other ecclesiastical goods of the second order, because they are not proximate instruments of the divine cult. And therefore the former goods are wont to be said to be exempt from human exchange and use; but these latter can exist in human exchange and be applied to ordinary uses, provided it be done in due manner and with piety, as is taken from ch. “Sine Exceptione,” ch. “Aurum,” and ch. “Gloria,” with many others, 12 q.2. For, because these latter goods too are in some way sacred, they require this at least by force of their institution, that they be proximately consumed only in religious and pious uses, because they have been given to the Church for this end, as many canons hand down in the said 12 q. 2. But if the goods be immovable or precious, they have a special privilege, that they cannot be alienated, except in the way and for the reason prescribed by canon right, ch. “Nulli,” along with other things of the Church that are not to be alienated.
green 8. In addition, all these ecclesiastical goods can be said to enjoy the privilege of courtroom, or, which is the same thing, to be exempt from all jurisdiction or secular power of princes or magistrates. First with respect to administration, for they ought to be guarded, conserved, transferred, or exchanged, distributed, or, when necessary, alienated by ministers of the Church, not by laymen, to whom no power over these goods has been attributed, according to the things said in chapters 2 and 15, and from what was said there it is clear that the immunity of these things in this respect descends from divine right, on the presupposition of the Church's institution as well as of the power given to Peter and to his successors for administering, per se or through their ministers, all ecclesiastical things. Hence in the Lateran Council under Leo X, in the bull De Reformatione Curiae § “Et cum Fructuum,” it is said that it is prohibited by divine right for laymen to usurp the right of administering ecclesiastical goods.
9. The reason indeed is that these goods, if they be considered as sacred, are per se ordered to a spiritual and supernatural end, and therefore, by force of divine right, the administration of them pertains to the spiritual power. But if they be considered by reason of their matter, in this way, by the very fact they have been handed over to the Church, they have been put outside the dominion and power of laymen, and have been dedicated to the divine cult and constituted by a special reason under the dominion of God, as the Council of Trent signified, sess. 25 ch. 1 De Reformat., when it prohibited bishops from giving ecclesiastical things “which belong to God” to their blood relatives, which way of speaking is frequent in sacred canons, as one may see in many decrees, 12 qq. 1 and 2, 16 qq. 1 and 7, and in ch. “Cum secundum Apostolum,” De Praebend., where these goods are called the patrimony of Christ; which is also contained in ch. “Cum ex Eo,” De Elect. on 6, and in ch. '“Tua Nobis,” De Praebend. they are said to be, by the special title and manner of tithes, the goods of God. Therefore the administration of such things pertains to them whom God has disposed as dispensers of his goods; but these sorts of dispensers are chiefly the Roman Pontiff and, under him, the bishops in their dioceses, according to the power conceded to them, as the Pontiffs and various Councils have taught, which can be seen in Gratian, dist. 96, especially in ch. 1 and the last one, and the said 12 qq. 1 and 2, and 17 qq. 1 and 7. And best is Ambrose on ch. “Convenior” 23 q. 8, from epist. 33 to his sister. And for that reason those men are said to be sacrilegious who through the secular powers usurp these sorts of ecclesiastical goods, as being violators of sacred things.
10. Second these goods can be said to enjoy the privilege of courtroom because they are exempt from the civil laws, such that these can make no disposition about them in particular, as is sufficiently clear from what was said in the preceding chapter, and it is taken from ch. “Ecclesia” and ch. “Quae in Ecclesiarum,” De Constitut. and the last chapter, De Rebus Ecclesiasticis non Alienandis. It is also very plainly handed down in the Roman Council under Symmachus, which Innocent III alleged in the said ch. “Ecclesia,” and it is referred to in ch. “Bene quidem” dist. 96, where a certain law about ecclesiastical goods passed by a certain Basil, a layman and prefect of the city of Rome, although it was favorable to the Church, was declared null from defect of power, lest it should remain as an example of presumption for certain laymen, although religious, or for the powerful in any city to make any decree in any way about ecclesiastical resources, the care of making disposition about which it teaches was unshakably committed by God to priests alone. The reason is, then, that such laws are null as being made without jurisdiction; for just as the civil magistrate or the prince does not have power for administering ecclesiastical goods, so he does not have jurisdiction for passing laws by which some disposition is made about the same goods. Both because the same reason is in play, namely that these goods, by the very fact that they are by a special title made to be divine and spiritual through a special relation to a supernatural end, are constituted outside the object and matter of temporal jurisdiction. And also because legal dispositions about any goods contain, so to say, eminently and virtually the principal disposition and administration of such goods; because laws of this sort are rules by which the administration of such goods ought to be directed; therefore those who cannot administer such goods can much less create laws about them. Wherefore this exemption from civil law is no less of divine right than exemption from the administration of laymen. This exemption, however, has been determined in many ways by ecclesiastical canons prescribing the manner of alienation, transfer, and other ways of dispensing or administering these goods, as one may see in the ancient decrees alleged especially in 12 q. 1, and in the whole title De Rebus Eccles. non Alien., and in ch. “Pastoralis” about the things that are done by prelates without the consent of the chapter. Hence by the same canon laws this exemption has been increased by various privileges conceded to churches about their goods, and about alienations, prescriptions, and the like, about which here is not the place to speak, but the learned canonists can be seen on ch. “Nulli,” De Rebus Ecclesiasticis non Alienandis, and the summarists, especially Sylvester at the word “Alienatio” and the word “Ecclesia” 2 and 3.
11. Third, for the same reason these goods enjoy exemption from the burden of the secular court. In which briefly is to be noted that these goods can be considered in two ways, first precisely as they are sacred things, and as such it is manifest that secular courts cannot deal with them; for if any doubt or lawsuit is brought about them as they are sacred, from the very nature of the things and by divine right it pertains to the ecclesiastical court, because the matter is sacred and spiritual, such as if what is at issue is whether a church be polluted or not, or a chalice has been rightly consecrated, and the like. In another way these goods can be considered by reason of the matter, according to which they are temporal goods, and there can be litigation about the ownership of them or about the right of using and enjoying them; and in this way it is also clear that these goods are exempt from the secular court, as is noted by the Gloss, by Panormitanus, and the doctors on ch. “Ecclesia Sanctae Mariae,” De Constitut. throughout the text, and through ch. “Si Clericus” with similar ones, De Foro Comp. ,and ch. “Decernimus,” De Iudiciis along with the others that we adduced in chapter 13. For this part more or less coincides with what we said there about the exemption of clerics in civil causes. For if clerics are exempt as to their own goods from the secular court, much more as to ecclesiastical goods. Hence this must be understood with the clarification there added, namely that it proceeds when the church itself is defendant or is brought to court by a layman, or (which is the same thing) when a layman claims that such goods are his own or that he has some right over them. If however conversely a church or its pastor prosecutes a layman for these sorts of goods, which it claims are ecclesiastical, then the exemption from the secular court does not have place, because a defendant ought to be prosecuted in his own courtroom, unless perhaps sacrilege has intervened, by reason of which a defendant could immediately be brought to an ecclesiastical court, as was sufficiently explained in the aforesaid chapter.
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