Palladium theologicum, Tomus quintus: De virtutibus

By what right the first division of things, and subjection, was made.

IN this most weighty question we must first see in what way the most precious liberty of men, which is not well sold for all gold, has been bound.

THE holy Doctor supposes that even in the state of integral nature there would have been pre-eminence and prelation; as also among the Angels, not only while on the way, but now also in the homeland: for this is most suitable to the hierarchy, which is called the directing power, that the wiser direct the less wise. Thus 1 Corinth. 11 it is said: the man is the head of the woman.

ANOTHER is legal pre-existence and prelation, by which a Prince governs his subjects and coerces them civilly.

THE third is the subjection of servitude, by which one man is despotically in the power of another; and this mode of servitude is misery, of which Aristotle, first Polit. cap. 3. and 4.

THE holy Doctor shows that these two servitudes did not exist in the state of integral nature. Therefore he says, God did not say to men: rule over one another; but only: rule over the fishes of the sea, and the fowls of the air, and the beasts of the whole earth, as D. Thomas also observes, 2. 2. quaest. 66. art. 1.

THEREFORE the holy Doctor proves that servitude arose from sin: not only is it asserted as imposed after sin; thus Gen. 9. Noe says to Chanaan: A servant of servants shalt thou be to thy brethren. And Exod. 21. If thou buy a Hebrew, six years shall he serve thee: in the seventh however he shall go out free. Levit. 25. The bondmen and handmaids who are round about you (that is, from the Gentiles) these you shall have as servants: and you shall transmit them by hereditary right to posterity, and possess them for ever.

IN PARTICULAR also the Apostle expresses the servitude of Christians, 1. Corinth. 7: Let every man abide in the same calling in which he was called; art thou called a servant? care not for it; but, if thou canst be made free, use it rather. And first Timot. 6: Whosoever are servants under the yoke, let them count their masters worthy of all honour, lest the name of the Lord, and his doctrine, be blasphemed.

BY this servitude the pious Emperors often condemned those taken in war, whom they could have killed, adjudging that servitude, a misery almost to be equated with death; who for that reason were called servi, because they were preserved; and mancipia, as if taken by hand. So Molina tract. 1. de Iust. disp. 32. Fagund. lib. 2. de contractibus, cap. 1.

THEREFORE the cited Scriptures show that servitude was introduced as a punishment, and hence that servitude is not against corrupt nature, as taught by D. Bonau. and also D. Thom. loc. cit. and in 4. dist. 36. Navar. in C. Ita quorundam de Iudaeis, notab. 11. Gloss. penult. num. 1. Couar. in regula peccatum, 2. p. §. 11. it is evident from C. Ius naturale, dist. 1. and from Roderico Cunha on the same C. in p. 1. decret. and Fagundez l. 2. de contract. cap. 1. num. 6.

NEXT it is proved by D. Bonau. from D. August. l. 19. de civit. cap. 15. where he also proves it, because God willed that rational man, made to the image of God, dominate only over the irrational. The same he proves from D. Gregory.

IT IS PROVED thirdly by D. Bonavent. by the argument of D. August. which the other cited authors use. Liberty is in man from nature, as created to the image of God. But liberty is the natural power by which it is licit for a man to do what he wills. Therefore servitude is against nature; but man, free by nature, ought not to be deprived of his liberty on any other ground than fault: Therefore.

ALTHOUGH dominion is of dignity; yet to be a slave is said to be an indignity, and hence those do not judge well who say that dominion over slaves ought to have existed even in the state of integral nature, as the holy Doctor says ad 3. Hence it arose from sin, and also on the occasion of the drunkenness of Noe it was proclaimed, and this D. Ambrosius wills, l. de Elia, et ieiunio, cap. 5. saying: Servitude was introduced through the sin of drunkenness, as D. Bonau. reports ad 4.

MOREOVER the holy Doctor shows most excellently, ad ultimum, that servitude is most justly to be posited in the state of sin, namely to remove oppressions, and to ward off crimes. For if all were free without subjection, they would already be carried by unbridled cupidity into every crime; and one would try to oppress another.

BUT by four titles men already fall, from sin, into servitude.

THE FIRST is by the right of just war, by which the captured are made the captors' own; thus Leg. Hostes, ff. de captivis. it is introduced by the law of nations, as cap. cum Redemptor, 12. quaest. 1. proves, where D. Gregory, the author of that canon, says, as D. Bonau. also reports, quaest. 2. fund. 1. Men, whom nature at first brought forth free, the law of nations subjected to the yoke of servitude.

THE holy Doctor proves the same, quaest. 2. argum. 4. with the response, from the Instit. of Justinian: Wars arose, and captivities followed, and servitude.

FOR since by the right of war it is licit to kill enemies, C. ab illo, 14. quaest. 4. C. quid culpatur, 23. quaest. 1. nothing could be judged more equitable for tempering the raging of war than that life be granted in mercy to those who could be slain, according to c. noli 23. quaest. 1. at the end. Whence, as I already said, they are called servi, because they are kept alive, and mancipia, because they are taken by hand, when they could have been killed, Leg. Libertas, ff. de stat. homin.

YET Christian CHARITY works further, so that Christians taken in war are not reduced to servitude, which has been preserved by perpetual custom, as Bartol. admonishes on Leg. Hostes, ff. de capt.

THE SECOND title of servitude is birth, on which D. Bonavent. in 4. dist. 36. quaest. 3. For he who is born of a bondwoman is a slave, of whatever condition the father may be, whether he be born of lawful marriage or not, because the offspring follows the womb, ex Leg. partum, Cod. de rei vindicatione, Instit. de iure personarum, §. penult. Instit. de ingenuis, §. 2. cap. unic. de natis ex libero ventre, as the holy Doctor proves in 4. dist. 36. quaest. 2. and 3. where he shows this not only by imperial and canon law, but also from the divine law, Exod. 21. where it is said: If the Lord shall have given to him (the Servant) a wife, and she have borne sons and daughters: the woman, and her children, shall be her master's, but he himself shall go out. Fagundez proves almost the same by these.

YET the holy Doctor admonishes that he who is born of a bondwoman does not become a slave, if the mother was free, either when she conceived, or at least in birth, or at any intermediate time, ex Leg. et servorum, ff. de stat. homin. Instit. de ingen. §. 2. and cap. unic. de natis ex libero ventre, cited above.

A REASON also is brought by the holy Doctor, because the mother is the more substantial principle of the offspring, as the father is the more honourable; therefore in honours the offspring follows the father, and in all things which he has, since those are acquired by paternal solicitude; but in that which he is, he follows the mother; and because servitude is according to that which one is, not according to that which one has, therefore in it he follows the mother.

YET the holy Doctor observes in the body that some provinces, which do not obey the imperial laws, dispose otherwise by their own laws, so that the offspring either follows the worse parent, or follows the condition of the father, or contracts no servitude unless both parents are slaves; and this is to be observed there, as appears ex cap. licet de coniug. servorum, and Panormitanus affirms there. But where the Roman laws did not prevail, nor any other peculiar law, or custom; it could be judged that the mother is a bondwoman at the time of birth, as Fagundez also says, lib. 2. cap. 1. num. 5.

THE holy Doctor ADDS also that in certain places of France there is a custom, that if one of the spouses is a slave, the children are slaves; and if the mother is a bondwoman under a different master, the children are divided among the masters. Yet he says it is more fitting that the offspring follow the mother, just as also in animals, the foal engendered follows the mother, not the father, and the fruit of the seed is the lord of the land's, not the sower's; and in artificial things, if one builds on another's land, the building goes to the Soil, but not the Soil to the building. So Lex Patet. The reason is, that although the formative power is from the Father, nevertheless it draws more substance from the mother.

THE THIRD title of reducing to servitude is some most grave crime, on account of which one is condemned by the Prince. That this punishment can be imposed the Doctors teach commonly: Scotus in 4. dist. 36. quaest. 15. Navar. in cap. ita quorumdam, de Iudaeis notab. 11. gloss. penult. Sylvester V. servitus, Angelus there, Lessius Tom. 1. lib. 2. cap. 3. dub. 4. num. 4. Cunha dist. 32. in cap. eos qui, Salon de dominio, quaest. 3. art. 1. poss. 4. concl. Fagundez lib. 2. cap. eos qui 32. dist. It is conceded to secular Princes the power of reducing to servitude women who knowingly contracted marriage with those in sacred orders; and cap. cum multae 15. quaest. 4. it is established that the sons conceived of such a union become slaves of that Church to which the father belonged, cap. de raptoribus, 36. quaest. 1. ravishers are condemned to the punishment of servitude, which laws the holy Doctor indicates in 4. dist. 37. and in confess. cap. 3. particula 54.

THE FOURTH title of reducing to servitude, or of possessing one as a slave, is sale, as D. Bonavent. teaches in 4. dist. 36. dubio 2. litt.

AND first indeed a free man can sell himself into slavery, as the holy Doctor observes, dub. 3. dist. cit. which the holy Doctor proves elsewhere by the example of D. Paulinus, Bishop of Nola, who had sold himself to redeem the son of a poor widow. Thus also Deut. 15. has the rule for sanctioning this; yet it must be done according to that rule; thus Levit. 25. poverty is assigned as a sufficient cause of sale.

YET the law of the Caesars Leg. liberis, §. si quis sciens, ff. de liberali causa, prohibits anyone from knowingly buying a free man, even one willing, and grants to one so bought a proclamation in liberty.

YET OBSERVE that that law of the Caesars was enacted in favour of the liberty of the subjects of the Romans. This I prove, for Leg. Non ideo, Cod. de liberali causa, there belongs to parents the power of selling their free children in grave necessity, which also is of the law of nature, as is gathered from Exod. 21. But this necessity is restricted by the law of the Caesars to the case of extreme poverty, leg. 2. Cod. de partibus, qui filios suos distraxerunt.

FOR indeed although there only the cause of destitution is expressed, yet if another similar necessity arrives, the law is extended, as Pinellus observes, ad Rubr. Cod. de bonis matern. part. 2. num. 27. who also observes from the common sense of the Jurists that the sale of offspring is granted to the father alone, not to the mother, on account of the lack of counsel, and the weakness of mind, which is found in women; by the law of nature, however, the aforesaid power belongs also to the mother, as the Doctors unanimously hold in Pinellus number 28. on the law 2. Cod. de Patribus, qui filios distraxerunt. All of which the holy Doctor saw dist. allegata, dubiis litterae.

YET that Roman law grants to the son that he can recover his liberty, the price being returned to the buyer.

YET this law, and others like it, are no longer in use among Christians. See also Fagundez lib. 2. de contract. through many chapters, in which he discourses eruditely on the purchases of slaves of infidels from the lands beyond the seas, especially in the Indies.

THERE REMAINS now to be seen the other part of the question, on the division of other things, made by the law of nations; and first I shall treat of the Fact: then of the Right.

IT IS CERTAIN, however, that in the state of innocence no division of things was made, as the holy Doctor observes hic, quaest. 2. ad 4. nor was there to be in it any dominion of property, but only of jurisdiction, as Tanner says, to be cited num. 69. but immediately after sin it was fitting that the things to be possessed be divided; thus Abel, and Cain are said, Genes. 4. to have offered of their goods; the one sheep; the other the fruits of the earth he immolated to God; then indeed Noe divided the world among his sons, Genes. 10. and 11. Afterwards indeed smaller divisions were made by fields, and acres, and thus the division is believed to have been made by Adam, or Noe, whether through a Prince chosen from the people as arbiter, as Tanner says, disp. 4. quaest. 1. num. 70.

AS TO what is of right, I ASSERT that the division was made by the best right. So D. Bonavent. hic ad 4. D. Thom. 2. 2. quaest. 66. art. 2. Sotus lib. 4. de iustitia, quaest. 3. quaest. 3. art. 1. Ioan. Medina Cod. de rebus restitut. quaest. 1. Conradus de contract. lib. I. quaest. 8. and 9. Molina tomo I. de iust. tract. II. disp. 20. Brito de locato, et conducto, I. part. rubrica, fol. 4. col. 4. and the Doctors commonly in Fagundez lib. II. de contract. cap. 7.

IT IS PROVED first by D. Bonavent. in the cited place, because the law of nature dictates that peace, and justice be preserved in the society of men; but if all things were possessed in common, innumerable disputes, dissensions, and quarrels would arise; for the stronger would seize, and would leave nothing to the weaker, and often many would rush together to take the same thing, as necessary to them.

HOW EASILY, however, these quarrels arise in the state of corrupt nature, is clearly evident from the societies of travellers, and merchants. Thus Genes. 13. quarrels arose between the shepherds of Abraham, and of his nephew; which inconvenience Abraham avoided by dividing the land with Lot.

ARISTOTLE also proves this in the cited place of the Polit. against Plato, and Socrates, who, to preserve peace, willed all things to be common, even wives, so that all things might be more one.

FURTHERMORE, Deuter. 32. it is said: When the Most High divided the nations, when he separated the sons of Adam, he appointed the bounds of the peoples according to the number of the sons of Israel. Therefore God proclaims himself the author of this division.

FURTHERMORE in the Council of Constance, among the dogmas of John Hus, that was condemned which held that it was not licit for Clerics to possess anything of their own, which was also the heresy of the Manichaeans, as S. Bonavent. reports in quarto cap. regulae Minorum. For it is certain that from the time at least of D. Sylvestri, Clerics, and Prelates have had possessions, and these most justly, the Church acclaiming; otherwise all the holy Clerics, Prelates, and Laics who had anything of their own would have been condemned, as the holy Doctor argues there; indeed from the time of the Apostles, and before, many saints were rich, and yet just, which he alleges as a noted point, in decretis, 12. quaest. 1.

YOU OBJECT first. The division of things is against the law of nature: Therefore it is unjust. The antecedent is proved, because by the law of nature all things are common, as in cap. ius naturale, dist. 1. and in cap. dilectissimis, 12. quaest. 1. where Clement, the author of that canon, says thus: The common use of all things that are in this world ought to have been for all men, but through iniquity one said this was his, another that, and thus among mortals division was made.

Scotus answers in 4. dist. 15. quaest. 2. from D. Bonavent. dist. 44. art. 2. quaest. 2. ad 4. that the law of nature, which before sin required all things common, after sin, with the state changed, required that things be proper; and this Scotus meant to say when he said the law of nature was changed after sin. Wherefore Fagundez, num. 11. says Scotus spoke imprudently, although he tries to draw him to the mind of D. Bonavent.

TO the text of Clement Pope 12. quaest. 1. the holy Doctor already answers above ad 4. cap. regulae, namely that according to those canons the Church had proper goods from the beginning, granted the occasion of the state of corruption.

YOU OBJECT secondly, many Fathers teaching that all things are common. Thus Chrystost. in cap. 6. Lucae, Ambrosius, reported in cap. sicut hi, 47. dist. and others. See D. Chrysost. oratione de sancto Philogonio.

THE holy Doctor answers most fully, ad cap. 4. regulae, and in the Apologies of poverty, and of the poor, that the Fathers meant only this: that riches are not to be so adhered to that for their sake one omits serving God, and that one remember that in necessity all things are common as to use; and therefore alms are to be given, and the counsel of leaving all things is best, because that Mine, and Thine, is tenacious, and viscous. Moreover he shows most luminously that riches are licit, and that innumerable saints were and are rich, and glorious. That the Church indeed even of old was most wealthy, and that the Levites were opulent, he proves from the Law of God in Apolog. pauperum, responsionis tertiae cap. 2.

THESE same things the holy Doctor sets forth at length ad 14. Lucae in these words: Who does not renounce all things that he possesses cannot be my disciple, saying: to renounce all things in affection is of necessity; but to dismiss all things is of supererogation, and counsel. Therefore it is concluded: some inconveniences indeed arise from the property of things, but there would have been more, if all things in this state were common.

IT IS indeed fitting with friends that all things be common, as Pythagoras said, not in property, but in use, as Aristotle said, 2. Polit. cap. 3. et 4.

YOU OBJECT thirdly. That is better which is of counsel, and falls under a vow; but expropriation is of counsel, Matth. 19. If thou wilt be perfect, go, sell all, and give to the poor, and it is the matter of a vow even solemn: Therefore.

Fagundez answers, num. 14. from Molina Tom. I. tract. II. disp. 20. §. tertia conclusio, that it is indeed fitting that there be some congregations in which all things are held in common, and nothing proper, so that, more intent on the cult of God, segregated from every concretion of worldly things, they may lead a heavenly life. The holy Doctor pursues these things most fully in the cited places, who also shows that for those wishing to serve God most highly, most high poverty is an option, which admits nothing even in common; yet in the world, where estates, business, and contracts are necessary for civil life, and for political fellowship; it is indeed fitting that certain things be determinately proper; both that contentions, and disputes be removed; and that each diligently apply himself to his own affairs. For one's own good is amiable to each one, as Aristotle says; on the contrary, where the business is common:

More sluggishly do many dispatch the affairs committed to them,

And as in the Law, Cod. quando, et quibus quarta pars debeatur, leg. 10. it is a natural defect, that what is possessed in common is neglected.

FOR that proverb is common among many: He who benefits the community benefits no one.

THERE RESTS now to be seen by what right the division of things was introduced.

ALREADY in the Tract. de Legibus, disp. 4. quaest. 2. I solved this doubt together with the others pertaining to servitude.

BUT I said that by the dictate of the natural law indeed the division of things in this state is sanctioned, yet this was made by the law of nations, as D. Bonavent. teaches here quaest. 2. D. Thom. 1. 2. quaest. 66. art. 2. ad 1. where Caietanus, and other Thomists, Medina Cod. de restitut. quaest. 1. concl. 5. Salon 2. 2. quaest. 4. art. 1. et 2. Ledesma 2. 4. quaest. 18. art. 1. dub. 6. Molina Tom. I. de iust. tract. II. quaest. 20. concl. 1. Fagundez lib. II. de contract. num. 16. and it appears from Leg. ex hoc iure, ff. de iustitia, et iure, where Bartol. num. 5. Iason num. 43.

OBSERVE that D. Augustin is cited in cap. Quo iure, dist. 8. where he says: Each one possesses what he possesses — is it not by human right? Take away the Laws of the Emperors; who dares to say: this villa is mine?

BUT S. Augustine speaks of particular divisions, of divisions; fixed by the law of the Caesars, as Fagundez notes, num. 17.

NEXT observe that D. Augustin reduces all laws to Divine law, and Human; and indeed he reduces the law of nations to human law; and human law to the law of the Caesars; just as he recalls the Natural to the Divine, as Cunha teaches, 1. part. decreti, cap. quo in-re, dist. 7. But the properties of things are more broadly called servitudes, whether mixed, or real, affirmative, or negative. See Layman lib. 3. Filliucium tract. 31. Lessium lib. 2. Bassaeum V. Servitus.