Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

That the supreme legislative power resides in God alone; for since He alone is the most powerful Artificer of all things, it belongs to Him alone to direct all things, and especially those endowed with reason, toward their ends through fitting means. But since there is a twofold state and end of men, one natural, the other supernatural, toward which God orders them by the twofold vigilance of His divine providence, He has also implanted in men a twofold authority, by which, as ministers of that supreme power of His, they might direct others subject to them toward both felicity, natural and supernatural. Hence a twofold legislative power arises among men: one indeed civil and political, whereby the commonwealth may be rightly and peacefully administered and subsist; the other however spiritual and ecclesiastical, whereby the faithful of Christ the Lord may cohere together not only by the bond of charity but also of tranquillity and concord; and, obeying the laws prescribed to them, may attain eternal life with an easier and more secure step. It is asked, therefore, in whom this twofold power of enacting laws principally resides and flourishes.

Note 2. This is the difference between these two legislative powers: that the Ecclesiastical was derived from Christ the Lord into Peter and his Successors, according to that word, Matth. 16. To thee I will give the keys of the kingdom of heaven, and John 20. Feed my sheep: by which words, as we shall say presently, the government of the universal Church is promised, and then committed, to Peter and his Successors: but the political resides primarily, and as it were radically, in the community itself, or the commonwealth; for this power follows from the nature of the thing from the condition of a political body, as a certain moral property thereof; since by the very fact that some men come together into some assembly, that community has by the nature of the thing the power of governing itself by fitting means; and consequently of prescribing laws, whereby each member may strive for and watch over the common good. For just as by the very fact that some slave, or other person, is enrolled in the household of some master, he knowingly subjects himself to his government; so also the members of a community, by this very thing that they come together into one body, subject themselves to the government and authority of that body itself. Now this power of the whole community does not reside in any one member of it; because there is no stronger reason why it should belong to one man rather than to another, on account of which the right of governing the multitude, or community, would accrue to him by the nature of the thing; especially since individual men vindicate liberty for themselves, nor are they by their nature subjected to any political power. Therefore this power resides in the whole community itself, yet nevertheless it is not so immovably fastened to it that it cannot be removed from it; for first, God, as supreme Lord of all created law, can take away this legislative power from that community, and confer it upon some member of it, as He conferred the power of government over the Israelites upon Saul and David. The commonwealth itself also can transfer this power to one single of its mem-

Note 3. Moreover, this further difference exists between the two powers: that the Ecclesiastical is more excellent than the civil, insofar as spiritual things excel temporal ones, and the supernatural the natural: for the Ecclesiastical power is of the supernatural order, not only with regard to the principle from which it is derived, being instituted by the Author of grace, but also with regard to its end; since it intends a supernatural end, and by supernatural means; and although it seems to prescribe many things which are in substance of the natural order, nevertheless it commands these in order that by them the order of the Ministers of the Church may better stand, who ought to offer sacrifices, administer the sacraments, and discharge the other duties of the Church; whereby the people may work out or attain salvation more easily. But the Civil power is only of the natural order; for it looks solely to political felicity, nor does it intend of itself what is spiritual and supernatural. Nevertheless both these powers ought to cohere with each other: hence Hugh of Saint Victor, Letter 238, to Pope Paschal, rightly says: When the kingdom and the Priesthood agree with each other, the world is well governed, and the Church flourishes and bears fruit: but when they disagree with each other, not only do small things fail to grow, but even great ones miserably fall away.

These points having been set forth in advance, three things chiefly occur here for examination. First indeed, whether and what laws Emperors and Kings can enact. Second, whether the Prelates of the Church, namely the supreme Pontiff, Bishops, etc., can prescribe laws to their faithful subjects. Third, whether Communities and assemblies also have power to establish laws.

First Conclusion. — Emperors and Kings cannot establish laws purely ecclesiastical, but only political: and this only for the peoples subject to them. This conclusion has two parts, of which

The first is proved: First indeed by the authority of the Holy Fathers, as is evident from St. Athanasius, Epistle to those living the solitary life; Hilary against Constantius, but especially from St. Ambrose, who in his sermon on the Basilicas not to be handed over to heretics speaks thus of the Emperor:

What is more honorable than that the Emperor be called a son of the Church? And when this is said, it is said without sin; for a good Emperor is within the Church, not above the Church: for a good Emperor seeks the help of the Church, he does not refuse it, etc.

And Letter 13, to the Emperor Valentinian, who had commanded Ambrose to come before him to dispute concerning the faith with Auxentius the Arian, among other things he writes:

When have you heard, most clement Emperor, that in a matter of faith laymen have judged of a Bishop? Are we then circumvented by a kind of flattery, so that we are unmindful of the priestly right, and think that what God has given to me, this same I must believe to be given to others! If a Bishop is to be taught by a layman, what will follow? The layman rises, and the Bishop listens: does the Bishop learn from the layman? But certainly if we draw upon the series of the divine Scriptures, or upon times of old, who ever heard that in a matter of faith, in a matter, I say, of faith, it was customary for Bishops to judge of Christian Emperors, and not Emperors of Bishops? You shall be, God favoring, even more advanced in the maturity of age, and then you will judge what manner of Bishop he is, who submitted the priestly right to laymen. Your father, God favoring, and of riper years, said: It is not mine to judge between Bishops: your Clemency now says: I ought to judge: and he, baptized in Christ, thought himself unequal to the weight of so great a judgment; your Clemency, for whom the sacraments of baptism are still reserved to be earned, arrogates judgment concerning the faith, when she does not yet know the sacraments of that faith itself.

With similar constancy and fortitude of mind St. Augustine writes to Boniface the Count concerning the Donatists and Circumcellions, showing how and when the faithful ought to obey the laws of Emperors:

Because, he says, even the Emperors, when they enact wicked laws in support of falsehood against truth, are proven to be believers indeed, and are crowned for persevering; but when they enact good laws in support of truth against falsehood, the raging are terrified and the understanding corrected: whoever therefore refuses to obey the laws of Emperors, which are not enacted against the truth of God, incurs great punishment, etc.

Nor does it stand in the way that certain Christian Emperors have prescribed certain ecclesiastical laws, as is evident from the Code of Justinian: for whatever they decreed had no binding force by virtue of Imperial sanction, but derived its force solely from the concession of ecclesiastical power, as if by a tacit or express invocation of the Church requesting the aid of the secular arm against raging heretics or other vices contrary to religion, such as blasphemies, and Pagan and Jewish rites, which could not be restrained by the spiritual power of the Church alone. This the Emperors accomplished, so that what had been holy ordained either by Christ the Lord or by the Church might be put into execution; for Kings and Emperors must watch most diligently that the Church be protected and preserved, according to that prophecy of Isaias concerning the Church: Kings shall be thy nursing fathers, and queens thy nursing mothers: they shall worship thee with their face toward the earth, and lick up the dust of thy feet.

The second part is also evident, namely that Emperors and Kings can enact laws only for the peoples subject to themselves. For since the authority of enacting laws extends itself only to subjects, whom Legislators can compel to the observance of the laws, it follows that laws have no binding force whatsoever with respect to those who are not subject to the Legislator.

Second Conclusion. — THE SUPREME PONTIFF, BISHOPS, AND COUNCILS HAVE THE POWER OF ENACTING ECCLESIASTICAL LAWS.

The first part is founded on those two testimonies of Matthew 16, where Christ promises Peter a special authority, saying: To thee will I give the keys of the kingdom of Heaven, and Thou art Peter, and upon this rock I will build my Church. Afterwards indeed, fulfilling the promise in John 21, when he had thrice asked Peter whether he loved him more than the others, subjoining, he said: Feed my sheep; that is, receive the power of ruling and of enacting laws: for the word feeding signifies in the Scriptures that power, as is gathered from 2 Kings c. 6: Thou shalt feed my people Israel, and thou shalt be prince over it. But whereas he said indefinitely my sheep, he shows that the power granted to Peter extends to all the faithful of Christ. — And Saint Bernard explains this truth expressly, book 2 De consideratione, addressed to Eugenius the supreme Pontiff, chapter 8, where addressing him he says: Come, let us inquire yet more diligently who thou art whose office thou bearest, namely for the time being the person in the Church of God. Who art thou? The high priest, the supreme Pontiff. Thou art the prince of Bishops, thou the heir of the Apostles, thou Abel in primacy, Noe in governance, Abraham in patriarchate, Melchisedech in order, Aaron in dignity, Moses in authority, Samuel in judgment, Peter in power, Christ in anointing. Thou art he to whom the keys were handed over, to whom the sheep were entrusted… Those men have flocks assigned to them, each his own one; to thee all were entrusted, one flock to one man. Nor art thou now the one shepherd of sheep only, but also of shepherds. Whence, if I prove it, do you ask? From the word of the Lord. For to whom, I shall not say of Bishops, but of parts of the Apostles, have the sheep been thus absolutely and without distinction entrusted whole? If thou lovest me, Peter, feed my sheep: which? those of such and such a people, city, or region, or certainly of some kingdom. My sheep, he says. To whom it is not plain that he designated some, but assigned all? Nothing is excluded where nothing is distinguished.

This same truth many supreme Pontiffs have asserted: Thus Pope Anacletus, dist. 22, Epistle to all the Bishops, writes thus: The most sacred Roman and Apostolic Church obtained the primacy, not from the Apostles, but from the Lord himself our Savior, and attained the eminence of power over all the Churches and the whole flock of the Christian people; as he himself said to Blessed Peter the Apostle: thou art Peter, etc. The same is affirmed by Innocent III, c. Sollicitae est, etc.: The sheep of Christ are committed to us in Blessed Peter, the Lord saying, Feed my sheep. And Innocent IV in the General Council of Lyons: Since we hold the vicarship of Jesus Christ on earth, and it has been said to us in the person of Peter: Whatsoever thou shalt bind upon earth, etc.

This same truth is confirmed from the practice of the early Church: For Victor excommunicated the Churches of Asia because they did not celebrate Easter on Sunday, but on the day on which it is celebrated by the Jews, as is read in Eusebius book 5, history, chapter 31. Zephyrinus, as Tertullian relates, book De Pudicitia chapter 7, decreed that adulterers and fornicators be admitted to penance. Likewise he condemned the Montanists, as Tertullian himself relates in the book Contra Praxeam. Pope Stephen decreed that those returning from heresy were not to be rebaptized. So Eusebius book 7, chapter 6.

You ask: whether the supreme Pontiff can enact laws independently of the counsel of the Cardinals? — I answer, that in ancient times the Roman Pontiffs, whenever they had something weightier to decide, took counsel not otherwise than of neighboring Bishops, as is evident from very many examples which it does not profit to examine at present. Nevertheless, fittingly the supreme Pontiff decides and decrees nothing of greatest weight without the counsel of the Cardinals: Because, as Innocent III says, as related under the title Qui filii sunt legitimi, chapter Per venerabilem, the priests of the Levitical race are our brethren, who stand as our coadjutors by Levitical law in the execution of the sacerdotal office: But he is priest or judge over them, to whom the Lord says in Peter: whatsoever thou shalt bind upon earth, shall be bound also in Heaven. His Vicar is he, who is a priest forever according to the order of Melchisedech, constituted by him judge of the living and of the dead.

Proof of the second part: First, because Bishops have power in their own Dioceses, and are set by the Holy Spirit to rule their own Churches. Second, because the Church acknowledges such power in them, as is evident from the chapter Si quis de maioritate et obedientia, and the chapter Ut animarum, in sexto. Third, from the practice of the early Church, which appears in the Letters of Saint Cyprian, 10, 11, 12, and 11, in which he decides and commands in his Clergy that peace not be rashly granted to the lapsed, and in Epist. 13, in which he decrees that the lapsed and Catechumens not depart out of this world without communion. — Likewise from the Canons of Peter of Alexandria in his Sermon on Penitence: the Canonical Epistle of Gregory Thaumaturgus constituting various penalties according to the diversity of sins, and others.

The third part is also evident, because a General Council legitimately convoked has the power of enacting laws for the whole Church: First because General Councils are convened in the Holy Spirit, and represent the universal Church: Second because the Apostles sitting in a General Council enacted laws, as is evident from Acts 15. Finally, because this has ever been done in General Councils, in which very many things have been sanctioned pertaining to the good government of the Church and the upright institution of morals. — Provincial Councils can likewise enact laws which bind in Provinces; and National Councils, laws which bind in nations, as is equally evident from the universal and perpetual practice of the Church. But if National or Provincial Councils have carried certain laws which extend themselves to the whole order, this was not done because those laws were sanctioned by those Councils, but because laws of this kind were accepted by all the faithful, at the instance and command of the Bishops. — As for the Chapters of Cathedral Churches during a vacant see, it is more probable that they cannot constitute anything which binds throughout the whole Diocese, save provisionally, and especially in those matters wherein provision must be made for the time of the vacancy: first because the law itself provides that nothing be innovated while the see is vacant, and although episcopal jurisdiction subsists in the Chapter of the Cathedral Church while the see is vacant, nevertheless it resides therein after the manner of one passing through, and provisionally only, until a Bishop be constituted: but laws ought to be enacted by an authority holding itself after the manner of one permanently abiding; since, as we said, laws ought of themselves to be perpetual. Finally, because the Cathedral Chapter, during the vacancy of the Episcopal see, has no wider jurisdiction than the College of Cardinals during the vacancy of the Apostolic see; but Cardinals are not permitted to enact any laws during the vacancy of the Apostolic see, save only after the manner of provision, and that when the gravest necessity demands it, because a single business is enjoined upon the Cardinals, namely to attend to the election of the supreme Pontiff, as is evident from the Clementine Ne Romani etc., and from the chapter Ubi periculum, de electione, in sexto; therefore etc. — Finally, all Superiors having episcopal, or quasi-episcopal jurisdiction, such as very many Abbots and other superiors and Prelates of Orders, can enact laws for the religious subject to them. The General and Provincial Congregation can likewise perform the same, as is evident from the usage of Religious Orders approved by the Pontiffs. It must nonetheless be observed that no laws can be enacted in our Seraphic Order which bind the brethren under pain of mortal sin: for this authority was proscribed by Sixtus IV in the Bull Circumspecta Apostolicae Sedis, which is number 26 of the same Pontiff in the Bullarium of Rodriguez. For in it the supreme Pontiff, at the instance of the Minister General and of the whole Order, annulled obligations under pain of mortal sin arising from censures, and from statutes hitherto made even by Popes: which annulment Pius V confirmed, as Portel relates, under the word statutum, in the additions; intending that by whatsoever statutes, even Apostolic ones, the Brethren should not be bound to any censures or ecclesiastical penalties, or to mortal sin: but only to penalties or penances to be imposed by Prelates, provided there be no contempt, nor a command laid under pain of excommunication, or in virtue of holy obedience.