Thirteenth. And a second consequence is that every sale or gift of or other dealing with such property is void as from the day of the commission of the offense. And so, when condemnation has taken place, ali such dealings are rescinded by the fise and the property is taken by the same fise, even without any repayment of the price to the purchasers. This, too, is generally admitted, and expressly so by Panormitanus in the passage just named, and is manifest from the afore-named law Manichaeos {Cod., 1, 5, 4).
Fourteenth. A fifth proposition: Nevertheless a heretic continues to 326 be owner in the forum of conscience until he is condemned. This propossition seems to be at variance with Conrad and with the Directorium inquisi¬ torum and Joannes Andreae; it is, however, the proposition of Sylvester, under the word haeresis, I, § 8. Adrian also maintains it, discussing the matter at some length {Quotlibeta, 6, qu. 2), and Cajetan seems to hold the same view in his Summa, under the word -poena. The proposition is proved, first, by the fact that this deprivation in the forum of conscience is a penalty; therefore, it ought in no wise to be inflicted before condemnation.
Nor am I sure whether human law could effect this at ali. It is also proved by what is ciear from the above-named chapter cum secundum leges, namely, that property is confiscated in the same way by the very 1St. Thomas’ Conclusio here is “Justae leges humanae obligant homines in foro conscientiae ratione leges aeternae a qua derivantur.” — Transl.
On the lndians, Sect. I.
fact of an incestuous marriage; as also when a free woman who has been ravished marries her ravisher. Nay, if any one fails to pay the accustomed dues on imported merchandise, the goods are forfeit by the very fact; as also in the case of an exporter of contraband merchandise, such as arms and iron, to the Saracens. Ali the details will be found in the above-named chapter cum secundum leges and in Cod., 5, 5, 3, and Cod., 9, 13, 1, and in 327 X, 5, 6, 6, and in Dig., 39, 4, 16 (?). Aye, and the Pope expressly says in the afore-named chapter cum secundum leges that, just as confiscation takes place in the cases named, so he intends it to take place in a case of heresy. But no one denies that an incestuous person and a ravisher and one who supplies the Saracens with arms and one who does not pay customs remain true owners of their property in the forum of conscience. Why, then, does not a heretic also? Conrad himself treats as identical the cases named and the case of a heretic. It would, moreover, be over severe to require a man who has just been converted from heresy to give up his property to the fise.
Fifteenth. It follows as a corollary that a heretic may lawfully live of his own property.
Sixteenth. Secondly, it follows also that he can make a gratuitous conveyance of his property, as by way of gift.
Seventeenth. It follows, thirdly, that if his offense can be brought before the tribunals, he can not convey his property for value, as by way of sale or dowry. This is manifest, because he would defraud the buyer, making him incur the risk of loss of both the thing and the price, should he, the seller, be condemned.
Eighteenth. Lastly, it follows that, if there were in fact no risk of confiscation, he might even make a conveyance for value. Thus, if some 328 heretic were in Germany, a Catholic could lawfully buy from him. For it would be oppressive if a Catholic could not buy land from a heretic or sell land to him in a Lutheran state; yet it would be necessary to say this, if a heretic were utterly disabled from ownership in the forum of conscience.
Nineteenth. From all this the conclusion follows that the barbarians in question can not be barred from being true owners, alike in public and in private law, by reason of the sin of unbelief or any other mortal sin, nor does such sin entitle Christians to seize their goods and lands, as Cajetan proves at some length and neatly ( Secunda Secundae, qu. 66, art. 8).
Twentieth. It remains to ask whether the lndians lacked ownership because of want of reason or unsoundness of mind. This raises the ques¬ tion whether the use of reason is a precondition of capacity for ownership in general. Conrad, indeed (bk. 1, qu. 6), propounds the conclusion that ownership is competent to irrational creatures, alike sensible and insensible.
329 The proof consists in the fact that ownership is nothing more than the right to put a thing to one’s own use. But brutes have this right over the herbs and plants ( Genesis, ch. 1): “Behold I have given you every herb bearing seed which is upon the face of all the earth and every tree in the which is the fruit of a tree yielding seed; to you it shall be for meat These four corollaries to be noted.
The principal conclusion is inferred.
Cajetan.
Question about the third ground: i. e., whether the lndians lack owner¬ ship because of want of reason. Opinionof Conrad.
Fr ancis cus de Victoria And of Sylvester.
The author answers by certain propositions. Proposition I. Proof i.
The opinionof Conrad and Sylvester rejected.
Proof 2.
Proof 3.
Sylvesters reasoning rejected.
and to every beast of the earth.” The stars, too, have the right to shine for light ( Genesis, ch. 1), “And God set them in the firmament of the heaven to give light upon the earth and to rule over the day and over the night.” And the lion has dominion over ali animals that walk, whence he is called the king of beasts. And the eagle is lord among the birds whence in Psalm 103 the verse about his house being their leader.1 Sylvester (under the word dominium, at the beginning) is of the same opinion as Conrad, saying that the “elements exercise dominion one over the other.”
I answer by the following propositions: First: Irrational creatures can not have dominion. This is ciear, because dominion is a right, as even Conrad admits. But irrational creatures can not have a right. Therefore they can not have dominion.
Thje proof of the minor is that they can not suffer a wrong and there¬ fore can have no right. The proof of this assumption is that he who 330 kept off a wolf or a lion from its prey or an ox from its pasture would not do it a wrong, nor would he who shut a window to prevent the sun from shining in do the sun a wrong. And this is confirmed by the fact that, if the brutes have dominion, he who took away the grass from a stag would commit theft, for he would be taking what belongs to another against the owner’s will.
Also, wild beasts have not dominion over themselves. Therefore much less over other things. The proof of the assumption is that they may be killed with impunity, even for pleasure; and so Aristotle ( Politics, 1) says that the chase of wild beasts is just and natural.
Also, wild beasts themselves and ali irrational animals are more fully within the ownership of man than slaves are. Therefore, if slaves can not have anything of their own, much less can irrational animals.
Our proposition is also confirmed by the authorityof St. Thomas Aquinas {Prima Secundae, qu. 1, art. 1 and 2, and qu. 6, art. 2, and Contra Gentiles, bk. 3, c. no),to the effect that only rational creatures have dominion over their acts, the test of a man’s being master of his acts being (as St. Thomas says, Prima Pars, qu. 82, art. 1, on obj. 3) that he has the power of choice. Hence (as he says in the same place) we are not masters of our appetite as regards its final end. If, then, the brutes have not dominion 331 over their acts, they have it not over other things. And although this seems to be a dispute about a name, it is assuredly a highly improper and unusual mode of speech to attribute dominion to things irrational. For we do not ordinarily say that a man has dominion save over that which is placed within his control. For when we have not dominion, we speak thus: “It is not within my control,” “It is not in my power.” Now, as the brutes are rather moved than move themselves, as St. Thomas says {Prima Secundae, as above), they for that reason have no dominion.
Nor is there any force in Sylvester’s remark that dominion sometimes does not signify right, but only power, in which sense we say that fire has dominion over water. For, if this is enough to confer dominion, a robber ^his is founded on a mistranslation of the Hebrew; see A. V., Ps. 104, v. 17. — Transl.
On the Indians, Sect. I.
has dominion over his victim even up to death, because he has power to kill him, and a thief has power to seize his victinTs money. Further, as regards the statement that the stars exercise dominion and that the lion is king of beasts, obviously this is said metaphorically and by way of figure.
332 Twenty-first. There might seem somedoubt whether a boy, who has not yet the use of reason, can have dominion, inasmuch as he seems to differ little from irrational animals. And the Apostle says ( Galatians, ch. 4): “The heir, as long as he is a child, differeth nothing from a slave”; but a slave has not dominion; therefore, etc. But let our second proposition be: Boys, even before they have the use of reason, can have dominion. This is manifest, because they can suffer wrong; therefore they have rights over things; therefore also they have dominion, which is naught else than a right. Also, the property of wards is not part of the guardian’s property; but it has owners and no others are its owners; therefore the wards are the owners. Also, boys can be heirs; but an heir is one who succeeds to the rights of the deceased and who has dominion over the inheritance ( Dig., 44, 3, 11, and Inst., 2, 19, 7). Also, as already said, the basis of dominion is in the possession of the image of God, and children already possess that image. The Apostle, moreover, says in the passage of Galatians just cited, “The heir, as long as he is a child, differeth nothing from a slave, though he be lord of ali.” The same does not hold good of an irrational creature, for a boy does not exist for the sake of another, as does a brute, but for his own sake.
333 Twenty-second. But what about those suffering from unsoundness of mind? I mean a perpetual unsoundness whereby they neither have nor is there any hope that they will have the use of reason. Let our third proposition be: It seems that they can stili have dominion, because they can suffer wrong; therefore they have a right, but whether they can have civil dominion is a question which I leave to the jurists.
Twenty-third. However this may be, let our fourth proposition be: The Indian aborigines are not barred on this ground from the exercise of true dominion. This is proved from the fact that the true state of the case is that they are not of unsound mind, but have, according to their kind, the use of reason. This is ciear, because there is a certain method in their affairs, for they have polities which are orderly arranged and they have definite marriage and magistrates, overlords, laws, and workshops, and a system of exchange, ali of which call for the use of reason; they also have a kind of religion. Further, they make no error in matters which are selfevident to others; this is witness to their use of reason. Also, God and nature are not wanting in the supply of what is necessary in great measure for the race. Now, the most conspicuous feature of man is reason, and 334 power is useless which is not reducible to action. Also, it is through no fault of theirs that these aborigines have for many centuries been outside the pale of salvation, in that they have been born in sin and void of baptism and the use of reason whereby to seek out the things needful for salvation. Accordingly I for the most part attribute their seeming so unintelligent and Doubt concerning a boy, to whom do¬ minion does not seem to belong before the use of reason is attained. Proposition II. Proof 1.
Proof 2. Proof 3.
Proof 4.
Proposi¬ tion III.
Proposi¬ tion IV.
The abori¬ gines of the New World not wholly without rea¬ son.
Principal conclusion deduced from the foregoing.
Answer to the argument on the negative side adduced above, wherein a passage of Aristotle’s Politics, bk. i, is expounded.
Franciscus de Victoria, On the Indians, Sect. I.
stupid to a bad and barbarous upbringing, for even among ourselves we find many peasants who differ little from brutes.
Twenty-fourth. The upshot of all the preceding is, then, that the aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners. It would be harsh to deny to those, who have never done any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity. We do not deny that these latter peoples are true owners of their property, if they have not seized lands elsewhere belonging to Christians.
It remains to reply to the argument of the opposite side to the effect 335 that the aborigines in question seem to be slaves by nature because of their incapability of self-government. My answer to this is that Aristotle certainly did not mean to say that such as are not over-strong mentally are by nature subject to another’s power and incapable of dominion alike over themselves and other things; for this is civil and legal slavery, wherein none are slaves by nature. Nor does the Philosopher mean that, if any by nature are of weak mind, it is permissible to seize their patrimony and enslave them and put them up for sale; but what he means is that by defect of their nature they need to be ruled and governed by others and that it is good for them to be subject to others, just as sons need to be subject to their parents until of full age, and a wife to her husband. And that this is the Philosopher’s intent is ciear from his corresponding remark that some are by nature masters, those, namely, who are of strong intelligence. Now, it is ciear that he does not mean hereby that such persons can arrogate to themselves a sway over others in virtue of their superior wisdom, but that nature has given them capacity for rule and government. 336 Accordingly, even if we admit that the aborigines in question are as inept and stupid as is alleged, stili dominion can not be denied to them, nor are they to be classed with the slaves of civil law. True, some right to reduce them to subjection can be based on this reason and title, as we shall show below. Meanwhile the conclusion stands sure, that the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.
337 SUMMARY OF THE SECOND SECTION.
On the illegitimate tities for the reductiori of the aborigines of the New World into the power of the Spaniards.
1. The Emperor is not the lord of the whole world.
2. Even if the Emperor were the lord of the world, that would not entitle him to seize the provinces of the Indian aborigines and to erect new lords and put down the former lords or to levy taxes.
3. The Pope is not civil or temporal lord of the whole world, in the proper sense of civil lordship and power.
4. Even if the Supreme Pontiff had secular power over the world, he could not give that power to secular princes...5. The Pope has temporal power, but only so far as it subserves.things spiritual.
6. The Pope has no temporal power over the Indian aborigines or over other unbelievers. <...338 7. A refusal by these aborigines to recognize any domimon of the Pope is no reason for making war on them and for seizing their goods.
8. Whether these aborigines were guilty of the sin of unbelief, in that they did not believe in Christ, before they heard anything of Christianity.
9. What is required in order that ignorance may be imputed to a person as, and be, sin, that is, vincible ignorance. And what about invincible ignorance?
10. Whether the aborigines are bound to hearken to the first messengers of Christianity so as to commit mortal sin in not believing Christ’s Gospel merely on its simple announcement to them.
11. If the faith were simply announced and proposed to them and they will not straightway receive it, this is no ground for the Spaniards to make war on them or to proceed against them under the law of war.
12. How the aborigines, if they refuse when asked and counselled to hear peaceably preachers of religion, can not be excused from mortal sin.
13. When the aborigines would be bound to receive Christianity under penalty of 14. In the authoFs view it is not sufficiently ciear whether Christianity has been so proposed and announced to these aborigines that they are bound to believe it under the penalty of fresh sin.
339 15. Even when Christianity has been proposed to them with never so much sutticiency of proof and they will not accept it, this does not render it lawful to make war on them and despoil them of.their possessions.
16. Christian princes can not, even on the authority of the Pope, restrain these aborigines from sms against the law of nature or pumsh them therefor.
It being premised, then, that the Indian aborigines are or were tiue owners, it remains to inquire by what title the Spaniards could have come into possession of them and their country.
And first, I shall advert to the tities which might be alleged, but which are not adaquate or legitimate.
Secondly, I shall set out the legitimate tities under which the abo¬ rigines could have come under the sway of the Spaniards.
Now, there are seven tities, which might be alleged, but which are not adequate, and seven or eight others, which are just and legitimate.
The first title that might be alleged, then, is that the Emperor is the lord of the world, and in such a way that, even if it be gianted that in time past there was a defect in his claim, it would by now be purged as regards The author proposes to set out the tities, both legitimate and nonlegitimate, by which the Spaniards might have seized the territory of the aborigi¬ nes.
The first nonlegitimate title.
Franciscus de Victoria Is the Emperor lord of the whole earth. For the affirma¬ tive.
Argument i. Argument 2.
Argument 3.
Opinion of Bartolus and the glossators, for affirmative.
Proof 1.
Proof 2.
Proof 3.
Proof 4.
our present, most Christian Emperor. For, even if we assume that the Indian aborigines may be true owners, yet they might have superior lords, just as inferior princes have a king and as some kings have the Emperor 340 over them. There can in this way be many persons having dominion over the same thing; and this accounts for the well-worn distinction drawn by the jurists between dominion high and low, dominion direct and available, dominion pure and mixed. The question, therefore,iswhetherthe aborigines had any superior lord. And, as this question can only arise with regard to either the Emperor or the Pope, let us speak of these.
The first allegation to consider is that the Emperor is lord of the whole world and therefore of these barbarians also. This is supported, firstly, by the appellation, “Lord of the world,” commonly given to the late Emperor Maximilian or to the present Emperor Charles, ever August. Also ( Luke, ch. 2), “There went out a decree from Caesar Augustus that a census should be taken of all the world”; but Christian Emperors ought not to be in any worse condition than he; therefore, etc. Also, our Lord seems to have pronounced Caesar to be the true lord of the Jews. “Render unto Caesar,” said he, “the things that are Caesar’s,” etc. (St. Luke, ch. 20). But it does not seem that Caesar could have this right, save as Emperor. Therefore Bartolus, commenting on the Extravagans of Henry VII, Ad reprimendum, expressly holds that “the Emperor is the rightful lord of the whole world.”
And this is also the opinion of the glossator on X, 4, 17, 13. So, too, the glossator on X, 1, 6, 34.
And they prove the allegation first from can. 41, C. 7, qu. 1, where Gregory1 says that there is one king among bees, and in the world one 341 Emperor, and also from Dig., 14, 2, 9, where the Emperor Antoninus says: “I indeed am lord of the earth,” and Cod., 7, 37, 3, § 1, “everything is understood to belong to the Emperor.”
The allegation might also be supported by the fact that Adam first and then Noah seem to have been lords of the world: “ Let us make man in our image, after our likeness, and let them have dominion over the fish of the sea and over the fowl of the air and over all the earth,” etc. ( Genesis, ch. 1), and a little later on, “Be fruitful and multiply and replenish the earth and subdue it,” etc.; and there is a similar pronouncement made to Noah (Genesis, ch. 8). But these two had successors. Therefore.
Also, there is a proof in the incredibility of God’s having instituted in the world anything but the best system of government: “In wisdom hast thou made them all” (Psalm 104). But monarchy is the best system, as St. Thomas admirably shows (De regimine principum, bk. 1, ch. 2), and as Aristotle seems to hold (Politics, bk. 3). Therefore, it seems to be in accordance with divine institution that there should be one Emperor in the world.
Also, the things which are outside nature ought to imitate things natural. But in things natural there is always one governor; as in the ^Victoria has Hieronymus here following the editio Romana of the Corpus Juris Canonici, which attributes this to St. Jerome.
On the Indians, Sect. II.
body, it is the heart; in the soul, it is reason. Therefore in the world there ought to be one governor, just as there is one God.
1. Now, this contention is baseless. Let our first conclusion, then, be: Bartoius’ 342 The Emperor is not the lord of the whole earth. This is proved from the °ejected. fact that dominion must be founded either on natural or divine or human Pj°p°®“i°n 1 law; but there is no lord of the earth in any of these; therefore, etc. The ai minor is proved, first as regards natural law, by what St. Thomas well says Proof that {Prima Pars, qu. 92, art. 1, on obj. 2, and qu. 96, art. 4), namely, that J®”1^®11 by natural law mankind is free save from paternal and mantal dominion — whole world for the father has dominion over his children and the husband over the wife ^pero/by by natural law; therefore no one by natural law has dominion over the natural law. world. And, as St. Thomas also says {Secunda Secundae, qu. 10, art. 10), dominion and preeminence were introduced by human law; they, therefore, were not by natural law. Nor would there be any greater reason why this dominion should be more proper for Germans than for Gauls. And Aristotle { Politics, bk. 1) says, Power is of two kinds, the one originates in the family, like that of the father over his sons and that of the husband over the wife, and this is a natural power; the other is civil, for, although it may take its rise in nature and so may be said to be of natural law, as St. Thomas says {De regimine principum, bk. 1, ch. 2), yet, man being a political animal, it is founded not on nature, but on law.
Now, as regards divine law, we do not read that before the coming of our Saviour Christ the Emperors were lords of the whole world, although n^no^oT in the gloss mentioned on the Extravagans, Ad reprimendum, Bartoius ^oer™hbole 343 adduces the passage in Daniel, ch. 2, about Nebuchadnezzar, of whom it divine law. is said: “Thou, O King, art a King of Kings; for the God of Heaven hath Proof 1. given thee a Kingdom and power and strength and glory. And wheresoever the children of men dwell, He hath given thee ali.” It is, however, Jglin^anTei certain that Nebuchadnezzar received his sovereignty from God by no iS to be taken. special grant, but in the same way as other princes {Romans, ch. 13): “There is no power but of God”; and ( Proverbs, ch. 8): “By me kings reign and princes decree justice.” Further, Nebuchadnezzar had not a legal rule over the whole earth, as Bartoius thinks, for the Jews were not legal subjects of his.
Another proof that there was by divine law no ruler over the whole Proof 2 world lies in the fact that the Jewish nation was free from the foreigner; nay, the Jews were forbidden by their law to have any foreigner as their lord {Deuteronomy, ch. 17): “Thou mayest not set a stranger to be king over thee.” And, although St. Thomas {De regimine principum, bk. 3, ch. 4 jjj? to ht« and 5) says that the Romans were entrusted with empire by God because given empire of their justice and their patriotism and the excellence of their laws, yet ^0^®ns this is not to be taken to mean that they had their empire by divine grant or institution, as St. Augustine also says {De civitate Dei, ch. 18), but that in the divine providence it befell that they should obtain the sovereignty 344 0f the world. This, however, was not in the way in which Saul or David had his kingdom from God, but in some other way, such as by just war or other title.
Franciscus de Victoria Proof 3.
Reason for saying that after Chrisfs coming, the Emperor is lord of the whole earth.
The author demolishes this reasoning.
This will be plain to any one who considers the tities and modes of succession whereby sovereignty and lordship in the world have come down to our own day. For, to omit everything that happened before the flood, the world was certainly divided after Noah into different provinces and kingdoms, whether this were by ordinance of Noah himself — for he survived the flood three hundred and fifty years ( Genesis, ch. 9), and sent colonies into different regions, as appears in Berosus of Babylon — or whether, as is more likely, different family-groups by the common agreement of mankind occupied different provinces, as ( Genesis, ch. 13) “Abram said unto Lot: ‘ Is not the whole land before thee?...If thou wilt take the left hand, then I will go to the right, or if thou depart to the right hand, then I will go to the left.” We are, accordingly, told ( Genesis, ch. 10) that through the descendants of Noah came diversities of peoples and countries, whether in some regions they first assumed lordship by usurpation, as Nimrod seems to have done, of whom Genesis, ch. 10, v. 8, says that he was the first to be a mighty one in the earth, or whether by accord of several to unite in one State they appointed a prince over themselves by common agreement. For it is sure that either in these or in other like modes sovereignty and lordship began in the world and that afterwards, either by right of inheritance or of war or by some other such title, they 345 were continued unto our own day, or at any rate up to the time of the Saviour’s coming. Herein it is manifest that before the coming of Christ no one was vested with world-wide sway by divine law and that the Emperor can not at the present day derive therefrom a title to arrogate to himself lordship over the whole earth, and consequently not over the barbarians.
It might, however, be alleged that after our Lord’s coming there was one Emperor over the world by express grant of Christ, in that He, as regards His manhood, was Lord of the world, according to St. Matthezv, ch. 28: “All power is given unto me,” etc.,which, according to St. Augustine and St. Jerome, is to be understood as regards His manhood. Also, as the Apostle declares (I Corinthians, ch. 15), “He hatn put all things under his feet.” Therefore, just as He left on earth one vicar in matters spiritual, so also in matters temporal, and in the latter case it is the Emperor. St. Thomas, too, says (De regimine principum, bk. 3, ch. 13) that Christ was from His nativity the true Lord and monarch of the world and that Augustus though unwitting thereof, was acting as His deputy. Now, it is ciear that this deputyship was not in matters spiritual, but in matters temporal. Seeing, then, that Christ’s Kingdom, if it were temporal, was over the whole world, Augustus was, on that showing, lord of the world and so on the same principle his successors were.
This reasoning is, however, quite inadmissible: In the first place, 346 because of the doubt attaching to the statement that Christ as regards His manhood was temporal Lord of the world. The probability indeed is that He was not, and our Lord seems to have asserted as much in the passage: “My Kingdom is not of this world.”1 Accordingly, St. Thomas remarks in this On the Indians, Sect. II.
connection that ChrisCs dominion is directly appointed for the soul’s salvation and for spiritual profit, although it is not excluded in matters temporal in the same fashion as it is appointed in matters spiritual. This shows that in St. Thomas’s view His Kingdom was not of the same sort as a civil and temporal kingdom, but that,while He had ali kinds of power, even in matters temporal, which would subserve the aim of redemption, yet apart from that aim He had none. Further, even if we grant that He was temporal Lord, it is guess-work to say that He bequeathed that power to the Emperor, there being no mention of any such thing in the whole Bible. And as regards St. Thomas’s statement that the Emperor Augustus was Christ’s vicegerent, firstly, he does indeed make it in the passage referred to, but in his Tertia Pars, where he is professedly discussing the power of Christ, he makes no mention of this temporal power.
Secondly, St. Thomas’s meaning is that the Emperor was Christ’s vicegerent to the extent that temporal power is subordinate and subservient 347 to spiritual power. In this sense, of a truth, kings are the servants of bishops, just as the smith’s art is subject to the knight’s and the soldier’s, while all the time neither the soldier nor his superior officer is a smith, but is only concerned to give the smith orders about the making of armor. Again, St. Thomas, writing on that passage in St. John, ch. 18, expressly says that Christ’s Kingdom is not temporal or such a kingdom as Pilate conceived, but a spiritual kingdom, inasmuch as our Lord declares in that passage: “Thou sayest that I am a King. To this end was I born and for this cause came I into the world, that I should bear witness unto the truth.” This shows it to be a mere fiction to say that by express grant of Christ there is one Emperor and lord of the world.
A consideration which palpably confirms this is the following: If there had been any such institution by divine law, how comes it that the Empire was divided into Eastern and Western, first among the sons of Constantine the Great and then, later, by Pope Stephen, who conferred the Empire of the West on the Germans, as is held in X, 1, 6, 34? For the assertion that the Greeks thereafter were not Emperors is inept and ignorant, as the glossator hereon points out, seeing that the German Emperors never claimed in virtue of this grant to be Lords of Greece, and John Palaeologus, Emperor of Constantinople, was held to be lawful Emperor at the Council of Florence.
348 Moreover, the patrimony of the Church (as the jurists themselves, and even Bartolus, confess) is not subject to the Emperor. Now, if all things were subject to the Emperor by divine law, no imperial gift or any other title could divest the Emperors of them, any more than the Pope can release any one from the power of the Popes. Also, the Kingdom of Spain is not subject to the Emperor, nor is France, as is also held in X, I, 6, 34 abovementioned, although the glossator adds out of his own head that this is not so much a matter of law as of fact. Also, the doctors agree that States, which have in times past been subject to the Empire, might be freed from that subjection by prescription; which would not be the case, if this subjection were in virtue of a divine law.
The author returas to the confirmation of his proposi¬ tiori.
The Pope, who granted the Empire, is said to have been Leo III.
Franciscus de Victoria The author proves that the Emperor is not lord of the world by human law either.
Secondproposition. As the gloss on the preface to the Digest.
Discussion of the second title whereby the Spaniards could obtain possession of the barbarians.
The opinion of some jurisconsults.
Now, in point of human law, it is manifest that the Emperor is not lord of the world, because either this would be by the sole authority of some law, and there is none such; or, if there were, it would be void of effect, inasmuch as law presupposes jurisdiction. If, then, the Emperor had no jurisdiction over the world before the law, the law could not bind one who was not previously subject to it. Nor, on the other hand, had the Emperor this position by lawful succession or by gift or by exchange or by purchase or by just war or by election or by any other legal title, as is admitted. Therefore the Emperor never was the lord of the whole world.