The Transmission Theory

Another theory holds that the first bearer of civil authority is not the king or any governor but the people as a whole, the civil multitude. Whenever there is a distinct governing personnel, men have done two things and not one, as in the case of the pope: they have designated the ruling person, and they have transmitted to him the power given by God to the people. Let us emphasize that transmitting does not mean the same as giving. To say that God alone gives authority is the same as to say that God alone can bind the conscience of man.

The transmission theory is commonly attributed to Thomas Aquinas. True, the question does not belong to his Problematik and is not treated explicitly in any part of his work. The best approximation to a treatment of it is found in the Treatise on Laws of the Summa theologica. After having shown that law is a product of the reason -- more precisely, a premise of practical argumentation (a.1) -- and that it is essentially relative to the common good (a.2), Aquinas poses the question Whether the reason of any man is competent to make laws? The answer is commanded by the principle of proportion between end and cause. Since the end is the common good, the efficient cause ought to be, proportionately, the multitude or a person "holding the part of," "acting instead of," "being in charge of," the multitude. "Now to order anything to the common good belongs either to the whole people or to someone who is the vicegerent of the whole people. Hence the making of a law belongs either to the whole people or to a public personage who has care of the whole people."^{6} In a later question of the same treatise he shows that custom can obtain the force of law; an objection to this statement is derived from the public character of the lawmaker: ". . . the framing of laws belongs to those public men whose business it is to govern the community . . . but custom grows by the acts of private individuals here is the answer of Aquinas (trans. A. C. Pegis):

The people among whom a custom is introduced may be of two conditions. For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance than does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Therefore, although each individual cannot make laws, yet the whole people can. If, however, the people have not the free power to make their own laws, or to abolish a law made by a higher authority, nevertheless, among such a people a prevailing custom obtains the force of law insofar as it is tolerated by those to whom it belongs to make laws for that people; because, by the very fact that they tolerate it, they seem to approve of that which is introduced by custom.^{7}

There cannot be any doubt that the transmission theory is in full agreement with the notion of political authority expressed here by Aquinas. These texts are most simply and directly interpreted by the theory that power belongs primarily to the people, who can use it to make laws for themselves, and that, if and when power lies in the hands of a distinct person, this person has the character of "one who substitutes for the people." The expression gerens vicem might suggest the coach-driver theory; but this is ruled out by Aquinas' general views on obedience and authority. Thus it can be said that his only existent expressions on the subject of the origin of political power support the transmission theory. Yet, because these expressions amount merely to a few sentences, because the problem is not fully disengaged, and because the alternative solution (i.e., the designation theory) is not envisaged, to state with no qualification that the transmission theory is that of Aquinas would perhaps be more than the texts warrant.

But the transmission theory is supported in unmistakable terms by the great commentator on Aquinas -- Cajetan. Besides a short commentary on the above-quoted passage of the Treatise on Laws, the ideas of Cajetan are found in two "Opuscula."^{8} The first of these, "A Comparison between the Authority of the Pope and That of the Council," completed on October 12, 1511, was occasioned by the schismatic Council of Pisa, directed against Pope Julius II. Cajetan discusses in it Gallican theories already held in the fifteenth century in connection with the Council of Constance, especially the views of Ockham and Gerson, who upheld the supremacy of the council over the pope. King Louis XII of France submitted Cajetan's opusculum to the University of Paris and intrusted the duty of refuting it to a young and skilful doctor, James Almain, who wrote a pamphlet entitled "On the Authority of the Church, or of the Sacred Council's Representing Her, against Thomas de Vio, Dominican" (1512), to which Cajetan answered in a second opusculum, "Defense of a Comparison between the Authority of the Pope and That of the Council," completed on November 29, 1512.^{9}

As the adversaries of papal supremacy use arguments drawn from alleged analogies between church and state, Cajetan is led to stress differences and to emphasize the unique relation to God that obtains in the supernatural and supra-temporal society. In the history of ideas concerning sovereignty, circumstances, most of the time, made for confusion; here they happen to make for distinction and precision. Cajetan is dedicated to showing what is unique in the power of the pope and by what features it is distinguished from any other power.

At the beginning of the first Opusculum (chap. i) Cajetan declares that the adversaries of the pope's supremacy should not draw any argument from the condition of monarchs "established by the Senate and the free people": the power of the pope was established by Christ. Later, after having abundantly developed the theory that the pope acknowledges no superior on earth and that the church is in no way superior to the pope, Cajetan examines the question of the deposition of a pope guilty of heresy.^{10} That a heretical pope should be deposed is for him not doubtful. He mentions the opinion that a pope who falls into heresy ceases, thereby, to be pope, so that no deposition is needed but merely the official sanction of his no longer being the head of the church. Cajetan speaks of this opinion with respect, but holds it untrue. He thinks that the heretical pope is still pope and has to be deposed, just as the heretical bishop is still bishop and has to be deposed. But how is it possible to grant the church the power to depose a man who is still pope without granting her power over the pope, which is precisely the thesis which Cajetan wants to refute? By this extreme difficulty Cajetan is led to work out instruments of unprecedented accuracy for the treatment of the problem of sovereignty.

His theory is that, although there is not on earth any power superior to the pope, yet there is on earth a power which in the extreme case of a stubbornly heretical pope can play the part of an instrument in his deposition.^{11} "You must consider that three aspects are found in the pope: The papal power, the person (say, Peter), and the conjunction of the two, viz., the papal power in Peter, from which conjunction Pope Peter results.'' Then, ''if we discern the proper causes and apply them to their proper effects," we understand that the papal power (papatus) proceeds from God immediately, that Peter proceeds from his parents and ancestors, and that the union of papal power and Peter proceeds immediately not from God but from man, except in the case of the first pope, who was appointed by Christ. Thus, what is caused by man, in the case of the pope, is the union of a person with a power which is not, itself, caused by man in any sense whatsoever. Such union does not take place without election by men and the consent of the elect. The case is absolutely unique. The power exercised in the deposition of the heretical pope does not imply that the pope acknowledges any superior in this world; the power which deposes the heretical pope is not concerned with the papal power, which is directly from Christ; it is concerned merely with the union existing between the papal power and a man-designated person.

This is a very clear exposition of what was to be called later the "designation theory." The role of man in the constitution of authority is limited to a designation when, and only when, the thing caused by man is merely the union of a particular person with a power which does not come from man in any sense whatsoever. The power to cause such conjunction does not by any means constitute a power over the ruling person. No wonder that such a theory is popular among rulers; but Cajetan makes it plain that it holds only in the case of the supernatural society. Even if a king happens to be appointed by God, contrary to the ordinary course of events, he does not enjoy a power independent of anything human; such power belongs to the head of the church alone. This is what Cajetan makes unmistakably clear in the second Opusculum. His opponent draws an argument from the power of the king. Cajetan answers:

Concerning what is added on an [allegedly] similar situation of kings, let it be said that kings are not proximate and immediate ministers of God, but, without any doubt, they are God's ministers by being the vicegerents of the multitude. Very different is the situation of the pope: he is not the vicegerent of the multitude but of Jesus Christ. Consider now the following four cases: (1) that of a king created by the people like Saul, according to the method which obtains so long as the situation remains within the limits of the natural law; (2) that of a king given by God, like David; (3) that of a pope made by Christ, like Peter; (4) that of a pope elected by the church, like all the other ones. Such is the difference [between pope and king], so far as representing the people is concerned, that the king, whether created by the people or given by God, represents the people and its power. [Saul and David], although they differ from each other in the way in which they become [kings], since the former is appointed by the people and the latter by God, do not differ with regard to the nature of their function and power. Just as a physical organ -- say, the hand -- if it happens to be produced by God miraculously, is the same as when it is produced by nature, so a political organ -- say, the king -- when it is created by God, is exactly the same as if it was created by the people, and consequently, whether he is made king by God or by the people, he represents and exercises the power of the people, and he is said to be the vicegerent of the people, not immediately that of God. But the pope, whether made pope immediately by Christ or immediately by the ministry of the church, has the same nature and the same power: and he does not represent the power of the people of the church, he does not represent the people of the church itself, but represents immediately our Lord Jesus Christ and it is of him alone that he is, immediately, the vicegerent.

The foundation for such difference between king and pope is that the royal power, by natural law, resides primarily in the people, and from the people is transferred to the king; but the papal power is above nature, and by divine law resides in one person; it does not reside, first, in a community.^{12}

Further, "in relation to the natural end [God] gave power to the community, not to one person; but in relation to the supernatural end, he gave power to one person, not to the community." To the objection that, if the power of the church is not above that of the pope, it follows that church institutions are not so perfect as temporal institutions "because civil society can depose a tyrannical ruler, and the ecclesiastical society could not," Cajetan answers by denying the consequence and argues that "each society, viz., both the civil and the ecclesiastical, can depose a tyrannical ruler, but according to different methods: civil society, which is perfect and free, by exercise of power [potestative] and by human providence, the ecclesiastical society through the power of her Father, by means of persevering prayer, when it is really necessary."^{13} Cajetan adds that the second method is better than the first, for the first is fallible but not the second.

About three generations after these writings of Cajetan, another important theological document was produced, on the subject of sovereignty in temporal society, by St. Robert Bellarmine. In his "Discussions on the Members of the Church" (Book III: "On the Laymen")^{14} he raises the question whether political power is an ethical thing and can be held by Christians. He has in mind the Anabaptists and Trinitarians of the time, with special reference to a statement made in 1568 by a group of ministers in Transylvania. After having shown (chap. vi) that political power is necessary and that its honesty is sanctioned by Holy Scripture, he makes the following remarks:

Firstly, the political power considered in its universal essence, without going down to the peculiarities of monarchy, aristocracy, or democracy, proceeds immediately from God alone, for it follows necessarily upon the nature of man; consequently it proceeds from the one who made man's nature. Further, this power is of natural law and does not depend upon the consent of men; for, whether they like it or not, they must be governed by somebody, unless they want the human genus to perish, which is contrary to the inclination of nature. But the law of nature is a divine law; thus government was established by divine right. . . .

Notice, secondly, that this power has for its immediate subject the whole multitude. Indeed, this power is of divine right; but divine right did not give it to any particular man; therefore, it gave it to the multitude. Moreover, apart from positive law, there is no greater reason why, out of many equals, one rather than another should dominate; therefore, power belongs to the whole multitude. Finally, human society must be a perfect republic; therefore, it must have the power of protecting itself, consequently the power of punishing the enemies of peace, etc.

Notice, thirdly, that this power is transferred from the multitude to one or several by the same law of nature. Since the republic cannot exercise this power for herself, it is bound to transfer it to one person, or to a few. Thus the power of the princes, considered in its genus, is also of natural and divine right, and the human genus could not, even if all men were gathered, make a decree to the contrary, viz., decree that there be no princes or governors.

Notice, fourthly, that distinct kinds of government, taken in their peculiarity, concern the law of nations, not the law of nature, for it is up to the consent of the multitude to establish above itself a king or consuls or other magistrates. If there is a just cause, the multitude may change a kingdom into an aristocracy or democracy and conversely, as we read that it happened in Rome.

Notice, fifthly, that it follows, from what precedes, that this power, considered in its particular forms, proceeds from God indeed but through the intermediary of human deliberation and choice; the same holds for all the other things that pertain to the law of nations. For the law of nations is, as it were, a conclusion deduced from natural law by human discourse. From this, two differences between the political and ecclesiastical power can be gathered: (1) one concerns the bearer of power, for political power resides in the multitude, but the ecclesiastical power resides immediately in one man as in its bearer; (2) the other concerns the efficient cause, for, whereas the political power, considered universally, is of divine right but, considered in its particular forms, pertains to the law of nations, the ecclesiastical power is in all ways of divine right and immediately from God.

This page of Bellarmine calls for two comments: (1) Bellarmine uses the expression jus divinum, "divine right," in a broad sense which can hardly fail to be confusing. Strikingly, the same man holds in the same page what he considers a divine-right theory of political authority and what most modern interpreters would describe as a theory of the sovereignty of the people. This gives an idea of the ambiguity of both these expressions and of the care with which they must be used. (2) Some readers of Bellarmine understood that for him the transmission of power from the whole people to a distinct governing personnel is itself a natural and divinely established obligation. The people, in whom political authority resides primarily, would not, in this interpretation, have the right to retain and to exercise for itself the authority which resides primarily in it. Bellarmine's theory, in short, would rule out direct democracy. Just as the nature of a society demands that there be political authority, so it would demand that political authority be intrusted to the hands of a distinct governing personnel.

In the first chapter of this book we tried to make it clear that the necessity of government is one question and the necessity of a distinct governing personnel an entirely different one. Our particular concern for clarity was motivated by a custom or tradition which associates the two problems, lumps them together, and treats them as if they were one. This customary view was attributed to Bellarmine, but it does not seem to be borne out by the present text. Plainly, Bellarmine does not have in mind, as he is writing this page, any example of direct democracy; he plainly has in mind the incomparably more frequent situation in which the common good demands that power be placed in a few hands. When the situation is such -- and it is such in most cases, in fact, in all the cases of which Bellarmine can think -- the duty to pursue the common good, which entails the duty to obey political authority, entails also the duty to put it in the hands of a distinct governing personnel, and the people are bound, under the circumstances, to transmit power, just as they are bound, under all circumstances, to obey civil power. All that Bellarmine demonstrates is that the transmission of political power from the multitude to the distinct governing personnel is not a matter delivered to the free choice of the multitude when, as he puts it "the republic cannot exercise such power for itself." Whether this situation is universal and whether there is no conceivable case in which the republic can manage political power for itself according to the requirements of the common good is a question that Bellarmine really does not consider. Notice that Jefferson expresses himself, on the subject of distinct governing personnel, in terms very close to those of Bellarmine.^{15}

The most systematic discussion of the question is found in Suarez.^{16} King James bitterly blamed Bellarmine for having asserted that authority is not granted by God to the kings as immediately as it is to the popes; he holds that the king receives his power not from the people but immediately from God. Suarez' discussion is presented as a vindication of Bellarmine's theory against the criticism of King James. It is relevant to note that, according to Suarez, the theory of Bellarmine is old and commonly received, whereas that of King James is new and personal.

First of all, the writer is going to explain what is meant when it is said that a certain power is immediately from God or that God is the immediate cause and author of a certain power. Such propositions imply that God acts as proximate cause. His action as first and universal cause does not distinguish any particular power; for there is no power not given by God acting as first and universal cause. Let it be said, for instance, that when the king appoints a person head of a city or of an army, the power is from God as first cause, yet it is not immediately from God but from the king (example mine).

Power is said to be immediately given by God, in unqualified fashion, when God alone, acting through his will is the proximate and essential cause that gives power. This is how we shall understand terms in the present discussion for, otherwise, this discussion would be frivolous and useless.

Then Suarez states that there are two ways in which God can give a certain power immediately (immediately: that is, through the exercise of his own power and will alone): (a) The power that he gives entertains a natural and necessary connection with the nature of a certain thing, of which nature he is the author. Thus, when God creates the soul, he gives it immediately the intellect and the will, though these powers proceed from the soul's substance. In moral matters an example is supplied by the power of the father, "for the power of the father over the son . . . is given immediately by God himself as the author of nature; it is not a peculiar gift entirely distinct from nature, but it follows necessarily upon nature, once generation is posited as the foundation. Conversely, the subjection of the son to the father is natural, it is from God immediately, it does not proceed from any peculiar disposition superadded to nature but follows necessarily upon the rational nature thus brought into existence." (b) The power given by God is not necessarily connected with the creation of a thing, but it is voluntarily superadded by God to nature or to a person. An example would be the power of performing miracles. Another example is the jurisdiction given to Peter: "God conferred it immediately, directly, and per se."

At this point Suarez raises the question whether the statement of King James, viz., that God gives temporal power to the kings immediately, holds in any of the senses just explained.

But more specifications are needed. It is necessary to designate with precision the subject to whom God is said to give power immediately and the regime which is supposed to be brought about by this donation of power. The first specification is needed because power can be considered as residing in the whole body politic or as residing in distinct members of the community; moreover, power can be considered either absolutely or as determined by a certain form: monarchy, aristocracy, democracy. These propositions and distinctions should make it possible to show how political authority is immediately from God and how, nevertheless, it is intrusted to kings and to senates not immediately by God but by man. Here is Suarez' thesis:

Primarily, the supreme civil power, considered in itself, is given immediately by God to men assembled into a city or perfect political community; this does not take place by a peculiar and, as it were, positive disposition or by a donation entirely distinct from the production of such a nature; it takes place by way of a natural consequence from the first creation of such a nature: therefore, as a result of such donation this [supreme civil] power is not placed in one person or in any peculiar group but in the whole complete people, or in the body of the community.

To establish this thesis, Suarez emphasizes the naturalness of political power. Had there been no revelation, man would still know for sure that such power is absolutely necessary. This naturalness and this natural certitude signify that such power exists in the political community as a property following upon its nature, its creation, its natural establishment.

For if a special gift of God, produced over and above the creation of society, and a grant not connected with nature were necessary, the natural reason could not, by itself, be aware of such gift or grant, which would have to be manifested to men by revelation, in order that they should know it with certainty; but this is false, as it appears from what was said.

Political power can be said to be immediately from God, inasmuch as

those things which follow upon a nature are given immediately by the proper and immediate author of this nature . . . ; now, this power is a property following upon human nature, as cause of the gathering of men into a political body; therefore, it is given immediately by God as author and manager of this nature.

Suarez repeats emphatically that there is no intermediary between God and the body politic. Far from denying that political power proceeds directly from God, Bellarmine presupposed it, "for he did not posit any intermediary between the people and God; but he stated that between the king and God there is an intermediary, viz., the people, through which the king receives his power."

That political power resides primarily not in any particular person or group of persons but in the community as a whole is demonstrated by the very naturalness of this power:

By the nature of things, this power resides only in the community, inasmuch as it is necessary to the preservation of the latter and inasmuch as it can be manifested by the judgment of the natural reason. But all that the natural reason shows is that this power is necessary in the community as a whole; it does not show that this is necessary in one person or in a senate; therefore, in so far as it is from God immediately, it is merely understood to be in the community as a whole, not in any particular part of it. . . . The natural reason cannot conceive of any cause by which political power would be determinately placed in one person, or in a definite group of persons within the community, rather than in another person or group of persons; therefore, in so far as it is procured by nature, political power does not reside immediately in any subject except the community itself.

The natural reason does not decide, either, that the political regime should be monarchy or aristocracy. But then does it not follow that democracy is of immediate divine institution? This consequence should be denied, of course, if by "institution" is meant a disposition of a positive character; if, on the other hand, what is meant is, as it were, a natural institution, then this consequence can and must be received. Between monarchy and aristocracy, on the one hand, and democracy, on the other hand, there is this great difference that the former cannot be established without a positive disposition, whether divine or human, whereas democracy can exist without any positive disposition;

but democracy can exist without any positive disposition, as a result of a merely natural establishment or process, without any addition being required except the negation of a new or positive disposition, for the natural reason states that the supreme political power follows upon [the gathering of men into] a perfect community and that, by virtue of this same reason, it belongs to the whole community unless it is transferred by a new disposition.

Natural law gives political power to the community but does not demand that this power should always remain in the community or be directly exercised by it. It remains in the community so long as the community has not decided otherwise or until a change is lawfully brought about by one having power;

thus the perfect civil community is free by law of nature and it is not subjected to any man external to itself; considered as a whole, it has power over itself, and, if no change takes place, this power will be democracy; yet, either through the will of the community itself or through the action of one having power or a just title, political power can be taken away from it and transferred to some person or senate. From which it can be concluded that no king ever had political authority immediately from God or through divine institution (according to the common law), but through the intermediary of human will and human disposition.

Then Suarez considers, in explicit fashion, what is now called the "designation theory," i.e., the theory according to which the multitude is concerned merely with the choice of the ruling person:

One might say that this argumentation proves only that royal power is not given by God to a person without the intervention of human will and human action; but this is not a sufficient ground to deny that this power is immediately from God. Apostolic dignity was given to Matthias through the action of the other apostles, yet it was given to him immediately by God; similarly, the Pope is elected by cardinals, yet he receives his power from God immediately.

This objection, Suarez says, does not invalidate, but rather confirms, the preceding demonstration, first, because the analogy does not hold, then because it was never asserted that any intervention of human will or action suffices to cause the gift of power not to be from God immediately. Such immediacy is excluded only when there are

peculiar change and transfer effected by a new human disposition. Thus human action or human will can intervene in two ways in the conferring of a power that has its origin in God: (1) By merely designating or appointing a person who comes to occupy a dignity founded by God, under the very conditions in which this dignity was founded, and without authority or power to change it, to increase it, or to decrease it. This mode has obtained, with regard to the pontifical dignity, by way of carnal succession in the old law; in the new law it obtains by way of the legal election through which the person is designated. . . . (2) In different fashion the conferring of power by man may consist in a new donation or disposition, going beyond the designation of the person; then, even if such power has a foundation in some anterior divine donation made to another one, nevertheless, the conferring which takes place later is absolutely speaking of human right and not of divine right; it is immediately from man, not from God.

As to the circumstances in which kings acquire power, Suarez knows of two procedures, which he does not put on equal footing: (1) "In the original disposition" power is granted through the voluntary consent of the people, which consent can be given gradually, as the people increases, in which case royal power and perfect community come into existence simultaneously; it also happens that a complete community elects deliberately a king to whom it transfers its power. Here the community is anterior to the king. "This procedure is in principle the most convenient and the most rational. At the death of the king, there is no need for new elections or a new consent: royal dignity is transmitted by virtue of the original consent." (2) It happens that free peoples are subjected to kings through war, either justly or unjustly. If the war waged by the conqueror is just, the subjection of the conquered is just also, it is a just punishment which has the same effect as a contract with regard to the transfer of power and must be lived up to like a contract. More frequently, war is unjust: yet the people may later consent to the rule originally imposed upon them by unjust conquest. Of such cases Bellarmine had given significant examples: "the rule of the Franks has become lawful by universal consent, although, originally, the Franks occupied Gaul unjustly"; the same holds for Spain with the Goths; it holds for England; and it holds for the Roman Empire, "which was founded by Julius Caesar, oppressor of his country, and yet later became so lawful that our Lord said 'Give to Caesar the things that are Caesar's.'"

To conclude the exposition of the transmission theory, it is proper to examine whether the three authorities of Cajetan Bellarmine, and Suarez give a unified expression of it. This question should, in our opinion, be answered in the affirmative. The only point that might cause difficulty is whether the people has the right not to transfer sovereignty to a distinct personnel. As already mentioned, the theory that the people would always be under obligation to place powers in the hands of a distinct personnel seems to be born of a misreading of Bellarmine. Cajetan does not, to my knowledge, tackle the issue at all. Of the three, Suarez alone voices the theory that democracy comes into existence by nature as opposed to monarchy and aristocracy, which cannot come into existence except by positive disposition. But if the other two admit that the transmission of power is not obligatory under all conceivable circumstances, they imply thereby that there is one lawful regime, viz., direct democracy, whose coming into existence requires no disposition to be effected by Positive human act, over and above the natural possession of power by the multitude. In so far as the scanty texts of Aquinas make for interpretation in terms of the transmission theory, it can be said that the same theory of natural democracy is implicitly held, unless one assumes that the people is never allowed to govern itself directly, which assumption seems contrary to the expressions of Aquinas. If law is said to be issued either by the community or by the vicegerent of the community; if, further, it is held that "the consent of the whole people expressed by a custom counts far more in favor of a particular observance than does the authority of the sovereign, who has not the power to frame laws, except as representing the people," there must be a conceivable situation in which the community elicits its own laws without the operation of any vicegerent. And if the power to make laws belongs primarily to the community itself, no special positive institution is needed to bring about a situation in which the community makes use of this power; the natural democracy of Suarez seems to be nothing else than such a situation. On this issue the obvious difference between Suarez and Aquinas is one of language: as is known, the latter, following the example set by Aristotle, generally uses the word "democracy" to designate a corrupt form of government.

{6} Sum. theol. i-ii. 90. 3: "Ordinare autem aliquid in bonum commune est vel totius multitudinis, vel alicujus gerentis vicem totius multitudinis. Et ideo condere legem vel pertinet ad totam multitudinem, vel pertinet ad personam publicam, quae totius multitudinis curam habet; quia et in omnibus aliis ordinare in finem est ejus, cujus est proprius ille finis."

{7} Ibid. 97. 3, ad 3: "Multitudo, in qua consuetudo introducitur, duplicis conditionis esse potest. Si enim sit libera multitudo, quae possit sibi legem facere, plus est consensus totius multitudinis ad aliquid observandum, quod consuetudo manifestat, quam auctoritas Principis, qui non habet potestatem condendi legem, nisi inquantum gerit personam multitudinis; unde licet singulae personae non possint condere legem, tamen totus populus condere legem potest. Si vero multitudo non habeat liberam potestatem condendi sibi legem vel legem a superiori positam removendi, tamen ipsa consuetudo in tali multitudine praevalens obtinet vim legis, inquantum per eos toleratur ad quos pertinet multitudini legem imponere; ex hoc enim ipso videntur approbare quod consuetudo introduxit."

{8} Thomas de Vio Cardinalis Caietanus, Scripta theologica, Vol. I: De comparatione auctoritatis papae et concilii cum apologia eiusdem tractatus, Vincentius M. Iacobus Pollet editionem curavit (Rome: Apud Institutum "Angelicum," 1936). Numbers refer to a convenient division of the book into short paragraphs.

{9} Information from V. M. I. Pollet's Preface.

{10} On the subject of the heretical pope, let us quote Charles Journet (from Fribourg, Switzerland) in his important book L'Église du Verbe Incarnée (Paris: Desclée de Brouwer, 1941), p. 596: "Pour bien des théologiens, l'assistance que Jésus a promise aux successeurs de Pierre les empéchera non seulement d'enseigner publiquement l'hérésie, mais encore de tomber, comme personnes privées, dans l'hérésie. Il n'y a pas. dès lors, à introduire de débat sur la déposition éventuelle d'un pape hérétique. La question est tranchée d'avance. Saint Bellarmin, de Romano pontifice, lib. II, cap. XXX, tenait déjà cette thèse pour probable et facile à défendre. Elle était pourtant moins répandue de son temps qu'aujourd'hui. Elle a gagné du terrain à cause, en bonne partie, du progrès des études historiques, qui a montré que ce qu'on imputait à certains papes, tels Vigile, Libère, Honorius, comme une faute d'hérésie, n'était au vrai rien de plus qu'un manque de zèle et de courage à proclamer, et surtout à préciser, en certaines heures difficiles, la vraie doctrine.

"Néanmoins, de nombreux et bons théologiens du XVIème et du XVIIème siècle ont admis qu'il fût possible que le pape tombât, en son privé, dans le péché d'hérésie non seulemont occulte mais même manifeste.

"Les uns, comme saint Bellarmin, Suarez, ont alors estimé que le pape, en se retranchant lui-meme de l'Église, était ipso facto déposé, papa hereticus est depositus. Il semble que l'hérésie soit considérée par ces theologiens comme une sorte de suicide moral, supprimant le sujet même de la papauté. . . .

"Les autres, comme Cajetan, Jean de saint Thomas, dont l'analyse nous paraît plus pénétrante, ont estimé que, même après un péché manifeste d'hérésie, le pape n'était pas déposé, mais quil devait l'être par l'Église, papa haereticus non est depositus sed deponendus. Cependant, ont-ils ajouté, l'Église n'est pas pour autant supérieure au pape . . . ils font remarquer d'une part que, de droit divin, l'Église doit être unie au pape comme le corps à la tête; d'autre part que, de droit divin, celui qui se manifeste hérétique doit être évité après an on deux avertissements (Tit., III, 10). Il y a donc une antinomie absolue entre le fair d'être pape et le fait de persévérer dans l'hérésie après un ou deux avertissements. L'action de l'Église est simplement déclarative, elle manifeste qu'il y a péché incorrigible d'hérésie; alors l'action auctoritaire de Dieu s'exerce pour disjoindre la papauté d'un sujet qui, persistant dans l'hérésie après admonition, devient, en droit divin, inapte à la détenir plus longtemps. En vertu donc de l'Écriture, l'Église désigne et Dieu dépose. Dieu agit avec l'Église, dit Jean de saint Thomas, un peu comme agirait un pape qui déciderait d'attacher des indulgences à la visite de certains lieux de pelerinage, mais laisserait à un ministre le soin de designer quels seront ces lieux. L'explication de Cajetan et de Jean de saint Thomas nous ramène . . . au cas d'un sujet qui, à partir d'un certain moment, commence à devenir en droit divin, incapable de détenir davantage le privilège de la papauté. Elle est réductible, elle aussi, à l'amission du pontificat par défaut du sujet. C'est bien, en effet, le cas fondamental, dont les autres ne représenteront que les variantes" (by courtesy of Desclée de Brouwer, Bruges).

{11} De comparatione, chap. xx: "Rationabilis sententia quod Papa factus Haereticus subest potestati ministeriali Ecclesiae, et non auctoritativae super Papam.

283. "Ad cujus evidentiam altius ordiendo, tria praemittenda sunt: primo, quod in Papa inveniuntur tria, scilicet: papatus, persona, quae est Papa, puta Petrus, et coniunctio utriusque, scil. papatus in Petro, ex qua conjunctione resultat Petrus Papa.

"Secundo, quod discernendo et applicando proprias causas suis propriis effectibus invenimus, quod papatus est a Deo immediate, Petrus a patre suo, etc. coniunctio autem papatus in Petro, post Petrum primum a Christo immediate institutum, non est a Deo, sed ab homine, ut patet: quia hoc fit per electionem hominum. . . .

"Tertio, quod . . . Petrus Papa, qui ex consensu sun et electorum causatus est, ex consensibus eisdem, scil. suo et electorum, ad contrarium dissolvi potest. . . .

"Ex his tribus praemissis habetur primo absque haesitatione certum, quad Petrus Papa, et in fieri et in corrumpi, dependet a potestate humana, non superiore nec aequali potestati Papae, sed minore. . . .

"Habetur secundo certo certius, quod aliud est posse supra coniunctionem Petri et papatus construendam seu destruendam, et aliud est posse supra Papam. . . . Unde potestas supra Papam non invenitur nisi in Domino Jesa Christo, potestas autem supra coniunctionem papatus et Petri invenitur, in terris, et merito, quia papatus opus Dei immediate est, coniunctio autem papatus et Petri opus nostrum."

{12} Nos. 562-64: "Et ratio diversitatis in rege et Papa est, quia potestas regia naturali iure est in populo prima, et ex populo derivatur as regem; potestas autem papalis supra naturam est, et divino jure in persona unica, non in communitate prima est."

{13} No. 801: ". . . utraque politia, scilicet tam civilis quam ecclesiastica, potest deponere tyrannice regentem ipsam, sed diversimode, quia civilis perfecta et libera potestative et per providentiam humanam, ecelesiastica autem per potestatem sui Patris, per orationis perseverantiam, quando vere oportet."

{14} Bellarmine, Controversiarum de membris ecclesiae, lib. III: De laicis sive secularibus, chap. vi. (Opera [Paris: Vivès, 1870], III, 10-12).

{15} Thomas Jefferson, Letter to the Abbé Arnond, July 19, 1789 (Works, Ford ed., V, 103-4): "We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it. . . . 1. They are not qualified to exercise themselves the Executive Department; but they are qualified to name the person who shall exercise it. With us therefore they chuse this office every 4 years. 2. They are not qualified to legislate. With us therefore they only chuse the legislators. . . ." Let this quotation not be held to imply any stand with regard to the controversial issue of a possible influence of Bellarmine on Jefferson.

{16} Suarez, Defensio fidei catholicae ea apostolicae adversus anglicanae sectae errores, lib. III: De summi pontificis supra temporales reges excellentia, et potestate, Cap. 2: "Utrum principatus politicus immediate a Deo sit, seu ex divina institutione" (Opera, XXI [Venetiis, 1749], 114 ff.).