Christ’s Empire
The Bassianus—Azo framework seems to have convinced most thirteenthcenturyjurists, but this broad consensus eventually cracked. It had always been vulnerable to an objection which had an impressive canon-law pedigree that no corporation - not even a corporate people - could act against or without its own head.
Nicolaus de Matarellis made precisely this point in his commentary on D. 1.3.32.39 A second trend, which apparently set in during the early fourteenth century, added another dimension to the notion of the revocable lex regia by as good as writing the people - whether Romans or Germans — out of the story completely. Cinus concluded his commentary on D. 1.3.9 by ascribing all of the power of the Roman people to the pope, who was alone able to depose the emperor, as he had already done in the case of Frederick II back in 1245. He had transferred the empire from the Greeks to the Germans and could, if he had good cause, give it to someone else or keep it for himself.Indeed, Cinus went on, if only he would: it would put an end to German barbarity in Italy.40 The ‘translation of empire’ thesis seems to have made considerable headway among Romanists. Iacobus Butrigarius mentioned the pope’s jurisdiction as a possibility without declaring his own position,41 but Bartolus of Sassoferrato embraced it in arguing that the papal patrimony in central Italy did not constitute an exception to the putatively universal jurisdiction of the emperor.42style='font-size:9.5pt;line-height:115%;font-family:"Arial",sans-serif'> The empire was willed by God (Deo auctore are the words with which Justinian initiated his directive to begin the Corpus iuris civilis), created by the Roman people, which by God’s design had already won hegemony over the known world and in accordance with that same design transferred its powers to the emperor by the lex regia. The final confirmation of this arrangement came with Christ’s recognition in His injunction ‘Render to Caesar’. The prophecy of Daniel, which predicted a succession of world empires, was fulfilled when, with Christ’s advent and recognition, the empire passed to him and via him to his vicar Peter, perpetually present in the person of each successive pope, as any hierocrat would explain. For Bartolus, the reason the empire must remain as it was presented in the Corpus iuris was that it had received divine approbation. Bartolus’ sequential understanding of the relationship between the Roman people, the emperor, and finally Christ himself made of the lex regia something sacrosanct and irrevocable. Baldus de Ubaldis, Bartolus’ most celebrated pupil who died in 1400, shared this view.43 Baldus’ pupil Paulus de Castro noted in his commentary on D. 1.3.32 that before Christ’s advent the Roman people could revoke the lex regia and, with that law revoked, depose the emperor, since it could not impose a law upon itself from which it could not withdraw. However, Christ had transferred the Roman empire from the Roman people to the Church, with the result that the Roman empire ‘has not remained except in name, and it is called the empire of Christ or the Church and only the pope can deprive the emperor, just as only the pope can confirm and crown him’.44 It was only consistent that Paulus ended this particular set of comments with the words ‘I conclude that nowadays the Roman people can do nothing in the empire.’4.
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