Emanuel Gonzalez Tellez
The jurisprudence of rights that developed during the twelfth to the fifteenth century established doctrines of individual rights that permeated the Ius commune. But the sixteenth and seventeenth centuries were crucial for the development of a tradition of rights thinking in the European tradition. The most important event that challenged the jurists to continue thinking about individual rights was the discovery of the New World and new peoples in the sixteenth century. If a number of Spanish thinkers had not been confronted by this new set of problems, individual rights in the Ius commune could have withered on the vine. Certainly the sixteenth and seventeenth centuries were not great ages for human freedom in other areas. The doctrine of absolutism became acceptable coin of political discourse, religious toleration reached abysmal depths never before seen, censorship became a tool of European secular and religious regimes to control thought, witches were discovered in every crack and crevice, puritanism became the first and most important virtue that was added to the other seven: this list could be extended almost endlessly. Yet the discovery of lands populated with pagan peoples sparked a debate about their rights. Some of the best minds of the sixteenth century asked hard questions: Could native peoples have a just title to their lands? Could their lands be taken from them? Could they be enslaved? Francisco de Vitoria, Bartolomé de Las Casas, Francisco Suárez, and Hugo Grotius exploited the earlier traditions that they found in theology and in the Ius commune. They preserved the concept of rights in an age in which authoritarian power seems to have pride of place.
In this essay I would like to illustrate how deeply these thinkers established a new paradigm of rights thinking in European jurisprudence during the early modern period. The conception of rights that we find in the jurists of this period is so pervasive that there was no danger of natural rights' withering on the vine. The example that I will use is Emanuel Gonzalez Tellez, who studied and then taught law at the University of Salamanca.(1) His major work was a long, detailed commentary on the Decretals of Gregory IX that was first published after his death ( 1649) in 1673 at Lyon. Later publishers in Venice, Lyon, and Frankfurt kept it in print until the last edition of the work appeared in Venice, 1766. As far as I can tell, Tellez' commentary on the Liber extra was the last massive canonistic treatise to enjoy European wide distribution.
Like some of his predecessors and contemporaries Tellez was intensely interested in the history of canon law. His commentary is divided into two parts. The first he labeled "Notae" and in it he discussed the historical and textual roots of each chapter. He followed his critical remarks on the text with a traditional "Commentarium".
I would like to begin at an unlikely spot to talk about natural rights: in the title devoted to the translation of bishops in book one of the Liber extra. This title is an unlikely place to find a discussion on natural rights because it is contains four decretals of Pope Innocent III dating from 1198 to 1200. In these decretals Innocent claimed that only the pope had the authority to approve the translation of a bishop. These decretals established absolute papal authority over translations and took any rights of approving translations away from local churches. Innocent declared in Quanto personam, the most important decretal in this title, that he claimed this power and authority over bishops because "he does not exercise the office of man, but of the true God on earth."
This is a strange cupboard for a canonist to look for rights. Tellez, however, began his commentary by asserting that Quanto personam led to the following conclusion: "A bishop who transfers himself on his own authority from one church to another loses both offices" and listed a long series of authorities who supported this statement.(2) Then he proposed the contrary:(3)
Truly the present decision is contrary to ius and natural liberty and cannot be held. For a disposition of ius that infringes upon natural liberty cannot be admitted. The present disposition infringes upon natural liberty and cannot be sustained. First we may prove the minor thesis: a disposition that anyone may not leave a certain place or a certain city infringes upon natural liberty.
Tellez then cites a passage from the Digest in which Tryphonius (Sabinus) argued that everyone had the right (libera facultas) to choose his own city and Cicero that it is a foundation of liberty that no one may be forced to stay in a city unwillingly.(4) His last citation was to Hugo Grotius' De iure belli.(5) Tellez did not uphold the position that the bishop could move without papal authority. His ultimate argument conceded that since a bishop was married to his church that this marriage bond took precedence over his natural liberty to move. Even though Robert Bellarmine and Pope Clement VIII had criticized translations in the modern church, they were lawful. And only the pope had the authority to grant him permission to translate to another see. But the point is that by the seventeenth century jurists had been sensitized to the issues of the natural rights of human beings. It is not by chance that Tellez in the sixteenth century but not Hostiensis in the thirteenth century raised the problem while commenting on Quanto personam. Jurists saw issues of rights in the seventeenth century in problems where they had never noticed rights before.
The modern state has decided that it has the authority to infringe upon the natural liberty of people to move from one state to another. Tellez might have been puzzled by our docility. Another area of rights illustrates Tellez' attitudes: the right to bear arms. At the end of the eleventh century the church had moved broadly to forbid clerics from carrying arms. A canon from the Council of Poitiers in 1079 banning clergy from bearing arms became part of the normative law of the church by the late twelfth century.(6) But, right from the beginning, the absolute interdiction of clerical arms was tempered by the canonists' notions of rights. They immediately interpreted the canon as excepting a cleric's right to self-defense -- a right very much a part of the jurisprudence of Tierney's first stage. Between the thirteenth and the seventeenth centuries, the jurists distinguished between offensive and defensive weapons, dangerous and safe places, and a cleric's and a layman's right to defend himself. Tellez makes the old points. "Natural reason permits us to defend ourselves from danger . . . whence this ius, that one may repel arms with arms, is said to have been established from nature.(7) Tellez expands the scope of a cleric's rights to bear arms considerably. "No one should doubt," he wrote, "that in case of necessity clerics can defend themselves from force and also defend their homeland."(8) "If a city is attacked by enemies, a cleric may take up arms for reasons of defense."(9) To this point Tellez endorses a cleric's right to bear arms that is congruent with the thought of other jurists during the sixteenth and seventeenth centuries.
What sets Tellez apart from his predecessors is the last part of his commentary. Here he turned, naturally, it seems, to the rights laymen to bear arms. His point of departure is a statute in the Code that forbade any Roman from bearing arms without the permission of the emperor.(10) Tellez observes that a x-large number of jurists from Bartolus to Socinus understood this text as banning citizens from bearing arms.(11) The great proceduralist of the late sixteenth and early seventeenth century, Prospero Farinacci, concluded that those who bore arms in public became liable to a "mala praesumptio."(12) Tellez presented a long essay on the historical origins of the Roman statute and concluded that it was not a general prohibition from bearing arms. Consequently, Bartolus and Cujas did not understand the text correctly. For just and honest reasons, private citizens may bear arms.(13) I would like to think that Tellez might have changed his mind if faced with 250 million handguns in the US, but I think that this discussion illustrates how he saw issues of rights to which earlier generations of jurists were oblivious.
The language of rights permeates Tellez' commentary. In his commentary on the Fourth Lateran canon prohibiting Christians from selling arms to Moslems, Tellez again raises the issue of rights.(14) How could the Church, he asked, forbid Christians to buy or sell goods when contracts of sale and purchase are part of the natural law?(15) Furthermore, since the Fourth Lateran canon decreed those Christians who commanded ships in the Moslem fleets could be enslaved if they were captured by Christians, Tellez pointed out that since liberty is a natural ius, positive law could not derogate natural law.(16) As in his discussion of episcopal translations, Tellez raises objections to the Lateran decree based on natural law and rights but in the end concedes that the church or the secular prince can restrict these rights. The selling of arms to enemies and the enslavement of freemen can, under certain circumstances, be tolerated. What is important for our purposes is the language of rights with which he framed his contrarietates. But as in his commentary on the right of clerics to bear arms, here too he steps beyond his text to discuss the right of the prince to ban commerce. Even though princes may forbid their subjects to engage in commerce under certain conditions, they may not ban commerce absolutely. The language of his conclusions is worth quoting:(17)
For although contracts of sale and purchase are part of the ius gentium, and although princes may not prohibit their subjects absolutely, they can prohibit similar commerce with just cause for some people or of some things, because such a prohibition is supported by a more powerful natural reason, as Albericus Gentilis has noted. The ius of commerce is a ius founded on equity (ius aequum is untranslatable but has a rich resonance in the jurisprudence of the Ius commune) and defending safety is accomplished more justly with equity. The law of commerce is based on the ius gentium; the equity is based on nature. Commerce is the arena of private persons; equity is the arena of the kingdom. Consequently, commerce yields to the kingdom, man to nature, and money to life. [BT's Translation: The law of commerce is just but (the law) of preserving safety is more just. The former is based on the law of nations, the latter on that of nature. The former is the concern of private persons, the latter of kingdoms. So commerce yields to the kingdom, man to nature, money to life].
I cannot leave Tellez without looking at a place where one would expect to find the language of rights in full regalia: the chapter on theft in the Decretals of Gregory IX that the canonists since the twelfth century had built a fortress defending the rights of the poor.(18) Tierney first wrote about this chapter in Medieval Poor Law.(19) He returned to it again in The Idea of Natural Rights.(20) This text and others in the Decretum spawned what Tierney describes as a "rightful power" or a "rightful claim" of the poor to the goods of society and is a prickly piece of evidence that even the most skeptical critics must choke on if they wish to deny that the medieval jurists did not have any conception of a natural right. What did Tellez add to five centuries of commentary on this text? For the most part, he repeated the standard interpretations: Theft of food or clothing when driven by the necessity of hunger or nudity was not a crime or a sin. Not even a penance could be imposed on a person. The common principle was, Necessity made licit what otherwise was illicit. Necessity makes all property common. According to natural law, all property is held in common; natural law cannot be derogated in times of necessity under any circumstances.(21) Tellez could have written the same words if he had lived in the thirteenth century. Only at the end of his commentary did he depart from the standard commentary. Could a starving person eat food that had been sacrificed to idols? A text in Gratian's Decretum seems to forbid it. Tellez concludes:(22)
Nevertheless the urgent necessity of hunger permits them to eat it. The command to preserve life is a part of natural law (here one may argue whether he means natural law or natural right) and the prohibition is only a part of positive law. When two precepts conflict, one of natural law and one of positive law, natural law always prevails.
However, if a Christian were forced to eat as a part of the cult's liturgy, then Tellez agreed with Vitoria: the person should rather die than eat.(23) Natural rights do have, I suppose, their limits.
The Ius commune of the sixteenth and seventeenth centuries is important for our world because it is a direct link to our ideas and thinking about rights. It links the ideas of the medieval and early modern jurists and theologians with the modern world. The main conduit though which the concept of natural rights flowed was not another theologian, but the Dutch Protestant jurist, Hugo Grotius (1583-1645). In De jure belli, Grotius grappled with the meanings of right (ius) in all of its multifarious meanings. I was surprised that Grotius, who died four years before him, influenced Tellez as well. It demonstrates two points: how open the intellectual world of jurisprudence still was in the seventeenth century and how pervasive the language of rights was in that world.
1. Virtually nothing has been write about Tellez; see B. Alonso's article in Diccionario de historia eclesiastica de España (Madrid 1972) 2.1038-1039 and Schulte, Quellen 3.742.
2. Commentaria perpetua in singulos textus quinque librorum decretalium Gregorii IX (Venice 1766) 1.240.
3. Ibid.: "Verum praesens decisio ut juri et naturali libertati contraria, sustineri nequit; nam juris dispositio, per quam infringitur naturalis libertas, admitti non debet, sed praesens dispositio infringit naturalem libertatem, igitur sustineri non debet. Probatur minor, nam dispositio ut quis a tali loco vel civitate non recedat, infringit naturalem libertatem."
4. Ibid.: "De sua civitate statuendi facultas libera esse debet (ajebat Trphonius) in l. In bello 12. ff. de captivis (Dig. 220.127.116.11) et Cicero in Oratione pro Balbo, laudat ius illud ne quis in civitate maneat invitus et vocat fundamentum libertatis."
5. Ibid.: "Grotius, de iure belli, l.2, c.25, num. 24."
6. X 3.1.2.
7. Tellez, Commentaria to X 3.1.2, vol. 3, p.6: "et ipsa naturalis ratio permittat ut a periculis nos defendamus, l. Itaque 4. ff. de iustitia et iure (Dig. 1.1.3), unde ius hoc, ut arma armis repellere liceat, a natura comparatum dicitur, l.1 § Vim vi 27 ff. de vi et vi armat(Dig. 43.16.
8. Ibid. p. 7: "Nec obstat dubitandi ratio supra expensa nam a praesenti generali prohibitione necessitatis casus excipiendi sunt ut contra vim tum sibi tum patriae illatuam armis sese clerici defendere possint."
9. Ibid.: "Eadem ratione si civitas ab hostibus oppugnatur, clerici arma defensionis causa sumere possunt."
10. Cod. 11.47 (46)1: "Nulli prorsus nobis insciis atque inconsultis quorumlibet armorum movendorum copia tribuatur."
11. Bartolus, Commentaria to Dig. 48.6.1 (Venice 1526), fol. 188v.
12. Prospero Farinacci, (Prosperus Farinacius), Praxis et theoricae criminalis libri duo in quinque titulos distributi (Frankfurt 1606) Liber 1, tit. 5, quaestio 52, p. 796, num 70: "Regula itaque ex praemissis firma remanet quod ex delatione armorum oritur contra deferentem indicium et mala praesumptio. Et hoc, quia armorum usus regulariter a iure prohibitus est."
13. Tellez, loc. cit. p.8: "ex justa et honest causa liceat privatis arma deferre."
14. Tellez to X 5.6.6, vol. 5, p. 91.
15. Ibid. p. 92: "Sed pro dubitandi ratione ita in praesentem assertionem insurgo! Contractus praecipue emptionis et venditionis juris naturalis secundarii, quod alii jus gentium appellant, sunt . . .Igitur Ecclesia non potuit prohibere venditionem armorum et caeterarum mercium, de quibus in praesenti, Saracenis seu Infidelibus, neque transitus aut navigatio contra societatis humanae et Christianae charitatis regulas prohiberi debet."
16. Ibid.: "Etiam difficilis est praesens constitutio in poena quam imponit Christianis suscipientibus regimen navium, videlicet ut capientium servi fiant, nam libertas juris naturalis est . . . ergo lege positiva contra jus naturale servitus constitui non potest."
17. Ibid: "nam licet contractus emptionis et venditionis jus gentium sit, et ideo principes absolute subditis illum prohibere non possint, tamen respectu aliquarum personarum seu rerum ex justis causis simile commercium interdicere valent, quia talis prohibitio nititur potentiori naturalique ratione, nam ut inquit Alb. Gentil. l.1 de jure belli, c.21, jus commerciorum aequum est; at aequius tuendae salutis est. Illud gentium jus, hoc natuae est. Illud privatorum est, hoc regnorum. Cedat igitur regno mercatura, homo naturae, pecunia vitae, ut prosequitur Arniseus, l.1 de repub. cap. 3., sect. 3."
18. X 5.18.3.
19. Medieval Poor Law: 37-38.
20. Natural Rights 73.
21. Tellez, Commentaria to X 5.18.3, vol. 5, p. 212.
22. Ibid: "tamen urgente famis necessitate licet illis vesci, quia cum praeceptum vitae conservandae sit juris naturalis, prohibitio autem illa tantum sit juris positivi, ideo quando duo praecepta simul concurrunt, quorum unum est juris naturalis, aliud vero juris positivi, juri naturali quod praevalet."
23. Ibid.: "Si autem cogatur quis idolothytis vesci in idolorum cultum, tunc procedit textus in Decreto, c. Sicut satis (C.32. q.4 c.8), quia potius debet pati mortem quam idolatriae consentire, ut docuerunt Victoria in relect. de usu cibor. n.3 Acunna in cap. Presbiter, num. fin. 50 dist.."