later quoted Cicero as saying that he only loved Caesar when Caesar
sought the good of the republic.^174 This of course was a reflection on the
contending Popes who were then presiding over the schism in the
Church. From this axiom Gerson addressed the use of positive law, that
is, the canon law. Gerson noted that the council had employed the
principles of equity and necessity to overcome the canonical difficulties
that faced it, calling upon the principle of
in acting for the
good of the whole Church. Positive law, that is canon law, should be
employed for the use and benefit of the Church, and if that law now
harmed the Church, then it could and should be contravened. The law
to which he referred, the one harming the Church, concerned the need
for the Pope to call a general council; and it was this law that now must
be set aside.^175 He also noted that the council, more so than the obstinate
popes, would be free of schism. Yet Gerson moved beyond even the
dictates of necessity, for he also posited that a council may sit over and
judge a Pope:
It would be right to hold a general council against his will; finally, it
would be right to compel him to abdicate, or should he resist, to
defrock him of all honor and place, and indeed even to deprive him
of life. Thus, all these and any like actions are able to be performed
in accord with the immutable law, divine and natural, because
against this truth no law or constitution of a mere man ought to be
made without the new authority of God, unless it is condemned as
an intolerable error.^176Though the circumstances of Gerson’s day had elicited this statement,
revolutionary for a late-medieval, Latin mind, the canonists had already
spoken of a way in which a Pope may be judged.^177 Yet Gerson had said
that if a Pope were a notorious heretic, he may be removed, not based
on any necessary item in the canon law, but because a law stood above
positive law, governing the exceptions to the rule. This concept Aristotle
in his Ethicstermed equity. These two concepts, moderation and equity,
justified the methods of the Conciliarists in seeking an extraordinary
means to handle the schism. And likewise both equity and
102 JOHN JEWEL AND THE ENGLISH NATIONAL CHURCH
(^174) ‘Caesarem, ait, nunquam dilexi nisi pro quanto visus est diligere rempublicam.’ Ibid.,
p. 139.
(^175) Ibid., pp. 137–38. The Glorieux text uses a Latin form ‘epikeia,’ whereas Spinka’s
edition renders it in Greek.
(^176) ‘Liceret concilium generale eo invitio celebrare; liceret tandem ipsum ad cessionem
compellere, vel renitentem dejicere ab omni honore et gradu, immo et vita privare. Haec
omnia denique taliter licere possunt stabili jure divino et naturali quod adversus hance
veritatem nulla lex vel constitutio puri hominis cujuscumque sine nova autorizatione Dei
fieri debet quin erroris intolerabilis damnanda sit.’ Gerson, Tractatus, pp. 140–41.
(^177) See Tierney, Foundations.