These last words show clearly how correct I was in saying that theologians understand the divine law in a very different manner, according as it is applied to the civil or to the ecclesiastical power. It must not be supposed that the doctrine now stated is peculiar to Cardinal Bellarmin; the generality of theologians follow him on this point; but I have preferred quoting his authority, because he, being so strongly attached to the See of Rome, if the latter were imbued with the principles of despotism, as it has been charged with being, no doubt, something of them would appear in the writings of this theologian. It is easy to anticipate the objection that will be made to this explanation; we shall be told that Bellarmin, having for his object the exaltation of the authority of the Sovereign Pontiff, with this view attempted to lower the power of kings, in order to take away or diminish all opposition to the authority of the Popes. I will not now enter into an examination of the opinions of Bellarmin with respect to the two powers – this would be foreign to my design; besides, such points of civil and ecclesiastical law excited at that time great interest, on account of circumstances at that period, but now very little, on account of the new course which events have taken, and the great change which has been brought about in ideas. I shall, nevertheless, reply to this supposed difficulty by two very simple observations. The first is, that we have not to inquire the intentions of Bellarmin in explaining his doctrine, but in what that doctrine consists. Whatever his motive may have been, we see an author of vast renown, whose opinion has great weight in Catholic schools, and who wrote at Rome, where, so far from his writings being condemned, he was surrounded with respect and honor: this theologian, I say, explaining the doctrine of the Church on the Divine origin of the civil power, does it in such terms that, while giving sacred guarantees for the good order of society, he does not infringe on the liberty of the people; this is the vindication of Rome against the attacks made upon her. The second is, that Cardinal Bellarmin does not here profess an isolated opinion – the generality of theologians are on his side; therefore, all that can be said against him personally proves nothing against his doctrines. Among the many authors that I could quote, I will select some who will represent many different periods: and as the obligation of being brief confines me within narrow limits, I beg the reader himself to examine the works of Catholic theologians and moralists; he will thus make sure of becoming acquainted with their thoughts on this subject. Hear how Suarez explains the origin of power:m "Herein," he says, "the common opinion seems to be, that God, inasmuch as He is the author of nature, gives the power; so that men are, so to speak, the matter and subject capable of this power; while God gives the form by giving the power." (De Leg. lib. iii. c. 3.)
He goes on to develop his doctrine, relying on the reason usually made use of in this matter; and when he comes to draw the conclusions, he explains how society, which, according to him, receives the power immediately from God, communicates it to certain persons. He adds:n "In the second place, it follows from what has been said, that the civil power, whenever it is found in a man or a prince, has emanated according to usual and legitimate law, from the people and the community, either directly or remotely, and that it cannot otherwise be justly possessed." (Ibid. cap. 4.)
Perhaps some of my readers may not know that a Spanish Jesuit maintained against the King of England in person, the doctrine that princes receive power mediately from God, and immediately from the people. This Jesuit is Suarez himself, and the book to which I allude is called,o "Defence of the Catholic and Apostolic Faith against the errors of the Anglican sect; accompanied by a Reply to the Apology for the Oath of Fidelity, and to the monitory Preface published by the most serene James, King of England. By P. D. François Suarez, Professor at the University of Coimbra; addressed to the most serene Kings and Princes of the Christian world."
In the third book, chapter second, where he discusses the question, Whether the political sovereignty comes immediately from God or from divine institution, Suarez says: "Here the most serene King not only gives a new and singular opinion, but also acrimoniously attacks Cardinal Bellarmin, for having affirmed that Kings have not received authority immediately from God like the Popes. He himself affirms that Kings hold their power not from the people, but immediately from God; and he attempts to support his opinion by arguments and examples the value of which I shall examine in the next chapter.
"Although this controversy does not immediately concern the dogmas of faith (for we have nothing in reference to it either in the Scriptures or in the Fathers), it may nevertheless be well to discuss and explain it carefully; 1. because it might possibly lead to error in other dogmas; 2. because the above opinion of the King, as he maintains and explains it, is new, singular, and apparently invented to exalt the temporal at the expense of the spiritual power; and 3. because we consider the opinion of the illustrious Bellarmin ancient, received, true, and necessary." But we must not attribute these opinions to the circumstances of the times, nor suppose that they disappeared from the schools of theologians as soon as they were advanced. In support of them, a multitude of authors might very easily be cited, who would show that Suarez was correct in saying that the opinion of Bellarmin was received and ancient; they would, moreover, show that this doctrine continued to be admitted as a matter of course, without any doubt of its orthodoxy, or of its containing any thing dangerous to the stability of monarchies. In proof of what is here adduced, I will cite passages from distinguished authors, proving that at Rome this mode of explaining the right divine has never been called in question; and that in France and Spain, where absolute monarchy had taken so deep root, this opinion was no longer regarded as dangerous to the stability of thrones. A long period had already elapsed – the critical position which might more or less influence the direction of ideas had consequently disappeared, yet theologians still maintained the same doctrines. Cardinal Gotti, who wrote in the early part of the last century, gives, in his Treatise upon Laws, the above opinion as previously admitted, without even attempting to confirm it.p In the Moral Theology of Herman Busenbaum, enlarged by St. Alphonsus Liguori, book 1st, second Treatise upon Laws, (chap. i. dub. 2, § 104,) it is expressly said: "It is certain that the power of making laws exists among men, but as far as civil laws are concerned, this power belongs naturally to no individual. It belongs to the community, who transfer it to one or to more, that by them the community itself may be governed."
Should any one say that I quote the Jesuits only, or suspect that these doctrines are mere casuistry, I will cite remarkable passages from other theologians, who are neither casuists nor prepossessed in favor of the Jesuits. Father Daniel Concina, who wrote at Rome about the middle of the last century, supports the same doctrine as generally admitted; in his Théologie chrétienne dogmatico-morale, Roman edition, 1768, he expresses himself as follows:q "All writers generally assert that the origin of supreme power is of God, as Solomon declares in the Book of Proverbs, c. viii., saying, 'By Me kings reign, and lawgivers decree just things:' as truly as subordinate princes are dependent upon the supreme temporal majesty, so, in like manner, this majesty itself must depend upon the supreme King and Lord of lords. Theologians and jurists dispute whether this supreme power comes immediately from God, or merely in an indirect manner. Many affirm that it emanates immediately from God, because it cannot emanate from men, whether we consider them collectively or individually; for all fathers of families are equal, and each possesses, with regard to his own family, a power merely economical; from which it follows, that they cannot confer upon others that civil and political power which they themselves do not possess. Moreover, if the community, in its superiority, had delegated to one or to more the power here under discussion, it could revoke it at pleasure, for the superior is always at liberty to withdraw the facilities he has delegated to another, and this would be very injurious to society.
"In support of the opposite opinion, many answer, and certainly with more probability and truth, that, in reality, all power proceeds from God, but that it is not delegated to any particular individual directly, unless by consent of civil society. That this power is not vested directly in any individual, but in the entire collection of men, is what St. Thomas expressly teaches (1, 2, qu. 90, art. 3, ad 2, et qu. 97, art. 3, ad 3), followed by Dominic Soto (lib. i. qu. 1, art. 3); by Ledesma (2 part. qu. 18, art. 3); and by Covarruvias (in Pract. cap. i.). The reason of this is evident; for as all men are born free with regard to civil society, no one has any civil power over another, since this power exists not in each, nor in any of them in a fixed manner; it follows, therefore, that it is vested in the whole collection of men. God does not confer this power by any special act distinct from creation, but it is a property of right reason, inasmuch as right reason dictates that men, united in one moral whole, shall prescribe, by express or tacit consent, in what manner society shall be governed, preserved, and upheld."
It is proper to remark, that Father Concina, speaking here of tacit or express consent, has not in view the actual existence of society, nor the authority by which it is governed, but merely the mode of exercising this authority for the direction, preservation, and defence of society. Hence, his opinion coincides with that of Bellarmin; society and power are of right divine and natural, but the mode of organizing society, and of transmitting and exercising authority, is human. After having shown in what sense we are to understand that civil power comes from God, Concina resumes the question which he had proposed, viz. in what manner authority exists in kings, princes, and other supreme heads of government. He proceeds as follows:r "It is evident, therefore, that the power existing in the prince, the king, or in many persons whether nobles or plebeians, emanates from the community itself, directly or indirectly; for, if it came immediately from God, it would be manifested to us in a particular manner, as in the instances of Saul and David, who were chosen by God. We consider, therefore, erroneous, the doctrine that God confers this power immediately and directly upon the king, the prince, or any other head of supreme government whatever, to the exclusion of the tacit or express consent of the public. This discussion, it is true, is one of words rather than of things, for this power comes from God, the author of nature, inasmuch as He has ordained and appointed that the public itself shall confer upon one or more the power of supreme government, for the preservation and defence of society. The nomination of the person or persons appointed to command being once made, their power is said to come from God, because society itself is bound by natural and divine right to obey him who commands. In fact, it is the will of God that society shall be governed, whether by one individual or by several. In this manner the several opinions of theologians are reconciled with each other, and the oracles of Scripture appear in their true sense: 'He that resisteth the power, resisteth the ordinance of God.' 'There is no power but from God.' 'Be subject, therefore, to every human creature for God's sake, whether to the king,' &c. 'Thou wouldst not have any power against Me, unless it were given thee from above.' These testimonies, and others of a like nature, ought to convince us that all is ordained and directed by God, the supreme Mediator. This, however, does not exclude the operations of human institutions, as is very justly interpreted by St. Augustin and St. John Chrysostom."
Father Billuart, who lived in the early part of last century, and, consequently, at the same epoch when the highly monarchical traditions of Louis XIV. were in all their vigor, expressed the same ideas on this subject as the theologians above cited. In his work on Moral Theology, which, for almost a century, has been widely circulated, he thus expresses himself:s "I maintain, in the first place, that legislative power belongs to the community, or to its representative." After quoting St. Thomas and St. Isidore, he continues: "Reason proves, that to make laws belongs of right to him who is appointed to watch over the public good; for the maintenance of the public good, as has been already said, is the end and aim of the laws. It is the duty of the community, or of its ruler, to watch over the public good; for as the welfare of an individual is a fit object for individual agency, so is the public good for the agency of the community, or of him to whom its functions have been delegated; the power of legislation, therefore, is vested in the community, or in its representative. I will confirm what is here advanced. The law has the power of commanding and of coercing in such a manner that no individual has any authority to command or restrain the multitude. This authority belongs exclusively to the community, or to its representative; to these, therefore, legislative power belongs." Having made these reflections, Billuart starts another difficulty with regard to the extreme extension which he appears to have given to the rights of the multitude. On this occasion he develops his system still further.t
"It will be objected," says he, "that the right of commanding and compelling is vested in the superior, and cannot belong to the community, since it is not superior to itself. To this I reply: Society, in one sense, is not superior to itself, but in another it is. The community may be considered collectively as one moral body, and in this sense it is superior to itself as considered distributively in each of its members. Again; it may be considered as acting in the place of God, from whom emanates all legislative power, as it is said in Proverbs: 'By Me kings reign and the lawgivers decree just things;' or as capable of being governed conformably to the public good. In the former case, it is superior and legislative; in the latter, inferior and subject to the law."
As this explanation might appear somewhat obscure, Billuart proceeds to investigate more profoundly the origin of society and of civil power. He endeavors to show how the natural, the divine, and the human laws agree on this point, defining what belongs to each. He then continues as follows:u "To render this more clear, it must be observed, that man, unlike other animals, is born destitute of many things necessary both for body and soul, and that for these he is indebted to society and the assistance of his fellow-mortals; consequently he is, by his very nature, a social animal. This society, which nature and reason prescribe to him as indispensable, cannot long exist without some power to direct it, according to what is said in Proverbs: 'Where there is no governor, the people will come to ruin.' Whence it follows, that God, who has given this nature, has also given the power of governing and of legislating. He, in fact, who gives the form, gives, at the same time, all that such form necessarily requires. But as it is not possible for this executive and legislative power to be exercised by the entire multitude, since it would be difficult for all and each forming this multitude to assemble on all occasions when the affairs of the commonweal are to be discussed, or laws to be established, it is usual for the multitude to transfer its right or governing power, either to a number of people selected from all classes, and bearing the name of a democracy; or to a select number of the nobles, which takes the name of an aristocracy; or to one alone, for himself only, or for his successors, by virtue of the right of hereditary succession, which is styled a monarchy. From which it is evident that all power comes from God, as the Apostle says, in his Epistle to the Romans, chap. xiii. This power resides in the community, directly and by natural right, but in kings and other rulers merely indirectly and by human right, unless God confers it directly upon certain individuals, as He did upon Moses over the Jews, and as Christ has conferred it upon the Supreme Pontiff over the whole Church." What is still more remarkable, our absolute monarchies were never alarmed at these theological doctrines, not only previous to the French Revolution, but since that Revolution, and up to the time commonly styled with us the fatal decade, (from 1823 to 1833, the latter part of the reign of Ferdinand VII.) It is well known that during that period the Compendium Salmaticense (Compendium of Salamanca) had a most favorable reception in this country, and served as a text-book among the professors of ethics in the colleges and universities. Ye who are continually declaiming against this epoch, imagining, without doubt, that in those days no other doctrines than those in favor of the most arrant despotism could be circulated, listen to what is said in the above book, which was then placed in the hands of every youth destined to the ecclesiastical state. After having established the existence of a civil legislative power, the author thus proceeds:x "You will ask me, in the second place, whether the prince receives this civil legislative power immediately from God. I reply, It, is universally admitted that princes receive this power from God; but, at the same time, it is maintained with more truth, that they do not receive it directly, but through the medium of the people's consent; for all men are naturally equal, and there is no natural distinction of superiority or inferiority. Since nature has not given any individual power over another, God has conferred this power upon the community; which, as it may think it more proper to be ruled by one or by many appointed persons, transfers it to one or to many, that by them it may be ruled; according to St. Thomas (1, 2, qu. 90, art. 3, ad 2). From this natural principle arises the variety in the forms of civil government; for if a state transfers all its power to a single individual, this government is termed monarchical; if it confers it upon the nobles of the nation, it takes the name of an aristocracy; if the people or the state retain this power in their own hands, the civil government is styled a democracy. Princes, therefore, receive from God the power of commanding; for supposing the election made by the whole state, God confers upon the prince the power which was vested in the community. Whence it follows, that the prince rules and governs in the name of God, and whoever resists him resists the ordinance of God, according to the words of the Apostle above cited."
CHAPTER L.
ON THE RIGHT DIVINE, ACCORDING TO THE CATHOLIC DOCTORS
The doctrine of the right divine, considered in its relation to society, presents to our notice two particular points which this doctrine contains: 1. The origin of civil power; 2. The mode in which God communicates this power.
The former point is a question of doctrine. No Catholic can entertain any doubt upon it. The second is open to discussion; and various opinions may be formed upon it, without interfering with faith. With regard to the right divine, considered in itself, true philosophy agrees with Catholicity. In fact, if civil power comes not from God, to what source can we trace its origin? Upon what solid principle can we support it? If the man who exercises it does not rest upon God the legitimacy of his power, no title will avail to uphold his right. It will be radically and irretrievably null. On the contrary, supposing authority to come from God, our duty to submit to it becomes evident, and our dignity is not in the least hurt by the submission; but, in the other supposition, we see only force, craft, tyranny, but no reason or justice; perhaps a necessity for submission, but no obligation. By what title does any man pretend to command us? Because he is possessed of superior intellect? Who had the right of adjudging to him the palm? Besides, this superiority does not constitute a right; in some instances its direction might be useful to us, but it will not be obligatory. Is it because he is stronger than we? In that case the elephant ought to be king of the entire world. Is it because he is more wealthy than we? Reason and justice exist not in metal. The rich man is born naked, and his riches will not descend with him into the tomb. Upon earth they have enabled him to acquire power; but they do not confer upon him any right to exercise it over others. Shall it consist in certain faculties conferred on him by others? who has constituted other men our proxies? where is their consent? who has collected their votes? and how can either we or they flatter ourselves that we possess faculties equal to the exercise of civil power? and if we do not possess them, how can we delegate them?
We must here consider the doctrine which places the origin of civil power in the will of men, supposing that this power is the result of a pact, by which individuals have agreed to submit to the retrenchment of a part of their natural liberty, in order to enjoy the benefits of society. According to this system, the rights of the civil power, as well as the duties of the subject, are alike founded on a pact, differing from other contracts only in the nature and extent of its object; so that, in this case, power would emanate from God merely in a general sense, just as all rights and duties emanate from Him. Those writers who thus explain the origin of power, do not always agree with Rousseau. The Contrat of the philosopher of Geneva has nothing to do with the pact spoken of in other authors. This is not the place to compare the doctrines of Rousseau with those of other writers; suffice it to say, that although they rely upon the pact, they wish, nevertheless, to establish the rights of civil power as they have been hitherto understood by the common consent of mankind, whilst the author of the Contrat Social proposes in his book the following problem, which he considers fundamental. I quote his own words: "To find a form of association which shall defend and protect with all the common strength the person and property of each associate, and by which each one, being united to all, shall nevertheless obey only himself, and remain as free as before."
Such is the fundamental problem, the solution of which is given in the Contrat Social. This nonsense of having none but one's self to obey, making a contract, and remaining as free as before, needs no comment, after what the author himself says in the following line: "The clauses of this contract are so fixed by the very nature of the act, that the least modification would render them vain and of no effect." (Book i. chap. 6.) Rousseau's ideas on this subject do not, therefore, agree with those of many other writers, who also have spoken of pacts, in their explanation of the origin of power; the latter sought a theory in support of power, the former wished to destroy that which existed, and to throw society into a state of excitement. Through a singular idea, Rousseau, in his vault at the Pantheon, is represented to us with the door half open, and a lighted torch in his hand – an emblem, perhaps, more significant than has been imagined. The artist's intention was, to express the idea of Rousseau's enlightening the world even after his death; but it should be remembered, that the torch is also an emblem of the incendiary. La Harpe said of him:
"Sa parole est un feu, mais un feu qui ravage."
To return to the question, I will observe, that the doctrine of a pact is of no avail in accounting for the establishment of power; for it cannot even render legitimate either its origin or its exercise. First, an explicit pact has evidently never existed; and secondly, in the formation of even the most limited society, such a pact never could obtain the consent of every individual member. In any convention for such an object, only the heads of families could take part; and hence, women, children, and servants might protest against it. In assenting to such a pact, what right would fathers have to represent the whole of their families? The will of the latter, it will be said, was virtually included in that of their chief; but this is the very point that wants proof. Supposition here is easy enough; proof is not so easy. When you seek the origin of power in principles of strict right, and attempt to maintain that this is only one of those cases to which ordinary conditions of contracts are applicable, you are met at once by a very serious difficulty; for you are obliged to have recourse to a fiction: – the words "implicit consent" are a mere fiction, and nothing more. Is it not evident, that the consent of families must have been implicit, even supposing that of their heads to be explicit? This explicit consent would, in fact, be impossible in the formation of any society, however limited in extent. And moreover, the consent of succeeding generations will be equally implicit, since it is impossible to be continually renewing the contract, for the purpose of consulting the wishes of the parties interested in its effects. Reason and history teach that society has never been thus organized; our own experience tells us that it is not now upheld or governed by any such principles. Of what use, then, is this inexplicable theory? When a theory has a practical object, the best way of proving its fallacy is, to prove its impracticability.
The faculties with which civil power is, and always has been, considered to be invested, are of such a nature, that they cannot have proceeded from a pact. The right of life and death can have come only from God. Man is not in possession of this right. No pact merely human could invest him with a power which he has not, either in relation to himself or to others. I will endeavor to demonstrate this point with all possible precision. If the right of taking away life emanates not from God, but from a pact, it must have originated in the following manner: every member of society must have said, expressly or tacitly, "I consent to the establishment of laws to decree punishment of death for certain crimes; and if I should at any time transgress them, I am willing from that moment to forfeit my life." In this manner, every individual will have given up his life, supposing that the conditions specified are realized; but no individual having a right over his own life, the resigning of it becomes radically null. The joint consent of all the members of society does not obviate the radical and essential nullity of each one's right to give up his life; the sum of their resignations is therefore equally null, and consequently incapable of producing any right whatever. It will be said, perhaps, that man, properly speaking, has no right over his own life, when an arbitrary right is implied, but that when he chooses to dispose of it for his own advantage, the general principle should be restricted. This reflection, at first sight plausible, would lead to the terrible consequence of authorizing suicide. In reply, it will be said, that suicide is no advantage to him who commits it; but if you once grant to the individual the right of disposing of his life, provided he reap an advantage from so doing, you cannot constitute yourselves judges to decide whether or not this advantage exists in any particular case. According to you, he had a right to sacrifice his life when, for example, to satisfy his wants or his taste, he had stolen the property of another. That is to say, that he had a right of choice between the advantages of life and those of satisfying a desire: what will you answer, if he tell you that he prefers death to misery, to ennui, to grief, or to such and such misfortunes which torment him?
The right of life and death cannot consequently emanate from a pact. Man's life is not his own; he has only the use of it so long as it pleases the Creator to grant it him. He has not, therefore, the right of disposing of it, and all conventions he may make for that purpose are null. In some instances, it is lawful, glorious, it may be even obligatory, to deliver one's self up to certain death; but let us not confound ideas: man does not in that case sacrifice his life as being the master of it, he is a voluntary victim to the salvation of his country, or to the good of mankind. The warrior who scales a wall, the charitable man who confronts the most dangerous contagion in visiting the sick, the missionary who resorts to unknown countries, who resigns himself to live in unhealthy climates, and who penetrates into inaccessible forests, seeking ferocious hordes, do not dispose of their lives as being their own; they sacrifice them to a purpose great, sublime, just, and pleasing to God; for God loves virtue, especially heroic virtue; and it is a heroic virtue to die for one's country, to die in visiting the sick, or in carrying the light of truth to those seated in darkness and in the shadow of death. This right of life and death, with which civil power has ever been considered invested, may by some be considered as founded upon the natural right of self-defence vested in society. Every individual, they will say, has the right of taking away the life of another in self-defence; therefore society also has this right. In the chapter on Intolerance, I have touched slightly upon this point, and made some reflections which may be repeated here. I will endeavor, nevertheless, to extend them and confirm them by arguments of another kind. In the first place, I maintain that the right of self-defence may confer upon society that of taking away life. If one individual attacked by another may lawfully repel him – kill him even, if necessary to save his own life, it is evident that an assemblage of men have the same right. This appears so evident, that demonstration is superfluous. One society attacked by another has incontestably the right of resisting and repelling the attack – it is justified in making war. With more reason, therefore, might it resist an individual, to make war on him, or kill him. This is all perfectly true and obvious; and I grant that there thus exists, from the very nature of things, a title upon which we may found the right of inflicting capital punishment.