These ideas are plausible, and seem at first sight to nullify the reasons on which we have supported the necessity of having recourse to God for the origin of this formidable right. Nevertheless, when we come to examine them thoroughly, they are far from satisfactory; and it may be even said, that in the sense in which they are understood and applied, they are subversive of the acknowledged principles of society. In fact, if such a theory be admitted, if the right of inflicting capital punishment be made to rest exclusively on this principle, the ideas of penalty, chastisement, and of human justice disappear at once. It has always been thought that the criminal dying upon a gibbet suffers a penalty; and although this terrible act is certainly a satisfaction to society, a means of preservation, yet the principal and predominant idea, that which surpasses all others, which best justifies and exculpates society, which gives to the judge his august character, and stamps disgrace upon the criminal, is the idea of chastisement, of penalty, and of justice. All this disappears when once we can assert that society, in taking away life, only acts in self-defence. Such an act is conformable to reason, it is just, but it no longer merits the honorable title of an executive act of justice. A man is justified in killing an assassin; but in so doing he does not administer justice, he does not execute justice, nor inflict a penalty. These things are very different, and of a distinct order; we cannot confound them without shocking the good sense of mankind.
We will render this distinction more apparent by putting the two theories into the mouth of the judge: the contrast is striking. In the former case, the judge says to the criminal: "You are guilty; the law decrees against you the penalty of death; I, the minister of justice, apply it; the executioner is ordered to inflict it." In the second, he says to him: "You have attacked society, which cannot exist if such attacks are tolerated. It defends itself, and for this reason puts you to death; I, its agent, declare, that the time for its defending itself is come, and hence I give you up to the executioner." In the former supposition, the judge is a minister of justice, and the culprit a criminal who undergoes a just penalty; in the latter, the judge is an instrument of force, the culprit a victim. But, it will be said, the criminal is not on this account less criminal, and still merits the penalty which he undergoes. This is true with respect to the guilt, but not with respect to the penalty. The fault exists in the eyes of God, and also in the eyes of man, inasmuch as he possesses a conscience capable of judging of the morality of actions; but it does not exist in the eyes of man, considered as a judge. According to you, the judge does not punish a crime; he restrains an act injurious to society: but if you say that the judge inflicts a penalty, you change the nature of the question, for he then does something more than protect society. It follows from what we have just established, that the right of inflicting capital punishment can only emanate from God, and, consequently, if there existed no other reason for referring to God the origin of power, this alone would suffice. War against an invading nation may be explained by the right of self-defence; invasion also comes under the same principle; for if it be just, it can be entered upon only with a view to enforce some reparation or compensation refused by the enemy. War for the sake of alliance enters into that class of actions which are performed for the assistance of a friend; so that this phenomenon of war, with all its glory, and all its ravages, does not so forcibly oblige us to have recourse to a divine origin as this simple right of condemning a man to the gibbet. The sanction of lawful wars also undoubtedly belongs to God, for in Him exists the sanction of all rights and of all duties; but there is not, in this case at least, any need of particular authorization, as in the case of inflicting capital punishment. It is sufficient to have the general sanction which God, as the author of nature, has given to all natural rights and duties.
How do we know that God has granted such an authorization to man? There are three ways of answering this question. 1. The testimony of the Scriptures is sufficient for all Christians. 2. The right of life and death is a universal tradition of the human race, and does, therefore, exist in reality; and as we have shown that it can have its origin only in God, it is right to suppose that He has communicated it to man in one way or another. 3. This right is essential to the preservation of society; God must, therefore, have granted it; for if He wills the preservation of a being, it is evident that He will have bestowed upon it all things necessary for such preservation. To recapitulate what we have hitherto advanced: the Church teaches that civil power comes from God, and this doctrine, which agrees with the formal texts of Scripture, agrees also with natural reason. The Church contents herself with establishing this dogma, and deducing from it the immediate consequence resulting from it, viz. that obedience to the lawful authorities is of right divine. With regard to the mode in which this right divine is communicated, the Church has not determined any thing: the general opinion of theologians is, that society receives it from God, and that, from society, it is transferred, by lawful means, to the person or persons appointed to exercise it. In order that civil power may exact obedience, and be considered invested with this right divine, it must be legitimate; that is to say, the person or persons in possession of it must have acquired it by lawful means, or this power must have become legitimate in their possession, by means acknowledged to be in accordance with right. With respect to political forms, the Church does not determine any thing; but whatever be the form of government, the civil power must be confined within legitimate bounds, while the subject, on his side, is bound to obey. The fitness and legitimacy of such or such persons, and of such and such forms, are subjects not appertaining to right divine. They are particular questions, depending upon a variety of circumstances, and to which no general theory is applicable.
One example of private right will serve to illustrate what we have just explained. Respect for property is of natural and divine right; but the ownership of property, the respective rights of individuals to the same thing, the restrictions to which property should be subject, are questions appertaining to civil right, which have always been resolved, and are still resolved, in various ways. The main object is to adhere to the protective principle of property, the indispensable basis of all social organization; but the application of this principle is, and must be, subject to a variety of circumstances and events, a variety arising from the course of human affairs. It is the same with power. The Church, intrusted with the great deposit of the most important truths, keeps in this deposit the truth which guaranties a divine origin to civil power, and makes the existence of the law an affair of right divine; but she does not interfere in particular cases, which are always controlled more or less by the fluctuation and uncertainty with which the world is agitated. When thus explained, the Catholic doctrine is not in the least opposed to true liberty; it consolidates power, and does not prejudice the questions that may arise between the governors and the governed. No unlawful power can lay claim to the right divine; for it must be legitimate to merit the application of this right. This legitimacy is determined and declared by the laws of each country, from which it follows that the law is the organ of the right divine. This right, therefore, only consolidates what is just; and certainly that which insures justice in the world cannot be said to lead to despotism, for nothing can be more opposed to the liberty and happiness of the people than the absence of justice and legitimacy.
Popular liberties are not endangered by the strong safeguards surrounding the legitimacy of the governing power. On the contrary, reason, history, and experience teach that all illegitimate powers are tyrannical. Their illegitimacy necessarily carries weakness along with it; and it is not the strong, but the weak powers that oppress the people. Real tyranny consists in the person governing taking care of his own instead of the public interest. Now this is precisely what takes place when, feeling himself weak and tottering, he is forced to guard and protect himself. His object is then, no longer society, but himself. Instead of thinking how he may benefit those over whom he rules, he only studies and calculates beforehand the utility he may derive from his own measures. I have said in another place, and I repeat, that, in looking over history, we find continually this important truth written in letters of blood: Wo to the people governed by a power which is obliged to think of its own preservation! A fundamental truth in political science, and which has, nevertheless, been lamentably overlooked in modern times. Much labor has been and is still spent to produce guarantees for liberty. To this end a multitude of governments have been overturned, and attempts have been made to weaken them all, without thinking that this was the most certain means of introducing oppression. What signify the veils under which despotism is concealed, and the forms by which it seeks to disguise its existence? History, which has recorded the outrages committed in Europe during the last century; true history, not that written by the authors of those outrages, by their accomplices, or by interested parties, will relate to posterity the injustices and crimes committed in the midst of civil discord by governments foreseeing their end, and feeling in themselves extreme weakness caused by their tyrannical conduct and the illegality of their origin.
How is it, then, that such a violent warfare has been declared against doctrines tending to consolidate civil authority by rendering it legitimate, and to prove this legitimacy by declaring that power descends from Heaven? How has it been overlooked that the legitimacy of power is an essential element of its strength, and that this strength is the safest guarantee of true liberty? Let it not be said that these are paradoxes. What is the object of societies and governments? Is it not the substitution of public for private force, of the rule of right for the rule of the strong? But when once you begin to undermine power, to make it an object of popular aversion or defiance; when once you represent it to the people as their natural enemy, and vilify the sacred titles on which obedience due to it is founded, you attack at once the very object of the institution of society; and by weakening the action of public force, you provoke a development of private force, which is the very thing that governments were instituted to prevent. The secret of that mildness for which European monarchies were remarkable, consisted chiefly in their security and strength, founded upon the loftiness and legality of the titles of their power; whilst you will find in the perils with which the thrones of the Roman emperors and Eastern monarchs were beset, one reason for their monstrous despotism. I do not hesitate to assert, and in the course of this work I shall prove more and more, that one cause of the evils to which Europe has been exposed during the laborious solution of the problem of the alliance between order and liberty, is the oblivion of Catholic doctrines on this point. These doctrines have been condemned without being heard or examined into, and the enemies of the Church have copied each other without ever having recourse to the real sources, where they might easily have found out the truth.
Protestantism, departing from the teaching of Catholicity, has been thrown alternately upon two opposite rocks; wishing to establish order, it has done so to the prejudice of true liberty; and in its desire to maintain liberty, it has become an enemy to order. From the bosom of false reform have arisen the insane doctrines, which, preaching up Christian liberty, discharged the subject from his obedience to the lawful authorities; from the bosom of the same reform has likewise arisen the theory of Hobbes, which sets up despotism in the midst of society as a monstrous idol, to which all should be sacrificed, without regard for the eternal principles of morality, with no other rule than the caprice of him who rules, with no other bounds to his power than those marked out by the extent of his strength. Such is the necessary result of banishing from the world the authority of God. Man, left to himself, can only succeed in producing slavery or anarchy; the same thing under two forms; the reign of force.
In explaining the origin of society and power, divers modern writers have said a great deal about a certain state of nature anterior to all societies, and have supposed that these societies were formed by a gradual transition from a barbarous to a civilized state. This erroneous doctrine lies deeper than some persons imagine. If we pay particular attention to the subject, we shall find that the erroneous ideas entertained on this subject may be traced to the forgetfulness of Christian teaching. Hobbes derives every kind of right from a pact. According to him, when men live in a state of nature, they have a right to every thing; which means, in other terms, that there is no difference between good and evil. From which it follows that society was organized without any regard to morality, and ought to be considered merely as a means to an end. Puffendorf and some others, admitting the principle of sociality, that is, deriving from society the rules of morality, arrive at last at the principle of Hobbes, and trample under foot both the natural and eternal laws. Investigating the causes of these grave errors, I find them in the deplorable contempt which writers on philosophy and morality in modern times have so eagerly evinced for the treasures of light afforded us by religion. This light, religion affords us on all questions, fixing by its dogmas the cardinal points of all true philosophy, and offering us in its narrations the only thread that can guide us through the labyrinth of the first ages. Read the Protestant writers, compare them with the Catholic, and you will find a remarkable difference between them. The latter reason, give their minds free scope, and allow them a wide range; but they ever leave untouched certain fundamental principles, and every theory which they cannot reconcile with these principles is inexorably rejected by them as erroneous. The former roam without guide or compass in the boundless space of human opinions, presenting to us a lively image of that pagan philosophy which had not the light of faith to guide its inquiries into the principles of things. Instead of finding a God, the Creator and Director, occupied without ceasing, like a tender father, with the happiness of beings whom He has drawn from nothing, this philosophy never discovered any thing but chaos, either in the physical or in the social world. This degraded and brutalized state, disguised under the name of nature, is in reality nothing but the chaos of society. This chaos will be found in a great number of modern writers who are not Catholics; and by a surprising coincidence, worthy of the most serious reflection, it will also be found in the principal writers on pagan science.
From the moment that we lose sight of the great traditions of mankind, traditions in which man is represented to us receiving from God himself intelligence, speech, and rules for his conduct in this life; from the moment that we forget the narration of Moses, that simple, sublime, and only true explanation of the origin of man and of society; our ideas become confused, the facts are jumbled, one absurdity creates another, and, like the builders of the tower of Babel, we suffer the just punishment of our pride. How wonderful! that antiquity, which, deprived of the light of Christianity, and lost in the labyrinth of human inventions, had almost forgotten the primitive tradition of the origin of society, and had recourse to the absurd transition from the barbarous to the civilized state, should nevertheless, whenever a society was to be formed, have invoked this right divine, which certain philosophers have treated with so much disdain. The most renowned legislators sought to establish upon Divine authority, the laws they were giving to the people, thus rendering a solemn homage to that truth logically established by Catholics, viz. that all power, to be regarded as legitimate and to exercise its due ascendency, must receive its titles from God. If you desire that the legislator should not be placed under the sad necessity of feigning revelations which he has never received, or bringing forward the intervention of God at every moment in an extraordinary manner in human affairs, establish the general principle that all power proceeds from God, that the author of nature is likewise the author of society, that the existence of society is a precept imposed upon mankind for their own preservation. Let submission and obedience be so regulated as not to wound man's pride; let those who rule over him be invested with superior authority, to which he can submit without a shadow of self-abasement. In short, establish the Catholic doctrine. Whatever be the form of government, you will then have found a solid basis on which to support the respect due to the authorities; you will have placed the social edifice upon a foundation far more secure than human conventions.
Examine the right divine such as I have represented it, supported by the interpretations of illustrious doctors, and I am certain that you cannot refuse to admit its perfect conformity to the lights of true philosophy; but if you persist in giving to this right a strange sense which it does not possess, pretending that it ought to have a different explanation, I shall insist upon one thing which you cannot refuse me: produce me a text of Scripture, a monument of the traditions acknowledged as articles of faith in the Catholic Church, a decision of the Councils or of the Pontiffs, showing your interpretation to be well founded. Until you have done this, I have a right to tell you, that, possessed with the desire of rendering Catholicity odious, you impute to it doctrines which it does not profess, you attribute to it dogmas which it does not acknowledge; that you are adversaries without candor or honesty, and employ weapons disallowed by the laws of combat.28
CHAPTER LI.
TRANSMISSION OF POWER, ACCORDING TO THE CATHOLIC DOCTORS
The difference of opinion concerning the mode in which God communicates civil power, however grave in theory, does not appear to be of great importance in practice. We have already observed, that, among those who assert that this power comes from God, some maintain that it proceeds from Him directly, others indirectly. In the opinion of the former, when once the nomination of the persons appointed to exercise authority is made, society not only lays down the necessary conditions for the communication of power, but actually communicates it, having first received it from God. The latter maintain that society merely makes the appointment, and, by means of this act, God confers the power upon the person appointed. I repeat, that, in practice, the result is the same, and the difference therefore vanishes. Nay, even in theory, the divergence may not be so great as it appears at first sight. I shall endeavor to demonstrate this by submitting the two opinions to rigorous investigation.
The explanation given of the origin of power by both parties may be set forth in the following terms: In the opinion of some, God says, "Society, for thy preservation and well-being, thou requirest a government; choose, therefore, under what form this government shall be exercised, and appoint the persons who are to take charge of it; I, on my part, will confer upon them the faculties necessary for the fulfilment of their mission." In the opinion of others, God says, "Society, for thy preservation and well-being, thou requirest a government: I confer upon thee the faculties necessary for the fulfilment of this object; choose thyself the form under which this government shall be exercised, and, appointing the persons who are to take charge of it, transmit to them the faculties which I have communicated to thee."
In order to be convinced of the identity of the results of these two formulas, we must examine them in their relations: 1. to the sanctity of their origin; 2. to the rights and duties of power; 3. to the rights and duties of the subject. Whether God has communicated power to society, to be transmitted by it to the persons appointed to exercise it, or has merely conferred upon it the right of determining the form and appointing such persons, that, by means of this determination and appointment, the rights annexed to supreme power may be directly communicated to the persons intrusted with the exercise of it, it follows, in either case, that this supreme power, wherever it exists, emanates from God; and is not less sacred because it passes through an intermediate means appointed by Him. I will illustrate these ideas by a very simple and obvious example. Suppose there exists in a state some particular community, instituted by the sovereign, and having no rights but those granted by him; no duties but those which he imposes upon it; in fine, a community indebted to the sovereign for all that it is and has. This community, however small it may be, will require a government: this government may be formed in two ways; either the sovereign who has given it its laws has conferred upon it the right of governing itself, and of transmitting this right to the person or persons whom it may think proper to elect; or he has left to the community itself the determination of the form and the appointment of the persons, adding that such determination and appointment being once made, it shall be understood that, by this simple act, the sovereign grants to the persons appointed the right of exercising their functions within lawful bounds. It is evident that the parity is complete; and now I ask, Is it not true that, in this case, as in the other, the faculties of him who governs should be considered and respected as an emanation from the sovereign? Is it not true that it would be difficult to discover any difference between these two kinds of investiture? In both suppositions, the community would have the right of determining the form and appointing the person; in both cases, he who governs could only obtain his powers by virtue of the previous determination and appointment; in neither case would there need any new manifestation on the part of the sovereign, that the person nominated might be understood to be invested with faculties corresponding to the exercise of his functions. In practice, therefore, there would be no difference; further, I will assert that, in theory even, it would be difficult to trace the point of separation between the two cases.
Certainly, if we view the matter with the eye of an acute metaphysician, we may very easily discover this difference, by considering the moral entity which we call power; not as it is in itself, and in its effects, but as an abstract being, passing from one hand to another, in the manner of corporeal objects. But, instead of examining the question for the curiosity of knowing whether this moral entity, before arriving at one person, has not first passed through another, let us first seek to verify from whence it emanates, and what are the faculties it confers, the rights it imposes: we shall then find that, in saying, "I confer this faculty upon you, transmit it to whomsoever you think proper, and in whatever way you think proper," the sovereign expresses no more than if he should say: "Such or such a faculty shall be conferred by me upon the person you wish, and in the manner you wish, by the simple fact of the election you have made." It follows hence, that whether we adopt the opinion of direct communication, or the contrary one, the supreme rights of hereditary monarchies, of elective monarchies, and in general of all supreme powers, whatever be their forms of government, will not on this account be less sacred, less certainly sealed with divine authority. Difference in the forms of government does not in the least diminish the obligations of submitting to civil power, lawfully established; so that the refusing of obedience to the president of a republic, in a country in which republicanism is the legal form of government, is no less a criminal resistance to the ordinance of God, than the refusing of the same obedience to the most absolute monarch. Bossuet, so strongly attached to monarchy, and writing in a country and at a period in which the king might exclaim, "I am the state;" and in a work, in which he proposed nothing less than to offer a complete treatise on Politics, taken from the words of Holy Scripture; established, nevertheless, in a manner the most explicit and conclusive, the truth which I have just pointed out. "We ought to be subject," says he, "to the form of government established in our country." And he afterwards quotes these words of St. Paul in his Epistle to the Romans, chap. xiii.: "Let every soul be subject to higher powers; for there is no power but from God; and those that are, are ordained of God; therefore he that resisteth the power, resisteth the ordinance of God." "There is no form of government," continues Bossuet, "nor any human institution, without its inconveniences; so that it is necessary to remain in the state to which length of time has inured the people. For this reason, God takes under His protection all legitimate governments, in whatever form they may be established; whoever undertakes to overturn them, is not only an enemy to the public, but also to God." (Liv. ii. prop. 12.)
It is of little consequence whether power be communicated directly or indirectly; the respect and obedience due to it are not in the least changed, and consequently the sacredness of the origin of power remains the same, whichever opinion be adopted; neither do the rights and duties of government, and those of the subject, remain less sacred. These rights and duties suffer no change, whether there be or not an intermediate means for the communication of power; their nature and limits are founded upon the very object of the institution of society; but this object is totally independent of the mode in which God communicates power to man. Against what I have advanced upon the small amount of difference existing between these various opinions, the authority of the theologians, whose texts I have cited in the preceding chapter, will be objected. "These theologians," it will be said, "certainly understood these affairs; and as they placed so much importance upon the distinction here under discussion, they undoubtedly saw in it some great truth proper to be taken into account." This objection acquires the more force, when we consider that the distinction made upon this point by these theologians does not proceed from a spirit of subtilty, as it might be suspected in the case of those scholastic theologians, whose writings are replete with dialectic arguments, rather than with reasoning founded upon Scripture, upon the apostolical traditions and other theological resources, from which we ought principally to take our arguments in controversies of this nature; but the theologians whom I have quoted are certainly not of this class. We need only name Bellarmin, to recognise a grave and extremely solid author, who opposed the Protestants with Scripture, with traditions, with the authority of the holy Fathers, the decisions of the universal Church and of the Sovereign Pontiffs: Bellarmin was not one of those theologians who excited the lamentations of Melchior Cano, and of whom he said, that in the hour of combat against heresy, instead of wielding well-tempered weapons, they wielded only long reeds: arundines longas. Such was the importance given to this distinction, that James, King of England, complained loudly that Cardinal Bellarmin taught that the power of kings came from God only indirectly; and the Catholic schools were so far from looking upon this distinction as insignificant, that they defended it against the attacks of King James; and that one of their most illustrious doctors, Suarez, entered the lists to contend for the doctrines of Bellarmin.
It appears, then, at first sight, that I am wrong in what I have said upon the slight importance of the distinction here mentioned. I believe, nevertheless, that the difficulty may be easily removed, and that it will suffice for this purpose to distinguish the different aspects under which the question presents itself. First of all, I will observe, that the Catholic theologians proceeded upon this point with admirable prudence and foresight; and truly the question, such as it was then proposed, comprehended more than a subtilty; I am inclined to think that it included one of the most serious points of public right. In order to examine deeply these doctrines of Catholic theologians, and to lay hold of their true sense, we must fix our attention upon the tendencies which the religious reform of the sixteenth century communicated to European monarchy. Even before this reform, thrones had acquired a great deal of force and solidity, through the decline in the power of the feudal lords, and the development of the democratic element. That element, which in due time was destined to acquire the power of which it is now possessed, was not then in sufficiently favorable circumstances to exert its action on the vast scale which it embraces in our days. On this account, it was obliged to take refuge under the shadow of the throne – an emblem of order and justice elevated in the midst of society – a sort of universal regulator and leveller, destined gradually to destroy the extreme inequalities so harassing and obnoxious to the people. Thus, democracy itself, which, in after ages, was to overturn so many thrones, served them, at that time, as a firm support, sheltering them from the attacks of a turbulent and formidable aristocracy, unwilling to be transformed into mere courtiers. There was nothing in this state of things very mischievous, so long as matters remained within the limits prescribed by reason and justice; but, unfortunately, good principles were exaggerated, regal authority was gradually converted into an absorbent force, which would have concentrated in itself all other forces. European monarchy lost thus its true character, which consists in monarchy having just limits, even when these limits are not marked out and guarded by political institutions.