A Philosophical Dictionary, Volume 09

The dukes of Savoy, of Lorraine, and of Tuscany still pretend to the Milanese; but it is believed that a family of poor gentlemen exist in Friuli, the posterity in a right line from Albion, king of the Lombards, who possess an anterior claim.

The publicists have written great books upon the rights of the kingdom of Jerusalem. The Turks have written none, and Jerusalem belongs to them; at least at this present writing; nor is Jerusalem a kingdom.

CANONICAL RIGHTS – OR LAW

General Idea of the Rights of the Church or Canon Law, by M. Bertrand, Heretofore First Pastor of the Church of Berne.

We assume neither to adopt nor contradict the principles of M. Bertrand; it is for the public to judge of them.

Canon law, or the canon, according to the vulgar opinion, is ecclesiastical jurisprudence. It is the collection of canons, rules of the council, decrees of the popes, and maxims of the fathers.

According to reason, and to the rights of kings and of the people, ecclesiastical jurisprudence is only an exposition of the privileges accorded to ecclesiastics by sovereigns representing the nation.

If two supreme authorities, two administrations, having separate rights, exist, and the one will make war without ceasing upon the other, the unavoidable result will be perpetual convulsions, civil wars, anarchy, tyranny, and all the misfortunes of which history presents so miserable a picture.

If a priest is made sovereign; if the dairo of Japan remained emperor until the sixteenth century; if the dalai-lama is still sovereign at Thibet; if Numa was at once king and pontiff; if the caliphs were heads of the state as well as of religion; and if the popes reign at Rome – these are only so many proofs of the truth of what we advance; the authority is not divided; there is but one power. The sovereigns of Russia and of England preside over religion; the essential unity of power is there preserved.

Every religion is within the State; every priest forms a part of civil society, and all ecclesiastics are among the number of the subjects of the sovereign under whom they exercise their ministry. If a religion exists which establishes ecclesiastical independence, and supports them in a sovereign and legitimate authority, that religion cannot spring from God, the author of society.

It is even to be proved, from all evidence, that in a religion of which God is represented as the author, the functions of ministers, their persons, property, pretensions, and manner of inculcating morality, teaching doctrines, celebrating ceremonies, the adjustment of spiritual penalties; in a word, all that relates to civil order, ought to be submitted to the authority of the prince and the inspection of the magistracy.

If this jurisprudence constitutes a science, here will be found the elements.

It is for the magistracy, solely, to authorize the books admissible into the schools, according to the nature and form of the government. It is thus that M. Paul Joseph Rieger, counsellor of the court, judiciously teaches canon law in the University of Vienna; and, in the like manner, the republic of Venice examined and reformed all the rules in the states which have ceased to belong to it. It is desirable that examples so wise should generally prevail.

SECTION IOf the Ecclesiastical Ministry

Religion is instituted only to preserve order among mankind, and to render them worthy of the bounty of the Deity by virtue. Everything in a religion which does not tend to this object ought to be regarded as foreign or dangerous.

Instruction, exhortation, the fear of punishment to come, the promises of a blessed hereafter, prayer, advice, and spiritual consolation are the only means which churchmen can properly employ to render men virtuous on earth and happy to all eternity.

Every other means is repugnant to the freedom of reason; to the nature of the soul; to the unalterable rights of conscience; to the essence of religion; to that of the clerical ministry; and to the just rights of the sovereign.

Virtue infers liberty, as the transport of a burden implies active force. With constraint there is no virtue, and without virtue no religion. Make me a slave and I shall be the worse for it.

Even the sovereign has no right to employ force to lead men to religion, which essentially presumes choice and liberty. My opinions are no more dependent on authority than my sickness or my health.

In a word, to unravel all the contradictions in which books on the canon law abound, and to adjust our ideas in respect to the ecclesiastical ministry, let us endeavor, in the midst of a thousand ambiguities, to determine what is the Church.

The Church, then, is all believers, collectively, who are called together on certain days to pray in common, and at all times to perform good actions.

Priests are persons appointed, under the authority of the State, to direct these prayers, and superintend public worship generally.

A numerous Church cannot exist without ecclesiastics; but these ecclesiastics are not the Church.

It is not less evident that if the ecclesiastics, who compose a part of civil society, have acquired rights which tend to trouble or destroy such society, such rights ought to be suppressed.

It is still more obvious that if God has attached prerogatives or rights to the Church, these prerogatives and these rights belong exclusively neither to the head of the Church nor to the ecclesiastics; because these are not the Church itself, any more than the magistrates are the sovereign, either in a republic or a monarchy.

Lastly; it is very evident that it is our souls only which are submitted to the care of the clergy, and that for spiritual objects alone.

The soul acts inwardly; its inward acts are thought, will, inclination, and an acquiescence in certain truths, all which are above restraint; and it is for the ecclesiastical ministry to instruct, but not to command them.

The soul acts also outwardly. Its exterior acts are submission to the civil law; and here constraint may take place, and temporal or corporeal penalties may punish the violations of the law.

Obedience to the ecclesiastical order ought, consequently, to be always free and voluntary; it ought to exact no other. On the contrary, submission to the civil law may be enforced.

For the same reason ecclesiastical penalties, always being spiritual, attach in this world to those only who are inwardly convinced of their error. Civil penalties, on the contrary, accompanied by physical evil produce physical effects, whether the offender acknowledge the justice of them or not.

Hence it manifestly results that the authority of the clergy can only be spiritual – that it is unacquainted with temporal power, and that any co-operative force belongs not to the administration of the Church, which is essentially destroyed by it.

It moreover follows that a prince, intent not to suffer any division of his authority, ought not to permit any enterprise which places the members of the community in an outward or civil dependence on the ecclesiastical corporation.

Such are the incontestable principles of genuine canonical right or law, the rules and the decisions of which ought at all times to be submitted to the test of eternal and immutable truths, founded upon natural rights and the necessary order of society.

SECTION IIOf the Possessions of Ecclesiastics

Let us constantly ascend to the principles of society, which, in civil as in religious order, are the foundations of all right.

Society in general is the proprietor of the territory of a country, and the source of national riches. A portion of this national revenue is devoted to the sovereign to support the expenses of government. Every individual is possessor of that part of the territory, and of the revenue, which the laws insure him; and no possession or enjoyment can at any time be sustained, except under the protection of law.

In society we hold not any good, or any possession as a simple natural right, as we give up our natural rights and submit to the order of civil society, in return for assurance and protection. It is, therefore, by the law that we hold our possessions.

No one can hold anything on earth through religion, neither lands nor chattels; since all its wealth is spiritual. The possessions of the faithful, as veritable members of the Church, are in heaven; it is there where their treasures are laid up. The kingdom of Jesus Christ, which He always announced as at hand, was not, nor could it be, of this world. No property, therefore, can be held by divine right.

The Levites under the Hebrew law had, it is true, their tithe by a positive law of God; but that was under a theocracy which exists no longer – God Himself acting as the sovereign. All those laws have ceased, and cannot at present communicate any title to possession.

If any body at present, like that of the priesthood, pretend to possess tithes or any other wealth by positive right divine, it must produce an express and incontestable proof enregistered by divine revelation. This miraculous title would be, I confess, an exception to the civil law, authorized by God, who says: "All persons ought to submit to the powers that be, because they are ordained of God and established in His name."

In defect of such a title, no ecclesiastical body whatever can enjoy aught on earth but by consent of the sovereignty and the authority of the civil laws. These form their sole title to possession. If the clergy imprudently renounce this title, they will possess none at all, and might be despoiled by any one who is strong enough to attempt it. Its essential interest is, therefore, to support civil society, to which it owes everything.

For the same reason, as all the wealth of a nation is liable without exception to public expenditure for the defence of the sovereign and the nation, no property can be exempt from it but by force of law, which law is always revocable as circumstances vary. Peter cannot be exempt without augmenting the tax of John. Equity, therefore, is eternally claiming for equality against surcharges; and the State has a right, at all times, to examine into exemptions, in order to replace things in a just, natural, proportionate order, by abolishing previously granted immunities, whether permitted or extorted.

Every law which ordains that the sovereign, at the expense of the public, shall take care of the wealth or possessions of any individual or a body, without this body or individual contributing to the common expenses, amounts to a subversion of law.

I moreover assert that the quota, whether the contribution of a body or an individual, ought to be proportionately regulated, not by him or them, but by the sovereign or magistracy, according to the general form and law. Thus the sovereign or state may demand an account of the wealth and of the possessions of everybody as of every individual.

It is, therefore, once more on these immutable principles that the rules of the canon law should be founded which relate to the possessions and revenue of the clergy.

Ecclesiastics, without doubt, ought to be allowed sufficient to live honorably, but not as members of or as representing the Church, for the Church itself claims neither sovereignty nor possession in this world.

But if it be necessary for ministers to preside at t the altar, it is proper that society should support them in the same manner as the magistracy and soldiers. It is, therefore, for the civil law to make a suitable provision for the priesthood.

Even when the possessions of the ecclesiastics have been bestowed on them by wills, or in any other manner, the donors have not been able to denationalize the property by abstracting it from public charges and the authority of the laws. It is always under the guarantee of the laws, without which they would not possess the insured and legitimate possessions which they enjoy.

It is, therefore, still left to the sovereign, or the magistracy in his name, to examine at all times if the ecclesiastical revenues be sufficient; and if they are not, to augment the allotted provision; if, on the contrary, they are excessive, it is for them to dispose of the superfluity for the general good of society.

But according to the right, commonly called canonical, which has sought to form a State within the State, "imperium in imperio," ecclesiastical property is sacred and intangible, because it belongs to religion and the Church; they have come of God, and not of man.

In the first place, it is impossible to appropriate this terrestrial wealth to religion, which has nothing temporal. They cannot belong to the Church, which is the universal body of the believers, including the king, the magistracy, the soldiery, and all subjects; for we are never to forget that priests no more form the Church than magistrates the State.

Lastly, these goods come only from God in the same sense as all goods come from Him, because all is submitted to His providence.

Therefore, every ecclesiastical possessor of riches, or revenue, enjoys it only as a subject and citizen of the State, under the single protection of the civil law.

Property, which is temporal and material, cannot be rendered sacred or holy in any sense, neither literally nor figuratively. If it be said that a person or edifice is sacred, it only signifies that it has been consecrated or set apart for spiritual purposes.

The abuse of a metaphor, to authorize rights and pretensions destructive to all society, is an enterprise of which history and religion furnish more than one example, and even some very singular ones, which are not at present to my purpose.

SECTION IIIOf Ecclesiastical or Religious Assemblies

It is certain that nobody can call any public or regular assembly in a state but under the sanction of civil authority.

Religious assemblies for public worship must be authorized by the sovereign, or civil magistracy, before they can be legal.

In Holland, where the civil power grants the greatest liberty, and very nearly the same in Russia, in England, and in Prussia, those who wish to form a church have to obtain permission, after which the new church is in the states, although not of the religion of the states. In general, as soon as there is a sufficient number of persons, or of families, who wish to cultivate a particular mode of worship, and to assemble for that purpose, they can without hesitation apply to the magistrate, who makes himself a judge of it; and once allowed, it cannot be disturbed without a breach of public order. The facility with which the government of Holland has granted this permission has never produced any disorder; and it would be the same everywhere if the magistrate alone examined, judged, and protected the parties concerned.

The sovereign, or civil power, possesses the right at all times of knowing what passes within these assemblies, of regulating, them in conformity with public order, and of preventing such as produce disorder. This perpetual inspection is an essential portion of sovereignty, which every religion ought to acknowledge.

Everything in the worship, in respect to form of prayer, canticles, and ceremonies, ought to be open to the inspection of the magistrate. The clergy may compose these prayers; but it is for the State to approve or reform them in case of necessity. Bloody wars have been undertaken for mere forms, which would never have been waged had sovereigns understood their rights.

Holidays ought to be no more established without the consent and approbation of the State, who may at all times abridge and regulate them. The multiplication of such days always produces a laxity of manners and national impoverishment.

A superintendence over oral instruction and books of devotion, belongs of right to the State. It is not the executive which teaches, but which attends to the manner in which the people are taught. Morality above all should be attended to, which is always necessary; whereas disputes concerning doctrines are often dangerous.

If disputes exist between ecclesiastics in reference to the manner of teaching, or on points of doctrine, the State may impose silence on both parties, and punish the disobedient.

As religious congregations are not permitted by the State in order to treat of political matters, magistrates ought to repress seditious preachers, who heat the multitude by punishable declamation: these are pests in every State.

Every mode of worship presumes a discipline to maintain order, uniformity, and decency. It is for the magistrate to protect this discipline, and to bring about such changes as times and circumstances may render necessary.

For nearly eight centuries the emperors of the East assembled councils in order to appease religious disputes, which were only augmented by the too great attention paid to them. Contempt would have more certainly terminated the vain disputation, which interest and the passions had excited. Since the division of the empire of the West into various kingdoms, princes have left to the pope the convocation of these assemblies. The rights of the Roman pontiff are in this respect purely conventional, and the sovereigns may agree in the course of time, that they shall no longer exist; nor is any one of them obliged to submit to any canon without having examined and approved it. However, as the Council of Trent will most likely be the last, it is useless to agitate all the questions which might relate to a future general council.

As to assemblies, synods, or national councils, they indisputably cannot be convoked except when the sovereign or State deems them necessary. The commissioners of the latter ought therefore to preside, direct all their deliberations, and give their sanction to the decrees.

There may exist periodical assemblies of the clergy, to maintain order, under the authority of the State, but the civil power ought uniformly to direct their views and guide their deliberations. The periodical assembly of the clergy of France is only an assembly of regulative commissioners for all the clergy of the kingdom.

The vows by which certain ecclesiastics oblige themselves to live in a body according to certain rules, under the name of monks, or of religieux, so prodigiously multiplied in Europe, should always be submitted to the inspection and approval of the magistrate. These convents, which shut up so many persons who are useless to society, and so many victims who regret the liberty which they have lost; these orders, which bear so many strange denominations, ought not to be valid or obligatory, unless when examined and sanctioned by the sovereign or the State.

At all times, therefore, the prince or State has a right to take cognizance of the rules and conduct of these religious houses, and to reform or abolish them if held to be incompatible with present circumstances, and the positive welfare of society.

The revenue and property of these religious bodies are, in like manner, open to the inspection of the magistracy, in order to judge of their amount and of the manner in which they are employed. If the mass of the riches, which is thus prevented from circulation, be too great; if the revenues greatly exceed the reasonable support of the regulars; if the employment of these revenues be opposed to the general good; if this accumulation impoverish the rest of the community; in all these cases it becomes the magistracy, as the common fathers of the country, to diminish and divide these riches, in order to make them partake of the circulation, which is the life of the body politic; or even to employ them in any other way for the benefit of the public.

Agreeably to the same principles, the sovereign authority ought to forbid any religious order from having a superior who is a native or resident of another country. It approaches to the crime of lèse-majesté.

The sovereign may prescribe rules for admission into these orders; he may, according to ancient usage, fix an age, and hinder taking vows, except by the express consent of the magistracy in each instance. Every citizen is born a subject of the State, and has no right to break his natural engagements with society without the consent of those who preside over it.

If the sovereign abolishes a religious order, the vows cease to be binding. The first vow is that to the State; it is a primary and tacit oath authorized by God; a vow according to the decrees of Providence; a vow unalterable and imprescriptible, which unites man in society to his country and his sovereign. If we take a posterior vow, the primitive one still exists; and when they clash, nothing can weaken or suspend the force of the primary engagement. If, therefore, the sovereign declares this last vow, which is only conditional and dependent on the first, incompatible with it, he does not dissolve a vow, but decrees it to be necessarily void, and replaces the individual in his natural state.

The foregoing is quite sufficient to dissipate all the sophistry by which the canonists have sought to embarrass a question so simple in the estimation of all who are disposed to listen to reason.

SECTION IVOn Ecclesiastical Penalties

Since neither the Church, which is the body of believers collectively, nor the ecclesiastics, who are ministers in the Church in the name of the sovereign and under his authority, possess any coactive strength, executive power, or terrestrial authority, it is evident that these ministers can inflict only spiritual punishments. To threaten sinners with the anger of heaven is the sole penalty that a pastor is entitled to inflict. If the name of punishment or penalty is not to be given to those censures or declamations, ministers of religion have none at all to inflict.

May the Church eject from its bosom those who disgrace or who trouble it? This is a grand question, upon which the canonists have not hesitated to adopt the affirmative. Let us repeat, in the first place, that ecclesiastics are not the Church. The assembled Church, which includes the State or sovereign, doubtless possesses the right to exclude from the congregations a scandalous sinner, after repeated charitable and sufficient warnings. The exclusion, even in this case, cannot inflict any civil penalty, any bodily evil, or any merely earthly privation; but whatever right the Church may in this way possess, the ecclesiastics belonging to it can only exercise it as far as the sovereign and State allow.

It is therefore still more incumbent on the sovereign, in this case, to watch over the manner in which this permitted right is exercised, vigilance being the more necessary in consequence of the abuse to which it is liable. It is, consequently, necessary for the supreme civil power to consult the rules for the regulation of assistance and charity, to prescribe suitable restrictions, without which every declaration of the clergy, and all excommunication, will be null and without effect, even when only applicable to the spiritual order. It is to confound different eras and circumstances, to regulate the proceedings of present times from the practice of the apostles. The sovereign in those days was not of the religion of the apostles, nor was the Church included in the State, so that the ministers of worship could not have recourse to the magistrates. Moreover, the apostles were ministers extraordinary, of which we now perceive no resemblance. If other examples of excommunication, without the authority of the sovereign, be quoted, I can only say that I cannot hear, without horror, of examples of excommunication insolently fulminated against sovereigns and magistrates; I boldly reply, that these denunciations amount to manifest rebellion, and to an open violation of the most sacred duties of religion, charity, and natural right.

Let us add, in order to afford a complete idea of excommunication, and of the true rules of canonical right or law in this respect, that excommunication, legitimately pronounced by those to whom the sovereign, in the name of the Church, expressly leaves the power, includes privation only of spiritual advantages on earth, and can extend to nothing else: all beyond this will be abuse, and more or less tyrannical. The ministers of the Church can do no more than declare that such and such a man is no more a member of the Church. He may still, however, enjoy notwithstanding the excommunication, all his natural, civil, and temporal rights as a man and a citizen. If the magistrate steps in and deprives such a man, in consequence, of an office or employment in society, it then becomes a civil penalty for some fault against civil order.