Front Page Titles (by Subject) RIGHTS. - The Works of Voltaire, Vol. VII (Philosophical Dictionary Part 5)
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RIGHTS. - Voltaire, The Works of Voltaire, Vol. VII (Philosophical Dictionary Part 5) 
The Works of Voltaire, A Contemporary Version, (New York: E.R. DuMont, 1901), A Critique and Biography by John Morley, notes by Tobias Smollett, trans. William F. Fleming. Vol. VII.
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National Rights—Natural Rights—Public Rights.
I know no better way of commencing this subject than with the verses of Ariosto, in the second stanza of the 44th canto of the “Orlando Furioso,” which observes that kings, emperors, and popes, sign fine treaties one day which they break the next, and that, whatever piety they may affect, the only god to whom they really appeal, is their interest:
If there were only two men on earth, how would they live together? They would assist each other; they would annoy each other; they would court each other; they would speak ill of each other; fight with each other; be reconciled to each other; and be neither able to live with nor without each other. In short, they would do as people at present do, who possess the gift of reason certainly, but the gift of instinct also; and will feel, reason, and act forever as nature has destined.
No god has descended upon our globe, assembled the human race, and said to them, “I ordain that the negroes and Kaffirs go stark naked and feed upon insects.
“I order the Samoyeds to clothe themselves with the skins of reindeer, and to feed upon their flesh, insipid as it is, and eat dry and half putrescent fish without salt. It is my will that the Tartars of Thibet all believe what their dalai-lama shall say; and that the Japanese pay the same attention to their dairo.
“The Arabs are not to eat swine, and the Westphalians nothing else but swine.
“I have drawn a line from Mount Caucasus to Egypt, and from Egypt to Mount Atlas. All who inhabit the east of that line may espouse as many women as they please; those to the west of it must be satisfied with one.
“If, towards the Adriatic Gulf, or the marshes of the Rhine and the Meuse, or in the neighborhood of Mount Jura, or the Isle of Albion, any one shall wish to make another despotic, or aspire to be so himself, let his head be cut off, on a full conviction that destiny and myself are opposed to his intentions.
“Should any one be so insolent as to attempt to establish an assembly of free men on the banks of the Manzanares, or on the shores of the Propontis, let him be empaled alive or drawn asunder by four horses.
“Whoever shall make up his accounts according to a certain rule of arithmetic at Constantinople, at Grand Cairo, at Tafilet, at Delhi, or at Adrianople, let him be empaled alive on the spot, without form of law; and whoever shall dare to account by any other rule at Lisbon, Madrid, in Champagne, in Picardy, and towards the Danube, from Ulm unto Belgrade, let him be devoutly burned amidst chantings of the ‘Miserere.’
“That which is just along the shores of the Loire is otherwise on the banks of the Thames; for my laws are universal,” etc.
It must be confessed that we have no very clear proof, even in the “Journal Chrétien,” nor in “The Key to the Cabinet of Princes,” that a god has descended in order to promulgate such a public law. It exists, notwithstanding, and is literally practised according to the preceding announcement; and there have been compiled, compiled, and compiled, upon these national rights, very admirable commentaries, which have never produced a sou to the great numbers who have been ruined by war, by edicts, and by tax-gatherers.
These compilations closely resemble the case of conscience of Pontas. It is forbidden to kill; therefore all murderers are punished who kill not in large companies, and to the sound of trumpets; it is the rule.
At the time when Anthropophagi still existed in the forest of Ardennes, an old villager met with a man-eater, who had carried away an infant to devour it. Moved with pity, the villager killed the devourer of children and released the little boy, who quickly fled away. Two passengers, who witnessed the transaction at a distance, accused the good man with having committed a murder on the king’s highway. The person of the offender being produced before the judge, the two witnesses—after they had paid the latter a hundred crowns for the exercise of his functions—deposed to the particulars, and the law being precise, the villager was hanged upon the spot for doing that which had so much exalted Hercules, Theseus, Orlando, and Amadis the Gaul. Ought the judge to be hanged himself, who executed this law to the letter? How ought the point to be decided upon a general principle? To resolve a thousand questions of this kind, a thousand volumes have been written.
Puffendorff first established moral existences: “There are,” said he, “certain modes which intelligent beings attach to things natural, or to physical operations, with the view of directing or restraining the voluntary actions of mankind, in order to infuse order, convenience, and felicity into human existence.”
Thus, to give correct ideas to the Swedes and the Germans of the just and the unjust, he remarks that “there are two kinds of place, in regard to one of which, it is said, that things are for example, here or there; and in respect to the other, that they have existed, do, or will exist at a certain time, as for example, yesterday, to-day, or to-morrow. In the same manner we conceive two sorts of moral existence, the one of which denotes a moral state, that has some conformity with place, simply considered; the other a certain time, when a moral effect will be produced,” etc.
This is not all; Puffendorff curiously distinguishes the simple moral from the modes of opinion, and the formal from the operative qualities. The formal qualities are simple attributes, but the operative are to be carefully divided into original and derivated.
In the meantime, Barbeyrac has commented on these fine things, and they are taught in the universities, and opinion is divided between Grotius and Puffendorff in regard to questions of similar importance. Take my recommendation; read Tully’s “Offices.”
Nothing possibly can tend more to render a mind false, obscure, and uncertain than the perusal of Grotius, Puffendorff, and almost all the writers on the “jus gentium.”
We must not do evil that good may come of it, says the writer to whom nobody hearkens. It is permitted to make war on a power, lest it should become too strong, says the “Spirit of Laws.”
When rights are to be established by prescription, the publicists call to their aid divine right and human right; and the theologians take their part in the dispute. “Abraham and his seed,” say they, “had a right to the land of Canaan, because he had travelled there; and God had given it to him in a vision.” But according to the vulgate sage teachers, five hundred and forty-seven years elapsed between the time when Abraham purchased a sepulchre in the country and Joshua took possession of a small part of it. No matter, his right was clear and correct. And then prescription? Away with prescription! Ought that which once took place in Palestine to serve as a rule for Germany and Italy? Yes, for He said so. Be it so, gentlemen; God preserve me from disputing with you!
The descendants of Attila, it is said, established themselves in Hungary. Till what time must the ancient inhabitants hold themselves bound in conscience to remain serfs to the descendants of Attila?
Our doctors, who have written on peace and war, are very profound; if we attend to them, everything belongs of right to the sovereign for whom they write; he, in fact, has never been able to alienate his domains. The emperor of right ought to possess Rome, Italy, and France; such was the opinion of Bartholus; first, because the emperor was entitled king of the Romans; and, secondly, because the archbishop of Cologne is chancellor of Italy, and the archbishop of Trier chancellor of Gaul. Moreover, the emperor of Germany carries a gilded ball at his coronation, which of course proves that he is the rightful master of the whole globe.
At Rome there is not a single priest who has not learned, in his course of theology, that the pope ought to be master of this earth, seeing it is written that it was said to Simon, the son of Jonas: “Thou art Peter, and upon this rock I will build my church.” It was well said to Gregory VII. that this treated only of souls, and of the celestial kingdom. Damnable observation! he replied; and would have hanged the observer had he been able.
Spirits, still more profound, establish this reasoning by an argument to which there is no reply. He to whom the bishop of Rome calls himself vicar has declared that his dominion is not of this world; can this world then belong to the vicar, when his master has renounced it? Which ought to prevail, human nature or the decretals? The decretals, indisputably.
If it be asked whether the massacre of ten or twelve millions of unarmed men in America was defensible, it is replied that nothing can be more just and holy, since they were not Catholic, apostolic and Roman.
There is not an age in which the declarations of war of Christian princes have not authorized the attack and pillage of all the subjects of the prince, to whom war has been announced by a herald, in a coat of mail and hanging sleeves. Thus, when this signification has been made, should a native of Auvergne meet a German, he is bound to kill, and entitled to rob him either before or after the murder.
The following has been a very thorny question for the schools: The ban, and the arrière-ban, having been ordered out in order to kill and be killed on the frontiers, ought the Suabians, being satisfied that the war is atrociously unjust, to march? Some doctors say yes; others, more just, pronounce no. What say the politicians?
When we have fully discussed these great preliminary questions, with which no sovereign embarrasses himself, or is embarrassed, we must proceed to discuss the right of fifty or sixty families upon the county of Alost; the town of Orchies; the duchy of Berg and of Juliers; upon the countries of Tournay and Nice; and, above all, on the frontiers of all the provinces, where the weakest always loses his cause.
It was disputed for a hundred years whether the dukes of Orleans, Louis XII., and Francis I., had a claim on the duchy of Milan, by virtue of a contract of marriage with Valentina de Milan, granddaughter of the bastard of a brave peasant, named Jacob Muzio. Judgment was given in this process at the battle of Pavia.
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.
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.
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.
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 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.
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 lesemajesté.
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.
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.
Let us suppose that which may very likely happen, as ecclesiastics are only men, that the excommunication which they have been led to pronounce has been prompted by some error or some passion; he who is exposed to a censure so precipitate is clearly justified in his conscience before God; the declaration issued against him can produce no effect upon the life to come. Deprived of exterior communion with the true Church, he may still enjoy the consolation of the interior communion. Justified by his conscience, he has nothing to fear in a future existence from the judgment of God, his only true judge.
It is then a great question, as to canonical rights, whether the clergy, their head, or any ecclesiastical body whatever, can excommunicate the sovereign or the magistracy, under any pretext, or for any abuse of their power? This question is essentially scandalous, and the simple doubt a direct rebellion. In fact, the first duty of man in society is to respect the magistrate, and to advance his respectability, and you pretend to have a right to censure and set him aside. Who has given you this absurd and pernicious right? Is it God, who governs the political world by delegated sovereignty, and who ordains that society shall subsist by subordination?
The first ecclesiastics at the rise of Christianity—did they conceive themselves authorized to excommunicate Tiberius, Nero, Claudius, or even Constantine, who was a heretic? How then have pretensions thus monstrous, ideas thus atrocious, wicked attempts equally condemned by reason and by natural and religious rights, been suffered to last so long? If a religion exists which teaches like horrors, society ought to proscribe it, as directly subversive of the repose of manking. The cry of whole nations is already lifted up against these pretended canonical laws, dictated by ambition and by fanaticism. It is to be hoped that sovereigns, better instructed in their rights, and supported by the fidelity of their people, will terminate abuses so enormous, and which have caused so many misfortunes. The author of the “Essay on the Manners and Spirit of Nations” has been the first to forcibly expose the atrocity of enterprises of this nature.
The sovereign is not the judge of the truth of doctrine; he may judge for himself, like all other men; but he ought to take cognizance of it in respect to everything which relates to civil order, whether in regard to purport or delivery.
This is the general rule from which magistrates ought never to depart. Nothing in a doctrine merits the attention of the police, except as it interests public order: it is the influence of doctrine upon manners that decides its importance. Doctrines which have a distant connection only with good conduct can never be fundamental. Truths which conduce to render mankind gentle, humane, obedient to the laws and to the government, interest the State, and proceed evidently from God.
The administration of the sacraments ought to be submitted to the careful inspection of the magistrates in everything which concerns public order.
It has already been observed that the magistrate ought to watch over the form of the public registry of marriages, baptisms, and deaths, without any regard to the creed of the different inhabitants of the State.
Similar reasons in relation to police and good government—do they not require an exact registry in the hands of the magistracy of all those who make vows, and enter convents in those countries in which convents are permitted?
In the sacrament of repentance, the minister who refuses or grants absolution is accountable for his judgment only to God; and in the same manner, the penitent is accountable to God alone, whether he consummates it all, or does so well or ill.
No pastor, himself a sinner, ought to have the right of publicly refusing, on his own private authority, the eucharist to another sinner. The sinless Jesus Christ refused not the communion to Judas.
Extreme unction and the viaticum, if demanded or requested by the sick, should be governed by the same rule. The simple right of the minister is to exhort the sick person, and it is the duty of the magistrate to take care that the pastor abuse not circumstances, in order to persecute the invalid.
Formerly, it was the Church collectively which called the pastors, and conferred upon them the right of governing and instructing the flock. At present, ecclesiastics alone consecrate others, and the magistracy ought to be watchful of this privilege.
It is doubtless a great, though ancient abuse, that of conferring orders without functions; it is depriving the State of members, without adding to the Church. The magistrate is called upon to reform this abuse.
Marriage, in a civil sense, is the legitimate union of a man with a woman for the procreation of children, to secure their due nurture and education, and in order to assure unto them their rights and properties under the protection of the laws. In order to confirm and establish this union, it is accompanied by a religious ceremony, regarded by some as a sacrament, and by others as a portion of public worship; a genuine logomachy, which changes nothing in the thing. Two points are therefore to be distinguished in marriage—the civil contract, or natural engagement, and the sacrament, or sacred ceremony. Marriage may therefore exist, with all its natural and civil effects, independently of the religious ceremony. The ceremonies of the Church are only essential to civil order, because the State has adopted them. A long time elapsed before the ministers of religion had anything to do with marriage. In the time of Justinian, the agreement of the parties, in the presence of witnesses, without any ceremonies of the Church, legalized marriages among Christians. It was that emperor who, towards the middle of the sixth century, made the first laws by which the presence of priests was required, as simple witnesses, without, however, prescribing any nuptial benediction. The emperor Leo, who died in 886, seems to have been the first who placed the religious ceremony in the number of necessary conditions. The terms of the law itself indeed, which ordains it, prove it to have been a novelty.
From the correct idea which we now form of marriage, it results in the first place, that good order, and even piety, render religious forms adopted in all Christian countries necessary. But the essence of marriage cannot be denationalized, and this engagement, which is the principal one in society, ought uniformly, as a branch of civil and political order, to be placed under the authority of the magistracy.
It follows, therefore, that a married couple, even educated in the worship of infidels and heretics, are not obliged to marry again, if they have been united agreeably to the established forms of their own country; and it is for the magistrate in all such instances to investigate the state of the case.
The priest is at present the magistrate freely nominated by the law, in certain countries, to receive the pledged faith of persons wishing to marry. It is very evident, that the law can modify or change as it please the extent of this ecclesiastical authority.
Wills and funerals are incontestably under the authority of the civil magistracy and the police. The clergy have never been allowed to usurp the authority of the law in respect to these. In the age of Louis XIV. however, and even in that of Louis XV., striking examples have been witnessed of the endeavors of certain fanatical ecclesiastics to interfere in the regulation of funerals. Under the pretext of heresy, they refused the sacraments, and interment; a barbarity which Pagans would have held in horror.
The sovereign or State may, without doubt, give up to an ecclesiastical body, or a single priest, a jurisdiction over certain objects and certain persons, with a power suitable to the authority confided. I examine not into the prudence of remitting a certain portion of civil authority into the hands of any body or person who already enjoys an authority in things spiritual. To deliver to those who ought to be solely employed in conducting men to heaven, an authority upon earth, is to produce a union of two powers, the abuse of which is only too easy; but at least it is evident that any man, as well as an ecclesiastic, may be intrusted with the same jurisdiction. By whomsoever possessed, it has either been conceded by the sovereign power, or usurped; there is no medium. The kingdom of Jesus Christ is not of this world; he refused to be a judge upon earth, and ordered that men should give unto Cæsar the things which belonged unto Cæsar: he forbade all dominations to his apostles, and preached only humility, gentleness, and dependence. From him ecclesiastics can derive neither power, authority, domination, nor jurisdiction in this world. They can therefore possess no legitimate authority, but by a concession from the sovereign or State, from which all authority in a society can properly emanate.
There was a time in the unhappy epoch of the feudal ages in which ecclesiastics were possessed in various countries with the principal functions of the magistracy: the authority of the lords of the lay fiefs, so formidable to the sovereign and oppressive to the people, has been since bounded; but a portion of the independence of the ecclesiastical jurisdictions still exists. When will sovereigns be sufficiently informed and courageous to take back from them the usurped authority and numerous privileges which they have so often abused, to annoy the flock which they ought to protect?
It is by this inadvertence of princes that the audacious enterprises of ecclesiastics against sovereigns themselves have originated. The scandalous history of these attempts has been consigned to records which cannot be contested. The bull “In cœna Domini,” in particular, still remains to prove the continual enterprises of the clergy against royal and civil authority.
Extract from the Tariff of the Rights Exacted in France by the Court of Rome for Bulls, Dispensations, Absolutions, etc., which Tariff was Decreed in the King’s Council, Sept. 4, 1691, and Which is Reported Entire in the Brief of James Lepelletier, Printed at Lyons in 1699, with the Approbation and Permission of the King. Lyons: Printed for Anthony Boudet, Eighth Edition.
1. For absolution for the crime of apostasy, payable to the pope, twenty-four livres.
2. A bastard wishing to take orders must pay twenty-five livres for a dispensation; if desirous to possess a benefice, he must pay in addition one hundred and eighty livres; if anxious that his dispensation should not allude to his illegitimacy, he will have to pay a thousand and fifty livres.
3. For dispensation and absolution of bigamy, one thousand and fifty livres.
4. For a dispensation for the error of a false judgment in the administration of justice or the exercise of medicine, ninety livres.
5. Absolution for heresy, twenty-four livres.
6. Brief of forty hours, for seven years, twelve livres.
7. Absolution for having committed homicide in self-defence, or undesignedly, ninety-five livres. All in company of the murderer also need absolution, and are to pay for the same eighty-five livres each.
8. Indulgences for seven years, twelve livres.
9. Perpetual indulgences for a brotherhood, forty livres.
10. Dispensation for irregularity and incapacity, twenty-five livres; if the irregularity is great, fifty livres.
11. For permission to read forbidden books, twenty-five livres.
12. Dispensation for simony, forty livres; with an augmentation according to circumstances.
13. Brief to permit the eating of forbidden meats, sixty-five livres.
14. Dispensation for simple vows of chastity or of religion, fifteen livres. Brief declaratory of the nullity of the profession of a monk or a nun, one hundred livres. If this brief be requested ten years after profession, double the amount.
Dispensations in Relation to Marriage.
Dispensations for the fourth degree of relationship, with cause, sixty-five livres; without cause, ninety livres; with dispensation for familiarities that have passed between the future married persons, one hundred and eighty livres.
For relations of the third or fourth degree, both on the side of the father and mother, without cause, eight hundred and eighty livres; with cause, one hundred and forty-five livres.
For relations of the second degree on one side, and the fourth on the other; nobles to pay one thousand four hundred and thirty livres; roturiers, one thousand one hundred and fifty livres.
He who would marry the sister of the girl to whom he has been affianced, to pay for a dispensation, one thousand four hundred and thirty livres.
Those who are relations in the third degree, if they are nobles, or live creditably, are to pay one thousand four hundred and thirty livres; if the relationship is on the side of father as well as mother, two thousand four hundred and thirty livres.
Relations in the second degree to pay four thousand five hundred and thirty livres; and if the female has accorded favors to the male, in addition for absolution, two thousand and thirty livres.
For those who have stood sponsors at the baptism of the children of each other, the dispensation will cost two thousand seven hundred and thirty livres. If they would be absolved from premature familiarity, one thousand three hundred and thirty livres in addition.
He who has enjoyed the favors of a widow during the life of her deceased husband, in order to legitimately espouse her, will have to pay one hundred and ninety livres.
In Spain and Portugal, the marriage dispensations are still dearer. Cousins-german cannot obtain them for less than two thousand crowns.
The poor not being able to pay these taxes, abatements may be made. It is better to obtain half a right, than lose all by refusing the dispensation.
No reference is had here to the sums paid to the pope for the bulls of bishops, abbots, etc., which are to be found in the almanacs; but we cannot perceive by what authority the pope of Rome levies taxes upon laymen who choose to marry their cousins.