Monday, June 6, 2016

Catholic Church and Christian State, Pt. 2

Part I | Part II

The Power of the Church in Worldly Matters

 Cardinal Joseph Hergenröther

§1. Three Theories on this Point

In relation to the power of the Church in temporal matters were formed three systems based upon the notions expressed in the Decree Novit, upon the idea prominent even in the first ages of Christianity that the spiritual power was above the temporal, and upon the theory and practice of the Middle Ages:
  • the system of the direct power of the Church in matters temporal;
  • that of the merely indirect power;
  • that of the merely directing power.

§2. Direct Power of the Church in Temporal Matters (Potestas directa Ecclesiae in temporalia)

The main doctrines of this system were as follows: God has given to the Pope, as His Vicar, endowed with the unlimited power of binding and loosing, authority to rule the world in temporal as in spiritual matters, but in such manner that the spiritual power is to be wielded by him in person, while the civil power is to be delivered over to princes, who in reality are merely servants of the Church, receive their power from her, are responsible to her, and - in case of misconduct - may be deposed by her. Thus, the Pope comes to be the supreme head in spiritual and temporal matters, to whom, as Vicar of Christ, the King of kings, all nations and kingdoms are directly subject, and earthly kings must in turn be his representatives.

This opinion, strongly combated by St. Robert Bellarmine, was held by Henry of Segusia, Cardinal Bishop of Ostia, Augustinus Triumphus (1320), Alvarus Pelagius (1340), and others. The learned John of Salisbury (1159), who is in some respects considered as the first defender of this system, has by no means made use of the strong expressions employed by late upholders of this view. His opinion seems to have been shared by St. Thomas Becket.

§3. Direct Power is Untenable

The large majority of theologians have perceived this doctrine to be untenable, and have proved it in detail to be so. They point out that, though Christ is possessed of all power in heaven and upon earth, and though the Pope must be regarded as His Vicar, still this vicariate extends over the religious domain only, and includes no unlimited temporal sovereignty, although the temporal sovereignty of a determinate district has been advantageously united with it. Unbelieving princes do not belong to the fold of Christ (John 21:15 seq.), and the Church has in general no jurisdiction over unbelievers (1 Corinthians 5:12); the Pope would most surely not appoint heathens as his vicars.

Neither are the keys of earthly kingdoms committed to the Pope, but those of the Kingdom of Heaven; so that Christian rulers, by the acceptance and introduction of Christianity, have not forfeited their sovereign power, and Christ, who bestows the heavenly, does not deprive them of their earthly kingdom. Were the Pope a universal ruler, the bishops would necessarily be everywhere rulers in their own cities and dioceses; the practical consequences of this doctrine prove its absurdity.

The Popes have never laid claim to any such power, but have, on the contrary, fully acknowledged the jurisdiction of temporal princes. Even Innocent III, to whom men love to attribute the most exorbitant pretensions, distinguished perfectly between his complete and unlimited spiritual jurisdiction and his limited temporal power. The Popes, when claiming the care of the heavenly and earthly kingdom, have never said that the two were subject to them in precisely the same manner; and in maintaining the superiority of the spiritual power they have still never said that temporal power must everywhere and in all cases be subject to it, or that the temporal had its origin in the spiritual. Some are astonished at the saying of Innocent III, that Christ gave to St. Peter the government not of the whole Church, but of the whole world, but in this he surely said nothing more than had been already said by Eugenius III, that Christ had delivered to St. Peter the rights of the earthly and of the heavenly kingdom. The point which Innocent desired to prove was, as the whole context shows, that the primacy of the Pope has no territorial limits. The power of the Pope extends to all Christian lands, not merely on earth, but also in heaven; by this is meant spiritual power only, of which it had been before said: "Power is given to princes on earth, but to priests in heaven also."

§4. Indirect Power of the Church in Temporal Matters (Potestas indirecta in temporalia)

The second system, which has the largest number of followers, teaches that the Church has direct spiritual power, but no direct temporal power; she is appointed to govern the faithful in the supernatural way of salvation; spiritual matters alone are in themselves subject to her, and in worldly matters she takes no part. In so far only as temporal matters are opposed to the supernatural end, or are necessary fur its attainment, has the Church to concern herself with them, and to exert her power. She has in that case to correct and to guide the worldly power and, if necessary, to chastise it when it turns aside from the right path of divine law, hinders the attainment of the supernatural end, and endangers the stability of religion and of the Church. Neither the Pope nor the Church can directly depose a prince, but they can where the highest interests of religion are concerned declare the duty of obedience towards him to have ceased. A prince, bound by oath to maintain religion, who has broken this oath by apostasy or by persecution of the Church, who hearkens to no warnings and despises ecclesiastical penalties, may not be dethroned by his people, for this would strengthen and justify all rebellion; but the people must be declared free from their oath of allegiance by sentence of a General Council or of the Head of the Church.

This indirect power of the Church in matters temporal in general, and in relation to the dethroning of princes in particular, is not a temporal but a spiritual power. It is exerted in matters temporal only in so far as they intrench upon religion, and in this way cease to be purely temporal. Thus Innocent IV said that the Church passed judgment in a spiritual manner on temporal matters (spiritualiter de temporalibus); and in his contest with Frederick II he declared that he was making use not of the temporal but of the spiritual sword. Some theologians have attributed to the Pope in certain cases power to depose a prince; but the distinction is rather in the words than the matter; they required the same conditions, and merely took the consequences of the act for the act itself; instead of the power of declaring the right of sovereignty forfeited, they supposed him to have the power of deposing (potestas deponendi instead of potestas declarandi). In general, it was held that all things temporal were to be directed towards eternal goods, and that earthly goods were to be used with a view to the heavenly, otherwise they would be merely abused.

At first, the title "indirect power" appeared to many strange and contrary to the common teaching; and for this reason St. Robert Bellarmine's book putting it forward was placed on the Index under Sixtus V; but before long, the conviction spread that the matter of the book was sound, and that the expression "indirect power" was well-chosen; Urban VII therefore, in 1590, had the book erased from the Index.

§5. Bellarmine's Teaching

St. Robert Bellarmine treats of the indirect power of the Church in a triple application:
  1. quantum ad personas;
  2. quantum ad leges;
  3. quantum ad judicia.

In relation to persons (1), he teaches that in an ordinary way, as judex ordinanus, the Pope cannot depose temporal princes as he can bishops, but can only, in virtue of his right as head of Christendom, dispose of all things necessary to the salvation of souls. All the schoolmen were agreed upon the main point, that in case of threatened destruction to faith and the exercise of religion, or where the preservation of the Church is concerned, this power may be exercised, especially in a case of apostasy from the faith.

In relation to laws (2), the Pope, as Pope, cannot release from civil laws or abolish the laws of temporal princes except only when it is necessary for the good of souls, or when an existing temporal law is dangerous to salvation, and when at the same time princes refuse its repeal.

As judge (3) he can pass sentence in temporal matters only when absolutely necessary for the salvation of souls.

§6. Grounds for this Opinion

In further support of this opinion, the following proofs were brought forward: Christian princes form, as is universally allowed, part of the flock of Christ confided to St. Peter (John 21:15); the charge of them consists in so leading them that they may attain eternal salvation. But how can they attain it if the supreme pastor has not the means either of leading back erring sheep to the fold or of hindering the rest from going astray? This he cannot do if he is forced to look on while a prince is raging unpunished against the Church, and leading or forcing the subjects bound to him by oath away from the true religion into error. The Pope must take the necessary steps against him by censures, and if his obstinacy require it, also against those who obey his evil orders, and who have dealings with him in his official position. In case of extreme obstinacy, which is made a condition by all theologians, the Pope may declare the oath taken to a prince to be no longer binding, for the purpose of moving him to amendment. No oath binds in such a way that it cannot be loosed if it endangers the salvation of souls, and no end may be preferred before the highest and last end of man.

§7. Indirect Power Always Used by the Church

The Church, even in the earliest times, exercised an indirect power in temporal matters. How was it else that she forbade the faithful to undertake and administer certain employments and offices prejudicial to the welfare of their souls, and that later, when persecution had ceased and the danger was lessened, she still required ecclesiastical approval for the administration and exercise of such offices and professions, though they were no longer prohibited? Christians who held the post of city duumvirate, and were thus brought into close contact with heathen rites, had to remain away from church during their year of office. Under Constantine, however, the Synod of Arles (314) directed that Christian praesides were to bring with them into their provinces letters of communion from their bishop, and only in the event of their acting contrary to the laws of the Church were they to be cut off from communion by the bishop of the place in which they were holding office. By an exercise of the same power, persons performing public penance were excluded from civil as well as military offices (militia togata et paludata), and even when it was over, these offices might not be resumed under pain of perpetual exclusion from them. It is manifest that the Church has ever had the right of imposing public penance upon Christians, however high their dignity; from the penance it resulted that such persons forfeited their office and dignity; and thus, in an indirect manner, she deprived them of temporal power. The well-being of private persons was not more important in the eyes of the Church than that of Christian princes; she imposed penances upon the one as upon the other, even when they were not voluntarily under one. This is one of the earliest forms in which the indirect power was exercised. Again, in time of persecution, the Church enjoined upon the faithful flight and complete withdrawal from contact with the heathen world; and this flight was permitted even when forbidden by the heathen rulers, and although public burdens were thus avoided ; and in this way she interfered indirectly in the domain of the State. This was indeed only a conditional and provisional measure; but the same is true of all other cases of indirect interference, which only continue so long as the danger exists, so long as the sinner refuses amendment, so long as is required by the all-important end of the salvation of souls.

§8. Teaching of the Fathers

The Fathers laid it down as a rule that all public temporal regulations are to be observed which are not a hindrance to religion or contrary to the commandments of God. In case of danger to salvation, all is to give way, according to Matthew 16:26, 5:29. He who is charged with the guidance of the faithful in the way of eternal salvation must be able to know and to set aside the hindrances to salvation. The preservation and furtherance of spiritual goods, which is the charge of the Church, requires from time to time the sacrifice of some earthly good or interest, and therefore the power entrusted with earthly and temporal interests must give way before the power entrusted with spiritual and eternal interests. Civil society rests upon the observance of natural law, distributive justice, and freedom of intercourse. By an abuse of power, legitimate authorities may become illegitimate; when this happened, nations threw off such authorities in virtue of the judgment of the Church; and what she did was not by her own power to set aside a rightful sovereign, but, when a sovereign had become illegitimate, to declare him to be such.

§9. Cardinal Turrecremata

Cardinal Bellarmine is usually spoken of as the originator of this doctrine; but before his time, the majority of theologians taught the same. Cardinal Turrecremata of the Dominican order (died 1468) states two opinions:
  1. the Pope has power in spiritual matters alone, and not in temporal, with the exception of that which the Church has acquired by the gift of the faithful or of princes;
  2. the Pope, as Vicar of Christ, has full jurisdiction over the whole earth in matters spiritual and temporal.

The cardinal himself holds neither of these opinions, but teaches, in accordance with the system spoken of above, that the Pope has jurisdiction in temporal matters only so far as may be necessary for the preservation of spiritual goods in himself and others, or so far as is required by the needs of the Church or the duty of the pastoral charge in the correction of sinners. If it be objected from Scripture that Christ had no worldly power, and desired none, and that therefore His Vicar has none, the answer is:
  1. that no such power is, in itself, ascribed to the Pope;
  2. that to our Savior is given all power in heaven and on earth. He is the King of kings. Lord over all, and this even as man; but He did not avail Himself of His power because He came to be an example of humility and poverty.

Before Pilate, Christ expressly declared Himself to be a king; He did not say that His kingdom is not in this world, but only that it is not of this world; He was but declaring the high origin and sublimity of His kinghood. When Christ paid the tribute for Himself and Peter, it was not most surely done because it was due, but to avoid scandal (Matthew 17:26). In driving the buyers and sellers from the Temple, Christ exercised the spiritual power, which extended to earthly things, since He paid no regard to the worldly loss of those whom He expelled.

§10. This Teaching is the Most General

The more closely the ancient theologians are examined the more clear does it become that Bellarmine and the Jesuits - who were moreover especially admonished to keep, if possible, to the common teaching of the theological schools - were not introducing any new doctrine, but were on this point completely in accordance with the other religious orders. The teaching of the great theologians of the Middle Ages - St. Bonaventure, St. Thomas, and others - differs in no essential point from theirs. The Dominicans in the time of Bellarmine taught the same; e.g. amongst others, Francis Victoria (died 1546) says:
The Pope in matters temporal may not interfere with the civil power, unless where there is danger of grievous loss to souls.
Precisely the same was taught by theologians of various nations, religious orders, and positions, throughout the sixteenth and seventeenth centuries; the same again in the eighteenth, although these controversies were then shortly supplanted by others of quite another type.

§11. Attacks upon Bellarmine's Teaching

On comparing the expressions of Bellarmine and the Jesuits who succeeded him with those of more ancient theologians, it will be found that, far from seeking to render the prevailing view more strict, these later theologians strove rather to modify it; not only did they, in opposition to the theory of a direct power in matters temporal, defend the merely indirect power, but even to this they put many limitations. Bellarmine was attacked on either side: by some, he was blamed for granting to the Church too little power; by others, especially by Anglicans and Gallicans, for granting her too much. The earlier French writers had disputed the direct power only, as may be seen in the controversy under Boniface VIII, who, as they supposed, desired to reduce France to the condition of a feudatory kingdom; the later writers since the seventeenth century disputed the indirect power also. Until 1615, this was still considered the prevailing doctrine; but the sentence (afterwards revoked) passed by the Paris parliament in 1610 condemning Bellarmine's work, On the Power of the Pope in Matters Temporal against William Barclay, was followed by the censures of the Sorbonne in 1626 on the Jesuit Anthony Santarelli and the Dominican Malagula for the same doctrine; and the first of the four Gallican articles of 1682 rejected altogether any power, whether direct or indirect, on the part of the Church in the civil government of kings and princes.

§12. Objections

Various objections have been brought forward against the indirect power:
  1. The highest civil authority was from the beginning a lawful power; it had its origin in God, and could lose nothing of its power by the institution of the ecclesiastical hierarchy: Christ Himself tells us to render to Caesar the things that are Caesar's (Matthew 22:21).
  2. Moreover, the early Popes and bishops had no thought of exercising any such power: the Fathers were all in favor of obedience, even to apostates such as Julian, who was obeyed by Valentinian, except in matters relating to the heathen superstition: they excommunicated princes and authorities, but never so much as thought of deposing them.
  3. The system of indirect power brings with it the direct, for which it serves as a mask. All cases would become subject to the Pope, primarily, indeed, heresy and idolatry; but from the eleventh century, simony was called heresy, and covetousness also is idolatry (Ephesians 5:5); incapacity was likewise made a reason for deposition. The rule which held good for princes must also hold good for individuals; and all temporal matters without distinction must be subject to the Pope, since it is easy to make out that any temporal matter has connection with the spiritual end of man.
  4. The consequences of this doctrine are such as to disturb the peace of princes and people, to put an end to security in the administration of justice, and even to endanger the life of the ruler; since, if a deposed ruler desired to regain his kingdom by force, his murder would be considered allowable.

§13. Replies

To these arguments the following replies have been made:
  1. The sovereignty, even of heathen princes, may be lawful, and as such even Christians are bound to render it obedience in all things not contrary to conscience. Civil authority is, within its own domain, independent, and may exist without the Christian religion, but never on so true and firm a basis as is given to it by Christianity. The power bestowed by Christ upon the Apostles includes that of feeding the flock, and the power of the keys, under which head must be reckoned the right of excommunication, and the loosing of oaths injurious to salvation.
  2. It by no means follows that because at a certain time no use was made of a power, therefore the power was not in existence. The Church may have had many reasons for not proceeding against apostates such as Julian: in the first place, the impossibility of effecting any good, and the danger of increasing the evil, for Julian was in full possession of power; then again the short period of his reign, and the at least apparent justice shown by him in the beginning; the fact also that Julian did not himself pass and publicly enforce laws directly contrary to Christianity; that he did not compel its abjuration, and that he did not make the profession of Christianity, but pretended crimes, the pretext of his frequent barbarity. Moreover, Christianity had not as yet penetrated so deeply into the life of society as to have affected the whole of civil legislation. Where censures would fail of their effect - the amendment of the offender - and would even be the cause of evils still greater, it would seem mere prudence to abstain from the most severe punishments, and rather to suffer the existing evil.
  3. Between the two systems, that of direct and that of indirect power, there is the widest distinction: the first gives to the Pope a real sovereignty in temporal matters; the second imparts to his spiritual power in certain cases only a decisive influence, which has certain results within the civil domain. If excommunication brought with it, as a natural consequence, the forfeiture of earthly sovereignty, the Church would have direct power in temporal matters, and not merely indirect; but for this last, it suffices that the Church should act upon the subjects in such manner that loss of power to the ruler ensues; as by release from the oath of allegiance, which does not of itself necessitate the withdrawal of obedience. Moreover, the power of the Pope is primarily restricted to the case of crimes endangering religion, to which class belong all the known historical cases.
  4. As to the consequences of the doctrine, the Pope can by no means, at his own pleasure and on every occasion, depose princes; he is able only to declare in what cases citizens are released from the oaths taken to them; for such princes as are the cause of extreme danger to religion and the salvation of souls deprive themselves of their rights by their own acts. Since judgment on these points cannot be passed by individuals or by nations, this doctrine rather serves as a safeguard to rulers and a restraint to subjects. The Pope leaves to the dethroned prince, as long as he gives prospect of amendment, the hope of regaining his kingdom; therefore, that this hope may be realized, the Church is bound to protect and defend him against his subjects.

No theologian has ever ascribed to the Pope power over the lives of princes; and permission granted for their murder is inconceivable. Bellarmine expressly says:
It is unheard of that the murder of a prince should ever be permitted, even were he a heretic, a heathen, and a persecutor, and even were monsters to be found capable of committing such a crime.

§14. Teaching of the Jesuits

Even those Jesuits who are said to have boldly developed this doctrine to its uttermost consequences have defended the indirect power alone. Louis Molina discusses the question whether Christ, as man, was temporal king and lord of the whole earth, and lays down the following propositions:
  1. The Pope has no temporal power of jurisdiction of such kind as to make him lord of the whole earth; the kingly power is altogether distinct from that of the Pope, and in their own sphere kings are independent. Hence, in the ordinary course of things, it does not belong to the Pope to appoint or to depose kings; the Pope has not power directly to decide purely temporal disputes between princes.
  2. Although the Pope has general jurisdiction over the temporal goods of the Church, still he is not lord over them, but administrator and director, and may not therefore dispose of them at will, but only on prudent grounds for the benefit of the Church.
  3. To the spiritual power of the Pope, bestowed for the supernatural end, is united the highest and most extensive power of temporal jurisdiction over all princes and other subjects of the Church, in so far as if required by the supernatural end, for which the spiritual power was ordained.

Hence the Pope can, if it be required by the supernatural end, depose princes and deprive them of their kingdoms. He can also decide between them in temporal concerns, invalidate their laws, and amongst Christians order all things, not anyhow, but in the way recognized according to wise judgment as absolutely necessary to the general spiritual welfare, and may enforce his commands not merely by censures, but also by public punishments and by force of arms, like any other temporal prince; although it is for the most part more suitable for the Pope to do this not of himself, but through temporal princes. In this sense is the Pope said to have both swords and both powers, the spiritual and the temporal. This doctrine was based on the ordinary grounds. Again and again was it pointed out that the Pope, as a rule, was to make use of the spiritual power alone, and only where this proved insufficient, or where there was danger in delay - thus only in extraordinary cases - was he to draw the temporal sword.

The same is taught by Salmeron, who opposes the direct power, defends the indirect, and, like Molina, appeals to Dominicans, such as Turrecremata, Victoria, and Soto. Anthony Santarelli defended the indirect power alone, although in a more emphatic form; the other religious orders, the secular clergy, and the jurists, maintained the same doctrine; it was, moreover, defended by the Sorbonne. It was only on the 8th of May 1663, after many intrigues on the part of the parliament and the court, that a declaration was passed to the effect that the Pope has no authority in the temporal concerns of kings, and that subjects could in no case be dispensed from the allegiance due to the king. This was based upon former royal edicts, sentences of the parliament, and declarations of the Sorbonne, which, however, merely declared the independence of the French crown; and this had been before acknowledged even by the Popes. Shortly after the Declaration of March 19, 1682, on June 10, 1683, the Inquisition of Toledo, in opposition to it, condemned as erroneous and schismatic the proposition:
The Pope or the Church have neither direct nor indirect power in the temporal concerns of kings, and these cannot be deprived of their dominions; nor can their subjects, upon whatsoever ground, be pronounced free from their oath of allegiance.
The Dominican Carena pronounced even impious and heretical the opinion of the Calvinists and the Magdeburg Centuriators, who denied to the Pope any power, direct or indirect, in matters temporal. As this was a question of a doctrine universally defended in the schools, the Jesuits, especially in their delicate relations towards the Dominicans, could not, without the gravest reasons, have taken a different view; moreover, they followed always the common teaching of the schools.

§15. Directing Power of the Church in Temporal Matters (Potestas directiva)

Other theologians, as a modification of the theories described, taught that the Church has only a directing power (a guiding but not a constraining power) over civil authorities; that is to say, it is her right and her duty, by doctrinal decisions, by warnings, declarations, counsels, and commands, to enlighten the consciences of princes and people; to remind them of their duty towards God and religion, to instruct them as to the scope and limit of their duties, and in case of a collision of duties to pass judgment as to what is to be done to satisfy God and conscience. Therefore, she must be the judge of human laws which contradict the divine law, she must strive for their improvement when dangerous to salvation, satisfy inquiries in cases of conscience, and when her voice is unheeded she must defend herself to the utmost against the evils arising from this neglect.

Numerous early examples were brought forward in support of this view: e.g. the conduct of the great Pope Gregory I, who endeavored to obtain from the Emperor Mauricius the withdrawal of a law injurious to the interests of religion. Gregory approved the first clause of the said law (of 592), by which active State officials were not to undertake ecclesiastical offices; the second clause, by which these same officials were not to become monks, he desired so far modified as that they should be obliged first to render account of their service, and in general to fulfill all former obligations; the third clause, by which all military persons were entirely prohibited from taking holy orders, he rejected, as closing to many the way of salvation.

Looking at it from this same point of view, Bossuet also considered the much-discussed reply of Pope Zacharias as to the accession of Pipin in the light of a counsel given by the Pope, and not a command.

§16. Relations of this Theory to the Preceding

In accordance with the expression of Gerson and Fenelon, this power has been called a directing or guiding power (potestas directiva et ordinativa); but it is a matter of dispute whether Gerson's directing power is not the same as that called by others indirect power. Gerson teaches that the Church is so to restrain her power within limits as to acknowledge also the independence of the civil power, so long as the civil power is not by an abuse made the means of attacking the faith, blaspheming God, and openly oppressing the power of the Church; should such be the case, it becomes the duty of the Church to guide and direct the civil power. But has anything essentially different been maintained by the supporters of the indirect power? Have they placed other limits to the independence of civil authority? And is not this a question rather of words than of things? The word may be better chosen, but the thing is essentially the same. There is, however, a distinction between Gerson and Fenelon: Gerson speaks of a superiority, a dominion, of the spiritual power, in case of abuse of the civil power; Fendlon allows only a directing power, consisting mainly in instruction and counsel. The question remains as to how far this last power may go, and what are its limits. These limits are determined by Fenelon and Gosselin chiefly according to prevailing public law and according to special legal titles, which were frequently united with ecclesiastical titles in the person of the Pope; consequently, the exercise of this directing power must necessarily differ at different times, and regard must be had to contemporary circumstances and legal relations; its expression and its consequences will differ, while its fundamental principle - supremacy in all questions affecting religion - necessarily remains ever the same. The Head of the Church will ever have the right of judging whether, and how far, religion is injured by this or that civil law; thus the principle remains, though the form in which it is carried out may vary with the times.

In principle, the doctrines of the indirect and of the directing power do not in all points differ widely. Let us consider them under Bellarmine's three heads:
  1. In respect to persons (quoad personas): it is universally admitted that the Head of the Church may admonish and correct princes guilty of crime, and, with a view to their amendment, may lay them under censures. As to the deposing of princes in extreme cases, the defenders of indirect power, far from making the doctrine that princes might be deposed stand and fall with their general theory, do not even make this doctrine a necessary and abiding expression of the indirect power; while the defenders of the directive power limit deposition to the one case where the public law of the country in question authorizes it; in such a case both theories agree that the Pope can declare the right of governing to have been forfeited. According to the teaching of both parties, it belongs to the Pope, under certain conditions, to declare non-binding the oath of allegiance, and this in virtue of the rights of the Church, since he is the supreme guide of consciences within her. On this point, however, a controversy exists as to whether the condition of belonging to the Catholic Church, which in the Middle Ages was attached to the election and accession of the sovereign, rested, as the defenders of the indirect power believe, upon the natural law, or only upon the positive human law, as is held by Fenelon and the upholders of the directing power. It would follow from the first of these opinions, that at the present time the deposition of such princes would be justified, even though not absolutely commanded; according to the second, the right of deposing would cease when not sanctioned by the public law of the land in question. Theologians have not yet come to an agreement upon this disputed question.
  2. In respect to laws (quoad leges): surely in common fairness the Church has at all times the right of declaring any given State law injurious to the interests under her charge; precisely as the civil power may declare the same of a law of the Church. As a matter of fact, and as we now experience, the State not only makes this declaration without real cause, but proceeds to measures grievously injurious to the Church. When civil laws are such as to endanger salvation, the Pope, as Head of the Catholic Church, has without doubt the right to declare them to be such, to denounce them emphatically; and if denunciation be fruitless, to proscribe them as powerless to bind the conscience; he is indeed as much bound in duty to this as were the Apostles and first bishops to prohibit the faithful from taking part in the serving of idols, and from obeying those commands of the State which they could not fulfill without betraying God. However hard it may from circumstances become for the Pope, he is still bound by the sanctity of his office to condemn whatsoever is contrary to the faith and morals of the Church, and to declare with apostolic freedom that the Church, far from justifying such laws, is ever bound to reject them.
  3. In respect to sentences (quoad judicia): the Church's right of judgment is inseparably united with her right of legislation. The same power which enables her to pass laws within her own domain enables her also to apply them, and to watch over their application. When a question comes before her judgment-seat which has relation to the supernatural end under her charge, she has full power to pass judgment; and temporal matters also fall under her control, when and in so far as they relate to the fulfillment of her great charge. Here again the words of Cardinal Antonelli apply: "The Church has received from God the sublime charge of guiding men, whether as individuals or united in societies, to a supernatural end; thence comes her power and her obligation of passing judgment upon all matters, whether inward or outward, in their relation to the natural and divine laws. But since every action, whether commanded by a higher power, or proceeding from the freedom of the individual, is necessarily invested with this character of morality and justice, it follows that the judgment of the Church, as it is directly concerned with the morality of the action, extends also indirectly to all things with which this morality is bound up. But the Church does not therefore directly interfere in political matters, which by the ordinance established by God, and by the teaching of the Church herself, come within the domain of the civil power, and are completely independent of any other authority."

§17. Superiority of Ecclesiastical over Civil Legislation

If, indeed, Stahl were in the right when he wrote that one or the other must be the case: either the Pope must have indirect power in temporal matters, or princes must have indirect power in spiritual matters: there is no third alternative (which, however, many would by no means allow) - the question may fairly be asked: Which is most supported by Christian and historical principles, which is most profitable to the free development and the highest interests of mankind: the indirect or directing power in matters temporal maintained by the earlier theologians, or else the direct or indirect power of the State in ecclesiastical matters defended by the later legists and regalists? In the present day only one case of practical importance can occur, that of a contradiction between a positive civil law and a law of the Church. In our day, laws are often passed by party intrigue, hastily, intended to last only a short time, with corrupt aims, and often with the sacrifice of general to individual interests; thus in many cases the medieval saying might be applied, by which laws were likened to the behavior of Anacharsis with the cobweb. Is it not plain that the legislation of the Church, based as it is upon high principles, is far superior, and that it might easily become her duty to encounter these modem laws wit' the words, "This is unlawful for thee to do," or "Non possumus"? Or is the Church indeed at one time to approve the French laws of 1789, at another time those of 1793, then the Code Napoleon, then the Prussian Landrecht, and then again the Swiss Federal Constitution as at present revised? In so doing, she would cease to be herself, she would destroy her very being, she would no longer be the Bride of the Lord. But the State, which is only negatively bound to demand from the faithful nothing contrary to conscience, and which has moreover in almost all lands guaranteed liberty of conscience, would contradict itself should it disallow this right of the Church. If, in watching lest the State suffer injury (ne quid detrimenta respublica capiat), civil rulers consider themselves entitled to pass judgment on the laws of the Church, and to subject them to their Placet, they cannot deny that the rulers of the Church are in the same way bound to watch lest any injury be done to souls; and that although they may on their side oppose no Placet to that of the civil power, it is nevertheless the right and the duty of the Church rulers to declare that such and such a State law is contrary to the conscience of Catholics. Can it be that at the very moment in which a dogma of the Church is declared to be dangerous to States, the right of the Church is to be called in question of at any time declaring on her side a law of the State to be dangerous to the conscience of the faithful?

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