Part 8

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 III.

_Of 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 IV.

_On 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.

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 mankind. 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.

SECTION V.

_Of the Superintendence of Doctrine._

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.

SECTION VI.

_Superintendence of the Magistracy Over the Administration of the Sacraments._

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 pleases 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.

SECTION VII.

_Ecclesiastical Jurisdiction._