CHAPTER L.

ON THE RIGHT DIVINE, ACCORDING TO THE CATHOLIC DOCTORS.

The doctrine of the right divine, considered in its relation to society, presents to our notice two particular points which this doctrine contains: 1. The origin of civil power; 2. The mode in which God communicates this power.

The former point is a question of doctrine. No Catholic can entertain any doubt upon it. The second is open to discussion; and various opinions may be formed upon it, without interfering with faith. With regard to the right divine, considered in itself, true philosophy agrees with Catholicity. In fact, if civil power comes not from God, to what source can we trace its origin? Upon what solid principle can we support it? If the man who exercises it does not rest upon God the legitimacy of his power, no title will avail to uphold his right. It will be radically and irretrievably null. On the contrary, supposing authority to come from God, our duty to submit to it becomes evident, and our dignity is not in the least hurt by the submission; but, in the other supposition, we see only force, craft, tyranny, but no reason or justice; perhaps a necessity for submission, but no obligation. By what title does any man pretend to command us? Because he is possessed of superior intellect? Who had the right of adjudging to him the palm? Besides, this superiority does not constitute a right; in some instances its direction might be useful to us, but it will not be obligatory. Is it because he is stronger than we? In that case the elephant ought to be king of the entire world. Is it because he is more wealthy than we? Reason and justice exist not in metal. The rich man is born naked, and his riches will not descend with him into the tomb. Upon earth they have enabled him to acquire power; but they do not confer upon him any right to exercise it over others. Shall it consist in certain faculties conferred on him by others? who has constituted other men our proxies? where is their consent? who has collected their votes? and how can either we or they flatter ourselves that we possess faculties equal to the exercise of civil power? and if we do not possess them, how can we delegate them?

We must here consider the doctrine which places the origin of civil power in the will of men, supposing that this power is the result of a pact, by which individuals have agreed to submit to the retrenchment of a part of their natural liberty, in order to enjoy the benefits of society. According to this system, the rights of the civil power, as well as the duties of the subject, are alike founded on a pact, differing from other contracts only in the nature and extent of its object; so that, in this case, power would emanate from God merely in a general sense, just as all rights and duties emanate from Him. Those writers who thus explain the origin of power, do not always agree with Rousseau. The _Contrat_ of the philosopher of Geneva has nothing to do with the pact spoken of in other authors. This is not the place to compare the doctrines of Rousseau with those of other writers; suffice it to say, that although they rely upon the pact, they wish, nevertheless, to establish the rights of civil power as they have been hitherto understood by the common consent of mankind, whilst the author of the _Contrat Social_ proposes in his book the following problem, which he considers fundamental. I quote his own words: "_To find a form of association which shall defend and protect with all the common strength the person and property of each associate, and by which each one, being united to all, shall nevertheless obey only himself, and remain as free as before._"

Such is the fundamental problem, the solution of which is given in the _Contrat Social_. This nonsense of having none but one's self to obey, making a _contract, and remaining as free as before_, needs no comment, after what the author himself says in the following line: "The clauses of this contract are so fixed by the very nature of the act, that the least modification would render them vain and of no effect." (Book i. chap. 6.) Rousseau's ideas on this subject do not, therefore, agree with those of many other writers, who also have spoken of pacts, in their explanation of the origin of power; the latter sought a theory in support of power, the former wished to destroy that which existed, and to throw society into a state of excitement. Through a singular idea, Rousseau, in his vault at the Pantheon, is represented to us with the door half open, and a lighted torch in his hand--an emblem, perhaps, more significant than has been imagined. The artist's intention was, to express the idea of Rousseau's enlightening the world even after his death; but it should be remembered, that the torch is also an emblem of the incendiary. La Harpe said of him:

"Sa parole est un feu, mais un feu qui ravage."

To return to the question, I will observe, that the doctrine of a pact is of no avail in accounting for the establishment of power; for it cannot even render legitimate either its origin or its exercise. First, an explicit pact has evidently never existed; and secondly, in the formation of even the most limited society, such a pact never _could_ obtain the consent of every individual member. In any convention for such an object, only the heads of families could take part; and hence, women, children, and servants might protest against it. In assenting to such a pact, what right would fathers have to represent the whole of their families? The will of the latter, it will be said, was virtually included in that of their chief; but this is the very point that wants proof. Supposition here is easy enough; proof is not so easy. When you seek the origin of power in principles of strict right, and attempt to maintain that this is only one of those cases to which ordinary conditions of contracts are applicable, you are met at once by a very serious difficulty; for you are obliged to have recourse to a fiction:--the words "_implicit consent_" are a mere fiction, and nothing more. Is it not evident, that the consent of families must have been implicit, even supposing that of their heads to be explicit? This explicit consent would, in fact, be impossible in the formation of any society, however limited in extent. And moreover, the consent of succeeding generations will be equally implicit, since it is impossible to be continually renewing the contract, for the purpose of consulting the wishes of the parties interested in its effects. Reason and history teach that society has never been thus organized; our own experience tells us that it is not now upheld or governed by any such principles. Of what use, then, is this inexplicable theory? When a theory has a practical object, the best way of proving its fallacy is, to prove its impracticability.

The faculties with which civil power is, and always has been, considered to be invested, are of such a nature, that they cannot have proceeded from a pact. The right of life and death can have come only from God. Man is not in possession of this right. No pact merely human could invest him with a power which he has not, either in relation to himself or to others. I will endeavor to demonstrate this point with all possible precision. If the right of taking away life emanates not from God, but from a pact, it must have originated in the following manner: every member of society must have said, expressly or tacitly, "I consent to the establishment of laws to decree punishment of death for certain crimes; and if I should at any time transgress them, I am willing from that moment to forfeit my life." In this manner, every individual will have given up his life, supposing that the conditions specified are realized; but no individual having a right over his own life, the resigning of it becomes radically null. The joint consent of all the members of society does not obviate the radical and essential nullity of each one's right to give up his life; the sum of their resignations is therefore equally null, and consequently incapable of producing any right whatever. It will be said, perhaps, that man, properly speaking, has no right over his own life, when an arbitrary right is implied, but that when he chooses to dispose of it for his own advantage, the general principle should be restricted. This reflection, at first sight plausible, would lead to the terrible consequence of authorizing suicide. In reply, it will be said, that suicide is no advantage to him who commits it; but if you once grant to the individual the right of disposing of his life, provided he reap an advantage from so doing, you cannot constitute yourselves judges to decide whether or not this advantage exists in any particular case. According to you, he had a right to sacrifice his life when, for example, to satisfy his wants or his taste, he had stolen the property of another. That is to say, that he had a right of choice between the advantages of life and those of satisfying a desire: what will you answer, if he tell you that he prefers death to misery, to ennui, to grief, or to such and such misfortunes which torment him?

The right of life and death cannot consequently emanate from a pact. Man's life is not his own; he has only the use of it so long as it pleases the Creator to grant it him. He has not, therefore, the right of disposing of it, and all conventions he may make for that purpose are null. In some instances, it is lawful, glorious, it may be even obligatory, to deliver one's self up to certain death; but let us not confound ideas: man does not in that case sacrifice his life as being the master of it, he is a voluntary victim to the salvation of his country, or to the good of mankind. The warrior who scales a wall, the charitable man who confronts the most dangerous contagion in visiting the sick, the missionary who resorts to unknown countries, who resigns himself to live in unhealthy climates, and who penetrates into inaccessible forests, seeking ferocious hordes, do not dispose of their lives as being their own; they sacrifice them to a purpose great, sublime, just, and pleasing to God; for God loves virtue, especially heroic virtue; and it is a heroic virtue to die for one's country, to die in visiting the sick, or in carrying the light of truth to those seated in darkness and in the shadow of death. This right of life and death, with which civil power has ever been considered invested, may by some be considered as founded upon the natural right of self-defence vested in society. Every individual, they will say, has the right of taking away the life of another in self-defence; therefore society also has this right. In the chapter on _Intolerance_, I have touched slightly upon this point, and made some reflections which may be repeated here. I will endeavor, nevertheless, to extend them and confirm them by arguments of another kind. In the first place, I maintain that the right of self-defence may confer upon society that of taking away life. If one individual attacked by another may lawfully repel him--kill him even, if necessary to save his own life, it is evident that an assemblage of men have the same right. This appears so evident, that demonstration is superfluous. One society attacked by another has incontestably the right of resisting and repelling the attack--it is justified in making war. With more reason, therefore, might it resist an individual, to make war on him, or kill him. This is all perfectly true and obvious; and I grant that there thus exists, from the very nature of things, a title upon which we may found the right of inflicting capital punishment.

These ideas are plausible, and seem at first sight to nullify the reasons on which we have supported the necessity of having recourse to God for the origin of this formidable right. Nevertheless, when we come to examine them thoroughly, they are far from satisfactory; and it may be even said, that in the sense in which they are understood and applied, they are subversive of the acknowledged principles of society. In fact, if such a theory be admitted, if the right of inflicting capital punishment be made to rest exclusively on this principle, the ideas of penalty, chastisement, and of human justice disappear at once. It has always been thought that the criminal dying upon a gibbet suffers a penalty; and although this terrible act is certainly a satisfaction to society, a means of preservation, yet the principal and predominant idea, that which surpasses all others, which best justifies and exculpates society, which gives to the judge his august character, and stamps disgrace upon the criminal, is the idea of chastisement, of penalty, and of justice. All this disappears when once we can assert that society, in taking away life, only acts in self-defence. Such an act is conformable to reason, it is just, but it no longer merits the honorable title of an executive act of justice. A man is justified in killing an assassin; but in so doing he does not administer justice, he does not execute justice, nor inflict a penalty. These things are very different, and of a distinct order; we cannot confound them without shocking the good sense of mankind.

We will render this distinction more apparent by putting the two theories into the mouth of the judge: the contrast is striking. In the former case, the judge says to the criminal: "You are guilty; the law decrees against you the penalty of death; I, the minister of justice, apply it; the executioner is ordered to inflict it." In the second, he says to him: "You have attacked society, which cannot exist if such attacks are tolerated. It defends itself, and for this reason puts you to death; I, its agent, declare, that the time for its defending itself is come, and hence I give you up to the executioner." In the former supposition, the judge is a minister of justice, and the culprit a criminal who undergoes a just penalty; in the latter, the judge is an instrument of force, the culprit a victim. But, it will be said, the criminal is not on this account less criminal, and still merits the penalty which he undergoes. This is true with respect to the _guilt_, but not with respect to the _penalty_. The fault exists in the eyes of God, and also in the eyes of man, inasmuch as he possesses a conscience capable of judging of the morality of actions; but it does not exist in the eyes of man, considered as a judge. According to you, the judge does not _punish_ a crime; he restrains an act injurious to society: but if you say that the judge _inflicts a penalty_, you change the nature of the question, for he then does something more than protect society. It follows from what we have just established, that the right of inflicting capital punishment can only emanate from God, and, consequently, if there existed no other reason for referring to God the origin of power, this alone would suffice. War against an invading nation may be explained by the right of self-defence; invasion also comes under the same principle; for if it be just, it can be entered upon only with a view to enforce some reparation or compensation refused by the enemy. War for the sake of alliance enters into that class of actions which are performed for the assistance of a friend; so that this phenomenon of war, with all its glory, and all its ravages, does not so forcibly oblige us to have recourse to a divine origin as this simple right of condemning a man to the gibbet. The sanction of lawful wars also undoubtedly belongs to God, for in Him exists the sanction of all rights and of all duties; but there is not, in this case at least, any need of particular authorization, as in the case of inflicting capital punishment. It is sufficient to have the general sanction which God, as the author of nature, has given to all natural rights and duties.

How do we know that God has granted such an authorization to man? There are three ways of answering this question. 1. The testimony of the Scriptures is sufficient for all Christians. 2. The right of life and death is a universal tradition of the human race, and does, therefore, exist in reality; and as we have shown that it can have its origin only in God, it is right to suppose that He has communicated it to man in one way or another. 3. This right is essential to the preservation of society; God must, therefore, have granted it; for if He wills the preservation of a being, it is evident that He will have bestowed upon it all things necessary for such preservation. To recapitulate what we have hitherto advanced: the Church teaches that civil power comes from God, and this doctrine, which agrees with the formal texts of Scripture, agrees also with natural reason. The Church contents herself with establishing this dogma, and deducing from it the immediate consequence resulting from it, viz. that obedience to the lawful authorities is of right divine. With regard to the mode in which this right divine is communicated, the Church has not determined any thing: the general opinion of theologians is, that society receives it from God, and that, from society, it is transferred, by lawful means, to the person or persons appointed to exercise it. In order that civil power may exact obedience, and be considered invested with this right divine, it must be legitimate; that is to say, the person or persons in possession of it must have acquired it by lawful means, or this power must have become legitimate in their possession, by means acknowledged to be in accordance with right. With respect to political forms, the Church does not determine any thing; but whatever be the form of government, the civil power must be confined within legitimate bounds, while the subject, on his side, is bound to obey. The fitness and legitimacy of such or such persons, and of such and such forms, are subjects not appertaining to right divine. They are particular questions, depending upon a variety of circumstances, and to which no general theory is applicable.

One example of private right will serve to illustrate what we have just explained. Respect for property is of natural and divine right; but the ownership of property, the respective rights of individuals to the same thing, the restrictions to which property should be subject, are questions appertaining to civil right, which have always been resolved, and are still resolved, in various ways. The main object is to adhere to the protective principle of property, the indispensable basis of all social organization; but the application of this principle is, and must be, subject to a variety of circumstances and events, a variety arising from the course of human affairs. It is the same with power. The Church, intrusted with the great deposit of the most important truths, keeps in this deposit the truth which guaranties a divine origin to civil power, and makes the existence of the law an affair of right divine; but she does not interfere in particular cases, which are always controlled more or less by the fluctuation and uncertainty with which the world is agitated. When thus explained, the Catholic doctrine is not in the least opposed to true liberty; it consolidates power, and does not prejudice the questions that may arise between the governors and the governed. No unlawful power can lay claim to the right divine; for it must be legitimate to merit the application of this right. This legitimacy is determined and declared by the laws of each country, from which it follows that the law is the organ of the right divine. This right, therefore, only consolidates what is just; and certainly that which insures justice in the world cannot be said to lead to despotism, for nothing can be more opposed to the liberty and happiness of the people than the absence of justice and legitimacy.

Popular liberties are not endangered by the strong safeguards surrounding the legitimacy of the governing power. On the contrary, reason, history, and experience teach that all illegitimate powers are tyrannical. Their illegitimacy necessarily carries weakness along with it; and it is not the strong, but the weak powers that oppress the people. Real tyranny consists in the person governing taking care of his own instead of the public interest. Now this is precisely what takes place when, feeling himself weak and tottering, he is forced to guard and protect himself. His object is then, no longer society, but himself. Instead of thinking how he may benefit those over whom he rules, he only studies and calculates beforehand the utility he may derive from his own measures. I have said in another place, and I repeat, that, in looking over history, we find continually this important truth written in letters of blood: _Wo to the people governed by a power which is obliged to think of its own preservation!_ A fundamental truth in political science, and which has, nevertheless, been lamentably overlooked in modern times. Much labor has been and is still spent to produce guarantees for liberty. To this end a multitude of governments have been overturned, and attempts have been made to weaken them all, without thinking that this was the most certain means of introducing oppression. What signify the veils under which despotism is concealed, and the forms by which it seeks to disguise its existence? History, which has recorded the outrages committed in Europe during the last century; true history, not that written by the authors of those outrages, by their accomplices, or by interested parties, will relate to posterity the injustices and crimes committed in the midst of civil discord by governments foreseeing their end, and feeling in themselves extreme weakness caused by their tyrannical conduct and the illegality of their origin.

How is it, then, that such a violent warfare has been declared against doctrines tending to consolidate civil authority by rendering it legitimate, and to prove this legitimacy by declaring that power descends from Heaven? How has it been overlooked that the legitimacy of power is an essential element of its strength, and that this strength is the safest guarantee of true liberty? Let it not be said that these are paradoxes. What is the object of societies and governments? Is it not the substitution of public for private force, of the rule of right for the rule of the strong? But when once you begin to undermine power, to make it an object of popular aversion or defiance; when once you represent it to the people as their natural enemy, and vilify the sacred titles on which obedience due to it is founded, you attack at once the very object of the institution of society; and by weakening the action of public force, you provoke a development of private force, which is the very thing that governments were instituted to prevent. The secret of that mildness for which European monarchies were remarkable, consisted chiefly in their security and strength, founded upon the loftiness and legality of the titles of their power; whilst you will find in the perils with which the thrones of the Roman emperors and Eastern monarchs were beset, one reason for their monstrous despotism. I do not hesitate to assert, and in the course of this work I shall prove more and more, that one cause of the evils to which Europe has been exposed during the laborious solution of the problem of the alliance between order and liberty, is the oblivion of Catholic doctrines on this point. These doctrines have been condemned without being heard or examined into, and the enemies of the Church have copied each other without ever having recourse to the real sources, where they might easily have found out the truth.

Protestantism, departing from the teaching of Catholicity, has been thrown alternately upon two opposite rocks; wishing to establish order, it has done so to the prejudice of true liberty; and in its desire to maintain liberty, it has become an enemy to order. From the bosom of false reform have arisen the insane doctrines, which, preaching up Christian liberty, discharged the subject from his obedience to the lawful authorities; from the bosom of the same reform has likewise arisen the theory of Hobbes, which sets up despotism in the midst of society as a monstrous idol, to which all should be sacrificed, without regard for the eternal principles of morality, with no other rule than the caprice of him who rules, with no other bounds to his power than those marked out by the extent of his strength. Such is the necessary result of banishing from the world the authority of God. Man, left to himself, can only succeed in producing slavery or anarchy; the same thing under two forms; _the reign of force_.

In explaining the origin of society and power, divers modern writers have said a great deal about a certain state of nature anterior to all societies, and have supposed that these societies were formed by a gradual transition from a barbarous to a civilized state. This erroneous doctrine lies deeper than some persons imagine. If we pay particular attention to the subject, we shall find that the erroneous ideas entertained on this subject may be traced to the forgetfulness of Christian teaching. Hobbes derives every kind of right from a pact. According to him, when men live in a state of nature, they have a right to every thing; which means, in other terms, that there is no difference between good and evil. From which it follows that society was organized without any regard to morality, and ought to be considered merely as a means to an end. Puffendorf and some others, admitting the principle of _sociality_, that is, deriving from society the rules of morality, arrive at last at the principle of Hobbes, and trample under foot both the natural and eternal laws. Investigating the causes of these grave errors, I find them in the deplorable contempt which writers on philosophy and morality in modern times have so eagerly evinced for the treasures of light afforded us by religion. This light, religion affords us on all questions, fixing by its dogmas the cardinal points of all true philosophy, and offering us in its narrations the only thread that can guide us through the labyrinth of the first ages. Read the Protestant writers, compare them with the Catholic, and you will find a remarkable difference between them. The latter reason, give their minds free scope, and allow them a wide range; but they ever leave untouched certain fundamental principles, and every theory which they cannot reconcile with these principles is inexorably rejected by them as erroneous. The former roam without guide or compass in the boundless space of human opinions, presenting to us a lively image of that pagan philosophy which had not the light of faith to guide its inquiries into the principles of things. Instead of finding a God, the Creator and Director, occupied without ceasing, like a tender father, with the happiness of beings whom He has drawn from nothing, this philosophy never discovered any thing but chaos, either in the physical or in the social world. This degraded and brutalized state, disguised under the name of nature, is in reality nothing but the chaos of society. This chaos will be found in a great number of modern writers who are not Catholics; and by a surprising coincidence, worthy of the most serious reflection, it will also be found in the principal writers on pagan science.

From the moment that we lose sight of the great traditions of mankind, traditions in which man is represented to us receiving from God himself intelligence, speech, and rules for his conduct in this life; from the moment that we forget the narration of Moses, that simple, sublime, and only true explanation of the origin of man and of society; our ideas become confused, the facts are jumbled, one absurdity creates another, and, like the builders of the tower of Babel, we suffer the just punishment of our pride. How wonderful! that antiquity, which, deprived of the light of Christianity, and lost in the labyrinth of human inventions, had almost forgotten the primitive tradition of the origin of society, and had recourse to the absurd transition from the barbarous to the civilized state, should nevertheless, whenever a society was to be formed, have invoked this right divine, which certain philosophers have treated with so much disdain. The most renowned legislators sought to establish upon Divine authority, the laws they were giving to the people, thus rendering a solemn homage to that truth logically established by Catholics, viz. that all power, to be regarded as legitimate and to exercise its due ascendency, must receive its titles from God. If you desire that the legislator should not be placed under the sad necessity of feigning revelations which he has never received, or bringing forward the intervention of God at every moment in an extraordinary manner in human affairs, establish the general principle that all power proceeds from God, that the author of nature is likewise the author of society, that the existence of society is a precept imposed upon mankind for their own preservation. Let submission and obedience be so regulated as not to wound man's pride; let those who rule over him be invested with superior authority, to which he can submit without a shadow of self-abasement. In short, establish the Catholic doctrine. Whatever be the form of government, you will then have found a solid basis on which to support the respect due to the authorities; you will have placed the social edifice upon a foundation far more secure than human conventions.

Examine the right divine such as I have represented it, supported by the interpretations of illustrious doctors, and I am certain that you cannot refuse to admit its perfect conformity to the lights of true philosophy; but if you persist in giving to this right a strange sense which it does not possess, pretending that it ought to have a different explanation, I shall insist upon one thing which you cannot refuse me: produce me a text of Scripture, a monument of the traditions acknowledged as articles of faith in the Catholic Church, a decision of the Councils or of the Pontiffs, showing your interpretation to be well founded. Until you have done this, I have a right to tell you, that, possessed with the desire of rendering Catholicity odious, you impute to it doctrines which it does not profess, you attribute to it dogmas which it does not acknowledge; that you are adversaries without candor or honesty, and employ weapons disallowed by the laws of combat.[28]