Protestantism and Catholicity

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.