§ 156. drawn to Rome. political territory, a bishop would fummon foreigners before his tribunal, for caufes purely civil, and take upon him to decide them, in manifeft violation of the rights of nations. To fuch a height had the diforder arifen three or four centuries ago, that our wife ancestors thought themfelves obliged to take serious measures to put a flop to it; and ftipulated in their treaties, that none of the confederates fhould be fummoned before fpiritual courts, for money debts, fince every one ought to be contented with the ordinary modes of juftice that were observed in the country. We find in history that the Swifs on many occafions repreffed the encroachments of the bithops and their judges. Over every affair of life they extended their authority, under pretence that confcience was concerned. They obliged new-married husbands to purchase permiffion to lie with their wives, the first three nights after marriage t. This burlefque invention leads us to remark another abuse, 11. Money manifeftly contrary to the rules of a wife policy, and to the duty a nation owes to herself,-I mean the immenfe fums, which bulls, difpenfations, &c. annually drew to Rome, from all the countries in communion with her. How much might be faid on the fcandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, fuffered irreparable loffes. § 157. 12. Laws and cuftoms of states. Finally, that independent authority intrusted to ecclefiaftics, who were often incapable of understanding the true maxims of contrary to government, or too careless to take the trouble of ftudying them, the welfare and whofe minds were wholly occupied by a visionary fanaticism, by empty fpeculations, and notions of a chimerical and overftrained purity, that authority, I fay, produced, under the pretence of fanctity, laws and customs that were pernicious to the ftate. Some of these we have noticed: but a very remarkable inftance is mentioned by Grotius. "In the ancient Greek church," fays he, " was long obferved a canon, by which those who had "killed an enemy in any war what foever, were excommuni"cated for three years "A fine reward decreed for the heroes who defended their country, inftead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world:-fhe adorned her braveft warriors with crowns. The empire, having embraced christianity, foon became a prey to barbarians:-her fubjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves purfuing the path to heaven, and actually found themselves in the high road to riches and greatness. *Ibid. Alliance of Zurich with the cantons of Uri, Schweitz, and Underwald, dated May 1, 1351, § 7. + See A Regulation of Parliament in an arret of March 19, 1409. Spirit of Lawr. Thefe (fays Montefquieu) were the very best nights they could pitch upon: they would have made no great profit of any other. De Jure Belli & Pacis, Lib. II. Cap. XXIV. He quotes Bafil ad Amphiloch. X. 13. Zonaras in Niceph. Phoc, Vol. III. CHAP. NEXT to the care of religion, one of the principal duties of $158. a nation relates to juftice. They ought to employ their A nation utmost attention in caufing it to prevail in the ftate, and to take makejuftice ought to proper measures for having it difpenfed to every one in the most reign. certain, the most speedy, and the leaft burthenfome manner. This obligation flows from the object propofed by uniting in civil fociety, and from the social compact itself. We have feen ($15) that men have bound themselves by the engagements of fociety, and confented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainty. The nation would therefore neglect her duty to herself, and deceive the individuals, if fhe did not seriously endeavour to make the strictest juftice prevail. This attention the owes to her own happiness, repofe, and profperity. Confufion, disorder, and defpondency, will foon arife in a ftate, when the citizens are not fure of eafily and fpeedily obtaining justice in all their difputes: without this, the civil virtues will become extinguished, and the fociety weakened. There are two methods of making justice flourish,-good laws, 1:9. and the attention of the fuperiors to fee them executed. In To establifa treating of the constitution of a state (Chap. III.) we have al- good laws. ready fhewn, that a nation ought to establish just and wife laws, and have alfo pointed out the reafons, why we cannot here enter into the particulars of thofe laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtlefs be fufficient for fociety. But ignorance, the illufions of felflove, and the violence of the paffions, too often render these facred laws ineffectual. And we fee, in confequence, that all well-governed nations have perceived the neceflity of enacting pofitive laws. There is a neceffity for general and formal regulations, that each may clearly know his own rights without being mifled by felf-deception: fometimes even it is neceffary to deviate from natural equity, in order to prevent abufes and frauds, and to accommodate ourselves to circumstances; and fince the fenfation of duty has frequently fo little influence on the heart of man, a penal fanction becomes neceffary, to give the laws their full efficacy. Thus is the law of nature converted into civil law *. It would be dangerous to commit the interests of the citizens to the mere difcretion of those who are to dif penfe juftice. The legislator fhould affift the understanding of the judges, force their prejudices and inclinations, and fubdue their will, by fimple, fixed, and certain rules. These again are the civil laws. • See a differtation on this subject, in the Loifir Philofophique, page 71. The § 150 5. Enor mous pre Pre-emi Bence. tected useless hornets to devour the honey of his bees? It is not the fault of the fanatic preachers of over-ftrained fanctity, if all their devotees do not imitate the celibacy-of the monks. How happened it that princes could fuffer them publicly to extol, as the moft fublime virtue, a practice equally repugnant to nature, and pernicious to fociety? Among the Romans, laws were made to diminish the number of thofe who lived in celibacy, and to favour marriage: but fuperftition foon attacked fuch just and wife regulations; and the chriftian emperors, perfuaded by churchmen, thought themselves obliged to abrogate them. Several of the fathers of the church have cenfured those laws against celibacy,-doubtlefs, says a great man §, with a laudable zeal for the things of another life, but with very little knowledge of the affairs of this. That great man lived in the church of Rome :-he did not dare to affert in direct terms, that voluntary celibacy is to be condemned even with respect to confcience and the things of another life:-but it is certainly a conduct well becoming genuine piety, to conform ourselves to nature, to fulfil the views of the Creator, and to labour for the welfare of fociety. If a perfon is capable of rearing a family, let him marry, let him be attentive to give his children a good education:-in fo doing, he will difcharge his duty, and be undoubtedly in the road to falvation. The enormous and dangerous pretenfions of the clergy are alfo another confequence of this fyftem which places every tentions of thing relating to religion beyond the reach of the civil power. the clergy. In the first place, the ecclefiaftics, under pretence of the holinefs of their functions, have raised themfelves above all the other citizens, even the principal magiftrates: and, contrary to the exprefs injunctions of their mafter, who faid to his apofties, feek not the firft places at feafts, they have almoft every where arrogated to themselves the firft rank. Their head, in the Roman church, obliges fovereigns to kifs his feet; emperors have held the bridle of his horfe; and if bifhops or even fimple priests do not at prefent raise themselves above their prince, it is because the times will not permit it: they have not always been fo modeft; and one of their writers has had the affurance to affert, that a prieft is as much above a king, as a man is above a beaft. How many authors, better known and more efteemed than the one juft quoted, have taken a pleasure in praising and extolling that filly fpeech attributed to the emperor Theodofius *This reflection has no relation to the religious houfes in which literature is cultivated. Eftablishments that afford to learned men a peaceful retreat, and that leifure and tranquillity required in deep feientific refearch, are always laudable, and may become very ufeful to the flate." The Papia-Poppaan law. In the Theodofian C de. The prefident de M ntefquieu, in his Spirit of Laws. Tantum facerdos præftat regi, quantum homo beftiæ. Stanislaus Orichovias.Vide Tribbeebov. Exere, I. ad Baron, Annal. Sect. 2, & Themaf, Nat, ad Lancell. the the Firft-Ambrofe has taught me the great diftance there is between the empire and the priesthood! We have already obferved that ecclefiaftics ought to be honoured: but modesty, and even humility, fhould characterise them: and does it become them to forget it in their own conduct, while they preach it to others? I would not mention a vain ceremonial, were it not attended with very material confequences, from the pride with which it infpires many priefts, and the impreffions it may make on the minds of the people. It is effentially neceflary to good order, that fubjects should behold none in fociety fo refpectable as their fovereign, and, next to him, thofe on whom he has devolved a part of his authority. $151. 6. Inde Ecclefiaftics have not stopped in fo fair a path. Not contented with rendering themselves independent with refpect to their pendence. functions, by the aid of the court of Rome, they have even Immuniattempted to withdraw themfelves entirely, and in every refpect, ties. from all fubjection to the political authority. There have been times when an ecclefiaftic could not be brought before a fecular tribunal for any crime whatsoever *. The canon law declares exprefsly, It is indecent for laymen to judge a churchmant. The Fopes Paul III. Pius V. and Urban VIII. excommunicated all lay judges who should prefume to undertake the trial of ecclefiaftics. Even the bishops of France have not been afraid to say on feveral occafions, that they did not depend on any temporal prince; and, in 1656, the general affembly of the French clergy had the affurance to use the following expreffions-" The decree of council having been read, was disapproved by the assembly, be-. caufe it leaves the king judge over the bishops, and feems to fubject their immunities to his judges t. There are decrees of the popes that excommunicate whoever imprisons a bishop. According to the principles of the church of Rome, a prince has not the power of punishing an ecclefiaftic with death, though a rebel, or a malefactor;-he must first apply to the ecclefiaftical power; and the latter will, if it thinks proper, deliver up the culprit to the fecular arm, after having degraded him §. History affords us * The Congregation of Immunities has decided that the cognisance of caufes against ecclefiaftics, even for the crime of high treafon, exclufively belongs to the fpiritual court:-"Cognitio caufe contra ecclefiafticos, etiam pro delicto læfæ majeftatis, feri debet a judice ecclefiaftico." RICCI Synopf. Decret, et Refl. S. Congreg. Immunit. p. 105.A conflitution of pope Urban VI. pronounces thofe fovereigns or magiftrates guilty of facrilege, who fhall banish an ecclefiaftic from their territories, and declares them to have ipfo facto incurred the fentence of excommunication. Cap. II. De Foro Compet. in VII. - To this immunity may be added the indulgence fhewn by the ecclefiaftical tribunals to the clergy, on whom they never inflicted any but flight punishments, even for the most atrocious crimes. The dreadful diforders that arofe from this caufe at length produced their own remedy in France, where the clergy were at length fubjected to the temporal jurifdiction for all tranfgreffions that are injurious to fociety. See PAPON Arrêts Notables. Book I. tit V. Act 34. + Indecorum eft laïcos homines viros ecclefiafticos judicare. Can. in nona actione 22. XVI. q. 7. See the Statement of Falls on the Syftem of the Independence of Bifbops. § 152. 7 Immu nity of church us a thousand examples of bishops who remained unpunished, or were but flightly chastifed, for crimes for which nobles of the highest rank forfeited their lives. John de Braganza, king of Portugal, justly inflicted the penalty of death on those noblemen who had confpired his deftruction; but he did not dare to put to death the archbishop of Braga, the author of that deteftable plot *. For an entire body of men, numerous and powerful, to stand beyond the reach of the public authority, and be dependent on a foreign court, is an entire fubverfion of order in the republic, and a manifeft diminution of the fovereignty. This is a mortal ftab given to fociety, whofe very effence it is that every citizen fhould be fubject to the public authority. Indeed the immunity which the clergy arrogate to themfelves in this refpect, is fo inimical to the natural and neceffary rights of a nation, that the king himself has not the power of granting it. But churchmen will tell us they derive this immunity from God himself: but till they have furnished fome proof of their pretenfions, let us adhere to this certain principle, that God defires the fafety of states, and not that which will only be productive of diforder and destruction to them. The fame immunity is claimed for the poffeffions of the church. The ftate might, no doubt, exempt thofe poffeffions from every fpecies of tax at a time when they were scarcely fufficient for poffeffions. the fupport of the ecclefiaftics: but, for that favour, thefe men ought to be indebted to the public authority alone, which has always a right to revoke it, whenever the welfare of the state makes it neceffary. It being one of the fundamental and effential laws of every fociety, that, in cafe of neceflity, the wealth of all the members ought to contribute proportionally to to appear before the fupreme council, was, for his contumacy, banished from the canton. Hereupon, his diocefan, the bishop of Conftance, had the assurance to write to the council that they had infringed the ecclefiaftical immunities,—that "it is unlawful to fubject the ministers of God to the decifions of the temperal power." In thefe pretenfions, he was fanctioned by the approbation of the pope's nuncio and the court of Rome. But the council of Lucerne firmly sapported the rights of fovereignty, and-without engaging with the bishop in a controverfy which would have been derogatory to their dignity,-answered him "Your Lordship quotes various paffages from the writings of the fathers, which we, on our fide, might alfo quote in our own favour, if it were neceffary, or if there was question of deciding the conteft by dint of quotations. But let your Lordship reft affured that we have a right to fummon before us a priest, our natural fubject, who encroaches on our prerogatives,-to point out to him his error, to exhort him to a reform of his conduct,-and, in confequence of his obftinate difobedience after repeated citations, to banish him from our dominions, We have not the least doubt that this right belongs to us; and we are determined to defend it. And indeed it ought not to be propofed to any fovereign to appear as party in a conteft with a refractory fubject like him,-to refer the cause to the decision of a third party, whoever he be, and run the risk of being condemned to tolerate in the ftate a perfon of fuch character, with what dignity (oever he might be invested," &c. The bishop of Conttance had proceeded fo far as to affert, in his letter t the canton, dated December 18, 1725, that churchmen, as foon as they have received holy orders, cease to be natural subjects, and are thus releafed from the bondage in which they lived before. Memorial on the Dispute between the Pope and the Canton of Lucerne, p. 65. * Revolutions of Portugal. the |