The Principles of Natural and Politic Law (1748)
Jean Jacques Burlamaqui
Of the power of the sovereign in matters of religion.
I. THE power of the sovereign, in matters of religion, is of the last importance. Every one knows the disputes, which have long subsisted on this topic between the empire and the priesthood; and how fatal the consequences of it have been to states. Hence it is equally necessary, both to sovereigns and subjects, to form just ideas on this article.
II. My opinion is, that the supreme authority in matters of religion ought necessarily to belong to the sovereign; and the following are my reasons for this assertion.
III. I observe, 1. that if the interest of society requires, that laws should be established in relation to human affairs, that is to things, which properly and directly interest only our temporal happiness; this same interest cannot permit, that we should altogether neglect our spiritual concerns, or those, which regard religion, and leave them without any regulation. This has been acknowledged in all ages, and among all nations; and this is the origin of the civil Law properly so called, and of the sacred or ecclesiastical Law. All civilized nations have established these two sorts of law.
IV. But, if matters of religion, have in several respects, need of human regulation, the right of determining them in the last resort can belong only to the sovereign.
First Proof. This is incontestably proved by the very nature of sovereignty, which is no more than the right of determining in the last resort, and consequently admits of no power in the society it governs either superior to, or exempt from its jurisdiction; but embraces, in its full extent, every thing, that can interest the happiness of the state, both sacred and profane.
V. The nature of sovereignty cannot permit any thing susceptible of human direction, to be withdrawn from its authority; for what is withdrawn from the authority of the sovereign must either be left independent, or subjected to some other person different from the sovereign himself.
VI. Were no rule established in matters of religion, this would be throwing it into a confusion and disorder, quite contrary to the good of society, the nature of religion, and the views of the Deity, who is the author of it. But, if we submit these matters to an authority independent of that of the sovereign, we fall into another inconveniency 4 since thus we establish, in the same society, two sovereign powers, independent of each other; which is not only incompatible with the nature of sovereignty, but a contradiction in itself.
VII. And indeed, if there were several sovereigns in the tame society, they might also give contrary orders. But who does not perceive, that opposite orders, with respect to the same affair, are manifestly repugnant to the nature of things, and cannot have their effect, nor produce a real obligation? How would it be possible for instance, that a man, who receives different orders at the same time from two superiors, such as to repair to the camp and to go to church, should be obliged to obey both? If it be said, that he is not obliged to comply with both, there must therefore be some subordination of the one to the other, the inferior will yield to the superior, and it will not be true, that they are both sovereign and independent. We may here very properly apply the words of Christ. No man can serve two masters. And a kingdom divided against itself cannot stand.
VIII. Second Proof. I draw my second proof from the end of civil society and sovereignty. The end of sovereignty is certainly the happiness of the people, and the preservation of the state. Now, as religion may several ways either injure or benefit the state, it follows, that the sovereign has a right over religion, at least so far as it can depend on human direction. He, who has a right to the end, has undoubtedly a right also to the means.
IX. Now, that religion may several ways injure or benefit the state, we have already proved in the first volume of this work.
1. All men have constantly acknowledged that the Deity makes his favours to a state depend principally on the care, which the sovereign takes to induce his subjects to honor and serve him.
2. Religion can of itself contribute greatly to render mankind more obedient to the laws, more attached to their country, and more honest towards one another.
3. The doctrines and ceremonies of religion have a considerable influence on the morals of people, and on the public happiness. The ideas, which mankind imbibed of the Deity, have often misled them to the most preposterous forms of worship, and prompted them to sacrifice human victims. They have even, from those false ideas, drawn arguments in justification of vice, cruelty, and licentiousness; as we may see by reading the ancient poets. Since religion therefore has so much influence over the happiness or misery of society, who can doubt but it is subject to the direction of the sovereign?
X. Third Proof. What we have been affirming evinces, that it is incumbent on the sovereign to make religion, which includes the most valuable interests of mankind, the principal object of his care and application. He ought to promote the eternal, as well as the present and temporal happiness of his subjects. This is therefore a point properly subject to his jurisdiction.
XI. Fourth Proof. In fine we can in general acknowledge only two sovereigns, God and the prince. The sovereignty of God is a transcendent, universal, and absolute supremacy, to which even princes themselves are subject; the sovereignty of the prince holds the second rank, and is subordinate to that of God, but in such a manner, that the prince has a right to regulate every thing, which interests the happiness of society, and by its nature is susceptible of human direction.
XII. After having thus established the right of the sovereign in matters of religion, let us examine into the extent and bounds of this prerogative; whereby it will appear, that these bounds are not different from those, which the sovereignty admits in all other matters. We have already observed, that the power of the sovereign extended to every thing susceptible of human direction. Hence if follows, that the first boundary we ought to fix to the authority of the sovereign, but which indeed is so obvious, as hardly needs mentioning, is, that he can order nothing impossible in its nature, either in religion, or any thing else; as for example to fly into the air, to believe contradictions, etc.
XIII. The second boundary, but which does not more particularly interest religion, than every thing else, is deduced from the divine laws; for it is evident, that, all human authority being subordinate to that of God, whatever the Deity has determined by some law, whether natural or positive, cannot be changed by the sovereign. This is the foundation of that maxim, It is better to obey God than man.
XIV. It is in consequence of these principles, that no human authority can for example, forbid the preaching of the gospel, or the use of the sacraments, nor establish a new article of faith, nor introduce a new worship; for God having given us a rule of religion, and forbidden us to alter this rule, it is not in the power of man to do it; and it would be absurd to imagine. that any person whatever can either believe or practice a thing as conducive to his salvation, in opposition to the divine declaration.
XV. It is also on the footing of the limitations here established that the sovereign cannot lawfully assume to himself an empire over consciences, as if it were in his power to impose the necessity of believing such or such an article in matters of religion. Nature itself and the divine laws are equally contrary to this pretension. It is therefore no less absurd than impious to endeavour to constrain consciences, and to propagate religion by force of arms. The natural punishment of those, who are in an error, is to be taught.1 As for the rest, we must leave the care of the success to God.
XVI. The authority of the sovereign, in matters of religion, cannot therefore extend beyond the bounds we have assigned to it; but these are the only bounds, neither do I imagine it possible to think of any others. But what is principally to be observed is, that these limits of the sovereign power, in matters of religion, are not different from those, he ought to acknowledge in every other matter; on the contrary, they are precisely the same; and equally agree with all the parts of the sovereignty, being no less applicable to common subjects than to those of religion. For example, it would be no more lawful for a father to neglect the education of his children, though the prince should order him to neglect it, than it would be for pastors or Christians to abandon the service of God, even if they had been commanded so to do by an impious sovereign. The reason of this is, because the law of God prohibits both, and this law is superior to all human authority.
XVII. However, though the power of the sovereign, in matters of religion, cannot change what God has determined, we may affirm, that those very things are, in some measure, submitted to the authority of the sovereign. Thus for example the prince has certainly a right to remove the external obstacles, vhich may prevent the observance of the laws of God, and to make such an observance easy. This is even one of his principal duties. Hence also arises his prerogative of regulating the functions of the clergy and the circumstances of external worship, that the whole may be performed with greater decency, so far at least, as the law of God has left these things to human direction. In a word it is certain, that the supreme magistrate may also give an additional degree of force and obligation to the divine laws, by temporal rewards and punishments. We must therefore acknowledge the right of the sovereign in regard to religion, and that this right cannot belong to any power on earth.
XVIII. Yet the defenders of the rights of the priesthood start many difficulties on this subject, which it will be proper to answer. If God, say they, delegates to men the authority he has over his church, it is rather to his pastors and ministers of the gospel, than to sovereigns and magistrates. The power of the magistrate does not belong to the essence of the church. God, on the contrary, has established pastors over his church, and regulated the functions of their ministry; and in their office they are so far from being the vicegerents of sovereigns, that they are not even obliged to pay them an unlimited obedience. Besides, they exercise their functions on the sovereign, as well as on private persons; and the scripture, as well as church history, attribute a right of government to them.
Answer. When they say, that the power of the magistrate does not belong to the essence of the church, they would explain themselves more properly, if they said, that the church may subsist, though there were no magistrates. This is true, but we cannot hence conclude, that the magistrate has no authority over the church; for, by the same reason, we might prove, that merchants, physicians, and every person else, do not depend on the sovereign; because it is not essential to merchants, physicians, and mankind in general, to be governed by magistrates. However reason and scripture subject them to the superior powers.
XIX. 2. What they add is very true, that God has established pastors, and regulated their functions, and that in this quality they are not the vicegerents of human powers; but it is easy to convince them by examples, that they can draw no consequence from this to the prejudice of the supreme authority. The function of a physician is from God, as the Author of nature; and that of a pastor is derived also from the Deity, at the Author of religion. This however does not hinder the physician from having a dependance on the sovereign. The same may be said of agriculture, commerce, and all the arts. Besides, the judges bold their offices and places from the prince, yet they do not receive all the rules they are to follow from him It is God, himself, who orders them to take no bribe, and to do nothing through hatred or favor, etc. Nothing more is requisite to show how unjust a consequence it is to pretend, that because a thing is established by God, it should be independent of the sovereign.
XX. 3. But, say they, pastors are not always obliged to obey the supreme magistrate. We agree, but we have observed, that this can only take place in matters directly opposite to the law of God; and we have shown, that this right is inherent in every person in common affairs, as well as in religion, and consequently does not derogate from the authority of the sovereign.
XXI. 4. Neither can we deny, that the pastoral functions are exercised on kings, not only as members of the church, bat also in particular as possessed of the regal power. But this proves nothing; for what function is there, that does not regard the sovereign? In particular does the physician less exercise his profession on the prince, than on other people? Does he not equally prescribe far him a regimen and the medicines necessary for his health? Does not the office of a counsellor regard also the sovereign, and even in his quality of chief magistrate? and yet whoever thought of exempting those persons from a subjection to the supreme authority?
XXII. 5. But lastly, say they, is it not certain, that scripture and ancient history ascribe the government of the church to pastors? This is also true, but we need only examine into the nature of the government, belonging to the ministers of religion, to be convinced, that it does not at all diminish the authority of the sovereign.
XXIII. There is a government of simple direction, and a government of authority. The former consists in giving counsel, or teaching the rules, which ought to be followed. But it supposes no authority in him, who governs; neither does it restrain the liberty of those, who are governed, except in as much as the laws, inculcated on that occasion, imply an obligation of themselves. Such is the government of physicians concerning health, of lawyers with regard to civil affairs, and of counsellors of state with respect to politics. The opinions of those persons are not obligatory in regard to indifferent things; and in necessary affairs they are not binding of themselves, but only so far, as they inculcate the laws established by nature, or by the sovereign, and this is the species of government belonging to pastors.
XXIV. But there is also a government of jurisdiction and authority, which implies the right of establishing regulations, and really obliges the subject. This government, arising from the sovereign authority, obliges by the nature of the authority itself, which confers the power of compulsion. But it is to be remarked, that real authority is inseparable from the right of compelling and obliging. These are the criterion by which alone it may be distinguished. It is this last species of government, which we ascribe to the sovereign; and of which we affirm, that it does not belong to pastors.2
XXV. We therefore say, that the government, belonging to pastors, is that of counsel, instruction, and persuasion, whose entire force and authority consists in the word of God, which they ought to teach the people; and by no means in a personal authority. Their power is to declare the orders of the Deity, and goes no farther.
XXVI. If at present we compare these different species of government we shall easily perceive, that they are not opposite to each other, even in matters of religion. The government of simple direction, which we give to pastors, does not clash with the sovereign authority; on the contrary, it may find an advantage in its aid and assistance. Thus there is no contradiction in saying, that the sovereign governs the pastors, and that, he is also governed by them, provided we attend to the different species of government. These are the general principles of this important doctrine, and it is easy to apply them to particular cases.
1. Etrantis poena est doceri.
2. See the gospel according to St. Luke, chap. xii. ver. 14. first epistle to the Corinthians, chap. x. ver. 4. Ephes. chap. vi. ver. 17, Philip, iii. ver. 20.