Section — Marc, Institutiones Morales
§ 2. On the Author of Civil Law
- Concerning the legislative power of secular princes, there have been various ravings of heretics and unbelievers. Some, among whom were the Albigensians, denied that princes and their laws must be obeyed. Others, with the Reformers of the sixteenth century, ascribed all power to princes, even concerning spiritual things. Others, such as the followers of modern liberalism, contend that supreme authority consists in the sum of number and material forces, etc.
- PRINCIPLES. I. Secular princes and legislators have from God the power of commanding and making laws concerning temporal and civil matters. This proposition, Suarez testifying, is of faith, or at least proximate to faith (de Leg., l. 3, c. 5, n. 1).
It is proved 1. From the Epistle of St. Paul to the Romans (13:1): There is no power except from God... Therefore he who resists the power resists the ordinance of God. Cf. Prov. 8:15, where it is said: Through me kings reign... through me princes command. Therefore kings are ministers of God (Rom. 13:14), not ministers or mandataries of the multitude.
- By reason. Civil society emanates from the Author of nature, that is, from God. Now, in order that some society can subsist, there is necessary in it some supreme authority, which is the foundation or principle of political unity. Therefore legislative power must be traced back to God, as author of nature, nor does it emanate from the people, even if it is bestowed on a man through the people as mediator (I, 104). Cf. the Encyclical Diuturnum of Leo XIII, June 29, 1881. See more among the philosophers.
Therefore St. Alphonsus rightly says (H. Ap., XIII, 13): "It is altogether false that in the community of subjects there is some authority superior to and independent from the prince, so that, in the case in which the prince governs the kingdom perversely, the whole community could despoil him of kingdom and life." This error was condemned by Pius IX (Syll., n. 63) and by Pius X, in the letters against the Sillonists (A. A. S., II, p. 615).
- II. Civil power is altogether distinct from ecclesiastical power, and necessarily subordinated to it. The proposition is certain and common.
Civil power: 1. Is distinct; this is evident from the words of the Lord (Matt. 22:21): Render therefore to Caesar the things that are Caesar's, and to God the things that are God's. But the distinction is had not only as to origin and form of government, as was said (n. 138), but especially as to the proximate end proper to each.
- It is subordinated. "Secular power," says St. Thomas (2.2, q. 60, a. 6, ad 3), "is subject to spiritual power, as the body to the soul." The reason for this subordination is the very subordination which the secondary end necessarily has to the ultimate end, that is, the subordination of earthly happiness, which civil society proximately intends, to heavenly happiness, which the Church proximately intends, and to which she in reality leads. See the Encyclical Immortale Dei (November 1, 1885).
Hence: 1. It belongs to civil power never to impede the attainment of the ultimate end, to which it is remotely ordered, to protect religion, and to promote the moral good of the community.
- While it establishes or executes laws, it necessarily places moral acts, in which (if the matter concerns a Christian legislator) it is subject to the Church, just as private men are. Wherefore "the Supreme Pontiff will be able to abrogate and correct the civil laws of other princes, if they are opposed to equity" (I, n. 104), and laws thus corrected and abrogated no longer oblige in conscience (I, n. 106).
- Questions. QUERY 1. Who are the men in whom legislative power inheres in fact?
Resp. They are those who enjoy supreme authority and do not act in the name of another, such as kings, emperors, princes in a principality, presidents of a legitimately constituted republic, etc.; but not leaders of soldiers, nor prefects of provinces, because they are only delegates, who cannot act in their own name. But in representative kingdoms, legislative power belongs not only to the king or president alone, but also to representatives elected either by the king himself or by the people.
QUERY 2. Whether even a tyrant must be obeyed?
Resp. Distinguish. 1. If the tyrant is one only by REGIMEN (that is, if he rules and oppresses perversely the kingdom which he legitimately possesses), obedience must certainly be given to him in lawful things: as is evident from what was said n. 148. But what remedy remains if the regime of the prince were excessively unjust and tyrannical, and human help could not be had? "Recourse must be had," says St. Thomas (de Regim. Princ., l. 1, c. 6), "to God the king of all, who is the helper in necessities. But in order that the people may deserve to obtain this benefit from God, it ought to cease from sins, because in vengeance for sin, by divine permission, the impious receive power." Cf. H. Ap., VIII, 13.
- If the tyrant is one by TITLE (or a usurper), in the very act of invasion obedience must not be given to him, nor is it lawful to acknowledge or help him by deeds, so that he may be established in his possession. For the fact of usurpation, of itself, gives no right to the invader, who, since he is in bad faith, can never heal his possession by prescription. "Nor is right acquired by the mere material fact" (Syll., error 59).
Therefore subjects, as soon as they can do this without detriment to the public good, are bound to return to the former lord.
But if the usurper now peacefully holds public authority, and his possession, by lapse of time, is now so greatly strengthened that the former order cannot be restored without grave detriment to the public good, obedience must be given to him in lawful things, not otherwise than if he were the legitimate prince. For the peace to be preserved for the community demands this for itself; nor does such obedience include any approval of tyranny, because it is by no means rendered for the sake of the usurper, but for the sake of the subjects who live under his command (I, n. 94; ed. G., I, p. 71). Cf. Muller, l. 1, § 50, n. 8.
Scholium
- I. The old laws are contained in the Body of Civil Law, which is a complex of laws which the Emperor Justinian, in the sixth century, especially by the work of Tribonian, the most celebrated jurisconsult, collected into one and published. It consists of two tomes. The first contains the Institutiones, which are as it were the elements of law, distributed into four books, and the Digesta juris enucleati, or Pandects, which consist of 50 books and are generally cited ff. The second tome contains the collection of decisions which the same Emperor afterward edited, that is, the Code distributed into 12 books. To the Code are added 68 more recent Constitutions, which they call Authentics and Novels, as if newly edited. These laws constituted Roman law, which with ecclesiastical law formed common right, so called because for several centuries the whole world commonly used it.
- II. The laws of modern right are found in various codes, which almost all kingdoms established as proper to themselves, especially from the time of the French Disturbance, at the end of the eighteenth century.