J

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j/m /Metin (State
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s/ jlein /Mutual

^unidicalClaims

BY

Rt. Rev. Joseph J. Baierl, S.T.D.

1955
* Bénard s Scmina,vy
St
Rochester, N. y.

r i

NIHIL OBSTAT
Francis B. Burns, S.T.L.
Censor

IMPRIMATUR
James E. Kearney, D.D.
Bishop of Rochester
October 13, 1954

Copyright 1955
5y
ST. BERNARD’S SEMINARY

Printed in the U. S. A.

nqo
Bi52_
copy 2.·
Grateful acknowledgment is made to the following who
have permitted quotation of their publications as listed
herewith: Verlag von J. P. Bachem, Munster in West­
phalia, Germany, Dr. Karl Bôckenhoff, Katholische
Kirche und moderner Staat; Harper & Brothers, New
York, N. Y., Anson Phelps Stokes, Church and State
in. the United States, 3 vols.; James M. O’Neill, Cath­
olicism and American Freedom, Religion and Educa­
tion under the Constitution; B. Herder Book Co.; St.
Louis, Mo.; Heinrich Rommen, The State in Catholic
Thought; Joseph F. Wagner, New York, N. Y., Joseph
Mausbach, Catholic Moral Teaching and Its Antagon­
ists; Paulist Press, New York, N. Y., Jetfrey Keefe,
O. F. M. Conv., American Separation of Church and
State. Who Stretched the Principle?

Contents
Page No.

PREFACE

INTRODUCTION—The Church in the Medieval and in the
Modern State . ............................................................
I
I.

II.

III.

IV.

SOURCES FOR DETERMINING THE CHURCH'S ATTI­
TUDE REGARDING THEMODERN STATE.....................
13

A.

Useless Sources .......................................................

13

B.

Authentic Sources ..................................................

25

THE CATHOLIC CHURCH AND THE SOVEREIGNTY
OF THE STATE.....................
.

A.

Acknowledgment of the State's Sovereignty by
the Catholic Church ...................................... 35

B.

The State's Sovereignty Restricted by the Natural
Law ....................................................................
48

C.

The State's Sovereignty Restricted by the Divine
Positive Law ...........................................................

59

D.

Range of Jurisdiction of Church and State..........

84

E.

Possibility of an Amicable Agreement between
the Modern State and the Catholic Church ....

95

THE CATHOLIC CHURCH AND THE MODERN SECU­
LARIZED STATE . .....
109
A.

The Church's Attitude in Respect to Freedom of
Religion .................................................................... 109

B.

Essential Consistency in the Church's Attitude
towards Persons of Other Beliefs .......................... 124

THE CATHOLIC CHURCH AND THE QUESTION OF
SEPARATION OF CHURCH AND STATE......................... 142

A.

V.

35

Nature and Types of Separation . ..................

142

B.

Secularism and American Separation of Church
and State ..................................................
166

C.

Rejection of the Principle of Separation by the
Church ........................
187

D.

Difficulties in the Application of the Principle of
Separation ....................................
201

THE PROBLEM OF DEMOCRACY AND RELIGIOUS
FREEDOM IN CURRENT CATHOLIC THOUGHT........... 213

Pne/ace
When Christ replied to those who sought to trap him
into a political commitment, “Render, therefore, to Caesar
the things that are Caesar’s, and to God the things that
are God’s,” he provided us with a fundamental Christian
text on the relations between church and state. While his
statement sanctioned the validity of legitimate civil au­
thority, it also vindicated the libertas ecclesiae—the in:
dependence of God’s kingdom, the Church, within the area
j
of its own competence.
Fundamental as this text is in determining the relation
of church and state, it indicates no clear answer to the
natural corollary, “But what things are Caesar’s, and what
things are God’s?” Our Lord doubtless had reasons for
not defining his terms. Yet it is true that, in the perennial
'
struggle of the Catholic Church to maintain her independ*
ence of state control, it is the corollary rather than the
.
principle which has been the chief matter of controversy.
The caesaro-papism of the Christian Roman emperors, the
medieval investiture dispute, the Gallicanism of pre-Revoï
lutionarÿ Europe, the laicism of the nineteenthcgntiu^
liberalist states and of the contemporary>J>*i*etet;_®a‘'lon®
ito mention a few of the majorjjp^Mtate controversies
:
—have all concerned thjJ^® <
* Jurisdiction in which
the boundaries ar^«refinite, and the prerogatives of
'
regnum ^j^^dottum tend to overlap. Some disagree«^-^ns^nevitable since both church and state have author^_^-"ity over different phases in the life of the same subjects.
Disagreement, however, has all too frequently resulted in
encroachment, usually by the state, but sometimes also by
•
churchmen who have laid claim to a broader jurisdiction
'■
in mixed matters than could be really warranted. The bitterness engendered by these extreme claims has only further obscured the basic issues at stake.
Today the question of church-state relations has once
;
again become the subject of extensive discussion. The con:
temporary debate is especially concerned with the possi­
bility of reconciling the Catholic Church’s teaching that it is
I
the one true Church, with the tendency of the modern state
to grant equal status before civil law to Catholic and non­
Catholic religious denominations alike. Since our United
States constitutional law takes this “separationist” stand,
the argument has a special urgency for American Catho-

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When Christ replied to those who sought to trap him
into a political commitment, “Render, therefore, to Caesar
the things that are Caesar’s, and to God the things that
are God’s,” he provided us with a fundamental Christian
text on the relations between church and state. While his
statement sanctioned the validity of legitimate civil au­
thority, it also vindicated the libertas ecclesiae—the in­
dependence of God’s kingdom, the Church, within the area
of its own competence.
Fundamental as this text is in determining the relation
of church and state, it indicates no clear answer to the
natural corollary, “But what things are Caesar’s, and what
things are God’s?” Our Lord doubtless had reasons for
not defining his terms. Yet it is true that, in the perennial
struggle of the Catholic Church to maintain her independ­
ence of state control, it is the corollary rather than the
principle which has been the chief matter of controversy.
The caesaro-papism of the Christian Roman emperors, the
medieval investiture dispute, the Gallicanism of pre-Revoiutionary Europe, the laicism of the nineteenthcentury
liberalist states and of the contemporary.
rstTnations—
to mention a few of the major
-state controversies
re of jurisdiction in which
—have all concerned that
the boundaries ..are'-indefinite, and the prerogatives of
regnum ^oâ^iacerdotium tend to overlap. Some disagrees inevitable since both church and state have author­
ity over different phases in the life of the same subjects.
Disagreement, however, has all too frequently resulted in
encroachment, usually by the state, but sometimes also by
churchmen who have laid claim to a broader jurisdiction
in mixed matters than could be really warranted. The bit­
terness engendered by these extreme claims has only fur­
ther obscured the basic issues at stake.
Today the question of church-state relations has once
again become the subject of extensive discussion. The con­
temporary debate is especially concerned with the possi­
bility of reconciling the Catholic Church’s teaching that it is
the one true Church, with the tendency of the modern state
to grant equal status before civil law to Catholic and non­
Catholic religious denominations alike. Since our United
States constitutional law takes this “separationist” stand,
the argument has a special urgency for American Catho-

lies. Yet, when American Catholics look about for Catho­
lic replies to the problem, they find few ready answers.
Popes and councils have issued no dogmatic definitions on
church-state relations. Nor is this incomprehensible. As Dr.
Heinrich Rommen has pointed out, it is not principally a
theological problem, but “a political problem because it is
concerned with the living order of social life.”
The American Catholic must therefore turn to Catholic
theologians, canonists, and political philosophers, for guid­
ance. These are the men who, in response to un-Catholic
ideologies, must reason out a Catholic political philosophy
which takes into account Divine revelation, Catholic tradi­
tion, and the data of history. Much of what they write—
today, as in centuries past—may be subject to subsequent
revision. But controversy itself, like adversity, wears yet
this precious jewel: that it leads to clarification.
While the question is still under discussion, however,
there is real need for a manual which gives a succinct sum­
mary of the whole subject as it stands today. Monsignor
Baierl has made us his debtors in the present work by
furnishing just such an objective summary. Since German
j
theologians have been among the pioneers in this field, he
Ï
has taken Professor Karl Bockenhoff’s 1909-1910'lectures,
t
Katholische Kirche und modemer Stoat, as his foundation.
The lectures, after being delivered at the University of
I
Strasbourg, were published at Cologne in 1911 ; but, as the
|
issue of a second edition in 1920 testifies, they are of perζ
manent value. Building on BockenhofFs-sound analysis,
Dr. Baierl has brought the historical part up ln dat^JPo
this he has also added—what will be particularly welcome----^^^to American readers—a thorough consideration of the
problems of church and state in the United States, and a
review of the American phase of the present-day churchj
state controversy.
?
Catholic seminarians, for whom the present work was
;
primarily designed, will find it most helpful for study and
reference. But it should prove equally helpful to other stu­
dents, and, in fact, to any serious reader who is in search of
a clear, objective summary of this difficult but very topical
subject.
ROBERT F. McNAMARA
Professor of Church History
St. Bernard’s Seminary
Rochester, N. Y.
August 1, 1954.

Mnadwdïen
THE CHURCH IN THE MEDIEVAL AND THE MODERN STATE

The problem of the relations of Church and State is of
vital concern to us as citizens and Catholics. We are justly
proud of this dual privilege : citizenship in our great coun­
try, and membership in the one true Church of Christ. It
is our sincere desire to live in peace and concord with our
fellow men of whatever racial origin, color, or creed. We
seek no privileges in a land where our Church is respected
and protected and where she is flourishing as in no other
land on the face of the earth. But we do resent any and
every attack against our rights and loyalties as Americans
because we profess the Catholic faith. Perhaps the very fact
that the Catholic Church enjoys such prestige as a spiritual
and moral leader, has aroused some suspicion and even ill
will against her. Whatever the reason, the Church’s activi­
ties, especially in the field of education, are now being criti­
cized and misunderstood. The Manifesto issued (1948)
by Protestants and Other Americans United for Separation
of Church and State adds more fuel to the flames of reli­
gious antagonism and civil discord. These attacks are only
skirmishes in that larger battle that is being waged the
world over, to wëakemandidestroy the Church’s influence.
--^Hostility to the Catholic~Churehja_not restricted to individuals and groups; it has often beèïTthe^poUçyof the
State itself. History testifies that the secular power~has
successively despoiled the Church of the prerogatives she
enjoyed in European society as moulded by the influence
of Christianity for centuries. This hostile attitude has not
abated; it has intensified with the passing years. Its final
outcome is laicism, excluding religion entirely from the life
of society. The laicized State recognizes no Church, no
religion, and even excludes the name of God from all its
institutions or establishments, and from all its acts. The
canonist, A. Boudinhon, writes, “Laicization goes far be­
yond ‘equality,’ by which the State recognizes equal rights
as possessed by various confessions or religions ; it is much
more than ‘neutrality’—the attitude adopted by the State

HiHMM

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THE CATHOLIC CHURCH AND THE MODERN STATE

in its dealings with the divers confessions to which its citi­
zens belong; it is something quite different from ‘separa­
tion,’ by which the concordats existing between the two
powers are dissolved, and the official character of the
Church, as hitherto recognized by the State, is abolished.”1
Not all the European countries have moved with equal
rapidity in this direction, and few have arrived at the com­
plete secularization effected by the French Revolution. In
non-Catholic countries, where the civil power already pos­
sessed more or less complete authority over religion, it has
been retarded and partially eliminated. The same is true
in Catholic countries where there is a definite spiritual
authority, not infrequently charged with being alien or
foreign. Only in countries behind the so-called Iron Curtain
has this hostility, wedded to atheistic communism, approached full flowering.
Despite local differences, the main purpose of this secularizing movement is clearly discernible throughout the
Christian world. It would distinguish ever more sharply
the spiritual and temporal spheres. It would limit the for­
mer to purely spiritual matters, depriving it gradually of
all the prerogatives acquired in the building of Christian
Europe throughout the Middle Ages.2
Our task is to determine whether and to what extent the
nature and the juridicial claims of the Church and State
are opposed, and, if so, whether that opposition is practically irreconcilable.
The relations of the Church and the^medefn~State is
a difficult and complex problemrinVSlving historical, theological, and juridiciaPcênsîderations. As fair minde^-m^T'
our amM^wcHTas to any problem of gravejmpevtTsÎïould be
and unprejudiced. Thehistory of the difficulty
is long and varied ; in jio-sefise is it modern. In the Middle
Ages the relationship of Church and State was very dif­
ferent from today. We may not shut our eyes to the changes
that have occurred. Nor can we judge the present by stand­
ards prevailing in the past. Due consideration for historical
perspective will eliminate many of the objections otherwise
arising in studying this knotty problem.
To ascertain the Church’s position in regard to the role
assigned her in the modern State, to know whether she
approves or disapproves, or whether she accepts her pres1 "tikiutioa,” CtlMic E^cyclofitJU, VHI, 745.
•Hid.

|

INTRODUCTION

3

ent. status as a political necessity, we must discuss and in­
terpret the sources of this whole matter. Ignorance of
these and their misuse are the fountainhead of all the
suspicions and unwarranted attacks on the Church.
The title of this study, “The Catholic Church and the
Modern State,” suggests a profound difference in the rela­
tionships of these two powers from what they were in the
Middle Ages. Then the Church was at the zenith of her
power. That a change has resulted does not mean a change
in the Church. She remains the same—same in constitution,
in principles, in juridicial claims. But the State has changed
profoundly since the Middle Ages, and this is the very
beginning of the problem facing us. The medieval State
was Catholic, the modern State is secular or suprasectarian
in relation to religion. In other words, formerly the State
was spiritually conscious, definitely committed to one faith ;
today the State regards itself not only as outside but above
all creeds, all confessions, all denominations. In this atti­
tude is to be found the origin, or at least the occasion, for
all the differences relating to this question today.

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To employ figurative language, it is very true to say that
the medieval State was built within the edifice of the Uni­
versal and Catholic Church ; her foundation was its founda­
tion; the vaulted arches that enclosed her halls also spanned
those of the State; her cupola, the papacy, overtopped the
turrets and spires of the State, and was for it, too, the cul­
mination of all power on earth. The common foundation
was the Catholic faith, the inviolable basis of society. What­
ever was opposed to that faith was regarded as dangerous
also for the State. The defense of the faith was the para­
mount duty of the temporal sovereign. Citizenship and
membership in the Church coincided to such a degree that
the loss of rights granted by one power meant the loss, or at
least the lessening, of rights stemming from the other. In
the medieval State there was no longer any placefog^one
who not only persisted in disobeying-the-mrtirorTty^of the
Church but also contumaciously denied her teaching in
matters of faith. Such a one was at first excommunicated,
fined, and deprived of his possessions ; and it was not long
before he was handed over to the State, whose duty it was
to impose capital punishment. Oneness of faith and mem- - · '
bership precluded the possibility of conflict-between the

4

THE CATHOLIC CHURCH AND THE MODERN STATE

two powers; for conflict between Church and State pre­
supposes that the Church embraces only a portion of the
subjects of the State, that is, constitutes merely a smaller
circle within the organism of the State. In the ecclesiasticopolitical struggles of the Middle Ages both parties were
within the Church. An emperor who did not belong to the
Church, who was not both a leader and protector of reli­
gion, would not have been emperor at all. The only dispute
regarded the division of this twofold authority that ruled
Christendom, namely, the priestly and the royal power.
This intimate union of Church and State, born of a
common philosophy of life, inspired a harmonious co­
operation between the two powers, a peaceful co-ordination
of aims affecting the temporal and eternal welfare of man­
kind. In consequence there was no sharp demarcation be­
tween the spheres of Church and State. The Church labored
for many objectives which today we regard as aims of the
State and, conversely, the State functioned in areas which
now are considered ecclesiastical.
The same is true of secular and ecclesiastical juris­
diction. Thus the Church gradually extended her juris­
diction over all matters that were of ecclesiastical interest
(causae spiritualibus annexae), all litigation concerning
marriage, matters concerning burial, testaments, contracts
ratified with an oath, matters pertaining to benefices, ques­
tions of patronage, litigation concerning church property
and tithes. All civil litigation in which the element of sin
was in question (ratio peccati) could also be summoned
before an ecclesiastical court. In addition, the ecclesiastical
court had jurisdiction over the affairs of ecclesiastics,
monks, and nuns, the poor, widows, and orphans, also those
persons to whom the civil judge refused legal redress.
During the course of the Middle Ages the Church increased
her penal jurisdiction in the civil domain by inflicting
various penalties, some of them purely secular in character.
Most important, by means of the privilegium fori the
—Church withdrew the so-called “criminous clerks” from the
jurisdiction.of the civil courts, Whereupon the Church ob­
tained for the court held by the bishop during his diocesan
visitation (the send) not only the power to punish those
civil misdemeanors which involved the element of sin and
consequently affected both Church and State, but also the
—PQWer to punish, as such, purely civil offenses. In punishing
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nurely ecclesiastical character, the Church

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INTRODUCTION

5

disposed unreservedly of the aid of the State in the execu­
tion of the penalty. When in the send, or court held by the
bishop during his visitation, the Church inflicted punish­
ment on the laity for civil offenses, the penalty as a rule was
enforced by the count (graf) who accompanied the bishop
and represented the civil power.3
Since the State was to subserve the higher aims of the
Church, it was in duty bound to procure for all tranquility
from without and juridicial protection from within. The
regal office also received a religious interpretation. Tem­
poral rulers were regarded as representatives of God, to
whom they were answerable. Such a concept of justice gave
stability to the throne. The ceremony of coronation was
likened to episcopal consecration to remind king and people
of their religious responsibilities.
The picture of the magnificent co-operation between
Church and State for the welfare of mankind in the Middle
Ages, shows vigor and splendor, although it is not without
glaring contrasts and deep shadows. Monsignor Joseph
Pohle, after alluding to the advantages that must be con­
ceded to the medieval religious State, warns that these
great advantages must not cause us to overlook the numer­
ous drawbacks which this mystical marriage of Church and
State involved. First of all, he reminds us, “The Catholic
religious State was compelled to adopt an attitude of funda­
mental intolerance towards all errors of faith, which be­
came so many crimes against the State. ... It is certain
that the odium for all these severities and cruelties had to
be borne, not by the State which inflicted them, but by the
Church, which seemed to stand behind these measures as
the secret motive force, even though she did not know of,
much less justify, many of them.” Secondly, “The ecclesi­
astical right to mediate directly in purely secular affairs
might easily become a dangerous prerogative, in as much
as the infliction of excommunication for purely political
offenses must necessarily have brought ecclesiastical pen­
alties—especially when unjustly inflicted—into great dis­
credit among princes and people. On the other hand, the
right of protection exercised by the sovereign in ecclesiasti­
cal matters, often without or even against the wish of the
pope, had for its unavoidable consequence the loss of re­
spect for both authorities. The proverbial contest between
imperium and sacerdotium, which practically runs through
■J. B. Sîgmüller, “Ecclesiastical Jurisdiction,” Catholic Encyclopedia, VIII, 568f.

M aa

6

THE CATHOLIC CHURCH AND THE MODERN STATE

the whole history of the Middle Ages, redounded in fact
to the advantage of neither.” Thirdly, in such a system
there was and always is the danger “that the clergy,
trusting blindly to the interference of the secular arm in
their behalf, may easily sink into dull resignation and spiritual torpor, while the laity, owing to the religious sur­
veillance of the State, may develop into a race of hypocrites and pietists than inwardly convinced Christians.”
Finally, in this system there is “the imminent danger that
the claim of the Church to supremacy over the State must
almost necessarily call forth the opposite extreme of Caesaropapism.”4
Despite this frank acknowledgement—which expresses
the conviction of Catholics generally—we are often reproached for looking back regretfully at the departed
glories of that period, as another writer reminds us; and
“we are told that as Catholics we could not do otherwise
than to strive to restore, as far as possible, the medieval
power of the papacy.”6 It is true that we cannot help ad­
miring the position of the Church in the Middle Ages, but
at the same time we do not hesitate to admit, in the words
of Pius X, that “the Church, throughout her long history,
has always and on every occasion luminously shown that
she possesses a wonderful power of adaptation to the vary­
ing conditions of civil society; without injury to the integ­
rity or immutability of faith or morals, and always safe­
guarding her sacred rights, she easily bends and adapts
herself in all that is contingent and accidental, to the
vicissitudes of time, and the fresh needs of society.”® Fur­
ther, Monsignor Joseph Mausbach states, “The medieval
supremacy of the Church over all departments of social
life was not the result of any love of power on the part of
the popes—only fanatics nowadays maintain this to have
been the case—and neither was it, as a whole, the outcome
of a dogmatic principle of the ‘Catholic system,’ as many
believe. In more than one respect this supremacy was the
natural result of the historical development of national
life and of spiritual nations.”* And it is not the intention
♦•Religious Toleration,” Catholic Encyclopedia, XIV, 771f.
•Monsignor Joseph Mausbach, Catholic Moral Teaching and Its Antagonists. Translated
from the sixth revised and augmented German edition, by A. M. Buchanan (London and
New York: Joseph Wagner, 1914), 342.
•Encyclical Letter, Il ferma proposito, June 11, 1905, to the Bishops of Italy on Christian
Social Action, in Acta Sanctae Sedis (hereinafter referred to as ASS), XXXVII, 749f.
English translation in The Pope and the People (London: Catholic Truth Society, 1937),
192.
•Mausbach, op. tit., p. 342f.

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INTRODUCTION

7

of Catholics today to restore, as far as possible, the me­
dieval power of the papacy.
THE CHURCH AND THE MODERN STATE

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The attitude of the modern State in respect to the
Catholic Church differs radically from that just described.
To revert to the metaphor mentioned above, the modern
State considers the Catholic Church as enclosed within its
own mighty structure. As Polycrates from the turreted
roof of his garrison gazed upon conquered Samos, so too
the modern State looks out upon the cupolas and turrets
that rise within its domain. Everything, communities large
and small, the Catholic Church among others, is subordi­
nate within its borders. In marked contrast to the medieval
State, the modern State grants legal (public and political)
tolerance to all religious denominations within its bounda­
ries and permits its subjects, no matter what their reli­
gious faith, to practice their religion freely. This tolerance
may under certain circumstances amount to equality of
rights or parity, and even to the full enjoyment of all civil
rights, regardless of one’s religious faith; or it may be
restricted to some religions only—as, for example, to
Christian bodies, or already established religious bodies.
“It may permit religions to make converts,” says the theo­
logian Father A. Vermeersch, S.J., “or it may simply au­
thorize their existence. It may grant religions public and
social life, either in their temples or outside, with liberty
to form a hierarchical organization or to possess property;
or it may put certain limitations on that public life by
decrees on the subject of associations, processions, and the
public exhibition of religious symbols; or it may even
recognize only the individual liberty of conscience of their
members. With reference to citizens, tolerance may leave
them free choice to continue in their own religion, or to
pass from one religion to another, or to no religion at all.
It may place all citizens on a footing of equality, or content
itself with punishing no one for his religion, while making
certain civil rights depend on the profession of faith.”8 In
its exercise, legal tolerance may be combined with the
recognition of a State religion, with favors reserved to that
religion, or to religion in general ; or it may observe strict
neutrality, giving preference to no one religion over an­
other. It may manifest a sympathetic and a trusting or a
1 Tolerance, translated by W. Humphrey Page (London: Washbourne, 1913), 104.

8

THE CATHOLIC CHURCH AND THE MODERN STATE

contemptuous and suspicious neutrality.9 In any event,
freedom of religion and conscience is indispensable for the
modern constitutional State. The communist State pro­
claims freedom of religion and conscience in theory, but in
practice it ruthlessly strives to destroy Christian civiliza­
tion and the Christian religion.
In the modern State, civil and ecclesiastical jurisdiction
are sharply separated by the arbitrary action of the State,
often in opposition to the demands of the Church, which
regards as her own internal affairs what the State calls
mixed and secular matters subject to its legislation and
competence. In consequence the Church is not only excluded
from the sphere in which she co-operated with the medieval
State, but she is restricted and impeded in her own peculiar
sphere. One has only to think of matrimonial legislation
which, apart from the property rights attached to mar­
riage, the Church claims as her exclusive domain because
of the sacramental character of Christian marriage. In
opposition to ecclesiastical legislation, the State has es­
tablished an essentially different legislation and permits no
civil effects to the exercise of spiritual competence by the
Church in matters of marriage and betrothal. After long
struggle the Church has lost her jurisdiction in res spirit­
ualibus annexae, and also the privilege of the clergy. She
also eventually lost by far the greater part of her criminal
jurisdiction and most of her contentious jurisdiction.10
These and other tremendous changes in the relation of
the modern State to the Church are the fruit of a slow
growth.11 Its period of preparation is the late Middle Ages,
from which the Modern Age emerges, and its completion
coincides with the disruptive tendencies of the same Middle
Ages upon reaching maturity. Their ultimate effect was the
destruction of that unity which previously had formed the
foundation of life. As soon as the Catholic faith ceased to
be the only prevailing faith, dependence of the State on
the Church had to end. The so-called Reformation of the
sixteenth century destroyed that unity.
THE PROTESTANT REFORMATION

Luther’s first reformatory attempts were radically dem­
ocratic. He sought to benefit the people at large by cur• IHJ., p. 105.
e Sigmuller, op. tit., p. 568f,
u See Heinrich Rommen, The State in Catholic Thought (St. Louis. Missouri
*
I945),514‘567.

Herder
*

INTRODUCTION

9

tailing the powers of both Church and State. The Peasants’
War was partly the outcome of the influence of Luther;
but the struggle proved fatal for him. Ultimately he took
the side of the princes and thereby sealed the fate of the
free movement which he had inaugurated and postponed
indefinitely the advent of democracy in Germany.12 After
the failure of the revolution, Luther and Melanchthon began
to proclaim the doctrine of the rulers’ unlimited power over
their subjects. The result was a new form of social and>
religious order, the territorial or State religion—an order
based on the religious supremacy of the temporal power.
The Church was placed at the service of the State. The one
discarded Pope of Rome was replaced by a score of popes
at home; the temporal rulers became supreme bishops;
symbols of faith were imposed by an outside authority and
enforced by the secular arm. Church property was confis­
cated, or transferred to the new religious organizations.
Ecclesiastical jurisdiction was secularized and taken over
by the kings and secular courts, or at most left in small
measure to the clergy, who were entirely dependent on the
civil power. No bond of unity existed between the national
churchs, except their common hatred of “Rome.” A little
more, and the two would have blended into one.13 Soon
however, though not from religious motives, the states
granted tolerance to the dissident confessions within their
borders. Gradually, since the peace of Westphalia (1648),
the juridical co-existence of various confessions won recog­
nition more and more in State polity.
The attitude of the modern State regarding dissenting
religions assumes various forms. The territorial or State­
religion form recognizes some among the various religions
as “churches.” These corporations, e. g., the Catholic or
Protestant, receive special consideration for their vital
significance both to society and the aims of the State itself.
This system of State polity assumes that the majority of
its citizens still hold in common the basic Christian truths,
and thus furnish a basis for a favorable State policy. “The
State-Church plan,” says a recent writer on Church and
State relations, “gives an official Church a large measure
of self-government, and—at least theoretically—has the
most complete toleration for all other law-abiding religious
13 George Cross, “The Protestant Reformation/* in A Guide to the Study of the Christian
Religion, edited by Gerald Birney Smith (Chicago: The University of Chicago Press, 1917),
387*. ,
u T. Wilhelm, ’’Protestantism/* Catholic Encyclopedia, ΧΠ, 498f.

10

THE CATHOLIC CHURCH AND THE MODERN STATE

bodies. ... It has existed in England (Anglican) since the
Act of Toleration of 1689, and has to a large extent been
prevalent in many other countries ; such as Scotland (Pres­
byterian), Sweden (Lutheran), and some of the Balkan
States (Eastern Orthodox) between World Wars I and
II.”14 A different type of State polity is offered by Eire’s
Constitution of 1937. It “recognizes the special position
of the Holy Catholic Apostolic and Roman Church as the
guardian of the Faith professed by the great majority of
the citizens.” But its religious clauses do not make Eire an
exclusively Catholic State; all non-Catholic denominations
in existence at the time the Constitution was promulgated
are recognized by name, and religious freedom is guar­
anteed.15 The Separation plan, as under our Constitution,
involves the severing of all legal ties between Church and
State; an entire freedom of all religious bodies. It means
that the churches are equal in the sight of the State, and
that no church has the advantage or disadvantage of es­
tablishment.16 There is a final type which secularist prop­
aganda strongly urges the modern State to adopt. Where
confessions or religions have multiplied, where there is a
rather general defection from Christian practice by the
citizens, the State withdraws from supernatural revealed
religion and turns to truths and values knowable by natural
reason alone. It dissociates itself entirely from every reli­
gious society, dealing with each individually or separately
as a local private association, or as a foreign society to be
regarded accordingly. Thus the way is prepared for com­
plete secularization, the extreme form of separation of
Church and State.
NATIONALISM

Another factor accelerating the evolution of complete
State sovereignty, was the emergence of nationalism. Its
beginnings antedate the Reformation, but its disruptive
tendency appeared in bold relief for the first time in the
conflict between Philip the Fair, King of France, and Pope
Boniface VIII toward the end of the thirteenth and the
beginning of the fourteenth century. It centered on the
temporal goods of the Church. Taxes were imposed on
church property. The Church’s jurisdiction yielded little by
u Anson Phelps Stokes, Charcb and State in the United States. 3 vols. (New York:
Harper and Brothers. 1950), I. 43.
....
a Constitution of Ireland (Dublin: Government Publications Sale Office, ipji), Religion,
article 44, 144.
>· Stokes, op. cit., p. 47.

INTRODUCTION

11

little to that of the royal courts : these adjudicated not only
questions arising out of marriage—inheritance, legitimacy
of children, adultery—but also in most cases relating im­
mediately to matrimony or benefices. The system also per­
mitted almost all ecclesiastical acts to be brought, if the
State so chose, under cognizance of the royal judge. Papal
Bulls and decrees of Councils were recognized only after
examination and in virtue of royal authorization; they had
to be ratified to obtain the force of laws. The royal pre­
rogative of nomination to vacant benefices was exercised.
The papal right of reservation was questioned and direct,
appeals to Rome were forbidden. Moreover, King Philip
had at his command many learned politicians or lawyers
who supported him. These servants of the State, enthusias­
tic for the Caesaro-papist ideal of Justinian, considered the
authority of the State supreme. Here we see the beginning
of laicization, carried on, not by expedient or by violence,
but on principle ; it was a battle in which the secular power,
becoming more and more centralized and conscious of its
strength, was destined always to prevail. Louis XIV put
into practice the more advanced principles of Gallicanism,
and regulated the affairs of the Church as if he were a Jus­
tinian. Other countries followed the same path. The ex­
treme limits of this encroachment of secular power was
reached by the minute ecclesiastical regulations of Joseph
II of Austria. The most complete secularization was that
effected by the French Revolution.17 Almost everywhere,
the ecclesiastical immunities disappeared, legislation be­
came purely secular, civil marriage was established, and
the Church, except in the case of divine worship, was ex­
cluded from public service, or participated in only by favor
of the sovereign State. In countries where atheistic com­
munism prevails, the very existence of religion is threat­
ened. If we except our own country, where, by happy in­
consistency, the excesses of absolute separation were
avoided,18 in no country where separation of Church and
State is an accomplished fact do we discern in constitu­
tional law even a faint trace of the powerful position the
Church once held in the life of nations. In her public activ­
ity, the Church is referred to the civil law that regulates
private corporations.
n Boudtnhon, oô. cit., p. 746.
u See Encyclical Letter of Leo ΧΙΠ, Loneinaua Octant, to the archbishops and bishops
of the U. S. A., January 6, 1895, in ASS, XXVII, 390. English translation, T6e Great
Encyclical Letters of Pope Leo XIII (New York: Benziger, 1903), 323.

12

THE CATHOLIC CHURCH AND THE MODERN STATE

The literature on the relations of Church and State
has grown enormously in recent years.19 Many writers un­
equivocally favor complete separation of these two powers;
others urgently warn against the policy of allowing matters
to come to such a state that separation becomes inevitable.
Oddly enough, both groups seek to justify their respective
attitudes largely in the same way : by appealing to the op­
position of the Catholic Church to the State, and to the
dangers that threaten the State by reason of that oppo­
sition. The former class of writers hails separation as the
Deliah that is to deprive the Church of her Samsonian
strength; the other group fears that the Church’s power
will grow beyond bounds once she is freed from the iron
bonds of the State’s tutelage and able with her sturdy arms
to shake the pillars whereupon the modern State rests. And
so in either case the Church is made to appear as an enemy
and a threat. Even though the Church were able to reor­
ganize itself as a religious society, the modern State could
never tolerate a power which, as it suggests, is essentially
ever ready to thwart the State, and is capable of concluding
no genuine peace, but at best a truce when it is to her ad­
vantage.20 Such opinions are not at all uncommon among
writers on this question. Since, however, the Church ac­
tually exists and cannot be removed from the affairs of
men, the State must ever be on guard against her. If the
modern State were to allow the Church to go her way, she
would become, according to this view, “a dangerous para­
site” that would prove fatal to the organism of the State.21
Catholics maintain that there is no irreconcilable op­
position between the Catholic Church and the modern State,
as an impartial study of the authentic sources of the
Church’s teaching clearly demonstrates.
•See Luigi Sturao, Church and State (New York: Longmanns, Green & Co., 1939),
5455-569. See also, Stokes, op. c'rt., Ill, pp. 711-836.
• P. Hinschius, "Staat und Kirche,” in H. Marquardsen, Handbuck des ôffentlicben Recbts
der Ge ten wart (1883) » 265.
.
• W. Kohler, Kaihoihismus und mo demer Staat (Tubingen, 1908), 34.

Z ôw/ices fiï ^etwmininq t/e
C/ufic/i's (rfttituJe fyqafiJinq
fl/w jtioJefm ÔM
A. USELESS SOURCES
If we wish to know with certainty to what extent the
Catholic Church approves of—or at least accepts as a po­
litical necessity or positively rejects—the position that has
been assigned to her in the modern secular or religiously
neutral State, we must first search for the sources that en­
able us to determine authoritatively the Church’s attitude
in this matter. Our task would be considerably lightened
had the Church ever directly and explicitly stated dogmati­
cally her teaching on the relation of Church and State, that
is, to what extent she claims to be superior to the State;
whether she is satisfied with a position of equality; and
finally, what she thinks of the modern system of a statecontrolled Church. But actually there is no definitive and
binding declaration in this matter. The dogmatic Consti­
tution, Pastor aeternus, issued by the Vatican Council, al­
though defining papal infallibility, restricts itself to the
decisions which the pope makes, as pastor and teacher of
the faithful, in matters of faith or morals to be held by the
universal Church; the Council did not undertake to define
the relations of Church and State, at least, not directly, as
even many Protestant scholars admit. G. Krüger, for
example, writes that not a single proposition of the Vatican
decree oversteps the domain of the purely spiritual, and
that inferences in terms of the medieval theocracy can at
best be drawn therefrom in a roundabout way, namely,
by means of Bellarmine’s theory of the indirect power of
the pope in temporal matters. But indirect inferences are
ill-adapted to dogmatizing. As a matter of fact, it is not
too much to say that the Vatican decrees indicate that a
most efficacious barrier has been set up against the en-

14

THE CATHOLIC CHURCH AND THE MODERN STATE

croachments of the papacy in secular affairs.1 Kr tiger
shows a much better understanding of the matter at issue
than the former Catholic theologian, Paul von Hoensbroech,2 who, after his defection from the Catholic Church,
asserted that the Vatican Council made amends for the
lack of an infallible definition on the political power of the
papacy by inserting the canon: “If any shall say that the
Roman Pontiff has the office merely of inspection or direc­
tion, and not full and supreme power of jurisdiction over
the universal Church, not only in things which belong to
faith or morals, but also in those things which relate to
the discipline and government of the Church spread
throughout the world ... let him be anathema.” No theo­
logical training is required to perceive that the canon is
concerned exclusively with the pope’s supreme spiritual
power.
Not even indirectly has the Vatican Council issued
doctrinal definitions on the relations of Church and State.
Some non-Catholics argue that by the Vatican definition of
infallibility all claims of papal supremacy made in the
Middle Ages have been permanently incorporated in the
authentic sources of ecclesiastical belief and law; and as
proof they submit that the definition of infallibility has
made all previous claims made ex cathedra, irrevocable.
But we deny that there was an ex cathedra definition on the
claims of the Church in the political realm before the decree
of the Vatican Council (1870).
In rebuttal, non-Catholics contend that five and a half
centuries before this decree, Boniface VIII promulgated
a definitive doctrinal decision on the Pope’s political power
in the famous Bull Unam Sanctam. Therein, in reference
to the conflict with Philip the Fair, King of France, he
distinctly affirmed that secular princes are subordinate
to the pope even in temporal matters. The original of the
Bull is no longer in existence, but its contents are ab­
solutely established by their incorporation into the official
registers of papal Bulls, and into canon law.3
The Bull does indeed contain a doctrinal definition:
“Now, therefore, we declare, say, determine and pronounce
that in order to attain salvation it is necessary for every
1 Das Papsttam (Tubingen, 1907), 148f.
1 Moderner Stoat and katbolische Kirche (Berlin, 1906) ,37f.
. , .
•Vatican Archives, Registra Rom. Pontif., no. 50 (an. VII-IX), fol. 387, cited by J. B.
Lo Grasso, S.Î., in Ecclesia et Statas—De Matais Officiis e/ Jaribas Fontes Selects (Rome:
Gregorian University, 1939). nos. 431-338.

USELESS SOURCES

15

human creature to be subject to the authority of the Roman
Pontiff.” On the margin of the text containing the record,
this sentence is noted as the real definition of the Bull. As
in the case of all Bulls expressing dogmatic definitions, it
is necessary to keep separate the definition itself and the
statements added to it to justify and explain. These latter
statements are not covered by the guarantee of infallibility
which attaches to the strictly definitive sentences—unless,
indeed, their infallibility has been previously or subse­
quently established by an independent decision. Thus, the
definition in the Bull Unam Sanctam merely expresses the
necessity for every one who wishes to attain salvation to
belong to the Church, and therefore to be subject to the
authority of the pope in all religious matters. This is
nothing new; it has been the constant teaching of the
Church from the beginning. Even non-Catholics acknowl­
edge that this definition has to do with faith, and that its
purport is religious and not political.4
The Bull also proclaims the subjection of the secular
power to the spiritual as the one higher in rank, and draws
from this conclusion that the representatives of spiritual
power can install the holders of secular power and exercise
judgment over their administration should it be contrary
to Christian law. “This is a fundamental principle which
had grown out of the entire development, in the early
Middle Ages, of the central position of the papacy in the
Christian national family of Western Europe,” says the
distinguished historian J. B. Kirsch. “It has been expressed
from the eleventh century by theologians like Bernard of
Clairvaux and John of Salisbury, and the popes like Nicho­
las II and Leo IX. Boniface VIII gave it precise expression
in opposing the procedure of the French king. The main
propositions are drawn from the writings of St. Bernard,
Hugh of St. Victor, St. Thomas Aquinas, and letters of
Innocent III. Both from these authorities and from decla­
rations made by Boniface VIII himself, it is also evident
that the jurisdiction of the spiritual power over the secular
has for its basis the concept of the Church as guardian of
the Christian law of morals, hence her jurisdiction extends
as far as this law is concerned. Consequently, when King
Philip protested, Clement V was able, in his Brief Meruit,
of February 1, 1306, to declare that the French king and
• See Kruger, op. cit., p. 73 ; see also, Paul Hinschius, Kirchenrecbt der Katboliken und
Protestanten in Deutschland, 5 vols, and one part of vol. VI (Berlin, 1869-1897), III, 767.

16

THE CATHOLIC CHURCH AND THE MODERN STATE

France were to suffer no disadvantage on account of the
Bull Unam Sanctam, and the issuing of the Bull had not
made them subject to the authority of the Roman Church in
any other manner than before. In this way Clement V was
able to give France and its ruler a guarantee of security
from the ecclesiastico-political results of the opinions elabo­
rated in the Bull, while its dogmatic decision suffered no
detriment of any kind. . . . The statements concerning the
relations between the spiritual and the secular power are
of a purely historical character, in so far as they do not
refer to the nature of the spiritual power, and are based
on the actual conditions of medieval Western Europe.”5
Consequently, since there is no definitive decision on the
relations of Church and State at our disposal, we must
look for other less authoritative sources, especially for such
statements and actions on the part of the supreme govern­
ing power of the Church, namely, the papacy, as will enable
us to draw conclusions concerning the problem under dis­
cussion. The Middle Ages offer the most copious material
in this respect for the reason that in those days the Church
had more occasion than at any other time to function in
the secular sphere and to match her power with that of the
State. And so it is not surprising that those who wish to
prove that the Catholic Church is a real threat to the State
take special delight in utilizing this source to the fullest
extent. The sentence of deposition pronounced by Gregory
VII against King Henry IV, the excommunication imposed
on him and his followers, the freeing of his subjects from
their oath of allegiance—these and a wealth of similar
papal acts are made into a gaudy mosaic of encroach­
ments on the rights of the State, which at first glance all
but bring conviction to the unprejudiced that the Catholic
Church is a constant threat to the State.
The argument used to prove these claims may be stated
in these terms: in earlier ages the popes claimed this or
that right with respect to the State ; what they once claimed
they continue to claim in principle, even though circum­
stances might for the time being prevent the realization
of their claims ; therefore, in our time, too, the popes though
perhaps not publicly and explicitly, lay claim to all those
rights. The conclusion of this syllogism is false because
the minor premise is erroneous, namely, that the popes at
least in principle never relinquish a right once they have
* ’’Unam Sanctam,” Catholic Encyclopedia, XV, 126f.

USELESS SOURCES

17

exercised it. It is indeed characteristic of the papacy to be
firm and unyielding, but only when there is question of
necessary rights that flow from the essence of the primacy,
rights, that is, which in the nature of things and in the
infallible judgment of the papacy itself, are contained in
the supreme episcopal jurisdiction over the whole Church
which the Divine Founder of the Catholic Church be­
stowed upon St. Peter and his successors: “Feed my lambs
. . . feed my sheep .... Whatever thou shalt bind on earth
shall be bound in heaven, and whatever thou shalt loose on
earth shall be loosed in heaven.”® Such rights the popes can
never relinquish, even though they may not exercise them
at all times. Thus, in the early centuries the popes did not
act immediately when there was question of confirming
episcopal elections, of arranging for the consecration of
bishops, of requiring an oath of obedience from them, of
transferring or removing them, of establishing dioceses,
of granting exemption from episcopal jurisdiction, etc.
Nevertheless, Febronius7 was wrong when he qualified
these rights as accidental and derived them from historical
factors, which could be taken away from the popes and
called into question. All these and many others are essential
rights stemming from the nature of the primacy. But this
is not to say that in the non-religious sphere there could
not be accidental rights deriving from and depending upon
historical factors, which the popes at times claimed and
which with an alteration of circumstances were taken again
from them. There were in fact such rights during the Mid­
dle Ages. They rested on the public law of the nations which
were united by a common faith and which formed a sort of
national family under the head of Christendom, the papacy.
The medieval philosophy of life was based on the idea of
the solidarity of the human race as established and directed
by Christ ; and such a conception required a unified external
juridical order and government to attain its objective,
union in and with God. But with the disappearance of the
necessary condition for this relationship between the
Christian State and the Church, namely, oneness of a phi­
losophy of life, the prerogatives that accrued therefrom to
the papacy can no longer be claimed as rights. Therefore,
•John 21:15-18; Matt. 16:19·.
T Pseudonym of J. N. Hontheim, Auxiliary Bishop of Trier, who in his book De Statu
Ecclesiae et Legitima Potestate Romani Pontificis Liber Singularis (1763), became the
author of the politico-ecclesiastical system founded on a denial of the monarchial con­
stitution of the Church.

18

THE CATHOLIC CHURCH AND THE MODERN STATE

nothing can be demonstrated regarding the Church’s at­
titude to the modern State by arguing from her attitude to
the medieval State.
A concrete example will help to clarify what has been
said. The power to depose princes and to free their subjects
from the oath of allegiance which was ascribed to the popes
marks the zenith of the politico-ecclesiastical power of the
papacy in the Middle Ages. And this was actually claimed
by the popes. In the code of the Church’s laws we find a
papal law with the caption: “The pope can for just reasons
depose the emperor.”8 The law repeats the text of the Bull
in which Innocent IV at the first council of Lyons an­
nounced the deposition of Frederick II. History records
that from the time of Gregory VII the popes on several
occasions made use of this prerogative; but it was by no
means the principal or favorite sport of the popes to check­
mate a king now here, now there, on the great chessboard
of European politics, as would appear from the way some
of the opponents of the papacy have exploited this subject
in their writings.
One must try to understand the actions taken by the
popes against the secular princes in the light of the public
juridical conceptions that obtained in the Middle Ages. It
was commonly admitted, indeed actually a statute of im­
perial law,® that in the great theocracy of Christendom the
supreme secular power could not be entrusted to one who
had been excommunicated from the Church. While the
public law did not actually draw the further inference that
whatever ruling prince incurred the penalty of excommuni­
cation thereby ipso facto forfeited crown and kingdom;
nevertheless it was universally admitted that the head of
Christendom enjoyed the right to confirm, by a sentence
of deposition, the fact that the excommunicated ruler’s
defiance of the Divine and ecclesiastical order was of such
a nature that his subjects could no longer obey him without
endangering their eternal welfare, and consequently were
free from their oath of allegiance to him.
The papal right to depose a guilty ruler was a pro­
tection of the civil rights of his subjects in the Christian
states of the Middle Ages, a guarantee that the interests of
his subjects, especially of their higher spiritual welfare,
• Sexti Decret., lib. II, tit. xiv, cap. ii, in Corpus Juris Canonici, edited by E. A.
Friedberg. 2 vols. (Leipzig, 1879-1881), II, 1008.
•See E. Eichmann, Acht und Bann in Reicbsrecbt des Mittelalters (Paderborn, 1909), 101.

USELESS SOURCES

19

would not be jeopardized by the ruler’s despotism, immo­
rality, and irréligion. In our modern states certain juridical
enactments, which we term the Constitution, provide
against misuse of authority by rulers. There were no such
guarantees in the Middle Ages. At that time religion not
only permeated all of man’s private and public life, but
Christianity, which finds its concrete realization in the
Catholic Church, was the very foundation and shield of
liberty. If the secular prince ceased to promote and defend
this religion, if he abused his authority to the detriment of
the Catholic Church, he violated his pledge of loyalty to his
subjects, which had received the solemn blessing of the
Church at his coronation; and he forfeited the right of
allegiance. Consequently, the pope’s announcement that
the ruler had forfeited the right to rule and that his sub­
jects were freed from the oath of allegiance was not so
much a deposition as it was a statement of fact, a declara­
tion made by the authority that once had blessed the union
between prince and people in the coronation ceremony. This
declaration was necessary to ensure the security of the
law. We have an analogous case in the marriage laws of
the Catholic Church. If a husband or wife has violated his
or her pledge by adultery, the innocent party has ipso facto
the right to separate from the guilty spouse and perma­
nently to break off all matrimonial relations with him or
her.10 No ecclesiastical permission is required thereto.
Nevertheless, ordinarily, the Church desires that, before
a permanent separation occurs, the authority of the eccle­
siastical judge should be invoked, not indeed to bring about
the separation but to verify the conditions jutifying a
permanent separation. So likewise the papal sentence of
deposition did not in itself effect the dethronement of the
secular prince ; it merely confirmed the fact that the pledge
of loyalty between prince and people no longer bound the
conscience of his subjects. The efficacy of that judgment
was recognized by all Christian nations.
Our contention that the papal right to depose secular
princes owes its existence and justification to merely acci­
dental factors of history, is not contradicted by the fact
that in the exercise of that right the popes appealed to
their apostolic authority and duty. The pope could indeed
point to the office by which Christ had made him the su10 According to Matt. 19:9-

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. hich
Plimi^i'^^IHrerog an vôs
MMiliihl \ '.. Ί . i r
c t ■ loiioti
.o1hïnt. '
nistory
t! ■ li.·
c> . n 11. 11 U11«
intelligib; and i
■..cabk p.01 H. 'Th C ti C. ' a y,
it is ne<" sary to •œep in n imi t lat the .jof. s. .en lu- ■ ?
the.v
’nselves ths inosi fai-rea‘hi. g a. 1 o iat;
tory τι ri h ave giv ·η -xjiressioa
a
'a ii ul ’ o th :r ontt iipc-

î
? o. r ·. -a ' k
those of the
.or .
; ■ ;he relations of Chiu.
ent
pul .
ci . c> ■ .i f i
a
idt Ag.
had . c yet
rin di- a 1 -h
«,
Jim oiled
stab or other -ought .n ques-. i th< e ï gi .s th. op .
dor . 'd a4
•iqubhing for 'ittle >r iiotnii g ti ·. oi
i so, nei hans the nones
pglHitiiii
R< iar
d|MM··
eii: <. hi ' ar an
"u
■ .- nt'i ns.
ΒΒΒΒΙΒϊ jjiiHiiii

iijjiijljajijf lOiiiiilM

JlhBlJip
8®ΙίΙβΐ®Ι^·ϊ·ί^βΐβ

to
.uch
tn. Bent at.
ide ti ·'
il.
in 4 he midst η the turn·nil o th.
nsi. >r. p -t :>d
1 r.
a.-· e, histtr
’tv removed from i. and Is ii d‘fini cnd’'
they 1
■>n· e fi on on him,, for
ch r nn. ’ .>
anti
at ο < 1 ifaiii: iiity
<i '.· .-en i
:tee
i <1
-i ■· f 'ait 'nd
f *h.
. r J
v.,
Μ^^^^Βί'ΒΒβΒβ
. aranj- -, ν;»ι·.Ί lie tl.H-.nfi.nn!
■· of b>
on such iiiii.fiβιιιΐΒβιιΐί
The pro . nun e 1
P ·] ·
P- ace nf We «tphalia tu. . n ni rll<
1 t Γ 1 1
'ΐ·ί.
r, conti π ■s to lie cfTe-isivc U- ni. ly t ·> i 'a. ’ies..·5
Hist be t ‘ mbp - I. ho- \ v ’r that tin’s pr« t.ist v s not
et
g
je ; ; e ■ < .■ f but ag: hi't th>w· articles

2-2

THE CATHOLIC CHURCH AND THE MODERN’ STATE

*u it .àikù *
ere uelruneutai w me vat none religion. the
j.upe ueciareu tnese null and void. Karl Adolf .Menzel, a
nun-vathoiie.. gives an ant annraisal of the menninv and
purpose of this solemn condemnation : “The pope himself
could not possibly believe seriously that his protestation
would cancel the peace: he only unshed tn rtn instiee to his
stand in the matter and to do as head of the Church what
no director of another church could omit without exposing
uie worms destiny cannot, of course, be thwarted bv pro­
tests of this kind."1*
No pope has pronounced a sentence of deposition on a
secular prince since the sixteenth century. Indeed when the
popes exercised that power for the last time (Paul HI
against Henry VIII in 1535. and Pius V against Elizabeth
of England in 1570), it was altogether ineffective and was
important only as a protest. Nevertheless, even at the be­
ginning of the eighteenth century the politico-ecclesiastical
concept of the Middle Ages that only a Catholic was per­
mitted to be invested with the royal dignity was firmly and
officially defended. When the Elector Frederick HI- of Bran­
denburg coveted the title of king and it was suggested that
he should have recourse to the pope to obtain it, he seems
to have been under the impression that such action would
be feasible only if he first became a Catholic. He therefore
turned to tne emperor and settled the matter with him?”
Tnereupou Pope Clement XI protested in words which,
tar.en at tneir face value do indeed seem harsh, but not if
interpreted jn terms of the concept of Church-State relatioiiaSips of the Midale Ages. The pope declared that the
step taxen by the Elector, namely, that of assuming the
tine of King of Prussia, in 1701, was an offense against the
^pos-cue fcêe and contrary to the sacred canons which
a neretical prince of his honors rather than adorn
nim w..tn new Honors.'» "The pope’s action,” savs Mon­
signor .James F. Loughlin, “though often derided and mis­
interpreted. was natural enough, not only because the bes’GA.i)t 01 ,rof&i, tlUer r»ad always been regarded as the
pnvm-jm oi trm tlTy see, but also because Prussia belonged
oy amoent ngr.t '■? the ecclesiasvlvo-military institute
«L, BrrÇir..

is", s,

IV.

USELESS SOURCES
23
known as the Teutonic Order,”10 The right of deposing
princes was once more authoratively asserted, namely, at
the beginning of the modem age, in the much maligned
Bull of Paul IV, Cum ex apostokdus officio, of February
15, 1559. In the judgment of Hergenrother, there are rea­
sons for asserting that the Bull is much to severe in tone,
that it was inexpedient—indeed exorbitant—in its punishments.20
The popes of the nineteenth century, while in duty
bouml to impose1 the eensure . -f ,γ<?··ιΤ:Ί7νΐ’11·'ι·(''·'ί ·η»1 *‘ï·
< rit--o vu. η ι.
<■ . > 1 ■ ;.i-r
tr j*
.
+j_, ,v,-.J.,
!l; t.q ·., v r;e,i Alu.;· mu I. j. i.tic.i.i
'"1 ’■ i”.'.
'ri
t? "!t
ti, ho t xpi.ciL.j
al i .d..

·,’λιλ ; .. i j .

a..

I

T-

1

·>.Λ i;

< u

..

.i C . 1 .;■■

W' η;ι Ί: lb w ·» »]· 1·> ·1>·1·(ί Luk· .û-l ii.i.i'

th > · h-ir-ii jfi<» .h? n;ih.u·,. i. ι.ι.ι

'■

;

i..;'

.

■·.'·’

;;

- ate-.K'xts ο i. i('.,l.,gia.i. ; η i
.< i i 1, ί ■
ri. t f
..e , .a. .k g. ■ . p ί · ι
; i :■ ■ ■ .- · ■ J * > 11 ' r.rti r«
·.!
'
t. 7 ■ ’ r >-r·.- ri ·.’ r-r ''c?lo;uesti< t.l
<■· ’■ » i ? ί·1 UI b.<’ r cotttù«u>i·
Caij.iâ.U iii
nrc-'- t.·· < r; w ·ιρ .n i.i.J, >
. i
i
>’ ■■'ί rii· r^piu
·ιιιτ> ->r ‘y b” »· -c-'i>i>:4<‘V··· ·■£.!.on..ί.. c il ri .;
ίi
1 'f i‘i vit ? dispi·- sur ο-' l'en>- ic--s Lu’ also ..a i ■ jl-i..
. .
’ ■ ;
« f >■ ι··>” ch’e'ly to n.i.tt?.f>
ci. cm .'.i .g 1 ii a i i i r . < ■ .
''' !■i d
ir ’ 'f sa1' ■ -will also l.e <.ύ.Ι >,ί 1 ;. . . t
•

p P< il

ί

ΐιι'< ·:>·. e i

i

■

II.

■

' ’ T t < 11 pnatcd
1 ’

;

!ii’’Clement Xï.1' Catholic En:ya ·>« i»
s.
>
Mirbt. of. at.t 199ff. See aho, 1. tk
H C t » . /
( «>n$t.tutina -^uum mefnoranc’si -Ih
i ï b, v y t ·» ·

786f.

L. ·
Γ / , ::αγ. î.*t<

~ L. Pistor. Tie Hiiterj of the ϊ î
others i2nd ed., London: Kegan ï-aui

ί

&

1
t

*

cillere. Iheie is i <s.< < i

i

■

: 1 â t. I

J

F'.'

·ΐ]Γιί :·υ· .·’'t' g» tj-e.’· ΊΜΊΑ-Τ lui i.u. Πηλ.!..,; ...

;

|
-

V” Tld

V- ·ι . -iv t-.r u-e us η···ι ■■ όι uiuir.u. ■?'<., F’ ,?"ν ·.· n'ir-i· mi< n it;Lz.-L. i ,v

■ .·. î

I

'be . ; ·· h.’; 'T >'.j ■"''•’•■d

g) “Vi-ts it.ii-n.iia··. ;i.>i.e

I

1
1

!it-

■π··.-·χ· <·■' tu
n.j.iiuki· i. .1
hf 1·. :: : ” ; · : ( c
‘V :f ·.->1r>-(i ”1·1 1 !.. [ l<.y, .'k· · ’ i
r T Y ..· ” T 1: ’■<! 1 h 4 ·)·.·· vç”i;f-canr
: i’vi
-i... .· ...J . : .■
rJ f ?r'7Frv.n! 1 uat
lit. . )/at. <i li

I

i ,j υ ι j t
an< i si n r

»·

i
-J

' ’■■y’

l

· :

î

- t
» , · ·

j

but Zenzelin de Cass
..de spok- * t . “ <· ’ « ·'■
.^enth ce.' ..ry, in
.'■
■·/'..entia' work which
. 'eus ik- ■ ” papa” :
■.miintci :■· . wl .h is ‘-;cn·
pe. ■
■ 'e C
■r’
. .
x ■ ■.·.■ ■»· ■: <■'
erally classitied as a
th- ,1 ? ’. .dit
thi . ■ God in.
■ -·, hi ■ uunly '
.n'- i ’ ·'
his -lanuer of spec.·., even îaour’
«iast« ■ t : .i
ι·
. · “The pop
the ■ .:pre>entative oi the t’Uc- Go.
·. Ji.” Z*· ’ .
e · : sa-, s h··1·'·:· .d to i u’h·)·’!
. ; th
=.■<;< .:i<...
.λ* *■ ’
«>' e- ■ . t c

anum.
him: Why
jority of thi
right errors,
that the pope
dînai Torquet
able fact th
rate and ·.
cert ai

•i I ■ A ■.*■ r
’s 1· is i. i od’
.l'»l . ‘1’
■ .-■’
■e g: o. J j II ■
Dresump. nad f
10 ] )P‘. ’t I >- .utt ■
i
ul-1 de aid - .iy V’ ■ · j.x. iik (', 1- n. ■'■
• ?s h< p' >.t· jt’
.ee r"· '” ίΙΒΟίίίϊ®
d-)in·.· t:és :- i he
.- : g -1
i<t ·η ,’ 1.! /e
.rnnt-ii ! ■ , ·. nivΰ :1s· Ί,ί iiieiiiiii®
$4. rv-y.-V “-■
:r·?··! p vu .
i. ■'■ fl· t i t r .■ said that it is
■>- ■■ ■· S > ( p .
such tont-

■ doctors” Qjoe
.·’ ’ "’.Ili < r . i ■ si.
i flattering Speechss to makt '.e ι< ϊ -*s

' ',! ' 1 !‘hi jiistic . .; is neecssa-·.·· "
=■· ’fsrntial. rachanj. b· ■ j ■
' -h. -'hirch nd -in „·
,

pe.
rig
hist ·.,
factor.
ham 'vi r- < ·
as time <nd conrt’*

,<f

■

25

I

B. AUTHENTIC SOURCES
V mall now give a uositive answer to the :ucst:or. of
he ■ ■ ·;·.? tha·. . tu;. Ih w 11 . rubl. in to form a certam
ad.'.. ■. >n ■.
ti ic. e·' t .·? ’.'i he. ic ( herd·, t owards
ae
·.■- S:·· ■ A Ir-. ί-,.-’ϊ <: - ar n j-nt inpi rt, nee
. - ·■ ■;■?■..
:·· '1' s ■ f
..,· Λ ■ r:_ n' a (1 '<>■■

i
’

AUTHENTIC SOURCES

|
|

!|··||^î llîjgjïiilfiliIt®* liJMIl Ii II ίI It, 1
A-e
.abi;r c. '.p‘ -g a. ·.>.-.i ".. · p. v ·;■ .. -■ ■. ·.
of si
;-of-ht,‘ : p rfi n nc· ο ii
h < . i ’ Aithin ■ .. The wo ■ ■1 syllabis sign.fie.i a col ecioi. or li. . h.
fuH : tie of the ::’oc :.n·· t ■; 1 'tyi th >8 >·(ηιιαΐ»ϊιΐΊ th<
ÎHgÊktKt ■·<
’ 1. ·.■ : »! . ■ .1 · ,'Γ b eev. co»Holy Father Pius IX in Allocutioni
wëWtfte
Cl/Ci
■ind ■ ■ > er .i,. <t ? ·■’ ( ··. . I. ·■ . i ioillpili
Dece— h^r 8. 18. ,-i. Father Aith.-nj Haag. SA. si S. ■'■.■’u·
-(V ·
ίΙ
s· ,*no..g ?athol:’s vas assured
if
rr| ύπΡ Ιλγ
■·. ■
■ 1. ■■..·<· ■’ .. b h- hi . Ί < · t ·?
ih.···
.tr Κβϊβί’^βΙΙΙβΟίίίίίΟί®
.11 !1 ■
were i», sides. prepared fu> its ci. ce; .s . t.
•
er: ■■ c + · ’ ■ pe dur ag lhe nigh"'en years of
·. : .
-,
i
t
'0 ■ T C 't
oTïtiTicatc
-e»· i
■
mao ■ app ill'll cl : !i /· Λ’.-.- s ■ Π
tio’- : .--i pr ’inci . 1 c-'unc;is bv the i.,itseop._te ol th:
MgMISiiiMii •i. ] ■ ;f . .'f ···(. ■' -d h n. a'
<at.
UU
for
■ aw ' . the XyUfhuH < foi mai rejecii-a o* m-do.· i
f . r · . "the ■ ’ ’<; ■ · ®
iiirtii i.
In ;
.taly ■ i. .. c
·. F/ ce, .d ...o ' p. i
to '
Er ' ιηυ ’ i+ pub'icat’ »n • •as forbi-ide.i. LisjjillijOjtiij
.b. ,g o.
ago i ■ st
An· ■ to i. .e p,..-sent .tav, .r i.
Z. _ 1 ?
ΙβΙΒΙβίίί + 1 I|eJM.ggllllt,. |a |ith liait''
.«■ λ. i.-ner<. ; con .nts i li. .ili!.. U'.·. . s., r. i,_ r.
n ■ ar
hs 'der which ‘hr 'igb‘v
ο ’ *b
t;..
. ■ the <OI .ir. .oi._ ■ .
<!.v . ■
i
pllPlphi jgBnd Al •oh ■
T»· '■‘na1’ ”i i’
; .'foii“’-iite
1

iftil

,r? ' ’IS ? ’ -ttr··

(1" 18) ; - ·ν·ϊ;ι!>-m. · --'m· πιηχηι. -m'-

is mad'· to t-Tce b· .cyeli. -ns ..nd

(--■

rus/

£ai&‘.,h'

λο

Aih a-

£,

hnjf. v· tanfiition r- uy i*
<d»

, υυη^ ,
■

ze:

Ka-sr»:».
»’<>»»;,, , , t
*
fourth printing, t94es. 289-?95.

s».

t

I

«

1i

1

ï

I

.1

us. ο. . ic pope
- ■■·
mned), Errors < ..· ri.
’
(
■ .Ü-38) ; Errors ■
'.it· t" ' . ana
v nurch (39-55);Errors Concerning ..·
E 'lies (56-64) ; Errors Concerning
(i >-74) ; Errors on the Civil Power oi
ti. ■ ’5-7 ... .-. ors in Connection wr ■
fi
. jll(< ■ ■.
- iher wi
con··

ΙΗΙ·1Ιί·····ΙΙ
i oittMiiii®
U1 ; Ί ' 1 1
1’hr ;ti n 1 .a r ι.·ί
the So.e.-f-igi loiMo-’era .'Jbera.ism
Er. rc ic d <« uaiitc
1 ' ■ u 1 U η .ct . ?
S c < :r’

■ e
■ nn ■ ..ree
S if ■ ■
<
pla ed
Ca lie ■...et- ...ins. “
.·· ( 1 ·.·
■
says Fi ’.her I; .ag, ‘ .at any of ti··.· · .· jo i >1-■ r:
de.nned if not in th j ;.ÿ!L·.bus, then t ■ iainlyii· o ;1 e. ·Κ ;1
d /jsi ns <‘r oe ir .did le caching autnority of ;.he ’"hi icl,
■ •r est.·. .. in '. e E· c; . lical Qua • Cure '."h“re is m
th .· a ■.} ‘1 tsis
■ » -r· . ar -er, c.
: quest'
'
. e - ? I · is ir.
:.il ■·, r. i i v i?e
Ί

'ac . .g ■Popili
■ aSCl·.
at! Jr:
-isi . .>y
pe oi
anc j by ;nc· Cl reh. G .1 e i quest. .. !
ha· not decidea the questi in, everyct ■
.............
-1
tree
.0
o ni< : he cv oses Εν ;n .should the < onceninatio.i it'mar y
■■ o' di
*
.ot ■
s ί lat unchab nesf j eeuliar to
f
• ■■. ■ helcss ;
:. ξ ο:· e» of the
al' ■·..■
>nn

ersai tea

■ Γ

■ . .tc ■ All
accept tl Sidb iw. Ex:
no» in '■ -iting ipposi· ir»
it it*
,rly.”

σ

b'

ί ■: il ■.· ù'i'. ’

riorlj
.ontenth

· ’ ’ j very

«Ή ' i i .. ■)

eretore, are
y ; ù.jr ,.i ■ '
i’i mus al ο a s·'.·.

i uni ie d-xun.i-nt.
' i f..<t its
• t ·■■ : ·. tu ■ ■ -

t the. particula.·»
*

AT THEN : U S-JlRvLS

2“

5 < . : c ·. lief ;
boaiu ..· .. ,.<irr> ag. Zee.···· -·, ■ /, t.A i. .> a.· ·. e ■ ί . ’j
(.«riincd a--.coiding ti
np<· 't> :n- rr
' ·,.
In·»’’·» ΓιΤ
’ ΜΪ’ίΛΪ’*·Ι'··»Μ
·' e ·.- ! λ .e
ia ir ■>
, ei. κ\ c-.e ·. · ■ f .■.·■'. · ■; i.-M : i A .■
’■■ '!J inevitably lapse in o terr .r, 'l ixs; f :.d, c.e -a.·
pa
ι -κ ίκ.
*.<■ u b d v :th each thesis.
For, in accordance with the j ■ ’.·..·: ■ -J.i. η a · c h ■ S’ lla.. .
ai. ■■
< · Μ·ϋ·ΙΒ^ββ·^)·Ι
meaning of the d · π r. Λ
n
should a thesis, act rd ag :o . j ■ a. a', .i.'-t:· r.. ·;.-■.
from a condemned book, the munirg o.‘ ..u t.rs.r i- i·
. determined according .o that wh-cl. i, ia.- i.i rf ·. <..·.c med book. For Lie thesis has l-een c m lenir.id ;n this
p;. icular meaning and not in any other w tic i riz.r i j' -·
sil .y be read into it; wording.”1
A few examples wil’. serve Jo >11.15 ;r;tt ’’h> ’fr.·-.'
thes:s to be condemn· 1 .s: “J’v · *y r r .
r· ’■■ ■■■ i ■·■·. .·
md
'fess that rel ri i v i ■., z.t. e1 ·;
·ΐ
•a;
■ shall 1 ■ . *v t- ■■ ’ I.: s t . ’ « ·
<·. ·. : r. .
1 A
■ ·.
j · . ■ J ’.h.· -G..Crt,ti . . .·. i n t i -u .t. .ne I gt. : of rcaic-n
‘row ■;■■■·.' Fat.·. Ii .a·; points out, “on consv’dir.? -r·:
A.iostoli·· Letter ‘fulfpl’cts -it · cite·· L i. ·<'..
fr m · .· *hi
i> i
!’ ■ ; pi,, [r.ri r.o'.
■ : ;
h .s j ? .i : is t c. 1;· t.'.et particular
nt. nin^ utch. ., .,41·., 'igd a Peruvir n p'iest, ί.'!.·’.·
*
' ") 1 in ’
. T] l· ■? 1 ■·. T ■/’.:··.■
t ■
i-j
■ λ;
.ί
- ί .· ..·.£■ a ..u .it i j crust y h e
i. a., hum. a rcaOti only and nr ti a ’ ’v r■ ;■! .>
i
*b
'f
. >■ ,
i- ’· i.-e.riiatv-.ra]
i \ ..tit...
ùc. .-s fo. t.-.e truth oi .a
•ig o”'. Ir ·..-.· i ·.
j. - 'Heh ". ■·!’ Vjook r1·’··.. .
>, t ■ ; ·, ·,..,Μ.δ> AaG
.< ;.
a. At;. d>. s t Sf.iln i·./.^ und”rst:'.r>d
· ■
h tr ■ th'ne. it:·
il ch ii .«..et. trora a ,*ri*i t:
n .i -nn ..
pr-oessof f f c.' ur ■: - t < ! Royal .
’Ht}.)
. .j, >■ 1 . •’.■i.’ uho com
.
m
.
".1 '. il ■ r»'
*·
-ri erei rr acting i
ttriv rsa’ ”'-,ir h
’el it- <? tli:ftt prevails . .ο
ΪΛ io■ ■ » < he aj Jior. -.hts tnoii ϊ i ? ■- τ

28

THE CATHOLIC CHURCH AND THE MODERN STATE

that the doctrine of the primacy of the pope did not become
the prevailing teaching of the Church until the Middle
Ages, whereas the Church has always taught that supreme
episcopal jurisdiction was conferred on Peter and his suc­
cessors, the Roman Pontiffs, by Christ Himself. That such
is the sense in which the proposition is rejected is clearly
indicated in the Apostolic Letter Ad apoetolicae of August
22, 1851. If the author intended only to assert that the
many rights latent in the primacy from the beginning,
developed in the course of time, without the least sub­
stantial change, and so in the Middle Ages attained to an
ever more systematic and doctrinal expression, his thesis
would certainly not have been censored.
Thesis thirty-eight, also taken from a work by Nuytz,
asserts : “The arbitrary rulings of the Roman Pontiffs have
brought about the separation of the Church into eastern
and western divisions.” The condemnation of this thesis
in the Apostolic Letter Ad apostolicae does not mean that
the popes have in every respect and instance shown the
highest prudence and moderation in their dealings with
the Eastern Church. It is not so much the wording of the
thesis that has to be considered as rather the author’s in­
tention, mirrored in the context. He means to say that re­
sponsibility of the Greek Schism is to be imputed in large
measure to the papacy, and that the Greeks had a just rea­
son for departing from the unity of the Church of Christ;
whereas in actual fact the chief causes were national pride
of the Greeks and the weakening of religious life.
The proposition that has caused the most mischief be­
cause of the injudicious and oftentimes malicious interpre­
tation given to it, is the last one in the Syllabus ■■ "The
Roman Pontiff can and should reconcile and align himself
with progress, liberalism and modern civilization.” This
proposition is to be explained with the help of the Allo­
cution Jamdudwrn cernimus of March 18,1861. As Father
Haag has said : “In this Allocution the pope expressly dis­
tinguishes between true and false civilization, and declares
that history witnesses to the fact that the Holy See has
always been the protector and patron of all genuine civili­
zation; and he affirms that if a system designed to deChristianize the world be called a system of progress and
civilization, he can never hold out the hand of peace to
such a system. According to the words of this Allocution,
then, it is evident that the eightieth thesis of the Syllabus

AUTHENTIC SOURCES

29

applies to false progress and false liberalism and not to
honest pioneer-work seeking to open out new fields of
human activity.”8
We now come to another question that has a direct
bearing on the proper interpretation of the Syllabus. This
document tells us only what is to be rejected as false. To
arrive at a knowledge of the Church’s positive teaching,
however, is it enough to assert the opposite of the rejected
thesis? The matter is not quite so simple. There is a dis­
tinction to be made between a contradictory and a contrary
opposition. Contradictory propositions are so opposed to
each other as to exclude any intermediate judgment. The
one is a simple negation of the other, nothing more and
nothing else; the one must be true and the other false. On
the other hand, contrary propositions are so opposed to
each other as not to exclude any intermediate judgment.
One of the propositions affirms or denies more than is
necessary to make the other false. Contrary propositions
cannot both be true, but both may be false, at the same
time. Comparing contradictory with contrary opposition,
we see that the latter is less perfect than the former, inas much as contraries are incompatible only as regards
their truth, not as regards their falsity, and the truth of
one contrary proposition is not necessarily implied when
the truth of the other is denied, as in the case of contradic­
tories.7 Accordingly, if I reject a thesis it does not follow
that I wish to regard its contrary as true. If, for example,
I deny that mushrooms are edible I do not thereby affirm
that their consumption is fatal; but merely that for some
reason or other they are not to be considered as food (con­
tradictory opposite). Or if I say, “The cloth is not black”
(contradictory opposite), I do not therefore say, “The cloth
is white” (contrary opposite).8 This elementary rule of
logic is often overlooked in the interpretation of the Syl­
labus. When a thesis is rejected its contradictory (not
contrary) opposite expresses the Church’s teaching. One
must be careful not to insert into the negative thesis more
than is contained in it. If, as in thesis forty-five, it is denied
that the entire direction of public schools may and must
belong to the civil power, then it does not follow that their
• Op. cit., 389.
’ See P. Coffey. The Science of Lo^k (London: Longmanns, 1912). vol. J, 219ff.
* This does not mean that there is absolutely no exception to this rule. In a thesis
which has been rejected as offensive (to basic Christian principles), the contradictory
opposite may be just as offensive. To say: ’’You are not worth powder and shot," is
just as uncomplimentary as the statement: "You are worth powder and shot/*
*

30

THE CATHOLIC CHURCH AND THE MODERN STATE

direction inpn’way concerns the State but only the Church.
If it be false to say that matrimonial cases and espousals
belong by their very nature to civil jurisdiction (thesis
seventy four), it is not necessarily correct to assert that
they in no way are subject to the State. While thesis
seventy-seven condemns the statement that in our times it
is no longer necessary that the Catholic religion be the only
religion of the State to the exclusion of all others what­
soever, it merely follows that today, also, the exclusion of
non-Catholic cults may prove expedient if certain condi­
tions be realized.9
Since the view held by the Church in opposition to each
thesis is contained in the contradictory proposition to each
of the condemned thesis, this opposition is formulated by
prefixing to each proposition the words: “It is not true
that. . . .” The doctrine of the Church which corresponds,
for instance, to the fourteenth thesis is as follows : “It is
not true that 'philosophy should be treated without any
regard for supernatural revelation.’ ” But the practical use
of this negation is not always easy, especially if a com­
pound or dependent sentence is in question, or if the thesis
conceals a theoretical error under the form of a historical
fact.10 Hence, when determining the meaning and scope
of the contradictory opposite, one must be careful to dis­
cover the central thought and that part of the rejected
thesis which is emphasized. For example, thesis seventy­
eight states: “Hence it has been wisely provided by law
that in certain regions, Catholic in name, immigrants shall
be allowed the public exercise of their own forms of reli­
gion.” If one were to express this thesis in terms of its
contradictory opposite, paying heed only to the wording,
one could give it this construction: “It is reprehensible if in
certain regions, Catholic in name, legal permission has been
granted to immigrants to publicly practice their own forms
of religion.” But this construction is false because it does
not give due consideration as to where the stress is to be
placed; and in this respect only the historical occasion
that led to the condemnation of the thesis can supply us
with adequate information. The phrase to be stressed is:
“in certain regions, Catholic in name (it has not been
wisely provided).” The question at issue concerned coun­
tries hitherto purely Catholic, particularly the South AmerI1

• Hxig, op. tit., p. 569.
* Haig, op. tit., p. 369.

AUTHENTIC SOURCES

31

ican Republic of Columbia, as is clear from the Allocu­
tion Acerbissimum of September 27, 1852, cited by the
Syllabus. Another point stressed is “their own forms of
religion.” There was not sufficient reason for Columbia’s
legislating in favor of false religions, and consequently such
action was not praiseworthy. Not even in states where
there are various dissident religious bodies does the con­
stitution give unqualified toleration to each and every kind
of worship. Our own country, for instance, forbade polyg­
amy, which had been a principle of Mormonism. Finally,
the thesis stresses “the public exercise” and “provided by
law;” thereby every sect whose members came to reside in
a Catholic country was placed on a footing of perfect
equality with the Catholic Church which, up to then, had
been the only recognized religion of the land.
Thesis seventeen will also be completely misunderstood
by anyone who in formulating its opposite, overlooks the
parts to be stressed: “We may entertain at least a hope
for the eternal salvation of all those who are in no way ÿl
the true Church of Christ.” Its condemnation as set forth
in the Allocution Singulari quadam of December 9, 1854,
and in the Encyclical Quanto conficiamur moerore, August
10, 1863, certainly does not mean that the Catholic Church
sanctions the teaching that “We may not entertain at least
a hope for the eternal salvation of non-Catholics,” a truly
monstrous doctrine which Protestants sometimes interpret
as meaning that Catholics condemn all heretics to hell.
Whoever consults the Latin wording of the condemned
thesis will note that the emphasis rests on two expressions.
In the first place the word “nequaquam” is stressed; that
is, all who are “not at all” or “in no way” in the true
Church of Christ. Catholic teaching has always maintained
that a person can be outwardly (visibly) separated from
the Church and yet be inwardly (invisibly) united to it.
If a person is invincibly ignorant of the true Church or
otherwise hindered from entering it, but would ardently
long to belong to it if he knew it was necessary for salva­
tion, he is affilliated with the Church unsuspectingly, united
with it by invisible ties, by an implicit desire which God is
pleased to regard as equivalent to external membership.
The graces which such a soul receives are due to the merits
of Christ, the Mystical Head of the Church, and flow, as
it were, from the grand current issuing from the Head to
His members in His Mystical Body. This desire is called

-

32

THE CATHOLIC CHURCH AND THE MODERN STATE

implicit because it is included in that good disposition of
soul whereby a person wishes his will to be conformed to
the will of God. This desire is not, of course, sufficient of
itself to obtain eternal salvation; it must be joined to a
more perfect act, namely, perfect charity or contrition.
Nor can an implicit desire produce its effect unless a per­
son has supernatural faith.11
Secondly, the emphasis rests on the phrase, “We may
entertain at least a hope,” as is evident from the fact that
in the Latin text it stands at the very beginning of the
thesis. It implies that one can at least hope (perhaps even
be certain of) the salvation of all who belong in no way,
not even inwardly (by implicit desire), to the true Church
of Christ. Consequently it is this confidence bordering on
certainty that must be rejected ; but whether one may
entertain any hope at all of the salvation of such souls is
not decided. In other words, by virtue of the condemned
thesis we are not obliged to pass positive judgment that
all who are outside the visible Church are condemned to
hell. “We may not entertain at least a hope. . . .” is not the
same as saying that we must despair of the salvation of
those who are not in the visible Church; for the phrase
can be understood as admonishing that one must simply
refrain from passing judgment on such persons. What,
then, is condemned? It is the spirit that prompted the
thesis, that is, a religious indifferentism that regards all
religions as equally good, or that attitude of mind that
looks upon deliberate separation from the Catholic Church
as no obstacle to eternal salvation.12
The Syllabus is indeed an important source from which
to derive authentic information on Catholic teaching in
regard to the relations of Church and State ; but it is by no
means the only source. For the Syllabus is essentially
negative and polemic in character and as such gives only
an imperfect picture of the Catholic viewpoint. Ecclesias­
tical documents, especially pronouncements of the popes of
u See J. Bainvel, S.J., Is There Saltation Outside the Catholic Church? translated by
J. L. Weidenhan (St. louis, Missouri: Herder, 1917), 57-62; see also, the Encyclical
Mystici Corporis, June 29, 1943, in Acta Apostolicat Sedis (hereinafter referred to as
//(5), XXXV, 193ff, published in English translation by the National Catholic Welfare
Conference (Washington, D. G. 1943), 63f< Λ recent document bearing on this matter
is the Letter of the Holy Office to Most Rev. Richard Cushing, archbishop of Boston
concerning the problem of Rev. Leonard Feeney and the St. Benedict's Center of Cam­
bridge, Mass. In this Letter the teaching proposed tn the periodical From the Housetop
Fascicle HI, issued by St. Benedict's Center, is condemned and the true Catholic teachm
*
explained. An English translation of the Lrtter of the Holy Office was published in
The Pilot, official organ of the archdiocese of Boston (Sept. 6, 1952),
F ‘ nca m
w See Aemil. Dorsch, S.J., Institutiones theologiae fundamentalis (Innsbruck: Rauch
1928), vol. Π, 554.
*

AUTHENTIC SOURCES

33

ancient and modern times, offer additional authentic in­
formation. First and foremost among these are the Ency­
clicals and other apostolic statements of Leo XIII, which
shed so much light on the basic question of civic and reli­
gious polity.13 The principal Encyclicals of Leo XIII are
the following: Arcanum divinae sapientiae (February 10,
1880), dealing with Christian marriage, a topic which
brings up the hotly contested question of the borderline
between civil and ecclesiastical power; Diuturnum illud
(June 29, 1881), a detailed discussion of the origin of the
State’s power and the proof that State security must be
rooted in God alone; Immortale Dei (November 1, 1885),
on the Christian Constitution of states; Libertas, praestantissimum (June 20, 1888), which sets forth and proves
the Church’s attitude on modern liberty (freedom of wor­
ship, of conscience, of speech and teaching) as understood
by liberalism; Sapientiae Christianae (January 10, 1890),
on the chief duties of Christians as citizens ; Inter gravissi­
mas (February 16, 1892), addressed to the bishops of
France and all French Catholics on allegiance to the Re­
public; and finally, Longinqua Oceani (January 6, 1895),
addressed to the American hierarchy and dealing with
Catholicity in the United States.
From the pontificate of Pius X the most important docu­
ments bearing on the problem at issue are the following:
The Vatican White Book on the separation of Church and
State in France;14 the Encyclical Vehementer nos (Febru­
ary 11,1906), addressed to the clergy and people of France
on the separation of Church and State; the Encyclical
Gravissimo officii munere (August 10, 1906), addressed
to the bishops of France, in which Pius X firmly refuses
his consent to the formation of “associations cultuelles"
ordered by the State, which would violate the rights of the
Church; and finally, the Encyclical Une fois encore (Janu­
ary 6, 1907), sent to the bishops, clergy and people of
France in regard to the persecution of the Church in that
country.
The following documents of Pius XI touch upon various
u See J. B. Lo Grasso, S.].f Ecclesia et Status-De Mutuis Officiis et Juribus Fontes Selecti
(Rome: Gregorian University, 1930), a most valuable source of the most important
documents bearing on this problem.
See alsOj Church and State Through the Centuries. A Collection of Historic Docu­
ments with Commentaries. Edited and Translated by Sidney Z. Ehler and John B. Morral)
(Westminster, Maryland: Die Newman Press, 1954). This volume offers reliable English
translations of the most significant official documents on Church-State relations through
twenty centuries of history.
M La séparation de L'Eglise et de l’Etat en France, Exposé et Documents ( Rome 1905),
printed as a supplement to ASS, XXXVHI, 1905-1906.

34

I

I

j
!
j
5|
>
; ;
ί
5
>

5i i
'fir
; r

55

THE CATHOLIC CHURCH AND THE MODERN STATE

aspects of the Church-State question: the Lateran Pacts
(Treaty and Concordat between the Holy See and Italy)
of February 11, 1929 ; and the Letter to Cardinal Gasparri (May 30, 1929), setting forth the agreement between
the Holy See and Italy on liberty of worship and con­
science; the Encyclicals Divini illius magistri (December
81, 1929), on the Christian Education of youth; Casti connubii (December 31, 1930), on Christian marriage; Quadragesimo anno (May 15, 1931), on reconstructing the
social order; Acerba animi (September 29, 1932), and
Iniquis afflictisque (November 18, 1926), on the sad con­
dition of the Church in Mexico; Dilectissima nobis (June
3, 1933), on the injustices against Catholics in Spain; Mit
brennender Sorge (March 14, 1937), dealing with the per­
secutions of Catholics in Germany; Divini Redemptoris
(March 19, 1937), an Encyclical on atheistic communism;
Firmissimam constantiam (March 28, 1937), addressed
to the bishops of Mexico on resisting the civil power ; and
finally, the Carta Apostolica (March 28, 1937), sent to
the episcopate of Mexico.
Pius XII, now gloriously reigning, has reaffirmed the
teaching of his predecessors on the Church-State problem
in various radio speeches (e. g., on June 1, 1941, in a dis­
course to commemorate the fiftieth anniversary of Pope
Leo XIII’s Rerum novarum', again on December 24, 1942,
in an address dealing with the basic norms of national and
international order; on December 24, 1944, when he spoke
on problems of democracy and the absolutism of the State).
He also stated his position in the Encyclical Summi pontificatus (October 20, 1939), treating of the growth of
secularism, the brotherhood of man, the State and family,
State-worship, and international confidence; in his Allo­
cution on the Church and National Socialism (on the feast
of St. Eugene, 1945) ; in his Allocution Ci riesce (December
6, 1953) addressed to Italian Catholic jurists on toleration
of religious errors in a Catholic state.
Additional authentic sources will be indicated in the
course of this study.

o

2.

C&t/w/ic Crunch anJ i/ie
Swedeqnfy e] th State

A. ACKNOWLEDGMENT OF THE STATE’S
SOVEREIGNTY BY THE CHURCH
Two closely allied attributes serve as distinctive marks
of the modern State as compared with the medieval State.
They are its sovereignty and its supersectarianism or
secularism, as indicated in the Introduction to this study.
It is alleged that these two attributes of the modern State
place it in opposition to the Catholic Church, which in all
its essentials continues to hold firmly to its medieval, eccle­
siastical conception of life and the world. W. Kohler, for
example, observes that if Catholicism is to continue to
operate in the modern sovereign and secular State, it must
exist only as a foreign element that does not conform to
the central organism.1
Accordingly, we must discuss the attitude of the Catho­
lic Church toward the sovereignty claimed by the State.
In modern political science the term “sovereignty” is used
in various senses.2 Its meaning, as we understand it, is es­
sentially negative, and derives from Jean Bodin (d. 1596),
the founder of modern political science ; it connotes the
denial of everything that would claim independent power
over and in the medieval State ; therefore it is the same as
the State’s independence of every other power.
The medieval State was dependent on various powers.
One of these was the the Roman empire of the German
nation; for in theory all Christian states were integrated
with the Roman empire and only the emperor enjoyed
supreme monarchical authority; although actual conditions
especially after the fall of the Hohenstaufen dynasty, were
in glaring contradiction to this theory. Another power on
which the medieval State was dependent was the estates of
the realm: the feudal lords (and later also the towns) were
invested with civil power within the State and did not
1 KatbolrzijrrtBJ nnd modemtr StAai. 35.
8 See H. Rommen, The State in Catholic Thought, 389-400. See also, G. JeHinek, Dot
Recbt det modemen Staates (2nd ed., Berlin, 1905), 1, 439.

THE CATHOLIC CHURCH AND THE MODERN STATE

36

1 4

regard themselves as part of a larger unit, but as related
to it merely as vassals holding land on condition of military
or other service.3 Finally, and this concerns us more di­
rectly, the Church claimed prerogatives in respect to the
sovereign of the State and in the sphere of civil compe­
tence, which, as was noted in previous sections of this
study, involved far-reaching dependence of the State on
the Church. On the other hand, State sovereignty in regard
to Church-State relations means that the State has supreme
and full independence of existence and activity and is in
no way subject to ecclesiastical power.
Now the question is whether the Catholic Church
acknowledges such independence of the State or merely
accepts it as something it cannot change, the while “con­
tinuing to hold in principle its medieval claims to sover­
eignty,” and leaving undecided the restoration of its claims
as a possible idea of development.4
The answer is : The Church acknowledges that the
State is supreme and juridically independent of every other
temporal power; that is, the State is the sovereign power
in all purely secular matters. The Church makes this
acknowledgement, not as critics accuse her of doing,5 but
without “latent reservations” and “by renouncing in prin­
ciple the fictitious perpetuation of medieval ecclesiastical
sovereignty.” She also acknowledges the counterpart of
this thesis: in all purely secular matters the Church does
not claim any power whatsoever.
IN MODERN TIMES
That such is the conviction of the popes of modern times
is clear from the great Encyclicals of Leo XIII dealing with
the relations of Church and State. Speaking of the Chris­
tian Constitution of States, he says : “The Almighty, there­
fore, has given the charge of the human race to two powers,
the ecclesiastical and the civil, the one being set over divine,
the other over human things. Each in its kind is supreme,
each has fixed limits within which it is contained, limits
which are defined by the nature and special object of the
province of each, so that there is, we may say, an orbit
traced out, within which the action of each is brought into
play by its own native right. . . . Whatever is to be ranged
under the civil and political order is rightly subject to the
*

Kjhl^'KÎrchttirwhV,’· in Keller dir Gurnwan, Pirt II. Sect. viii. 280.

• Ibid.

THE CHURCH AND STATE SOVEREIGNTY

37

civil authority. Jesus Christ has Himself given the com­
mand that what is Caesar’s is to be rendered to Caesar,
and that which belongs to God rendered to God.”® In an­
other document Leo XIII says that “whatever is within the
civil sphere the Church acknowledges and declares to be
in the power and supreme jurisdiction (in potestate supremoque imperio) of the princes.”7
A few years later Leo XIII had occasion to draw con­
clusions from these principles when a certain civil govern­
ment sought to have him interpose his authority in the civil
sphere. Leo expressly asserted his incompetence therein,
even though it concerned a matter of which he said : “Rela­
tions of the religious and moral order were involved in this
(political) affair.” He had been approached by the Prussian
government to co-operate in the approval of the so-called
Septenate( the military budget for seven years, through
which Bismarck hoped to further his military and foreign
plans). Leo believed that “he ought to make the Centre
Party cognizant of his desire in this regard” in the hope
that thereby “the final revision of the May Laws would be
given a strong impetus and a comprehensive realization by
the government.” The Centre Party respectfully replied to
the Pope that “it finds it impossible to obey in non-ecclesiastical directives.” The Holy See expressly acknowledged
the justice of this viewpoint and confirmed the fact that
“freedom of action has always been granted to the Centre
Party as a political organization.”8
Pius X had occasion to express a similar confirmation
of the Church’s attitude. Cardinal Vincenzo Vannutelli had
delivered in Latin an address of welcome to German Catho­
lics gathered in convention in the city of Essen. Through
a false formulation or a misunderstanding of this address,
which the press was quick to exploit, it was reported that
the Cardinal had spoken of the “obedience of German
Catholics by which they subordinate their entire conduct,
whether in relation to religion or to civil or social affairs,
to the authority of the bishops and the Holy See.” When,
despite an authentic correction of this wording of the text,
the tendentious exploitation of the address continued, Pius
X directed a letter® to Cardinal-Archbishop Fischer of
* Imtnortale Dei, November 1, 1885, in ΛΠ", XVIII, 166; translated by George Treacey,
S. J. (New York: The Paulist Press, 1941), 7f.
T Diuturnum Hind, June 29. 1881, in ASS, XIV, 13.
•See E. Hûsgen. Ludwig Windthorst (Cologne, 1907), 286L
» Archie fur natboliscbes Khrcbenrecbt, LXXXVH, 286ff.

38

THE CATHOLIC CHURCH AND THE MODERN STATE

Cologne in which he expressed satisfaction in the fact that
“the German Catholics desire to obey the authority of the
Holy See in all religious questions. This obedience, as
constant experience shows, grants to each one full and
unrestricted freedom in all those matters which do not
touch religion, even though some, who do not know the
truth, have passionately questioned it. Thereby is born in
men’s hearts that harmony which, extending from the
individual to society, confirms the welfare of society, which
welfare depends upon two factors, one civil and one reli­
gious.”
Leo XIII’s teaching has been reaffirmed by his suc­
cessors to the present time. Pius XI declared that “civil
society is a perfect society, having in itself all the means
for its peculiar end, which is the temporal well-being of
the community.”10 Pius XII expresses the same doctrine
in these words: “The State exists to govern the common­
wealth according to the prescriptions of an order of things
which is immutable, because it reposes on the universal
laws and principles which govern it. . . . The State has a
noble function, that of reviewing, restraining, encouraging
all those private initiatives of the citizens which go to make
up the national life, and so directing them to a common
end.”11
IN THE FIRST MILLENIUM
The popes of modem times follow in the footsteps of
their predecessors of the first millenium when the papacy
had not yet achieved political hegemony in the family of
Western peoples. These earlier popes, too, carefully dis­
tinguish between the spheres of activity of both powers.
Gelasius I (492-496) in a letter to the Emperor Anastasius
says : “There are two powers, august Emperor, by which
this world is chiefly ruled: the sacred authority of the
bishops and the authority of the kings. . . . And if in the
public juridical order even the ecclesiastical superiors yield
obedience to thy laws in the knowledge that to thee has
been committed by God’s ordinance the power to rule (so
they will have nothing to do with a judgment bearing on
earthly matters that thou hast disapproved of), how then
must thou, I beg thee, zealously obey those who are ap• Dfriei HUks mgiitfi, December 31, 1929, iQ AAS, XXΠ, 53; N. C. W. C. transOctober 2ÇL 1939, in ^AS. XXXI. 423f., translated by Msgt,
Ronald Knox (London: Catholic Truth Society, 1946), 24.

THE CHURCH AND STATE SOVEREIGNTY

39

pointed to administer the venerable mysteries!”12 In 727,
Pope Gregory II wrote to the Emperor Leo III: “As the
spiritual ruler has not authority to interfere in the affairs
of the palace and to confer offices at the royal court, so,
too, neither has the emperor the right to intervene in the
ecclesiastical sphere, to arrange the choice of the clergy,
to consecrate and administer the means of grace; indeed
he may not even receive them without the priest; rather
each should remain in the vocation given him by God.”18
Even more significant are the pronouncement and attitude
of a later pope, Nicholas I (858-867). He was a born
statesman and an eminent jurist who took from tradition,
and systematized, the concepts bearing on the rights of the
Church and the papacy in respect to the civil power.14 He
consistently maintained the independence of the temporal
power and, even though he felt that he was powerful
enough to call himself the pillar and support of the throne,
he was reluctant to claim immediate power in the civil
sphere, as appears from his dealings with King Lothair
II of Lorraine who had unlawfully seized the possessions
of his sister Heletrude. For this wicked deed Nicholas held
Lothair excommunicated, that is, as one excommunicated ;18
but he did not on that account ascribe any political conse­
quences to the censure. Pope Nicholas gave expression in
classical style to his conviction of the diversity and inde­
pendence of both powers (ecclesiastical and civil) in his
famous letter to Emperor Michael III, which, so rich in
content, has offered the greatest amount of material of all
papal pronouncements for the compilations of Church law
bearing on Church-State relationships. He writes that,
if, before the advent of Christ “some were at the same
time kings and priests. . . after the descent of Christ, who
was at once King and High Priest, neither has an emperor
attributed to himself high priestly rights nor has a pontifex
laid claim to the imperial name. For the same Mediator of
God and men, the Man Jesus Christ, by distinct activities
and dignities has separated the duties and rights of both
powers since He willed that they should by salutary humil­
ity raise themselves heavenwards, and not that they should
“A. Thiel, Epistolae Romanorum Pontificum (Braumberg, 1868), 350f.
u J. Hergenrôther, Photius (Regensburg, 1867), I, 233.
M A Greinacher, *’Die Anschauungen des Papes Nikolaus I fiber das Verhiltnis von
Staat und Kirche," in Abhandlungen xur mittleren und neuertn Gescbicbte (Berlin, 1909),
Heft no. 10.
» See Horace K- Mann, The Ltves of the Popes in the Early Middle Ages (St. Louis,
Missouri: Herder, 1906), ΙΠ, 92.

JJ-Hr <«

40

*

g™ J

’ *■ ’H :

THE CATHOLIC CHURCH AND THE MODERN STATE

by human pride again descend into the depths; so that,
on the one hand, the Christian rulers would need the high
priests to obtain life eternal, and, on the other, these latter
would make use of the imperial laws for whatever concerns
merely temporal things and thus spiritual activity might
remain free from the intrusion of earthly things, and he
who struggles to reach God might not become enmeshed
in temporal affairs. . . . ”ie
IN THE MIDDLE AGES
History shows, therefore, that the popes of modern
times as well as those of the first millenium agree in ac­
knowledging the full independence of the State in its own
sphere. But what about the attitude of the medieval popes,
whose legislation and political action come within the
period when the external power of the papacy was su­
preme? It is evident that one may not expect to find among
the medieval popes an acknowledgement of the State’s in­
dependence expressed in the same absolute way as it was
by the popes of Christian antiquity and of modern times.
For this independence of the State was then not realized.
Indeed we obtain the modern concept of sovereignty pre­
cisely by denying the medieval limitation of State power
as it was conditioned by the supremacy of the Church. But
that of itself does not prove that there is a contradiction
between the papacy of the past and of the present. Such
would indeed be the case if the popes of the Middle Ages
had claimed their fulness of power in the political sphere
in virtue of a theological system; in other words, as belong­
ing to themselves in principle and from the very beginning.
Not so, however, if they conceived that supremacy as
conditioned by accidental factors„of history ; that is, as
indicated in a previous chapter, by the historical develop­
ment of the family of nations and of spiritual ideas; as a
juridical pre-eminence, Heinrich von Treitschke puts it,1T
that had its principal reason in the spiritual superiority of
the Church over youthful and weak states that were then
developing and that was therefore “quite logical” and “not
unnatural for those times.” Accordingly, we must consider
in greater detail the question of the nature of the Church’s
sovereign rights in respect to the State, and of the juridical
title from which the popes derived those rights.
* HergenrÔtber, Photiti, I. 578.
” Polttik (Leipzig, 1897), I, 332f.

THE CHURCH AND STATE SOVEREIGNTY

41

The first fact to be established is that no pope attributed
to himself political supremacy in the sense that he claimed
to be empowered, in virtue of the fulness of governing
power entrusted to him by Christ, to intervene directly in
affairs of State; hence not only to install and to depose
princes, but also, where it seemed proper, to interfere in
the sphere of State policy and civil affairs, even over the
heads of the princes—just as the pope, by virtue of the
plenitude of spiritual power, is authorized not merely to
install and to depose bishops, but also to intervene in the
government of their dioceses. The popes did not wish to
infringe on the basic and essential independence of princes
—not even the two popes to whom are attributed the most
far-reaching claims to political hegemony, namely, Inno­
cent III and Boniface VIII. The former, when approached
to make a decision of political importance, examined with
meticulous care his competence in that respect in several
instances that have become famous. Witness, for example,
the celebrated decree Per venerabilem, of the year 1202.18
Count William of Montpellier had petitioned the pope to le­
gitimize his children born out of wedlock. In the aforemen­
tioned rescript, Innocent inquires in great detail whether
to grant the request and at the same time explicitly
states how highly he esteems the rights of temporal princes.
The Count had pointed to the fact that the Holy See had
legitimized the children of the French King Philip Augus­
tus at the latter’s petition. The pope replied that these
cases were not identical, that, “since the King of France
does not acknowledge any superior in secular affairs, he
could, without prejudice to the rights of a third party,
submit himself to our authority, as he actually has done....
But in your case it is known that you (as vassal) are sub­
ject to other princes. Therefore, you could not submit your­
self to us in this instance, without perhaps infringing on
their rights, before they have given their consent.” In the
end the pope refused to grant the legitimation until such
time as the Count should have presented reasons proving
that his “guilt (regarding the illegitimate children) is less
serious and our jurisdiction not so restricted.”
Nor did it occur to Boniface VIII, the author of the
much maligned Bull Unam Sanctam, to lay claim to purely
secular rights in a State that did not happen to be subject
t* c. Mïrbt, Quelles tur Gescbkbte des Papstums, 127ff. See also, Lo Grasso, S.J., op.

42

THE CATHOLIC CHURCH AND THE MODERN STATE

to the Holy See as a vassal State. True, Boniface did re­
mark to the envoy of King Albert that “Christ has em­
powered His representative to enthrone the emperor and
to confer the throne upon others” ; and on the occasion of a
certain dispute the Pope said to King Charles II of Naples:
“Do you not know that I can deprive you of your king­
dom?”19 But in both cases there was the question of princes
each of whom was allied to the Holy See in a special way :
the German emperor and the Neapolitan vassal. Altogether
different was the pope’s stand in respect to the French
king. Followers of Philip the Fair during his conflict with
Boniface VIII inserted into a papal bull the spurious
phrase : “We wish thee (O King) to know that thou art our
subject both in spiritual and temporal matters.” It was also
added that whoever denied this was a heretic. In a con­
sistory Boniface VIII protested this forgery and the false
assertion that he claimed France as a papal fief. He in­
sisted that he knew very well that a twofold power had been
instituted by God and that he had been a doctor of both
(civil and canon) laws these forty years; and he added,
“who can believe that such folly (fatuitas) ever entered
our head?”20
It is evident, therefore, that the popes did not champion
a concept of their supreme jurisdiction that excluded full
and complete independence of the State in its own sphere.

THEORY OF POTESTAS DIRECTA ECCLESIAE
INTEMPORALIA
Did the popes advocate the theory of the direct power
of the Church in temporal matters, which was defended by
several canonists and jurists of the Middle Ages?21 Accord­
ing to this theory, in the fulness of the power bestowed
by Christ on the pope was contained universal sovereignty
also in temporal matters, not be exercised by him, but to
be transmitted to the princes. The spokesmen of this theory,
by giving an allegorical interpretation to chapter 22, verse
38 of St. Luke made St. Peter the recipient of two swords—
the spiritual and the temporal—and cited in proof of their
teaching the words : “And they (the apostles) said, ‘Lord,
behold, here are two swords.’ And He said to them,
‘Enough.’” Therefore, it was suggested, the Church re» H. Finke, Am Jin Tagin Bonfaz VUl (Münster, 190?). 156.
footnote 1, p. 156. See also. Thomas Oestrich,
Boniface VUI," Calholic
Eftcycloptdift, II, 667.
31 See above, p. 24.

THE CHURCH AND STATE SOVEREIGNTY

43

ceived both swords by the will of Christ; but the secular
sword she may not wield ; it is to be employed by the hand
of the princes, who, as her representatives, are responsible
to her and can be deposed if they abuse that power. To
bolster this teaching, the advocates of the sword-theory
appealed to another biblical text: the Lord had said to
St. Peter as he wielded his sword in the garden of olives :
“Put up thy sword into the scabbard.” (St. John 18,11).
Thy sword; therefore the temporal sword, too, belongs to
Peter; but he himself is not to draw it but to hand it en­
closed in the scabbard to the prince who is to unsheath it
according to Peter’s pleasure and command.
Moreover—and this must be carefully noted—even the
advocates of this theory would not wish the pope to inter­
fere in political matters as such, even though all political
authority had its source in him. Just as the sun allows the
stars to which it has given light, to follow their own orbit,
so too the pope must allow the secular powers their own full
and independent action, so long as no spiritual interests
are at stake.22 Only when faith or morality seems jeop­
ardized—ratione peccati—that is, when the morality of
human acts is concerned—is it the business of the pope to
make use of the fulness of the secular power residing in
him; for example, by deposing one prince or installing
another, by rescinding a wicked law or promulgating a
better one, by using his power of jurisdiction, etc.
No detailed proof is needed to show that this theory
is wholly incompatible with the sovereignty of the State.
For by this tenet the authority of the State appears to
emanate from the ecclesiastical power and to depend wholly
on it. Such a theory is also altogether untenable theolog­
ically. Christ our Lord did indeed say: “AU power in
heaven and on earth has been given to Me” j23 and He en­
trusted to Peter and his successors the function of repre­
senting Him on earth. But their office is restricted to the
religious sphere, even as the God-Man did not presume any
sort of earthly power from His right to rule in respect
to the supernatural end ; for He said : “My kingdom is not
of this world. If My kingdom were of this world, My fol­
lowers would have fought that I might not be delivered to
the Jews. But, as it is, My kingdom is not from here.”24
e Finke, op. tit., p. 162f.
* M**tt. 28:18.
»· John 18:56.

44

THE CATHOLIC CHURCH AND THE MODERN STATE

It would be difficult to prove that some popes—Gregory
IX, Innocent IV, for instance—actually espoused this un­
tenable theory; up to the present time that has not been
fully demonstrated even as regards Boniface VIII. Finke,
perhaps the most competent authority in matters relating
to this pope, believes that the relations of Church and State
as formulated by Boniface VIII may be designated neither
as the system of direct power, nor as the system of indirect
power claimed by other popes which we shall consider pres­
ently. Then he goes on to say: “This much is certain, that
Boniface VIII was unwilling to surrender any of the rights
as formulated in principle (in the Bull Unam Sanctam)
which hitherto he had claimed (in practise).” But if one
considers these rights which he claimed in practise, it can­
not be asserted that Boniface VIII undertook a basic altera­
tion of the politico-ecclesiastical theory of his prede­
cessors.85
Besides the theory of the direct power of the Ohurch,
there was yet another in vogue during the Middle Ages.
Some great theological writers of that time, and—in a
later era—St. Robert Bellarmine (1542-1621) and Fran­
cisco Suârez (1548-1617), developed the theory that the
church has indirect authority over temporal (that is,
“secular” or “civil”) matters. The Church, these writers
hold, is to govern the faithful in the supernatural order,
thus enabling them to attain eternal salvation, and has no
concern with political matters. And while these men hold
that the Church received from her Founder only one kind
of authority—that is, spiritual—they nevertheless maintain
that whenever political matters are a hindrance to man’s
supernatural end (ratione peccati) or a necessary means
for the attainment of that end, the Church has the right
to intervene and to assert her spiritual power in the tem­
poral sphere also. “When Suarez ascribes this power to
the Church,” says Monsignor Joseph Mausbach,86 “he dis­
tinguishes it from direct authority by saying that it enables
the Church to correct and abrogate laws prejudicial to
morality, but not to replace them by new reactments. (See
Tractatus de Legibus, in Opera Omnia, V. iii, c. 6, n. 6).
In this way the Church would be using her own spiritual
jurisdiction to carry out and uphold God’s will and law
against secular attacks ; God’s will, which must be respected
• Finke, op. th., vp. 159, 158.
,
.
• Cetbolic Mortd Ttecbfat eiul Its AeUioetsfs, 568.

I
à

THE CHURCH AND STATE SOVEREIGNTY

45

in matters of the world as much as in those of the Church.
She would not, however, proceed to lay down positive laws
and regulations of a civil nature herself, hut she can oblige
those who hold the civil authority to do so (and, if nec­
essary, constrain them by means of ecclesiastical punish­
ments).27 Being influenced by the legal tradition of the
time, Suârez, like Bellarmine, went a step further and
ascribed to the pope, in case of necessity, power to govern
temporal affairs, e. g., to depose kings, to alter the bound­
aries of kingdoms and transfer them to other rulers, to
reduce free nations to a state of dependency, and to assume
jurisdiction in secular matters.” (See Tractatus de Legibus
in Suârez, Opera Omnia, V. iii, c. 7, n. 12; c. 10, n. 6; iv, c.
11, n. 12 ; Defensio fidei catholicae, N, iii, c. 23 ; see also,
Disputationes de Controversiis Religionis Christianae Fi­
dei adversus Haereticos, I : De Potestate Summi Pontificis
in Bellarmine, Opera Omnia, II, v, c. 6.) It cannot be denied
that the medieval popes espoused and put it to practical
application.
The distinction, therefore, between the two theories
(not very important in practise during the Middle Ages)
consists in the fact that under specified circumstances, ac­
cording to the theory of direct power, the pope can licitly
exercise the fulness of the political power which was always
his in principle; whereas according to the theory of indirect
power the pope can extend the plenitude of his spiritual
power to matters which by contact with spiritual interests
have lost their purely temporal character.
Is the theory of indirect power compatible with the full
sovereignty of the State? The answer must be: Not as it
was actually applied in the Middle Ages. For it was pre­
cisely on the basis of this theory that the popes claimed the
far-reaching sovereign rights to which we have previously
alluded, namely, the right to depose princes, to frame laws,
and to exercise jurisdiction in the secular sphere when­
ever the civil exercise of these functions did not sufficiently
safeguard the interests of religion and morality.
“Later advocates of this system of indirect power,”
writes Monsignor Mausbach, “agree as to the fundamental
idea, but tacitly or explicitly abandon the last-named appli­
cations of it. But this very attempt to avoid any deductions
from it that would affect politics contributed to the setting
«See also, F. J. Wertz, S.J., Jus Dtcrttalium (Rome, 1898*1914), I, 16.

46

THE CATHOLIC CHURCH AND THE MODERN STATE

up of a third system according to which the Church pos­
sesses a potestas directiva”28 More of this presently.
Neither the theory of direct power nor the theory of
indirect power (in the meaning given this latter theory
during the Middle Ages) has absolute value. They are
theories that owe their form and structure to the historical
and public juridical conditions of the times. Klemens
Baeumker expresses it in this way : Actual conditions that
should be explained historically, and which consequently
were really temporal phenomena, were interpreted as
having supposedly universal and absolute value and sig­
nificance. This judgment rested first, on general religious
and ethical principles having to do with the value of the
spiritual and the secular ; secondly, on certain biblical texts
allegorically interpreted or at least separated from their
context. From these premises the proponents of these theo­
ries sought by deductive and a priori reasoning to establish
the theocratic conceptions that prevailed.29
An interesting sidelight regarding the “systems” (in­
cluding Bellarmine’s) on the relation of Church and State
is offered at the beginning of the seventeenth century by
the attitude of an eminent jurist, theologian, and bishop,
St. Francis de Sales (d. 1622), who was enrolled by Pius
IX among the Doctors of the Church. An acquaintance of
his had sent him a discussion on this subject. St. Francis
replied: “The theme displeases me very much, if I may
say so sincerely.... By natural inclination, in consequence
of an aversion rooted in my accustomed manner of looking
at things, and—as I believe—by virtue of a heavenly in­
spiration, I loathe all controversies and discussions among
Catholics that can have no useful purpose. . . . Even the
writings of a holy and distinguished prelate (Cardinal
Bellarmine) which deal with the indirect power of the pope
over princes, I do not find to my taste. I say this not as
w O». ci/., p. 568.
’•"Die europlische Philosophie, des Mittdalten” ù> ΚκΙιατ der Gitenwart (Leipzig,
1909). Part 1. sect. 5. 552.

Si

!

Father John Courtney Murray, S.J., acknowledges that Cardinal Bellarmine’s
theological systematization of indirect power was an historical achievement of
the first order, immensely influential in his own time, and regarded as classic
ever since. But then he continues: "At that, his achievement was only historical,
not eternal. He did not 'fix' the political theology of the Church (meaning the
theology of her relations to the temporal order) in its final form. In fact, seri­
ous difficulties have been raised with regard to the internal consistency of his
systematization, and its exactness and adequacy as a statement and interpreta­
tion of the tradition of the Church." ("St. Robert Bellarmine on the Indirect
Power,") in Theological Studies, DC (1948), 492.

THE CHURCH AND STATE SOVEREIGNTY

47

though I passed judgment as to whether it is so or not so,
but because at the present time when we have so many
enemies from without, we ought not, I believe, to stir up
those who are in the bosom of the Church. . . . Finally, if
the kings and princes get a bad impression of their spirit­
ual father, as though he wished to attack them and deprive
them of their power, which God, the supreme Father,
Prince and King, has bestowed on them, what will be the
upshot of it all except a very dangerous aversion of heart?
And if they believe that he (the pope) acts contrary to his
duty, will they not then be sorely tempted to forget their
own duty? ... I did not wish to speak out my mind so fully
concerning the things which according to my opinion should
be treated delicately, and have contented myself to express
to you in broad outline my insignificant but—to put it
boldly—my very strong feeling in this regard.”30
Finally, if we ascribe to the theory of the Church’s
indirect power in temporal affairs, in its medieval conno­
tation, only relative value (gauged by the history of the
times), that does not mean that the theory does not con­
tain a kernel of universal truth and significance. For even
today there are still many Catholic canonists who though
maintaining that they do not wish to infringe on the State’s
right to sovereignty in its own sphere, yet call their con­
ception of the relation of Church and State a system of
indirect power. In what sense and with what right we must
leave for a later discussion.81
“Lettres de S. Francois de Sale! adressées a des gens du monde (Paris: Blaise, 1823),
n. 140.

” "Catholic authors are unanimous, and rightly so,” writes Monsignor Mausbach, "in thinking that the Church has indirect authority over temporal matter
and public life, since, in all that concerns religion and morals in the highest
questions of life, she is and must be the court of last resort. It is only with re­
gard to the traditional interpretation of potestas indirecta that any difference of
opinion exists.” (Op. cit., p. 367).
Father Murray regards the expression "indirect power” as ambiguous and
asserts that nobody seems to be able to define it to the satisfaction of anybody
else. (See "Leo XIII: Separation of Church and State,” Theological Studies,
XIV (1953), 206, for a summary of various explanations of the term.) Father
Murray prefers to call it the doctrine of the primacy of the spiritual. The au­
thority of the Church is sacred, spiritual authority, and in its nature and in all
its acts is always a res sacra, at times in temporalibus. The power of the Church
is always direct, because always purely spiritual ; it goes directly to the res sacra
—the sacred in itself, and the sacred in the temporal, to everything that is sa­
cred. It is an essential attribute of the freedom of the Church that she should
liberate the sacred from any profanation at the hands of the State (Ibid., pp.
206ff).

48

THE CATHOLIC CHURCH AND THE MODERN STATE

B. STATE SOVEREIGNTY RESTRICTED BY
THE NATURAL LAW
The idea of sovereignty is very old, although the actual
term came into use, especially in polemics, comparatively
late—almost at the same time as the old words "respub­
lica," “regnum,” and "civitas” gave way to the modern
term “state.” The term “sovereignty” came into popular
usage only after Jean Bodin made it the key word for his
definition of the State.*1 Like so many of our political con­
cepts, that of sovereignty has a history. Changes and de­
velopment in the meaning of the term have evolved out of
varying interpretations offered by different political phi­
losophies during the course of political controversy.2
Prior to the age of individualism and rationalism with
its new concept of natural law,3 political science conceived
of sovereignty as signifying independence of every earthly
power, but certainly not absolute independence ; it took for
granted that civil power was restricted by natural and
divine law.4 It was Thomas Hobbes (d. 1679) who first
defined sovereignty as unlimited independence in the sense
that there are no juridical, but only natural and ethical,
'Lw tix livres de la République (Paris, 1577), Bk. I, chap. 1. See Georges Goyau,
’’lean Bodin,” Catholic Encyclopedia, Π, 609.
1 H. Ronunen, The State in Catholic Thought, 390.
■ See Rommen, The Natural taw, translated by Thomas R. Hanley, O.S.B. (St. Louis,
Missouri: Herder, 1947), 75-109-

* For the purposes of this paper, it is important to show (a) the distinction
between the natural moral law and the divine positive law, and (b) the inti­
mate connection between rights and the natural moral law. The natural moral
law is the rule of conduct which is prescribed by the Creator in accordance with
the constitution of the nature with which He has endowed us. According to
St. Thomas Aquinas, the natural moral law is a participation in the eternal law
(God's wisdom, in as much as it is the directive norm of all movements and
action) mirrored in the created intellects (See Summa Theologica, la, Ilae,
Q. XClV). Those actions which conform with the tendencies of our nature
lead us to our destiny and are thereby constituted right and morally good; those
at variance with our nature are wrong and immoral. The standard of conduct
is our whole human nature with its manifold relationships, man being consid­
ered as a creature destined for a special end. There is, then, a double reason for
calling this law natural: first, because it is set up concretely in our very nature
itself; and secondly, because it is manifested to us by the purely natural me­
dium of reason. In both respects it is distinguished from the divine positive
law, which contains precepts not arising from the nature of things as God con­
stituted them by the creative act, but from the arbitrary will of God. This law
we learn through the light of supernatural Revelation. (See James J. Fox,
"Natural Law,” Catholic Encyclopedia, IX, 76ff.) Right is a claim inhering in
the human personality, a moral power of having, doing or exacting something,
of being unhindered in whatever conduct conforms with the natural moral law’
It is concerned only with social conduct. Rights are the subject matter of jus­
tice. Natural rights are rooted in the natural law, which itself is grounded in
the innermost nature of man or of society, independent of convention, legisla­
tion, or other institutional devices.

STATE SOVEREIGNTY AND THE NATURAL LAW

49

restrictions to the power of the State. The natural re­
strictions consist in the amount of actual power the State
has at its disposal, the ethical in the duty to avoid sin. With
Hobbes, the jws naturale disappears—becomes jus utile—
as soon as the sovereign power is established. The sov­
ereign power is considered to be the interpreter and dis­
penser of the natural and divine law. Thus the difference
between natural law and positive law disappears and total
sovereignty is born.5
NATURAL RIGHTS AND THE NATURAL MORAL LAW
This modern concept of political rights introduced by
Hobbes was condemned by the Church in the Syllabus of
Pius IX, these two theses being among those rejected : “The
commonwealth is the origin and source of all rights, and
enjoys rights which are not circumscribed by any limits”;
and “Moral laws do not require a divine sanction, nor is
there any need for human laws to be conformable to the
law of nature or to receive their binding force from God.”®
Accordingly, we must discuss the frequently contested con­
cept of the existence of natural rights, a tenet for which
many modern political philosophers and most jurists have
little sympathy. What, then, is meant by natural rights?7
There are many norms that aim at ordering the actions of
members of a community, that is, legal standards that
owe their existence to positive ordinance, having been
called into being, for example, by civil legislation or by
the Church. But alongside these, there are also other norms
that exist prior to all positive legislation because they are
given with human nature itself and are immediately rec­
ognized by human nature as binding on all men; for ex­
ample, Thou shalt not calumniate thy neighbor; thou shalt
not kill him, thou shalt fulfill the contract thou hast made
with him, etc. The sum-total of these immediately evident
norms is called natural rights. They are not identical with
the natural moral law ; rather, they are part of it. In other
words, natural rights are those norms of the natural moral
law that relate to “mine” and “thine,” those that regulate
community life. The content of natural right is less com­
prehensive in scope, then, than that of the natural moral
law. For this latter includes many duties that are not im-9
9 Rommen, The Stott in Catholic Thought, 257, footnote.
• Theses 39 and 56.
’See Victor Cathrein. S.J., Recht, Naturrecht und pojitives Recht (2nd ed., Freiburg,
1909).

/

50

THE CATHOLIC CHUKCH AND THE MODERN STATE

mediately connected with “mine” and “thine,” with social
life; for example, the obligation to be temperate, to be
modest, grateful. As social norms natural rights, in con­
trast with the demands of the natural moral law, have this
distinction : they claim to be enforceable, at least in general
—that is, whoever has a right with respect to some other
person is authorized to employ physical force to secure
the fulfilment of this obligation if the other person will
not voluntarily fulfill it. The enforceable character of this
obligation arises necessarily from the objective of right.
This objective is to secure for every member of society the
means necessary for his development, and the attainment
of this objective is evidently indispensable for social life;
but this end would not be sufficiently attained if it were
left to each one’s discretion whether he should fulfill his
obligations or not. However, if someone were to transgress
the commandment of temperance and by his drunkenness
destroy his health, his natural powers, and his fortune, no
human power has the right to restrain him ; he is answer­
able only to his conscience and to God. Only when he di­
rectly injures or endangers others does the norm of justice
intervene to oppose him, and this norm claims authority
to employ force to secure its fulfillment, for otherwise it
could not effectually protect the social order.8
THE STATE NOT THE ULTIMATE AND
ONLY SOURCE OF RIGHT
Unless we acknowledge natural rights that are imme­
diately evident to human reason, rooted in man’s nature,
and hence traceable to the Creator of nature, it is impossi­
ble to explain the binding force attached, for example, to
the positive laws of the State, and to distinguish them
from mere despotic power.® Since the sixteenth century, at­
tempts have been repeatedly made to prove that the State
itself is the ultimate and only source of right. Such, for
example, are the theories of Hobbes and Rousseau, which
regard the authority of the State and the State itself as
founded on a free contract of men who associate with one
another in the unity of the State, in order fully to cede
to the State their own caprice and power and so to subject
themselves to the unlimited despotism of the sovereign
• Cathrein, off, ctl,, p. 127L
__
• See Aueustme J. Osgniach. O.S.B., Tht Christian Stott (Milwaukee» *Wisconsin
Bruce, 194S). *154-164

STATE SOVEREIGNTY AND THE NATURAL LAW

51

(Hobbes), or to go on living in the happy fiction that they
are being ruled by their own will embodied in “the general
will” (that is, the will of the community), in virtue of the
social contract (Rousseau).10 Such, too, from Kant to the
present times, are the modern theories in the field of juris­
prudence which claim that “right exists only in the State in
virtue of the State” (Paulsen) ; that “right must be of later
origin than the State” (Wundt) ; and that “right is known
absolutely or without qualification by the fact that the
State acknowledges it and enforces it by its own might”
(Lasson) ,11
All these theories are condemned by the Syllabus; it is
the teaching of the Church that the State is not the origin
and source of all rights. One of the merits of Catholicism,
an opponent of the Church admits, is its acknowledgement
that natural and rational rights are superior to all positive
rights.12 The authority of the State is traceable to natural
law and hence to the Creator of nature; that authority
exists because it is demanded by natural law. That the
authority of the State is in accord with the will of the
Author of human nature can be seen by a simple inference.
For man is so constituted that he cannot develop and thrive
in solitude but only as a member of society. And social life
is unthinkable without authority that has the right, that
is, the power, to train individuals to overcome egotism and
to co-operate for the common good—in other words, polit­
ical authority. Therefore, the ordinances of the State that
aim at securing the public weal (that is, civil laws) re­
ceive their binding force from natural law, ultimately from
the Divine will. That is true of all civil laws, whether they
merely inculcate the relatively few juridical norms offered
ready-made by natural law (as for instance, thou shalt not
steal, calumniate) ; or only give concrete formulation to
vague and indeterminate demands of natural law (for
example, laws of taxation which put into clear and definite
form the demand that each one contribute to the common
good according to his means) ; or for important reasons of
the common weal, make the object of the command or pro­
hibition, things that are morally indifferent or not essen­
tially related to the natural law (for instance, that every
public assembly at which political affairs are discussed is
* See M. Sauvage, ’’The Social Contract," Catholic Encyclopedia, IV, 336. See also,
Rommen, The State in Catholic Thought, 229-236 and The Natural Law, 82-86, 91-92.
>*See Osgniach, op. cit., pp. 138-155.
is C. Jentsch, Christentum und Kircbe (Leipzig, 1910), 541.

52

THE CATHOLIC CHURCH AND THE MODERN STATE

to be reported to the police twenty-four hours in advance
of the meeting, or that no one is to be called to serve as
juryman twice in the same year).
CHRISTIAN PHILOSOPHY OF RIGHT AND
THE DOCTRINE OF POSITIVISM
The far-reaching significance attached to the difference
between the Catholic teaching concerning the natural moral
law (which holds that this law is the ultimate source of all
positive law) and the positivist doctrine13 (which sees the
State as the final source of all law and hence of all rights)
appears at once if we consider the consequences of these
two points of view.
The juridical positivist who regards the State as the
ultimate source of all, or at least of its, rights must nec­
essarily hold that every law issued by legitimate authority
in accordance with the constitutional form required for
validity, constitutes right, no matter what its content,
whether morally good or morally reprehensible. Accordingly,
it would follow that the edict of the Assyrian king demand­
ing that adoration be paid to the golden statue (which, ac­
cording to St. Jerome, was a symbol of the king’s own sov­
ereign greatness) and the four edicts whereby Diocletian
inaugurated his persecutions against the Christians,
created right in the proper sense of that term. Actually,
certain juridical positivists did not hesitate to draw such
conclusions. One of the best-known opponents of natural
rights expressly declares that “even the vilest law must be
acknowledged as binding, provided only that it has been
correctly framed as to form” ; and “the most contemptible
law, provided that it is correct from the formal and con­
stitutional viewpoint, constitutes right; but one ought to
discard it as soon as possible.”14 Thus the juridical order
is separated from the moral order, and an important ele­
ment is removed from the definition of law, namely, the
"debet esse honestum”: a law must have morally licit
content.
Now we should indeed be unjust to juridical positivists
if we claimed that all demand obedience to a civil law that
» Poshrvism teaches that the search for a moral or natural basis of positive law is
inexpedient. It conceives of laws as exclusively a result of historic factors such as race
environment, cultural development, the defense of economic interests, class struggle
*
Positive law alone exists (i. e., coercive law), according to positivism, for only what
is actually enforced is law; and law is merely a creation of the State. (See Rommen.
The Natml Law, 124-134).
*«K. Bergbohm, quoted by Cathrein, of. at., p. 258.

STATE SOVEREIGNTY AND THE NATURAL LAW

53

contravenes the moral law. They do as a matter of fact
attribute to legal enactments, even to such as are immoral,
an absolute binding force in the forum of conscience; but
many expressly admit that, in addition to and apart from
the juridical order—paralleling it, so to speak—the moral
order with its norms, also binding in conscience, persists.
Now, if the juridical order commands something that the
moral order forbids, a conflict of duties results and it is
necessary to decide which of the two opposing demands on
conscience deserves the preference in a concrete case. Ac­
cording to these jurists, one is obliged, for the sake of
conscience, to obey the higher demand and to refuse obe­
dience to the other, contradictory norm, although it also
binds in conscience. This means, in other words, that it is
possible for a person to find himself in a situation where
he cannot act fully in accord with conscience, but where
he must content himself with choosing the lesser violation
of conscience. But to say, “I must sin, but I shall perform
the lesser evil,” is a philosophical and theological absurdity.
Others, proceeding more logically, claim that the jurist’s
greatest test of character is to be able, out of respect for
a State law, to repudiate even the deepest and holiest con­
victions of his own heart. For example, Bergbohm says:
“Every statute of positive law puts the question to us, ‘Do
you acknowledge me as a valid right?’ The answer must
be unequivocal. If the aforesaid legal statute reveals a
constitutional defect, it is not a legal statute at all; if it
is faultless as to form, the answer must be in the affirm­
ative, without reservation. The answer is in fact independ­
ent of the statute’s goodness. Such is the stand of the jurist
regarding that which claims to be a legal right. And it is
precisely when confronted with a law which is viewed with
disfavor on account of its harmfulness or inhumanity that
the most eminent virtue of the genuine jurist stands the
test; namely, the ability to withdraw his intellect from
every influence, even such as spring from deep personal
convictions and heart’s desires, and to realize that these
may be satisfied only by a change of the law.”18 The Swiss
jurist Affolter thinks that it is not even permissible to dis­
cuss whether or not one may obey an obviously immoral
law, so certain is the obligation to obey all properly for­
mulated laws.18
» Quoted by Cathrein, op. cit., p. 258.
"ÎWd., footnote 1, p. 50}.

Ί

54

THE CATHOLIC CHURCH AND THE MODERN STATE

The Syllabus, on the contrary, expresses the conviction
of the advocates of natural rights when it asserts that it is
absolutely necessary that human laws be kept in harmony
with natural rights and thus derive their binding force
from God. Accordingly, laws lack juridical character, that
is, they are invalid, if they offend against natural right
or the natural moral law. And in such a case they cannot
demand our obedience. But the latter conclusion requires
a more exact qualification: for in certain cases one must
refuse to obey such laws; but under other circumstances
one may refuse to obey yet not be obliged to do so—in other
words, one may even obey them; and finally, in still other
instances one must obey such laws for reasons extraneous
to the law itself.
If the content of a State law offends against a natural
law in so far as the latter, clearly knowable to everyone,
absolutely commands or forbids something, one may not
obey that law, even though the penalties for its trans­
gression be ever so severe. In these circumstances man
must give the lawgiver the answer that Antigone in the
writings of Sophocles gave to Crean: “Thy commands
cannot abolish the eternal, unwritten laws of Zeus.” Just
as parents were obliged to refuse to obey the Spartan law
which commanded that weak boys should be exposed to
certain death in the ravine adjacent to Mount Taygetus,
so, too, modern parents would be bound to refuse obedience
to a law that would compel them, for example, to expose
their children in anti-religious schools to religious and
moral destruction.
In contrast with such laws, which in content are in
absolute contradiction to a command of the natural law,
there are others that do not demand something immoral
but are nevertheless invalid because they violate so-called
subjective natural rights. That is, they infringe on the
rights of individuals in their relations with each other or
in their relations with the community; in other words,
these laws are invalid because they are unjust. The rights
of the community (that is, the sovereignty of the State)
are not absolute; they are restricted by the contracts it
has made; and also, wherever inviolable rights are con­
cerned, by liberty and ownership on the part of the indi­
vidual; for example, the right to personal freedom and to
the possession of private property by physical and moral
persons. Thus, Pius X determined the nullity of the French

STATE SOVEREIGNTY AND THE NATURAL LAW

65

law of separation of Church and State from its infringe­
ment on natural rights: “We reprove and condemn as
violating . . . fidelity to treaties ... as destroying justice
and trampling under foot the rights of property which the
Church has acquired by many titles and, in addition, by
virtue of the Concordat.”17 But the observance of such laws
is not forbidden under all circumstances; it may be per­
mitted if the violation would entail severe disadvantages
for the individual; indeed, its observance might even be
regarded as obligatory if passive resistance were asso­
ciated with evil consequences for the common weal.
We may reasonably conclude, therefore, that only the
Church's traditional theory of natural rights, as we have
explained it, gives a satisfactory solution to the question
of the relationship between law and morality. In modern
times at least one outstanding writer in the field of political
science showed himself a little inclined toward our view­
point when he declared himself not satisfied with the
statement that there are no limitations to the rights of the
State. He affirms that it is inevitable that those who hold
to the existence of natural rights should claim for those
rights the juridical qualification of sovereignty, since the
very idea of natural rights proceeds, from the concept of
a power or right prior to the State. He continues: “Our
conception of rights, on the contrary—which makes the
very existence of rights depend upon the presence of an
organization that gives them reality—shows that the ques­
tion of whether the organization that asserts and guaran­
tees rights stands above or below rights, is one of the most
difficult problems of all political science. At first thought,
it would seem that there cannot possibly be any juridical
limitation to the sovereign State. . . . Even today the
opinion is frequently defended that, although the State
never attempts to make every juridical possibility a reality,
there is, actually, nothing that is juridically impossible for
the State, no law it cannot rightfully make. This abstract
thought, however, has never been carried out to its ul­
timate practical conclusion. If the State, juridically, can
do all things, it can do away with the juridical order,
introduce anarchy, thereby making its own existence im­
possible. But if such a thought may not be entertained, it
w Encyclical Letter, Vehementer not, to the clergy and bishops of France, February 11,
1906, in /fSJ, XXXIX, 12. English translation in American Catholic Quarterly (Phila­
delphia, 1906), Vol. XXXI, no. 122, 217.

56

THE CATHOLIC CHURCH AND THE MODERN STATE

follows that there must be a juridical limitation to the
powers of the State.”18

NATURAL RIGHTS ATTACKED FROM
THE THEOLOGICAL VIEWPOINT
The Church’s teaching in regard to the non-obligatory
character of State laws that infringe on natural rights,
has also been hotly contested from the theological point of
view.
L. K. Gdtz remarks in the final section of his work on
Ultramontanism (a term which he uses as synonymous with
Catholicism) that “by holding fast to natural law as the
foundation of all positive law” Catholicism creates for itself
“a basis for annulling all State legislation in so far as it
does not accord with the principles and interests of the
Roman Church.”19 He claims to have demonstrated this
in his chapter entitled “Catholicism and State Law.” There
he concedes that, in point of fact, the attitude of a Catholic
toward civil law is quite proper in so far “as the civil
legislation coincides with the enactments of natural and
ecclesiastical law. Indeed,20 so long as this unity exists,
the Ultramontane (that is, the Catholic) seemingly merits
the preference over other citizens, since he not only holds
fast to the wording of the law, but recognizes and exercises
a duty of conscience that goes beyond the law. But more
important than this, and of greater importance for our life
as citizens of the State, is the opposite situation, which can
indeed frequently occur, namely, the attitude assumed by
a Catholic in principle as regards the civil law, his assump­
tion that civil law does not bind in conscience (Here, of
course, Gotz misinterprets the Catholic viewpoint), that
alongside the legal duty there is also a duty of conscience.
As a result of this, the Ultramontane may, for the sake of
conscience (in certain cases) not do what the law demands,
but in point of fact fall short of these demands and not
fulfill the law. The duty of conscience thus impressed on
the Ultramontane does not make for an enhancement of
civil law, but for a deprecation, a disparagement thereof,
and is actually an attempt to make civil law inefficacious.”21
These statements of Gotz, a theologian of the OldMG. Jellinek, Daj Rrcbt dti mademtn Staaiti, (1905), 462ff.
** Dtr Ultramontanijmaj aJj Vflianscbaaang a»f Grand dti SylUitu
dargtitclk (Bonn, 1905). 329.
g
* Here, in a ▼err illogical train of thought, the text nsea the phraae "Im Gegenteil—
on the contrary.**
p. 308.

STATE SOVEREIGNTY AND THE NATURAL LAW

57

Catholic sect, not merely in their formal expression but also
in their content are unworthy of a man trained in theo­
logical science. They will be sufficiently revealed for what
they are if, without entering into details, we establish the
following points. First, Gotz seems to think (and this is
hardly credible) that the belief that immoral State laws
may not be obeyed is to be found in Catholic theology
alone, and that all other political philosophers and moralists
maintain that one owes absolute obedience to such laws.
But this Ultramontane teaching not only is not limited to
Catholicism, but is not even limited to those philosophers
who uphold the existence of natural law and rights. On
the contrary, even among those who deny natural law from
the Christian viewpoint, are some who hold the very same
conviction as Catholics concerning obedience to immoral
law, with this difference—that they are unwilling to as­
cribe juridical character to the natural moral law, although
this is really the basis for the binding force of State laws.
Hence, in our opinion, they are guilty of inconsistency. At
any rate, let us hear what two non-Catholic theologians
have to say in this respect. In the Realenzyklopàdie für
protestantische Théologie und Kirche,22 which also counts
the Old-Catholic Gotz among its collaborators, we read:
“Subjects owe obedience to superiors. Obviously, this obedi­
ence can be rendered only in so far as it does not contra­
dict the basic relationship of the subordination of man’s
will to that of God : One must obey God rather than men.’
Where the divine order conflicts with the social order, the
Christian must, in the last resort, be willing to suffer as
a disobedient subject in the face of a human command.”
L. Lemme makes a similar statement: “A limitation of
obedience to civil authority follows from the very fact that
God’s command surpasses human command; that one is
therefore obliged to obey God rather than man.” The
Christian must overcome immoral laws, he adds, by moral
disposition, in that he patiently endures the suffering re­
sulting from passive resistance.”23
Coming to the second point, we wish to establish: The
danger that each individual may pass off his own views
and conceptions as precepts of the natural law and so, by
appealing to them, arbitrarily refuse recognition and obe»Vol. VI, 422, edited by Albert Hauck, 21 vols., 3rd ed., 1896-1908. English transla­
tion the Scbaff-Hetzog Encyclopedia of Religious Knowledge (New York and London:
Funk and Wagnalls, 1910), VIII, 212.
u Cbristlicbe Etbik (Berlin, 1905), II, 983.

58

THE CATHOLIC CHURCH AND THE MODERN STATE

dience to State law, is altogether impossible according to
the “Ultramontane” theory of natural law. Catholic doc­
trine holds that only the few norms of natural law that
are immediately evident to the normal man—and these are
almost completely contained in the decalogue (The Ten
Commandments)—can demand obedience unreservedly in
the face of human law. In ecclesiastical and theological
parlance, the application of the term “natural law” is not
restricted to these norms, but is extended to their subor­
dinated inferences and conclusions, which are deduced
therefrom by a more or less learned speculation, but by no
means appear at first consideration to each person as
necessary conclusions. The further these inferences and
conclusions are removed from the higher basic principles
the more obscure and uncertain do they become. Their per­
ception is then conditioned not only by the mental power
of the individual but also by his religious, political and
other opinions. For example, in the Syllabus of thesis
sixty-seven it is stated that the marriage bond is indisso­
luble according to the natural law, but this is by no means
immediately evident to everyone; on the contrary, only in
the light of Revelation can the natural necessity and scope
of the principle of indissolubility be fully recognized. By
way of another example, let us consider the personal im­
munity exempting clerics from military service. The fact
that this immunity may not be abolished “without violation
of natural right or equity” (thesis thirty-two) is some­
thing that can be rightly perceived only by one who already
knows and acknowledges the task of the Catholic clergy
as willed by God ; and even then, as the formulation of the
Syllabus thesis shows, he still may not grasp the absolute
necessity of clerical immunity. Therefore, in these and
similar instances, where immediate evidence is wanting,
no man may, by appealing to the natural law alone, refuse
to yield obedience to a contrary State law.
Thirdly, Gotz’s statement that “in the eyes of its fol­
lowers, Ultramontanism makes for a disparagement of
State legislation as contrasted with ecclesiastical legisla­
tion, by its supposition of ecclesiastical laws that bind
absolutely in conscience and such laws, namely, those of
the State as do not bind,”24 is altogether untenable. The
popes themselves have often expressly insisted that their
own laws would be invalid if they ever violated natural
»· Of. cil.. p. 329.

’

*

I

·

i

;
i

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

69

law,2® and theologians of the Middle Ages and of modern
times are agreed that one might resist the pope were he
to make laws patently unjust, were he to encroach on the
property of another,28 etc. And Suarez, in his famous work
De Legibus, in the section dealing with the rule to be
observed in defining the matter or content of ecclesiastical
law, declares:". . . as to when an eccleciastical law does
or does not overstep ecclesiastical power, I need not add
anything to what I have already said about civil law,”2T
thereby clearly inferring that those holding ecclesiastical
authority may at times go beyond their bounds.

C. STATE SOVEREIGNTY RESTRICTED BY DIVINE
POSITIVE LAW
The Divine will not only manifests itself to man in the
moral law which inscribes in every human heart a series
of norms that have to do with the life of men in common
(natural rights) it is also made known to him, Christians
believe, through supernatural Revelation. Hence the moral
and juridical commands that are posited in Revelation
likewise imply a restriction of State omnipotence. It is in
view of this that the Syllabus rejects the fifty-seventh thesis
that “civil laws may and should be withdrawn from divine
authority.” This tenet is not specifically “Ultramontane,”
as Gôtz for some incomprehensible reason seems to think ;2
but it is also advocated as being in obvious accord with Holy
Scripture, by other denominations that profess an ethics
based Revelation. The non-Catholic, L. Lemme, for example,
says, “A limitation of obedience to authority follows from
the very fact that God’s command surpasses human com­
mand, that one must therefore obey God rather than man ;
but for Christian morality this limitation is all the greater
in as much as, according to Christianity, all true morality
must flow from faith ; therefore, all commands imposed by
authority that directly contradict the faith are opposed to
God and morals. But most of all, this restriction follows
because the absolute rights of the Christian personality,
subject as that personality is to God, are above all human
ordinances, and juridically valid ordinances that do away
with the divine rights of the Christian personality ipso
“ For proof» see HergenrSther, Kalholiiche Kircht, 917f.
"Ibid., p. 733.
"Lib. rv, chap. xi. no. 2 of his Optra Omnia (Paris: Vivis, 1856). 370.
1 See Rommen, The Naîtrai Law, 611.
’ Dlr Ultramantathmti ah Wiltanrchannng, 3049.

60

THE CATHOLIC CHURCH AND THE MODERN STATE

facto prove themselves reprehensible. This is shewn, for
example, in the fact that Christ commanded His disciples to
exhibit and assert their faith in the face of perverse legal
ordinances. The Christian may never acknowledge laws
that in any way whatever expose him to idolatry or the
denial of his Faith; rather, he must overcome them by
strong faith and moral disposition, in that he gladly en­
dures the suffering resulting from passive resistance to
such laws.”3
If one were to assert that such a concept is dangerous
to the State, one would have to concede that it leads to far
more perilous consequences on the part of Protestants than
of Catholics. For Protestantism lacks an objective means
for controlling the Faith. The source of the Protestant
faith is exclusively the Bible as known and interpreted by
the individual. But the State cannot know what this inter­
pretation of the individual may be, and is therefore unable
to foresee the conflicts that may arise between faith and
State laws. The Catholic Church, on the contrary, her faith
and the principles rooted in that faith which regulate her
relationship with the State, are not indeterminate quan­
tities for the State. “The strength and certainty of apos­
tolic authority,” says a Protestant historian,4 “rest every­
where on the history ... of its art and science of govern­
ment. The papal governments manifest in one respect an
amazing affinity and likeness : the popes deal with the great
questions of Church and State according to viewpoints
that are essentially alike; the principles of their politics
are always the same. In this point lies an indestructible
tradition, in whose development the most diverse personal­
ities have labored with equal zeal. The individual recedes
into the background, the personal element disappears be­
hind the pope who always continues to be the pope.”

THE CONTENT OF THE DIVINE POSITIVE LAW
Turning now to the content of revealed law, we see
that the moral law of the New Testament does not consti­
tute a further limitation of State sovereignty in as much
as it does not make demands over and above the natural
juridical order. The fact is merely that the natural law is,
in some points, defined and restated with greater certainty
and detail in the New Testament. “Whoever puts away his
» Cbriitlicht Etbik, Π.
«Ο. Lorenz, PapstwtM

> -»
Kvitrttm (Berlin, 1874), 1, 6, 7.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

61

wife and marries another, commits adultery against her;
and if the wife puts away her husband, and marries an­
other, she commits adultery,”8 the Lawgiver of the New
Testament declares. Therefore State laws can never es­
tablish as right: “Whoever by reason of capricious aban­
donment by his spouse or mental illness or grave violation
of marital relations brings suit against his spouse and,
after sentence of divorce has been passed, marries another,
is not an adulterer.” Such a law would be null and void.
Therefore the Syllabus (thesis sixty-seven) has rejected
the thesis that: “In certain cases divorce, properly socalled,® may be sanctioned by civil authority.” In his En­
cyclical on Christian Marriage, Leo XIII teaches that
marriage was instituted by God and from the very begin­
ning manifested, above all else, two very excellent proper­
ties, deeply seated, as it were, and signed upon it—namely,
unity and perpetuity. Jesus Christ bore witness to the Jews
and to His apostles that marriage, because of its very
nature, should exist between one man and one woman;
“that of the two they are made one, so to say, one flesh;
and that the marriage bond is by the will of God so closely
and strongly made fast that no one may dissolve or render
it asunder.”7 Pius XI reaffirms this teaching : “This inviola­
bility of the marriage bond, although not in the same per­
fect measure in every case, belongs to every true marriage,
for the word of the Lord; 'What God has joined together,
let no man put asunder,’ must of necessity include all true
marriages without exception, since it was spoken of our
first parents, the prototype of every future marriage.”8
Moreover, Christ has expressly declared that there are
persons who for the sake of the kingdom of God, by violent
means, have made marriage forever impossible for them­
selves.9 That the words of the Lord are not to be understood
as signifying physical intervention but rather a forceful
act of the will that imposes on the lower man the determi• Mark 10:llf.
♦ There is no immediate opposition to the divine law if the civil law only offers the
possibility, in definite cases, of the entering of a plea of divorce and gives assurance that
a person will not be punished if, after the sentence of divorce has been decreed, he or
she enters into another marriage. For the State can, for grave reasons in the interest of
the public weal, legally permit immoral actions, that is, expressly assure that they will not
be punished. The only question is whether the State in this case, namely, in the matter
of divorce, has sufficient reasons to create special juridical possibilities of the trans­
gression of the divine law.
’ Arcanum divinat safientae, February 10, 1880. in ASS, XII, 386. English translation
in The Great Encyclical Letters of Pope Leo XIII, 60.
* Casti connubii, December 31, 1930, in AAS, XXII, 551, published in English transla­
tion by the National Catholic Welfare Conference (Washington, D. C. 1937), 24f.
• See Matt. 19:12.

s

62

THE CATHOLIC CHURCH AND THE MODERN STATE

nation of lifelong celibacy, is beyond doubt. It follows,
therefore, that the lex Julia and Papia Poppaea against
celibacy that obtained in the Roman State even up to the
fourth century after Christ, forbidding celibacy to all men
under sixty and all women under fifty, were invalid. During
the nineteenth century an attempt was made in France to
create a duplicate of this Roman law in a legal draft that
was drawn up proposing to exclude from civil service (the
armed services being the only exception) every citizen who
was still single at the age of twenty-five.10
This survey is limited to legal enactments that touch
the sphere of ethics, but in the New Testament there is a
large number of other juridical norms that owe their
origin to the Founder of the New Testament and imply a
far-reaching limitation to the omnipotence of the State.
Christ the Lord has founded a Church and has determined
its essential constitution and rights.
In the natural order, in theory, concern for religion
should be the business of the State since without the pro­
motion of religion the temporal welfare of society cannot
be realized. If such concern was in practise carried out,
the State would have to issue regulations regarding the
common form of divine worship, for example, in respect
to feast days, public prayer and sacrifice, and the ministers
of religion. Christ could have permitted the State to con­
tinue to render this service in behalf of His (supernatural)
revealed religion. But He has not done so ; rather, He has
created a specific administrative organization for the
sphere of the religious life and has endowed this organiza­
tion with sovereignty; that is, He has made it entirely
self-sufficient, and in its sphere of activity wholly inde­
pendent of every other power on earth. According to the
Syllabus, contradiction of thesis nineteen, the Church is
“a true, perfect and entirely free society and she enjoys
peculiar and perpetual rights conferred upon her by her
Divine Founder; and it does not belong to the civil power
to define what are the rights of the Church and the limits
within which she can exercise them.”
A Catholic interpreter of the Syllabus justly , remarks
that this proposition brings us face to face with the heart
of the questions and controversies concerning the relations
of Church and State.11 Gôtz echoes this opinion but adds:
•See Min XIV (1910), 165.
o J. Tosi, Vorltinnitn iltr dtn SjlLthj (Vienoa
*

1865)» 66.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

63

“The Ultramontane doctrine here, too, stands in direct
opposition to the conception which the modern State must
entertain on these matters and which are expressed in the
idea of a state-controlled Church.”12
What this power of the State over the Church embraces
has already been stated in the Introduction to this study:
the sum-total of prerogatives that the State as such claims
in respect to all the ecclesiastical societies existing within
its borders. These prerogatives are termed State power in
contradiction to Church authority. For by asserting power
over the Church, the State disavows any claim to eccle­
siastical authority as such; the state-controlled Church is
merely a by-product of State sovereignty. The absolute State
of the seventeenth and eighteenth centuries claimed eccle­
siastical authority: competence to issue commands regard­
ing doctrine, the administration of the sacraments, divine
worship, etc. The modern State, on the contrary, wishes to
, leave Church authority in the hands of the organs designed
by ecclesiastical constitution and thus allow full independ­
ence to the Church in the sphere of the so-called sacra
interna. But the State would subject to its power the sacra
externa: that is, wherever ecclesiastical affairs manifest
an external aspect that reaches into the sphere of the
State’s interests, the State should be able to assert itself
by regulating such matters independently and unilaterally,
in virtue of State power. Accordingly, the state-controlled
Church simply means a mediate power of the State over
the Church—a counterpart of the potestas indirecta of the
Church over the State.
That the Church “can never acknowledge in principle”
such a power over herself on the part of the State, no
Catholic can question. H. Singer, too, admits this, although
he once tried to prove, from a theological viewpoint, that
the State’s rights to exercise supreme inspection and inter­
vention is relatively justified under present-day conditions.
For the modern State, he argues, dealing as it does with
divers confessions and religions, cannot grant to the in­
dividual unrestricted freedom but must be allowed to deter­
mine for each one what are the limits to be adhered to in
the interest of public order and sectarian peace.13 But the
position in which the State has been placed by reason of
historical evolution (namely, in virtue of the dissolution
n VUramontanismus, 126.
u Deutsche Zeitschrift fSr Ktrchenrecht (1895). 66ff ; (1898), 30f.

64

THE CATHOLIC CHURCH AND THE MODERN STATE

of religious unity) cannot influence the judgment made
from the theological standpoint as to the “rights” of State
supervision in the religious sphere. In other words, rights
of the Church that are of divine origin are and remain,
under all circumstances, inalienable, and can never—in the
smallest degree—become State rights, even though the cir­
cumstances of the times can be for the Church an occasion
or even a moral necessity for offering to the State her co­
operation in the exercise of those rights.
CHIEF OPPOSING VIEWS ARISING FROM THE
THEORY OF THE STATE-CONTROLLED CHURCH
We will briefly indicate the chief opposing views and
conflicts that arise when a right claimed by the Church in
virtue of Divine Revelation appears to be disregarded or
violated by the theory of the state-controlled Church. First
—and this should be carefully noted—m shall set forth
only the opposing views; just how far in some instances
(to use the terminology of Hegel) it is possible to form a
synthesis from the State thesis and the Church antithesis
we will not for the present investigate in particular; that
such a harmonization is possible will become clear in some
instances without further discussion.
I
It is a fundamental dogma of Catholic faith that the
I right of the Church to exist goes back to the will of the
God-Man Who instituted it as an organized society for the
purpose of communicating to mankind and to the indivi­
dual, the salvation merited by Christ for all men. In found, ing the Church, the Saviour did not acknowledge or respect
Z__any State rights whatever. True, when the Pharisees in­
quired about taxes, Jesus replied that one must render to
Caesar the things that are Caesar’s ; but when He instituted
His Church He did not “render” anything to Caesar nor
did He petition Caesar for recognition. Obviously thereby
Christ wished to show that in this instance there was no
question of “the things that are Caesar’s”; that is, the
Church’s existence was to be wholly independent of secular
authority. But he stressed this in a positive way also; for
in declaring the universality of the Church’s mission, He
appealed to the unrestricted prerogatives given Him by
the Father to define the spheres of right and duty in human
society: “All power in heaven and on earth has been given
to Me. Go, therefore, and make disciples of all nations.”14
"Malt. 2S:i8f.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

65

Hence it follows that no State law, even if unanimously
decreed by both houses of duly elected representatives, can
call into question the Catholic Church’s right to exist in
any country, large or small. Therefore all laws and edicts
of the Roman emperors in the first three centuries, of
Queen Elizabeth in the sixteenth, of the Japanese Mikados
in the seventeenth, or of atheistic communism in the twen­
tieth century that denied juridical existence to the Church
lacked juridical binding force. Now the modern State does
not, indeed, question the Church’s right to exist, but it
gives as a reason for such right the State’s favor or con­
cession. For one function of the system advocating the
state-controlled Church is the jus reformandi (in historical
development having for its basis the Peace of West­
phalia),18 whereby the State has to determine whether the
Catholic Church—like any other religious body—should
be permitted to exist within its confines. If the Church
cannot admit such a right on the part of the State, that
does not of itself necessitate a conflict. Rather, the Church
gratefully accepts permission to operate within the con­
fines of the State as an explicit assurance of a right which,
apart from such a concession, belongs to her. For it is cer­
tain that—as even those who advocate the theory of a statecontrolled Church admit—the State does not as the present
time use its “right of reforming” to deny or refuse per­
mission to the Church to exist and function within its
boundaries. The State, they claim, has such power formally,
but not in fact, because of the immense influence the Church
exerts on Catholic citizens of the State, an influence which
cannot be overcome by laws.
There is in this connection another right which, al­
though in itself of a temporal nature, follows as a natural
juridical consequence of the Church’s existence. The Syl­
labus has condemned thesis twenty-six, which states : “The
Church has no natural and legitimate right to acquire and
possess property.” The Church is indeed not a kingdom'T*
ôT^7
this world,” but she is in this world and cannot realize her '
purposes without possessions. Therefore, given the fact of
her existence, the Church has a natural right to acquire
and possess property; she is a juridical being by the will of
her Founder and not merely in consequence of a property
right the State may grant her and her institutions within
w See E. A. Ryan, S.J., "Catholics and the Peace of Westphalia," in Theological
Studies, Vol. IX, December, 1948, No. 4, 597f.

Ml

66

THE CATHOLIC CHURCH AND THE MODERN STATE

the confines of the State. And the Church can administer,
use and dispense of her possessions at will. Indeed, by
reason of her sovereignty, which extends to all things nec­
essarily connected with her ends, the Church is not only
a juridical being, but she also has autonomy in regard to
property rights; that is, she can also determine freely and
independently the kinds of ownership and the forms where­
by ownership is realized in the interests of her institu­
tions.1® From this it follows that when the modern State
appeals to its presumed power over the Church in order to
claim authority in the sphere of property rights, it is not
justified. The State has no right to make the property rights
of ecclesiastical institutions dependent upon its authori­
zation, to intervene in the administration and use of Church
property, or even to subject to its juridical forms the hand­
ling of ecclesiastical property, or, finally, to impede or res­
trict the acquisition of property by the Church by so-called
amortization laws, not to speak of the alienation of Church
property by what is euphemistically termed secularization.
proi
The Church's constitution in its essentials rests, like her
existence, on the will of her Divine Founder and is there­
fore wholly inaccessible to State intervention or change.
The Church is first of all a societas inaequalis, that is, a
society whose members do not enjoy equality of rights; and
this ought not to be forgotten, especially at the present
time, in view of the gratifying efforts of the laity to parti­
cipate more actively in the Church’s work. There are two
categories of persons in the Church, shepherds and flock:
that is, those who ocupy an official position in accordance
with their grade in the governing organism, the hierarchy;
and the multitude of the faithful. According to Christ’s
will the power to guide and rule rests exclusively with the
hierarchy; the faithful have in the final analysis, the duty
of obedience in all religious matters. If they somehow share
in the exercise of ecclesiastical teaching and administration,
they do so only by order and under the control of the hier­
archy. The intentional disregard of this truth in the French
law of separation of Church and State in 1905 was the
deciding factor for the possibility (offered by this law) of
forming associations for religious worship (associations
’•The Code of Canon Law say»: ’The Church and the Apostolic See have the inherent
right, freely and independently of any civil power to acquire, retain, and administer
temporal goods for the pursuit of their own ends” fcanon 1495,1). **
The Church also
has the rtght, independently of the civil power, to demand of the faithful whatever is
necessary tor divine worship, for the decent support of the clergy and other servants,
and for the pursuit of the rest of her proper ends ’ (canon 1496).

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

67

cultuelles) to which the administration of a part of the
Church’s property would be entrusted. Pius X forbade such
administrations17 and preferred the total pauperization of
the Church in France to a violation of one of the principles
of the Church’s constitution. Many, especially among the
laity, even some who were unquestionably ecclesiasticalminded, found it difficult to understand the reasons for
the pope’s declaration. Twenty-three Catholic writers and
members of the Chambers who in March, 1906, subscribed
to the sensational letter to the bishops formulated before
the final decision of the Pope, saw absolutely no ignoring of
the hierarchy in the law of separation. As a matter of fact,
there was inserted in the original draft made during the
course of a debate in the Chambers, a provision that such
associations must, in their constitution, “conform to the
general rules of organizations of public worship, the exer­
cise of which it is their purpose to guarantee.”18 For Catho­
lic associations of religious worship this could only mean
the demand that their members, under pastors and bishops,
must be in unity with the pope. So it was thought that the
hierarchy and its exclusive right to rule the Church was,
so to speak, tacitly recognized. But all the while another
fact was being overlooked—namely, that in another part
of the law (Article VIII) the assurance just mentioned
proved to be an illusion; for Article VIII contained the
stipulation which left to the Council of State, a purely lay
authority, the settlement of any dispute that might arise
between a cultuelle faithful to the bishop and a schismatic
cultuelle. Thus it belonged to the Council of State to pro­
nounce upon the orthodoxy of any association cultuelle and
its conformity with “the general rules of public worship,”
as provided by Article IV. It is obvious “that these asso­
ciations of worship are therefore placed in such a state of
dependence on the civil authority that the ecclesiastical
authority will, clearly, have no power over them.”19
The Lord also founded His Church as a monarchical
society by bestowing upon Peter the fulness of governing
authority to the end of time, that is, upon him and his suc­
cessors. It follows, therefore, that the State cannot make
” Encyclical Gravhtimo officii, August 10, 1906, in ASS, XXXIX, 386F. In 1924, this
unfortunate situation was in part removed by the institution of diocesan associations for
religious worship with the consent of Pius XI, as will be shown presently.
Article IV of the law of December 9, 1905.
» Encyclical Vehementer not, in ASS, XXXIV, 9. English translation in American
Catholic Quarterly Review, XXXI, April 1906, 214f. See also, Georges Goyau, ’’France,”
Catholic Encyclopedia, VI, 185ff.

68

THE CATHOLIC CHURCH AND THE MODERN STATE

national churches from parts of the Catholic Church exist­
ing within its confines. The Syllabus (thesis thirty-seven)
rejected the thesis : “National Churches can be established
after being withdrawn and openly separated from the
authority of the Roman Pontiff.” In a tyrannical maimer
Henry VIII attempted to do just that by demanding the
Oath of Royal Supremacy which acknowledged him as the
supreme head on earth of the Church of England. Modern
statesmen, too, have aimed at the same objective but in a
different, a more artful manner, better adapted to presentday conditions. The Kulturkampf20 was intended primarily
to bring about the incorporation of the Catholic Church into
the State organism of Prussia, under the supreme direction
of the State and to the exclusion of papal supremacy.
Indeed, it was even planned, through co-operation with Eu­
ropean governments, to strike sharply and directly at the
primacy of the pope and to effect a revision of papal pre­
rogatives. In fact, on May 14,1872, Bismarck in his famous
papal election dispatch invited the European cabinets to
agree on the conditions under which they would recognize
the next papal election.21
Since the State has no right to abolish the primacy of
the Roman See by a fiat, it cannot restrict the significance
of that primacy for a part of the Church, by formulating
laws for the purpose of gradually separating the Church of
a particular country from union with Rome. The Syllabus
(thesis forty-nine) rejects the proposition : “The Civil
authority may prevent Bishops and the faithful from free
and mutual communication with the Roman Pontiff.”22 The
Organic Articles of Napoleon 1 (1802) had provided that
the bishops might not leave their dioceses without the per­
mission of the French government. Many of the Articles
became “dead letters” but were dragged from their ob­
scurity when the authorities wished to show their enmity
to the Church. Thus in 1904, French Prime Minister
* See Martin Spahn, “Kulturkampf,” Catholic Encyclopedia, VHI, 703ff.
11 Brück-Kissling, Gescbichte der kaiboliscben Ktrche tn Deatcbland, (2nd ed.. Munster
in Westf., 1907k IV, 121«.
n The Vatican Council teaches: “From the supreme power of governing the universal
Church, possessed by the Roman Pontiff, it follows that the Pope, in the exercise of his
office, has the right of free communication with the pastors of the whole Church, and
with their flocks, that they may be taught and ruled by him in the way of salvation.
Therefore, we condemn and reprobate the opinion of those who hold that the com
*
munication between the supreme head and the pastors and their flocks can lawfully
be impeded; or who make this communication subject to the will of the secular power,
maintaining that whatever is done by the Apostolic See, or by its authority, for the
government of the Church, cannot have force or value unless it be confirmed by the
assent of the secular power.” Sess. IV, de Ecclesia, chap. 3 (Denainger-Bannwart·
Umberg, Enchiridion symbolorum, definitionum et declarationum de rebus fidei et morum
15th
*
(14th
ed-, Freiburg: Herder, 1922), no. 1829-

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

69

Combes appealed to a provision in the Organic Articles in
order to accuse the Holy See of having violated the Con­
cordat of 180123 by requesting the Bishops of Laval and
Dijon to come to Rome to answer charges made against
them. In this way, the breach between Franch and the Holy
See was effected without any formal repudiation of the
Concordat.24 One has only to recall the refusal of Sovietdominated governments on various occasions to grant visas
to local bishops to visit Rome, in order to realize that re­
strictions of this sort are by no means unusual even at
present.
The Church’s right to exist and her constitution, which
in its essentials has been established by divine right, cannot
be affected by legislative or any other kind of action on the
part of the State. The same is true of the essential rights
of the Church, which rest on the will of her Divine
Founder. The fact that there are such rights, the Syllabus
has vigorously defended by rejecting the nineteenth thesis
already referred to and by insisting that the use of such
rights must be free and independent of all State inter­
vention, as is evident from the twentieth rejected thesis
in the Syllabus: “The Ecclesiastical power must not exer­
cise its authority without the permission and assent of the
civil government.”
The fulness of power to guide and rule (the power of
jurisdiction) which Christ has committed to His Church
comprises a plurality of rights. It includes in the first place
the right to teach.20 The Lord gave to the apostles the
solemn commission to go forth into the whole world and to
spread His doctrines everywhere, to the end of time. But
to Peter He gave a special power, the supreme teaching
authority: “Simon, Simon, behold, Satan has desired to
have you, that he may sift you as wheat. But I have prayed
for thee, that my faith may not fail; and do thou, when
once thou hast turned again, strengthen thy brethren.”28
» The Concordat of July 16, 180V between Pius VII and Napoleon I, restored the
Catholic Church and Catholic worship to their normal condition in France. The Organic
Articles, a name given to a law regulating public worship which limited the scope ot the
Concordat, were published as law together with the Concordat and have always been
regarded as inseparable from the Concordat. These Articles in various ways infringed
on the spirit of the Concordat and gave rise to frequent disputes between the Church
and State in France. The law of 1905, which separated Church and State in France,
abrogated the Organic Articles at the same time it abrogated the Concordat. (See
Georges Goyau, “The Organic Articles,
*
’ Catholic Encyclopedia, I, 756).
*♦ See Georges Goyau, ’’France,” Catholic Encyclopedia, VI, 179.
» The Code of Canon Law says: ’’The Church, independently of the civil authority,
possesses the right and the office to teach all nations the truths of the Gospel.” (canon
1522, 2).
*Luie 22:311.

70

THE CATHOLIC CHURCH AND THE MODERN STATE

In Jerusalem when the Sanhedrin, which was established
to interpret the Law, to adjudge more important cases, and
to exercise surveillance over the administration of affairs,
refused its placet to this commission of Christ to teach
(“we strictly charged you not to teach in this name”), the
apostles gave this direct reply: "We must obey God rather
than men.”27 Now the modern State, which grants equality
of rights or parity, does not indeed wish to intrude upon
the inner life of the Church to which ecclesiastical teaching
obviously belongs. W. Kahl, one of the ablest interpreters
of the system of the state-controlled Church, declares : “The
teaching of the Church remains essentially unmolested,
even when it contradicts the juridical order of the State.
Any concession to State authority to make direct decisions
regarding the substance of doctrine itself, would in prin­
ciple be incompatible with the system of the state-controlled
Church.”28 Accordingly, even from the viewpoint of the
state-controlled Church, it would be an encroachment if the
civil legislatures demanded for purely doctrinal decrees
issued by ecclesiastical authorities, the so-called placet
(that is, the vote of assent which civil rulers gave to an
ecclesiastical enactment in order that it may have binding
force in their respective territories).29 The Syllabus op­
poses such demands by condemning the twenty-eighth
thesis : "It is not right for Bishops without permission of
the government to promulgate even their apostolic letters.”
Since only the Church is sent to guard and propagate
the teaching of Christ, the State has no right to exclude
her from collaborating in the sphere of education. In his
Encyclical On Christian Education of Youth, Pius XI says :
“Education is essentially a social and not a mere individual
activity. Now there are three necessary societies, distinct
from one another and yet harmoniously combined by God,
into which man is born : two, namely, the family and civil
society, belong to the natural order ; the third, the Church,
r~io the supernatural order. . . Ç~Ând first of all education
belongs pre-eminently to the Church, by reason of a double
title in the supernatural order, conferred upon her by God
Himself; absolutely superior, therefore, to any other title
in the natural order. The first title is founded upon the
express mission and supreme authority to teach, given to
“ 'itbr^ine
Klrcbmrctti *
ni irr KircbnpolitU, I. Ml• See S. Lolio, “Exsequitur, Caihahc Encjclope^ta, V,

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

71

her by her Divine Founder: ‘All power in heaven and on
earth has been given to Me. Go, therefore, and make dis­
ciples of all nations, baptizing them in the name of the
Father, and of the Son, and of the Holy Ghost, teaching
them to observe all that I have commanded you ; and behold,
I am with you all days, even to the consummation of the
world.’30 Upon this magisterial office Christ conferred in­
fallibility, together with the command to teach His doc­
trine. . . . The second title is the supernatural motherhood,
in virtue of which" the Church, the spotless Spouse of
Christ, nurtures and educates souls in the divine life of
grace, with the sacraments and her doctrine. . . . Hence it
is that in this proper object of her mission, that is, ‘in faith
and in the teaching of morality, God Himself made the
Church partaker of His divine authority, and through His
heavenly gift she cannot be deceived. She is therefore the
greatest and most reliable teacher of mankind, and in her
dwells an inviolable right to teach them.’31 By necessary
consequence the Church is independent of any sort of
earthly power as well in the origin as in the exercise of her
mission as educator, not merely in regard to her proper
end and object, but also in regard to the means necessary
and suitable to attain that end. Hence, with regard to every
other kind of human learning and instruction, which is
the common patrimony of individuals and society, the
Church has an independent right to make use of it, and
above all to decide what may help or harm Christian educa­
tion. And this must be so, because the Church as a perfect
society has an independent right to the means conducive
to this end, and because every form of instruction, no less
than every human action, has a necessary connection with
man’s last end, and therefore cannot be withdrawn from
the dictates of the divine law, of which the Church is the
guardian, interpreter and infallible mistress.”33
—
Wherever religious instruction is imparted to Catholics
it can be imparted only by order of the Church, in virtue
of her commission (missio canonica), even though he who
imparts it may be a civil official. Religious instruction “for
Catholic children,” writes a Catholic layman,” can be regu­
lated only with the Church’s co-operation; on this point
there can be no difference of opinion among Catholics. For
•Malt. 28:19f.
...
** Leo Χ1Π, Encyclical Letter. Lsbertai, Jone 20, 1888, in ASS, XX. 607. English translatino in The Pope and the People, 86.
» Divini Ulins magistri, December 51, 1929, in AAS, 52-54. N. C. W. C. translation, 2-8.

72

THE CATHOLIC CHURCH AND THE MODERN STATE

us no form of religious instruction, no method of imparting
the Christian spirit is trustworthy except that which has
the authority that has been commissioned by Christ ac­
cording to our faith, that is, the teaching authority of the
Church. All that is told us to the contrary owes its origin
to a concept of religion that stems from the individualistic
spirit of Protestantism. It proceeds from false conceptions
and misses the point at issue. Let such a concept of religion
be applied to the instruction to which it is suited; but we
can never, so far as is in our power, permit the application
of such a concept to the instruction of our children, and
should such an attempt be made, Catholic teachers, Catho­
lic families, Catholic citizens, and the Catholic clergy would
resist to the last breath.”33
But since the success and influence of religious in­
struction can be endangered and even entirely thwarted
by other parts of the regular course of school instruction,
the Church has the right to supervise all schools in which
Catholic children are being instructed, so that faith or
morality may not be injured or undermined. As Pius XI
has said: “It is the inalienable right as well as the indis­
pensable duty of the Church, to watch over the entire edu­
cation of her children, in all institutions, public or private,
not merely in regard to the religious instruction there
given, but in regard to every other branch of learning and
every regulation in so far as religion and morality are
concerned.”34 Therefore the bishops of France were per­
fectly justified when they opposed the public schools’ use
of religious teaching aids that jeopardized the Faith.38
For to these prelates, also, Christ has said: “Teach them
to observe all that I have commanded you”'/and theyzwonld
have grîëvôUsly-violated-their~officiarflûtvÎad they agreed
to leave^in thë'hands^fchndfën books wherein belief in
the supernatural was called a prejudice, the divine origin
of the moral law was contested, original sin denied, the
vow of chastity taken by priests and religious said to be
immoral, the indissolubility of marriage denied.
Moreover, teachers of religion in secondary schools and
professors of theology in universities, even though they
be in the civil service, cannot take office without ecclesias»M. Spihn. Dtr K<mff *
m
(Kempten, W7), 25.
x Divirti illitti magistrt, N. C. W. C. traasutioa, 6-9· See also
*
Cade of
law,
•TW» o’ppMition wM introduced by the P«tpr»l
ίνν1™?1", "!dtr d1*'
of September 14, 1909; see Sttmmen am Maria-Laacb, (1910), LXXVin, 4o5f.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

73

tical permission and are subject to the Church’s supervision
in the exercise of their office. Only ecclesiastical authority
can decide whether the teaching of a professor of theology
in a State university accords or does not accord with
Catholic doctrine. In the latter instance, the State may not
protect such a person in the continued exercise of his
position as a teacher of candidates to the Catholic priest­
hood.38
In the following theses the Syllabus condemns the ex­
clusion of the Church from school affairs: “The entire
direction of public schools in which the youth of any
Christian state are educated, except to some extent in the
case of episcopal seminaries, may and must belong to the
civil power ; and this in such a way that no other authority
whatsoever shall be recognized as having any right to
interfere in the discipline of the schools, the direction of
studies, the conferring of degrees, and the choice and ap­
proval of teachers” (thesis forty-five) ; “The best theory of
civil society demands that the public schools which are
open to the children of all classes, and in general all public
institutions intended for the education of youth in letters
and higher learning, shall be free from all ecclesiastical
authority, government, and interference, and shall be com­
pletely subjected to the civil and public authority according
to the desires of the rulers and the opinions of the age”
(thesis forty-seven) ; “Catholics may approve of that
theory of education for youth which separates it from
Catholic faith and ecclesiastical power, and which is con­
fined exclusively, or at least principally, to the knowledge of
natural order alone and the purpose of social life on earth”
(thesis forty-eight).
The power to guide and rule given by Christ to His
Church also embraces the right to regulate by laws the
actions and customs of the Church’s subjects. The Lord
Himself expressly empowered the apostles to establish
binding norms : “Amen I say to you, whatever you bind on
earth shall be bound also in heaven.”37 What is the attitude
of the modern State toward the Church’s right to legis­
late?38 Defenders of State rights disagree with one another
* Article V of the agreement between the French government and the theological faculty
of the University of Strassburg is a correct and clear model in this respect. See Deutjcbt
Zeitjcbfift fur Kirchtnrecbt, 1903» 151. (As is evident, this problem pertains to cir­
cumstances in certain European countries and does not concern present-day conditions
in the United States).
” Matt. 18:18.
w See E. Rothenbucher, D/r Trtnnttng von Stoat and Kirche (Munich, 1908), 440ff.

74

I
I
!
I
I
i

f,
I
j,

i

j
I
I
i
I ;

J

I
»
' ■
I.
j
j
j
j

!,
!r
F ■ .
i
t

THE CATHOLIC CHURCH AND THE MODERN STATE

in this matter. Some deny the Church all right to make
laws for her subjects ; they hold that only in so far as the
State grants her such right, or in as much as the State
imparts to the social regulations passed by the Church
civil coercive power, is it possible to speak of ecclesiastical
rights properly so-called. Such is the opinion of Otto Mejer,
of Zorn Ernst Meyer, Paul Hinschius, Thudichum. Hinschius, for instance, says: “The modern State does not
acknowledge a sovereign legislative right of the Catholic
Church, to be exercised independently. In virtue of its
sovereignty, which it exercises over its own territory and
Catholics residing therein—contrary, of course, to the
Church’s teaching—the State regulates also the scope and
measure of the Church’s right to issue general and binding
norms for ecclesiastical affairs. In so far as these latter
announce general laws over and above these limitations,
they are null and void and lack validity, not merely in the
civil but also in the ecclesiastical sphere.’’89 One of the most
consistent champions of this viewpoint is Friedrich Thu­
dichum,40 who refuses altogether to apply the term “right”
or “law” to ecclesiastical norms not sanctioned by the
State, having coined for such norms the offensive expres­
sion: “the predilections of the society of the Catholic reli­
gion.” At the present time, however, this tendency is no
longer dominant. There are other adherents to this doctrine
of State rights who, from the purely juridical viewpoint,
concede true juridical character to the canon law of the
Catholic Church, entirely apart from the State’s attitude
toward it. Among these are F. V. Savigny, Eichhorn,
Puchta ; and more recently Kahl, Frantz and Rothenbiicher.
The latter submits detailed justification of his opinion:
“The Catholic Church, in virtue of her historical evolution
and because of the international character of her commun­
ion, has developed the most perfect canon law. In point
of creed she embraces Catholics throughout the world. For
her laws, State boundaries mean nothing. For her the
Church is visible and—in terms of the viewpoint of the
modern State—she is an institution of a juridical nature
founded by Christ for man’s salvation. Her rights exist
independently of the State. To be sure, the State invests
only some of these rights with juridical character en·* Kircbenrecht dtr Katholiken und Protcttanten in Deutland. 6 vob. (Berlin, 1869-1897).
III. 838.
Deutsches Krrcbenrecbt des 19» Jabrbunderts. 2· vols. (Leipzig, 1876-1878), I, 6.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

75

forceable by State power, and often these only with modi­
fications that are compatible with agreements reached by
concordat.”41 We have discussed this diversity of juridical
conceptions for another reason; namely, to show that the
concept of the state-controlled Church and its consequences
for the Catholic Church is by no means exactly and firmly
fixed ; and that opposition to one or another theory of State
rights that just happens to be in vogue, in no way signifies
opposition to the claims of the modern State.
The Church claims not only autonomous but also the
exclusive right to legislate and command for the entire
sphere of interests affecting religious life wherever she
regards State power to be altogether incompetent. Leo XIII
says: “It is the Church, and not the State, that is to be
man’s guide to heaven. It is to the Church that God as­
signed the charge of seeing to, and legislating for, all that
concerns religion; of teaching all nations; of spreading
the Christian faith as widely as possible; in short, of ad­
ministering freely and without hinderance, in accordance
with her judgment, all matters that fall within her com­
petence.”42 Now the modern State, generally speaking, is
not greatly inclined to intervene in the sphere of the purely
spiritual; such intervention was rather a specialty of the
absolute State of the Josephinist type (inaugurated by
Joseph II of Austria) that prescribed the length and style
of the sermons, prayers, and hymns and determined the
number of candles for the altar.43 But in one specific in­
stance the Syllabus found occasion to reject a proposition
grounded in this type of interference—namely, thesis fortyfour which states that
. . with regard to the administra­
tion of the divine sacraments, the civil authority possesses
power to decree the disposition necessary for their re­
ception.” The Piedmontese government had compelled
Archbishop Luigi Franzoni (1832-1862) to live in exile be­
cause he felt obliged to refuse the Last Sacraments and
Christian burial to a high state official. Similar encroach­
ments of the State on the inner life of the Church were
made on the basis of the Organic Articles, and during the
Kulturkampf several Prussian courts looked upon the
refusal of the confessor to grant absolution as a violation
of the law of May 13, 1873, in the matter of applying spir** Op. cit., p. 445.
" Encyclical Immortale Dei, November 1, 1885, in ASS, XVIII, 165 ; Engish trans­
lation in Tie Pope and the People, 50f.
• See H. Franz, 5'Joseph II," Catholic Encyclopedia, VIII, 50811.

s·

76

«»j»wassata»nsiiiKaw»ïSfti£3S«:

THE CATHOLIC CHURCH AND THE MODERN STATE

itual punitive and disciplinary means, and condemned the
priests accused of that violation.44
Then, too, there is a very important sphere of life which,
in virtue of her dogmatic teaching, the Church must main­
tain has to do with a matter predominantly religious in
nature and is therefore reserved to ecclesiastical legislation.
The State, on the contrary, claims that in consequence of a
slow, century-long evolution that has altered the concept
Jn this sphere, it is subject to State legislation. We refer
ito the sphere of marital rights, if one prescinds from it ■
KM those civil effects of the marriage contract which are
_
wholly within the competence of the State; for example,
J ( «ïc the property rights of married people, rights of inheritance, dowry, title of nobility, alimony, and similar matters.
' ( ^(j^yf^But everything else—that is, the juridical norms governing
" ?
betrothal, the marriage contract, the permanence and in! il'-At^f^dissobulity of marriage, its natural juridical consequences
pi^ ^aipnd effects—only the Church can regulate by ecclesiastical
legislation. The reason for this lies in the natural religious
character, and especially in the sacramental character, of
:
!

Pius XI in his Encyclical On Christian Marriage states:
“We follow the footsteps of Our predecessor, Leo XIII, of
happy memory, whose Encyclical Arcanum, published fifty
years ago, We hereby confirm and make Our own . . . and
declare that, far from being obsolete, it retains its full
. force at the present day. And to begin with that same
Encyclical, which is wholly concerned in vindicating the
divine institution of matrimony, its sacramental dignity,
[and its perpetual stability, let it be repeated as an im­
mutable and inviolable fundamental doctrine that matri­
mony was not instituted by man but by God; not by man
were the laws made to strengthen and confirm and elevate
it, but by God, the Author of nature, and by Christ Our
Lord by Whom nature was redeemed, and hence these laws
cannot be subject to any human decrees or to any contrary
pact even of the spouses themselves.”48 The Council of
Trent says: “If anyone saith that matrimonial causes do
not belong to ecclesiastical judges, let him be anathema.”4’
It is only the reverse of this canon that the Syllabus rejects
in condemning the seventy-fourth thesis: “Matrimonial
*· Btück-Kissliag, Gfscbicbto dtr katbolhcbfft Ktrcbt, IV, 526.
« Casti connabit, N. C. W. C. translation, 4.
.
.
Ses». XXIV. oo the sacrament of Matrimony, canon 12, m Denzinger, Bncbtrtdion,
no. 982. See also, Codr of Canon Law, canon I960.

-iLa

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

77

cases and espousals belong by their very nature to civil
jurisdiction.”
__
Hence it follows that the Church must condemn civil (
marriage among Christians, especially the legislation now
introduced into so many countries which makes the civil
ceremony compulsory. It cannot be said the State wishes
only to regulate the civil contract and cede the sacrament to
the Church, for a separation of the marriage contract
from the sacrament of marriage is impossible; a "valid
marriage coritract between a baptized man and a baptized
woman Jis always arid without exception also a sacrament.47
Then tdô,~~thênpëâcëfül co-existence of "double^marriage
legislation, the ecclesiastical and the civil, is not possible
because today almost everywhere civil law allows divorce
and so regulates it that little consideration is given Chris­
tian dogmatic teaching on the indissobulity of a consum- ]
mated marriage, and hence serious conflicts ensue. Accord- |
ingly, the Church recognizes as valid a union entered into
solely according to the law of the State (that is, a purely
civil marriage) only if in an individual case it is so re­
garded according to canon law. Thus, the Church does not
consider a civil contract made by two Catholics as a valid
marriage, whereas she did for a time recognize as valid
a mixed marriage contracted solely before a registrar in
Germany, provided that the two parties had the intention of
contracting a valid marriage. In other words, such a mar­
riage could be contracted without the proper Catholic form
(that is, without the presence of an accredited priest and
two witnesses and hence also before a civil registrar). 48
It is a further consequence of the Church’s concept of civil
marriage that all Catholics (and that includes a Catholic
and a non-Catholic) are strictly forbidden to attempt to
contract a marriage valid before God in the civil forum:
every Catholic is in conscience bound to contract marriage
according to the Catholic form, that is, before an accredited
priest and two witnesses.
In the light of this brief explanation, it is easy to
understand why the Syllabus has condemned the following
theses : “The Tridentine form does not oblige under penalty
« See Arcanum divinae sapientae, English translation in The Pope and the People, 31-34 ;
see also. Casti connubii, N. C. W. C. translation, 27-28.
• By virtue of an exceptional right granted Germany by Pius X in the decree Provida
sapienti^ue, ASS, January 18, 1906, XXXIX, Slff. In response to a query whether the
provisions of the Provida have been abrogated by virtue of the new Code of Canon Law,
Cardinal Gasparri, president of the Pontifical Commission for the interpretation of the
new code, replied (Mardi 30, 1918) that the Constitution Provida has oeen abrogated;
therefore the particular right that had been granted for Germany is dow obsolete.

I

78

THE CATHOLIC CHURCH AND THE MODERN STATE

of nullity where the civil law prescribes another form or
wishes to validate the marriage by means of this new form”
(thesis seventy-one) ; “A civil contract can constitute true
marriage among Christians ; and it is false to affirm either
that the marriage contract was always sacramental or that
there is no contract if the sacrament be excluded” (thesis
seventy-three).
The power to guide and rule committed to the Church
embraces also the right to appoint shepherds, in other
words, to fill ecclesiastical offices. This right has been exer­
cised within the hierarchy in a variety of ways at different
times. Now the pope as supreme shepherd sent by Christ
has reserved to himself the appointing of bishops, while
the bishops in turn make appointments to the various
offices within their dioceses. It is obvious, of course, that
the State has a great and just interest as to what sort of
persons should be appointed to ecclesiastical offices, es­
pecially the more influential positions, within its confines.
But this does not imply that the State may claim the
inherent right, independently of ecclesiastical bestowal, of
co-operating in making official appointments, to say nothing
of independent, despotic filling of ecclesiastical offices.
Therefore the Syllabus rightly condemned the assertion
made in the fiftieth thesis: “Civil authority has in itself
the right of presenting bishops.” If some governments
possess this right, they possess it only in virtue of papal
bestowal (such was the case, for example, in France for a
time by provision of the Concordat of 1801). But, to claim
such a right as a consequence of State sovereignty is down­
right usurpation.
The same is true regarding the deposition of bishops.
The Syllabus rejected thesis fifty-one: “Furthermore, lay
government has the right of deposing Bishops from the
exercise of their pastoral ministry.” During the Kulturkampf, Pius IX had occasion to protest against the as­
sumption of such a “right” when the Prussian Royal Court
of Justice for Ecclesiastical Affairs in quick order declared
two archbishops, four bishops, and one auxiliary bishop
deposed: “For the Lord has not set the mighty of this
world over the bishops in religious matters, but St. Peter,
to whom He committed the office of tending not merely His
lambs but also His sheep. Hence it follows that they whom
the Holy Spirit has placed to rule the Church of God can-

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

79

not be deposed by any earthly power, however mighty.”49
It can indeed happen that a bishop by his activity may en­
danger the commonwealth ; then the way remains open for
the government to present its complaint and remonstrance
to the Holy See. In such cases the popes are wont to meet
the wishes of the government more than halfway, by re­
moving from office—in a way satisfactory to both parties
—even bishops who through no fault of their own have
incurred the displeasure of the government. Thus, during
the Kulturkampf, Archbishop Paul Melchers and Arch­
bishop Miecislas Ledochowski, and before them, Arch­
bishop Clemens August Droste-Vischering, who had re­
sisted the government’s demand in the matter of mixed
marriages, and were therefore considered personae non
gratae by the Prussian government, with Rome’s consent
did not return to their dioceses. At an earlier date, to con­
ciliate Napoleon I, Pius VII called upon the entire episco­
pate of France to resign office, stipulating that if any
bishop should refuse to abdicate, new appointments would
be made without regard for their refusal.
The State has no right in the matter of co-operating
with the Church in the appointment of pastors, unless the
Church has ceded such a right to the State. In times of
conflict with the Church, the State has sometimes, on its
own responsibility, bestowed the office of pastor on persons
who have permitted themselves to become tools of the
State; but the Christian people have treated such State
pastors as they deserved ; that is, they have ignored them.
In 1873 the Catholics of Geneva, Switzerland, preferred to
put up with the loss and suppression of their rights by the
Old Catholics rather than accept and exercise the right,
as established by law, to choose their pastors through the
vote of the congregation. At the present time, the com­
munist regime in Rumania is seeking to eliminate those
priests who were delegated by their respective bishops in
accordance with canon 459. The government aims to give
their posts to “patriotic priests” subservient to communism.
Poland’s communist regime is also actively supporting a
movement to create a schismatic Polish Church completely
submissive to the government.
That it belongs to the Church and to her alone to deter­
mine how her future officials, young candidates for the
Encyclical Quod nunquam, February 5, 1875» to the archbishops and bishops of
Prussia, in ASS, Vlll, 253.

80

THE CATHOLIC CHURCH AND THE MODERN STATE

priesthood, should be instructed and educated cannot be
questioned on the ground that this is “a matter that touches
the State also, in a large measure.”80 Even though one dis­
regards the basic viewpoint of the Church that every
sovereign society regulates the training of its prospective
officials as it deems best, one has only to imagine how the
Church would be menaced if everyone who happens to be
at the head of the government were given the right, by
intervening in the education of the clergy, to make laws
that would prevent those who occupy that influential posi­
tion in regard to the public and private life of the people
from being trained in harmony with their high office. If,
therefore, the Syllabus had to condemn the forty-sixth
thesis that “Even in ecclesiastical seminaries the method
of studies is subject to civil authority,” that condemnation
certainly does not not imply the denial that ecclesiastical
officials have the moral duty to have a regard for and to
preserve also, the interests of the State in the instruction
and training of the clergy. Amicable agreement with the
Church in this matter is better calculated to lead the State
to the attainment of its desire than harsh legislative in­
terventions which the Church repels by passive resistance.
The experiences of the Kulturkampf have shown that, and
Bismarck, too, realized that, the attempt made by the May
Laws to regulate “the education and appointment of
priests” was nothing but “a hunt on horseback behind wild
geese, a hunt that never led to its objective.”51
A necessary complement of legislative and governing
power is coercive or punitive power. A juridical ordinance
that cannot be made to prevail over the recalcitrant and
disobedient is only a very imperfect ordinance. Therefore
the Church has the right to apply force by imposing spir­
itual punishments, for example, excommunication, which
is exclusion from Church communion and from participa­
tion in the common blessings of ecclesiastical society,
namely, participation in the sacraments and Christian
burial. The Church’s coercive power as regards laymen, in
contradistinction to that of the State, is almost always
restricted to those purely spiritual punishments, since only
by such means, especially among cultured and ethically
sensitive peoples, can the chief purpose of all ecclesiastical
disciplinary measures be attained; that is, the correction
P, Hinschïus, Krrcbtnrtcbt, IV, 346.
« In a session of the Prussian House of Lords, April 12, 1686; stenographic record, p. 184.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

81

of the culprit and his return to the path of righteousness.
In ruder times the Church, too, made use of other penal
sanctions.
Generally the State acknowledges the Church’s power
to punish, but restricts its exercise by creating civil courts
to hear complaints of persons who believe that they have
been unjustly treated by ecclesiastical judgment. In Prus­
sia, in 1873, a Royal Court of Justice for Ecclesiastical
Affairs was established (but abolished again after the
Kulturkampf) to which appeal could be made from any
ecclesiastical penal sentence, not only by the accused but
also by the Chief President (on grounds of public interest).
Another law issued at the same time forbade the exercise
of spiritual justice over the Prussian clergy except by Ger­
man Church officials, and demanded for every removal from
office a formal legal procedure. A similar restriction of
the Church’s coercive power was offered by the Organic
Articles, which every administration in France between
1801 and 1905 considered to be integrally bound up with
the Concordat of 1801. The Council of State, thanks to the
formality of the appel d’abus, could declare that there was
abus in any given act of the ecclesiastical authority, and
thus thrust itself into the affairs of the Church. Bismarck
declared legal measures of this sort abortive attempts, "a
thrust of a dagger into water” ;52 and the Church imposed
upon everyone who successfully took advantage of such an
appeal the censure of excommunication latae sententiae;
that is, by reason of the offense itself (ipso facto), without
intervention of any ecclesiastical judge."
—
What is the present attitude of the Church in regard
to the claim which she defended, at least in the Middle
Ages, to exercise civil and criminal justice even in temporal
causes and in secular offenses whenever ecclesiastics were
the defendants? Does she regard this claim as inviolable,
as resting on a divine right? The Syllabus has rejected
thesis thirty-one, which says: “Ecclesiastical courts for
temporal cases of the clergy whether civil or criminal
should by all means be abolished, even without the con­
currence and despite the protest of the Apostolic See.” By
condemning such a proposition the Church confirmed her
stand; namely, that in countries where hitherto the entire
“ tirj., p. 185.
'
■
« No. 6 among the excommunications reserved in a special manner to the Pope, cited
in the Bull Apostolicae Sedis moderationi of October 12, 1869, dealing with ecclesiastical
censures, published in Pii IX Pontificis Maximi Acta (Rome: Vatican Press), V, 58.

82

THE CATHOLIC CHURCH AND THE MODERN STATE

jurisdiction over clerics had belonged exclusively to the
Church, the State was not justified in changing the clerics’
legal status by a one-sided exercise of its power, without
an understanding with the Holy See, and without any re­
gard for the Holy See’s protest no matter how well founded
such a protest might be. Such an arbitrary procedure must
be designated as an injustice since the aforementioned pri­
vilege of the clergy (privilegium fori) does not represent
merely a concession of civil laws. The proposition that
“The immunity of the Church and of ecclesiastical per­
sons (which includes the concept of a special court for the
clergy) derives its origin from civil law,” formulated in
this general fashion, has been condemned by the Syllabus
(thesis thirty). And rightly so ; for, apart from other con­
siderations, the historic claims of the Church themselves
forbid a ruthless and one-sided procedure on the part of
the State on the pretext that, once conditions have changed,
it must be intent on abrogating this privilege. Then, too,
there are many other reasons implicit in the very nature
of the case. If the Council of Trent states that ecclesiastical
immunity rests “on divine command and canonical sanc­
tions,”84 it certainly does not mean that this immunity may
{be traced back immediately to a divine right; but it does
' intend to assert that the Church can demand it in this
sense: namely, that she can consider a certain exceptional
position of her clergy necessary, in accordance with the
conditions of the times, for the fulfillment of her divine
mission and that of her ministers. It is not difficult to see
how the privilegium fori, for example, is desirable in order
to enhance the authoritative position ofjheclêrgy and that
the interests of religion and the Church require that the
trial of a cleric in civil and criminal causes should be held
before fellows on his own status, that is, before ecclesias­
tical judges; indeed, in certain circumstances a special
i tribunal would seem to be necessary in the interests of
(justice. At the same time, it is easy to understand that the
Church cannot explicitly renounce in principle, absolutely
and forever, her claim to a special court for the clergy,
although she can do so as individual situations arise—for
example, in concordats with this or that State. Nor can
the Church tolerate the abrogation of this clerical privilege
which results from a one-sided action on the part of the
« Seas. XXV, De Refarmoireee, chip. 20.

STATE SOVEREIGNTY AND DIVINE POSITIVE LAW

83

State." Today, according to secular law, the civil and crim­
inal causes of clerics belong to the lay court. Only with
respect to the purely spiritual conditions of their station
and office are clerics subject to their bishop, and then not
without certain State limitations—especially with respect
to certain practical punishments.5® With respect to the
United States, Anson Phelps Stokes says: “In colonial
times, most of the colonies gave certain legal rights to
clergymen, including that of a trial before an ecclesiastical
court in many cases where laymen would have to appear
before a civil court. Such cases, when exempting a clergy­
man from criminal process, are generally referred to by
a term common in the Middle Ages, ‘benefit of clergy.’ This
was abolished, as far as proceedings in the Federal courts
are concerned, by the Act of Congress of April 30, 1790,
entitled ‘An Act for the punishment of certain crimes
against the U. S.’. . . The Act of Congress of 1790 was and
is a direct evidence of the founders of government to carry
out their ideals of Church and State separation.”57
—
The Church’s power to guide and rule extends to all her
members, including also those wearing the royal crown.
Boniface VIII in his conflict with his royal opponent, Philip
the Fair, expressly defined the article of faith that “for
every human creature it is necessary for salvation to be
subject to the authority of the Roman Pontiff.” The Syl­
labus, too, had to correct the erroneous conception (which
has persisted from the era of Josephinism to our day) that
Catholic sovereigns are exempt from all spiritual jurisdic­
tion. This it did by condemning thesis fifty-four, which
reads : “Kings and princes are not only exempt from eccle­
siastical rule but are even superior to the Church in dis­
puted questions of jurisdiction.” In religious matters a
sovereign is as much subject to the Church as any other
Catholic, and must submit himself or herself to the
Church’s laws and ordinances. To be sure, the Church
makes allowances for the dignity and position of sovereigns
as to the manner in which she exercises her spiritual power
over those Christians who are secular sovereigns. This is
clear from the fact that princes are exempt from episcopal
jurisdiction and all their affairs are immediately subject
R See the interesting exposition of the pririlegiitm fori presented by the Sacred Roman
Rota, March 15, 1910, in AAS, Π, 494ff.
••See J. Sâgmûller, “Ecclesiastica! Privileges,
*
’ Catholic Encyclopedia, ΧΠ,
** Church and State in the United Stater, I, 492.

84

THE CATHOLIC CHURCH AND THE MODERN STATE

to the Holy See.58 Strange to say, sometimes the sovereigns
themselves prefer to be subject to the jurisdiction of their
own diocesan bishop, as, for example, Napoleon I in the
matter of his divorce. He probably hoped to obtain more
easily the fulfillment of his desire from the court bishops
than from the Pope, even though he was at the time the
question arose, a prisoner of the emperor.
D. RANGE OF JURISDICTION OF CHURCH AND STATE
Affirmation and denial of the power of the State over
the Church—such is the heart of the opposition between the
proposed rights of the modern State and the doctrine of
the Catholic Church, as our previous investigations have
shown. G. Jellinek summarizes this viewpoint in the words:
“The State of modern times appropriates the exclusive
right to regulate the external relations of human life, to
assign to each individual and to each social unit its juri­
dical position in the community, without sharing this right
with any other power whatever. After long conflict and
many changes it admits today the Church’s right to regu­
late her own internal affairs and leaves it to the conscience
of her members to submit to ecclesiastical norms. But for
the State there is only one sword, which it alone wields and
which it uses only as it determines by its own arrangement.
The plenitudo potestatis which the Church claimed for her­
self, has today passed over to the State. Relying on this
fulness of power, the State has dispossessed the Church and
gained for itself realms into which formerly the secular
power was refused entry.”1

SYSTEMS OF STATE RIGHTS IN THEORY
AND PRACTICE
Nevertheless, opposition between the doctrine of the
Catholic Church and a modern theory of State rights does
not of itself signify antagonism between the Catholic
Church and the modern State. Theories of State rights are
learned abstractions which become considerably atten­
uated when placed in the crucible of practise. The concept
of sovereignty from which the power of the State over the
Church is derived is not so firmly fixed that peremptory
demands by the State necessarily follow. In the minds of
philosophers concerned with right and law, this concept
“ In regard to their dispensation from marriage impediments, see the decree of the
Sacred Congregation of the Sacraments, March 7, 1910, approved by Pius X in A AS,
1 Dtr Kamfi Jtt *
lttn

mit dim ttntm Ricif (Heidelberg, 1907), 9.

RANGE OF JURISDICTION OF CHURCH AND STATE

85

has by no means assumed a unified connotation. For exam­
ple, from the Hegelian doctrine of sovereignty or social
authority follows not only the power of the State over the
Church but also the moral absolutism of the State: good
and evil, right and wrong, virtue and vice have no other
criterion than State caprice. Hence we have a veritable
deus ex machina.2 Today there are very few who will be
inclined to adopt this concept. Systems of State rights
ought not to be framed in the realm of speculation, but
should be regulated by actual exisiting conditions; they
should, as G. Anschiitz puts it, “adapt themselves to polit­
ical reality, do justice to it, not contradict it.’”
Now the State must reckon with the Catholic Church
as it exists here and now. Even though the State does not
share the Church’s belief in her Divine origin and Divine
rights, surely it cannot demand that she give up this faith
or permit any portion of it to be bartered. For the Church
would thereby destroy herself. That this cannot be expected
from the Church is acknowledged also by right-thinking
non-Catholics. Thus, for example, the church historian,
Walter Kohler says: “The State will never be able to do
away altogether with the political character of the Roman
Church; it is absolutely impossible, as Hoensbroech pro­
poses, for the State to strive to obtain a purely religious
Catholicism; for political elements are bound up with the
essence of Catholicism. It is utterly impossible, for example,
to declare the sovereignty of the papacy null and void. That
here there is question of an historical right need not be
stressed, and we cheerfullly agree with Hoensbroech that
historical rights can be forfeited : no, the sovereign papacy
is an essential part of the Catholic religion ; and to abrogate
it means to cut deeply into the very heart of the Catholic
religion, that is to say, to repeat the very thing for which
Hoensbroech has so sharply criticized the Kulturkampf of
the seventies in the preceding century. Ever since the VatiCouncil, Catholicism has been firmly anchored in the (spir­
itual) sovereign papacy; and the State must take that into
account if it wishes to bring about a tolerable situation.”**
The jurist Jellinek writes in a similar vein: “This ‘onesword’ theory the Church has never acknowledged and can
never admit because she cannot do so without surrendering
*Osgniach, The Cbfutian State, lOlf.
• ·’Deutsches Staatsrecht in F. Holtzendorff,
ed. 1904), Π. 471.
*CbrhtHcbe Wocbe (1907), column 263.

,,
’ '
,
'
' t,'
Enzyklopaaie aer Recbtswtssenscbaft (6th

86

THE CATHOLIC CHURCH AND THE MODERN STATE

the principle of her life. She rests in the belief that her
rights are of Divine origin and that Divine rights cannot be
altered by human ordinances. . . . According to her teach­
ing, the State can suppress her rights but cannot change
them. In regard to these matters the Church can only af­
firm that might is stronger than right, but she can never
concede that might has changed into right.”5 And Prince
Bismarck concluded his famous speeches in the Prussian
Assembly on April 21,1887, by admitting that the objective
of restoring ecclesiastico-political peace can never be se­
cured merely by promulgating State laws. “I at least must
refuse my co-operation to the attempt to molest our Catho­
lic compatriots against their will,” he stated.®
There is yet another group of reputable professors of
civil law who cannot be suspected of sympathetic bias to
the Catholic Church and who nevertheless praise her for
not acceding to every theoretical exaggeration of State
power but holding to her rights with firm hands. On more
than one occasion the eminent jurist of Berlin university,
Professor Bernard Kübler, expressed the conviction that
“The papacy is one of the most magnificent phenomena
seen the world. Without the papacy, the Middle Ages would
have fallen prey to barbarism. Even today, except for the
papacy, popular liberty would be exposé to the most
extreme danger. It is the best counterweight to the omnip­
otent power of the State. If it were not in existence, one
would have to invent it."T
Accordingly, if in the exercise of its sovereignty the
State must of necessity have regard for the Church’s claim
to sovereignty in the spiritual sphere, political science
ought to do likewise in defining the concept of sovereignty.
It ought to admit the co-existence of a double sovereignty:
the sovereignty of the State in the temporal realm, the
sovereignty of the Church in the spiritual realm; instead
of the theory of the state-controlled Church, it ought to
concede the full independence of the Church. In the famous
Articles XV-XVIII of its charter of the Constitution of
January 31, 1850, Prussia in a truly liberal fashion adopted
this concept: “The Evangelical and the Roman Catholic
Church, as well as every other religious society, orders and
administers their affairs independently. . . . Intercourse
• Der Kampf dti alien mh dtm nenen Recht, 9.
• Quoted from a stenographic record, p. 809.
’ Quoted from an address given on November 16. 1894 ; see F. X. Heiner, Dee Syllabus
in ulifamontaner ttnd antixltramonlaner Belettcbtnn^ (Mainz, 1905), 358.

RANGE OF JURISDICTION OF CHURCH AND STATE

87

between the religious societies and their superiors is un­
molested. . . . The right of nomination, proposal, election
and confirmation in filling ecclesiastical positions, in so far
as this belongs to the State and does not rest on patronage
or special titles, is annulled.” Unfortunately, these articles
fell a victim to the legislation of the Kulturkampf.
PAPAL EXERCISE OF “INDIRECT POWER”
IN CIVIL AFFAIRS
If, then, the Church desires that the State should admit
her full independence in the spiritual sphere, the question
arises as to whether the Church on her part acknowledges
the complete independence of the State in its sphere. Per­
haps you will be surprised at the formulation of this ques­
tion since in a previous chapter8 we have already pointed
out that the Church and, in particular, the papacy acknowl­
edge the sovereignty of the State in its own sphere.
But you will recall that at that time we left one question
open. The difficulty concerned the system of indirect power
of the Church in temporal affairs, according to which the
Church as such possesses no competence whatever in tem­
poral matters, but may in exceptional cases utilize her
spiritual power also in the secular and political sphere—
that is, when vital interests of the Church and the spiritual
welfare of the faithful must be safeguarded. We have also
seen that the wide interpretation and application given to
this theory in the Middle Ages is not compatible with State
sovereignty, but that perhaps this concept does contain'a
kernel of truth which would permit its rightful application
even outside the historical and concrete conditions of the
Middle Ages.9 In fact, not only do contemporary theologians
and canonists espouse a theory which they call “indirect
power,” but many of them are also of the opinion that they
may appeal to the Syllabus since it rejects thesis twentyfour: “ The Church has not any direct or indirect temporal
power.”10 Others believe—indeed more justly—that here
the expressions “direct” and “indirect power” are not
be understood in the narrow sense that might be suggested
by these technical designations of the two ecclesiasticopolitical systems: only to be rejected is the view that the
spiritual purpose of the Church excludes her from every
right to command with respect to secular and temporal
• See above, pp. 35ff.
· See above, pp» 44-47.
* See I. Laurentius in Stimmen am Maria-Laacb(l9^6) t LXXI, 2463. See also, John
A. Ryan and Moorhouse F. X. Millar, S. J., The State and the Church (New York:
Macmillan, 1937), 42-49.

■usas

88

THE CATHOLIC CHURCH AND THE MODERN STATE

affairs. However that may be, it cannot de denied from the
Catholic viewpoint that the pope can, at least in one in­
stance, assert his authority in the face of, and contrary to,
measures taken by the State. If a State law contradicts
the natural moral law or the revealed will of God, the
Divine law of which the Church is the appointed guardian,
it lacks, as we have shown, obligation in conscience. Now,
since the pope is the supreme head and—when he speaks ex
cathedra—even the infallible interpreter of the natural
moral law as well as of the content of Revelation, it follows
that he can determine the contradiction of certain State
laws to natural or Divine positive law and can give Catho­
lics binding directives as to how they are to conduct them­
selves in regard to these laws.“ Whether in this form and
definition “indirect power” still merits the name, we shall
presently inquire;12 but it is certain that this power, in the
sense explained, was claimed in practise also by popes of
modern times. Pius IX, for example, in an allocution on
June 22,1862, condemned the Austrian laws that infringed
in essentials on the Concordat of 1855: “By Our Apostolic
authority we reprobate and condemn these laws, as well
as everything else that is commanded, executed or only
somehow inaugurated, by the Austrian government or its
subordinate officials against the rights of the Church, and
declare by Our authority the laws themselves, with all their
effects, now and in the future wholly invalid and of no
force.”“ A few years later the same pope had to pass a
similar sentence of condemnation on the Prussian May
Laws; “We declare to all whom it may concern, and to
the entire Catholic world, that these laws are invalid, since
they wholly contradict the God-given constitution of the
Church.”14
11 Monsignor Joseph Mausbach quotes from the writings of modem advocates
of the theory of potestas indirecta who teach that in secular matters the Church
has to appeal to God’s rights, and to her own duties towards Him, as the ap­
pointed guardian of His laws; that interference by the Church in secular mat­
ters must be justified by the aims given her by God and by her own rules and
rights; whereas in the sphere of religion she is free to set up aims for herself,
as circumstances require, and to make entirely new laws {Catholic Moral
Teaching and Its Antagonists, 369). He adds: "In cases where greater claims
are made, the authors have only Catholic countries in view; the close connec­
tion between the spiritual and temporal order in such countries is a reason why
the State should support the Church more generously than elsewhere, but it
also pledges the Church to use more extensive care in promoting the welfare
of the citizens.” (Ibid., p. 371) .

“ See below, last part of Section E.
« PH IX Pontificis Maahni Atta (Rome. 1868). IV, Part I, 410.
.
M Letter to the Archbishops and Bishops of Prussia, February 5, 187J, in Pn IX Pon­
tificis Maximi Acta, VII, Part 1, 8.

RANGE OF JURISDICTION OF CHURCH AND STATE

89

We discover an equally categorical pronouncement, and
at the same time a very clear declaration of the reasons
justifying a condemnation, in the Encyclical Vehementer
nos, of February 11, 1906, in which Pius X rejects the
French law of separation_ of Church and State: “Hence,
mindful of Our Apostolic charge and conscious of the im­
perious duty incumbent upon Us of defending and pre­
serving against all assaults the full and absolute integrity
of the sacred and inviolable rights of the Church, We do,
by virtue of the supreme authority which God has confided
to Us . . . reprove and condemn the law voted in France
for the separation of Church and State.” The reasons for
condemning the law are the following: (1) because it is
“deeply unjust to God, Whom it denies, and lays down the
principle that the Republic recognizes no cult” ; (2) because
“it violates the natural law, the law of nations, and fidelity
to treaties” ; (3) because “it is contrary to the Divine con­
stitution of the Church, to her essential rights and to her
liberty”; (4) because “it destroys justice and tramples
under foot the rights of property which the Church has
acquired by many titles and, in addition, by virtue of the
Concordat.”1®
The twentieth century offers similar illustrations. Pius
XI protested in the most solemn manner against the per­
secution of the Church by the Mexican government, espe­
cially through the vigorous application given to Article
CXXX of the Constitution, in consequence of which the
Mexican bishops had to determine to suspend public wor­
ship.18 A few years later the same pope, seeing some hope
of remedying greater evils, but certainly with no intention
of accepting the Mexican regulations of worship, nor of
withdrawing protests against these regulations, much less
of ceasing to combat them, directed the Mexican bishops
to abandon this method of resistance before it could bring
harm to the faithful, so that the maintenance of Divine
worship might be safeguarded. Pius XI repeated his pro­
test : “Certainly the laws are iniquitous ; they are impious,*
0 See ASS, XXXIX, 12. English translation ία American Catholic Quarterly Review,
XXXI, 217.
0 Encyclical Intquij afilictisque, November 18,1926, in AAS, XVIII, 467. The Mexican
government ordered that every State in the Confederation should determine the number
of priests empowered to exercise the sacred ministry, in public and in private. The
number was ridiculously small, only one priest for every 30,000, 50,000 and even
100,000 Catholics io certain instances. The Federal law also provided that any priest
desirous of performing religious services in any community affected must advise the
authorities of that community, who would, if the quota were not already filled, register
the priest and authorize him to officiate at religious services.

90

THE CATHOLIC CHURCH AND THE MODERN STATE

as We have already said, and condemned by God for every­
thing they iniquitously and impiously deregate from the
rights of God and of the Church in the government of
souls.”11 In 1937 Pius XI, with deep anxiety and increasing
dismay, registered protest against the violations of the
Concordat of 1933 by the government of the German Reich
—against theories and practices which, if officially ap­
proved, must destroy the people’s confidence in the govern­
ment and render useless any word that might be pledged in
the future. The believer has an inalienable right to profess
his faith and put it into practise in the manner he believes
right. Laws that repress or make this profession difficult
contradict the natural law. Laws or other regulations con­
cerning schools that disregard the rights of parents guar­
anteed to them by the natural law, or laws which by threat
or violence nullify these rights, contradict the natural law
and are utterly and essentially immoral.18 Finally, the
same pope condemned atheistic communism—which aims
at upsetting the social order and at undermining the very
foundation of Christian civilization—as absolutely contrary
to the natural law itself and as a system which, adopted,
would utterly destroy society itself, as Pius IX had already
taught as early as 1846.1®
It is easy to understand what is meant in all these
papal declarations by the expressions, “These respective
laws are invalid, of no force.” The meaning is this: The
Popes affirm that such laws are in conflict with the juridical
order of a higher rank and hence in all points where such
a contradiction is present, the laws do not possess true
juridical character; therefore they are invalid. In prin­
ciple the quality of injustice in such laws cannot injure
the higher right at all, although in fact it does perhaps
great harm. Pius X expressed this thought quite clearly
in the words: “We protest solemnly and with all our
strength against the introduction, the voting and the pro­
mulgation of this law (namely, of separation of Church
and State), declaring that it can never be alleged against
the imprescriptable rights of the Church.”20
«Encyclical Acerba animi, September 29, 1932, in AAS, XXIV, 329; published in
English translation by National Catholic Welfare Conference (Washington, D. C.» 1937),

“Encyclical Mit brennender Sorge, March 14, 1937, in AAS, XXIV, 139ff; published in
English translation by N. C. W, C. (1937), 24-25.
“Encyclical Divini Redemptoris, March 19, 1937, in AAS, XXIX, 69-72; published in
English translation by N. C. W. C. (1937), 7-11.
e
“Encyclical Vehementer nos, in ASS, XXXIX, 13; published in English translation by
American Catholic Quarterly Review, XXI, 215·

RANGE OF JURISDICTION OF CHURCH AND STATE

91

PRACTICAL CONSEQUENCES OF THE EXERCISE OF
INDIRECT POWER
Now if this is the basic meaning of a papal protest
against invalid State laws, a further question arises as
to what are its practical consequences. Are all Catholics
obliged to refuse obedience and to offer passive resistance
to such laws? Not at all. We have already noted that there
are formally unjust and therefore invalid laws which in
content are more or less questionable since they make
something indifferent or even something useful a matter
of duty. Generally speaking, such laws may be observed;
indeed oftentimes one must obey them: for example, for
motives of self-love, or for reasons of the common good
in cases where harm might come to the community if its
members offered passive resistance to such laws. In such
cases unjust laws imply a duty of conscience, but only a
mediate duty, because such laws do not of themselves, im­
mediately, have a claim to our obedience since they are
invalid. To what extent they may be observed, and in what
measure they must be obeyed, and at what point resistance
must begin, is often difficult indeed for the individual to
decide. And so the Church, when protesting against a State
law, generally also appends norms of conduct for the
guidance of the conscience of Catholics.
We have already alluded to the fact that, even after
papal condemnation, there was a great difference of opinion
in and outside France as to whether it was permissible to
obey the unjust law of separation of Church and State, in
order that, by the establishment of associations for reli­
gious worship made possible by the law, at least a part
of the property of the Catholic Church in France might be
saved. Among the voices favoring such a procedure the
address of certain Catholic laymen aroused special atten­
tion, as noted earlier.21 In this address to the French epis­
copate these laymen said : “As convinced and true Catholics
we cannot, of course, have any other opinion regarding the
character and spirit of this law than that which the pope
has expressed. But what will be the practical effects of this
solemn condemnation? . . . How far ought we go to in our
observance of the law? We frankly answer ... that as citi­
zens we do not accept the law, but submit ourselves to it
“ See above, p. 67f.

92

THE CATHOLIC CHURCH AND THE MODERN STATE

to the point where its application would violate the rights
of our consciences and the ordinances of our religion. . . .
We believe that we . . . ought to use all the possibilities,
however limited, for the organization the laws allows, and
by so doing we believe that we are working in the interests
of the fatherland and of religion.” The majority of the epis­
copate were of a different opinion and the pope acknowl­
edged the justice of their view: “. . . . With reference to
the religious associations as the law established them, We
decree that it is absolutely impossible for them to be ad­
mitted without violation of the sacred rights pertaining to
the very life of the Church.”22
In consequence of this decision the Church lost her pos­
sessions, but what was to become of Catholic worship? The
government could not suppress it without conjuring up
religious anarchy and martyrdom; its hope of a schism
through disobedience to papal ordinances was not fulfilled.
And so the government had to adapt itself to the situation,
proposing first of all to legalize the continuance of worship
by juridically classifying assemblages for religious worship
as public meetings ; and since “the Church refused to make
the anticipatory declaration on public meetings required
by the law of 1881, a law passed on March 28, 1907, abol­
ished this requirement in respect to all public meetings,
those for religious worship included.”23 From this course
of events one can see how the organization of passive re­
sistance to a State law by the pope can make such a law in
many respects futile. Already, a year after the promulga­
tion of the law of separation of Church and State, the situa­
tion had become so altered that the conditions devised by
civil legislation for the continued existence of Catholic
worship were no longer authoritative; but, rather, the
State was compelled to clothe with the mantle of legality
the conduct of the Church in the continuance of her wor­
ship. Next, in reply to petitions offered through the Secre­
tariat of State and the Sacred Penitentiary, the Holy See
isued a series of specific decisions regarding conflicts of
conscience which would readily arise in certain instances,
where mayors and municipal counselors, buyers and ten­
ants, especially, might become involved in what virtually
constituted robbery of Church property and alienation of
a Encyclical Gravissimo officii mnnere, August 10, 1906, in ASS, XXXIX, 586; published
in English translation in Catholic University Balletin (Lancaster, Pa., and Washington,
D. C.: The Catholic University of America), XII, 1906, 555.
** Georges Goyau, "France,
**
Catholic Encyclopedia, VI, 186.

RANGE OF JURISDICTION OF CHURCH AND STATE

93

Church possessions.24 Without exception, these decisions
were characterized by great mildness that looked rather
to the spiritual welfare of individuals than to the material
property of the Church.
On the other hand, there are instances where the Holy
See, after protesting against a law, as in duty bound to
do, even explicitly directed Catholics to observe it and co­
operate in its fulfillment. In the midst of the debates cen­
tering on the May Laws, a law was passed on June 20,
1875, which confiscated all the property of the Catholic
parishes in Prussia. Already during the parliamentary de­
liberations the bishops had been weighing the difficult
question of how they ought to conduct themselves with
respect to this law, which deprived the Church of the free
administration of her properties and turned over their
administration to lay trustees to be elected by the parish
members. To accomplish this, Bismarck had previously to
commit another act of supreme violence, that is, the aboli­
tion of all those paragraphs of the Prussian Constitution
which concerned the Church. The question was, then, one of
encroachment on the independence of ecclesiastical admin­
istration. But on the other hand it differed essentially from
the other laws of the Kulturkampf because, as stated in the
confidential letter of the Prussian bishops to the Clergy:
“Its object does not concern the highest and holiest rights
of the Church,” and, "The co-operation demanded of the
faithful in the execution of the law involved nothing which
of itself might be regarded as forbidden under the circum­
stances.” But there was danger that in the event "of lack
of co-operation of the faithful in the election” of the trus­
tees and parish representatives “the administration of
Church property might fall into the hands of non-ecclesiastical and even of anti-ecclesiastical parish members.”25
Hence the Holy See assented to the decision of the bishops
(which had been framed in the light of these considera­
tions) to co-operate in the execution of the law. In conse­
quence, the pope was accused of prejudice and inconsis­
tency: “It has been said that We had refused to approve
in France what We had approved in Germany. But this
charge is equally lacking in foundation and justice,” Pius
M See Faculties granted to the bishops of France regarding alienation of Church goods,
September 24, 1907, in ΛΓ5, XU, 202ff, 612. 680ff. See explanations of these faculties,
January 16, 1909 in AAS, J, 239f. For decisions as to the juridical penal status of mem­
bers of the Chamber and senators who voted for the law of separation as well as pur­
chasers of ecclesiastical properties see ASS, September 21, 1907, II, 6O2f.
e Brûck-Kissling, Gescbicbie der katbolhchtn Kitebe (1906), IV, 499f.

94

THE CATHOLIC CHURCH AND THE MODERN STATE

X justly protested. “For although the German law was
blameable on many points, and has been merely tolerated
in order to avoid greater evils, the cases were quite dif­
ferent, for that law contained an express recognition of
the Catholic hierarchy, which the French law did not.”26
As noted earlier, Pius XI similarly directed the Mexican
clergy to submit materially to the law that obliged priests
to ask the government for the privilege of holding Divine
service, in order thereby to avoid greater evils.27
The situation is very much the same with regard to
legislation governing civil marriage. The Church, as we
have seen before, sees in such legislation an encroachment
of the State in the spiritual sphere. But she does not call
upon Catholics to offer passive resistance to such legisla­
tion. She does not have to do so because the regulation#
covering civil marriage can be understood and applied in
such a way as to leave intact and unimpaired the Church’s
teaching and rights, whereas on the other hand the nonobservance of State laws would entail on the part of Catho­
lics grave disadvantage for the individual and the com­
munity. For this reason the ecclesiastical rules of conduct
declare the observance of the civil form of contracting
marriage not only admissible but even binding in con­
science. This ruling was promulgated in the instruction of
the Sacred Penitentiary of January 15, 1866,28 and in es­
pecially clear and definite form in the catechism prescribed
by Pius X for the ecclesiastical province of Rome. To
Question 12, “Should the bride and groom also perform the
civil act?” the answer is given, “The bride and groom
should also perform the civil act, even though it is not a
sacrament, in order to assure for themselves and their chil­
dren the civil effects of the marital union ; therefore, ordi­
narily the Church does not permit the religious marriage
unless the acts prescribed by the State have been per­
formed.”29
The verdict of the Church is different, however, on the
subject of legal actions (pertaining to matrimonial cases)
which the civil law does not prescribe but only makes pos­
sible. Yet there is no answer which applies to all countries
and circumstances to the question of whether Catholics may
■•Encyclical Une fois encore,
6, 1907,. in ASS, XL, 8; published in English
translation in American Catholic Quarterly Review, XXXII, 141.
Encyclical Acerba animi, in AAS, I. 46Î&. N. C. W. C. translation, 7-14.
" Collectania S. Congreg. de Prop. Fide (Rotor. Ttpografa Poliglotta Vaticana. 1907),
I, no. 1280.
.
Catecbismo della Doctrina Cristtana (Rome: Tipographia Poliglotta Vaticana, 1926), 84.

/

AMICABLE AGREEMENT POSSIBLE

95

take their marriage cases to the civil courts. In England
and the United State the Church tacitly or explicitly per­
mits Catholics to apply to the civil courts for at least a
juridical separation, but before doing so they should sub­
mit their case before the ecclesiastical authorities. With
regard to divorce cases, Catholics in English-speaking
countries may have recourse to the civil courts in order
to obtain a declaration of nullity when a marriage has al­
ready been declared invalid or annulled by the ecclesiastical
authorities. They may not go before the civil courts in order
to obtain dissolution of a valid marriage with the intention
of marrying again. A Catholic may petition for a divorce
in the civil courts, not with the intention of considering
the marriage dissolved and marrying again, but in order
to obtain the civil advantages connected with divorce, such
as property settlements or release from the obligation of
supporting one’s wife child by another man. For greater
safety and to show submission to the Church, Catholics
should obtain permission from the bishop.80

E. POSSIBILITY OF AN AMICABLE AGREEMENT
BETWEEN THE MODERN STATE AND
THE CATHOLIC CHURCH
CO-ORDINATION—NOT SUBORDINATION
Church and State are, each in its own sphere, absolutely
independent and sovereign: The State in the secular, the
Church in the religious realm. Hence it follows that the
model for the relationship between the two powers is co­
ordination, not subordination of one power to the other.
Neither subordination of the State to the Church as was
demanded by the theocratic systems of the Middle Ages—
by the system of direct power or that of the indirect power
—if these systems are understood according to the meaning
and scope given them at that time by reason of the actual
dominant position held by the Church in the family of
Christian nations; nor subordination of the Church to the
State as postulated by the modern system of the statecontrolled Church.
* See Code of Canon Law, canon 1961 ; see also, Thomas Slater, S.J., A Manual of
Moral Theology, with notes on American legislation by Michael Martin, S.J., (3rd ed.,
New York: Benziger, 1908), II, 241-248,

96

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THE CATHOLIC CHURCH AND THE MODERN STATE

ADJUSTMENT OF CONFLICTS REGARDING MIXED
MATTERS THROUGH CONCORDATS
But this theory of peaceful and amicable co-ordination
does not give an adequate explanation. It would suffice if
the spiritual and temporal objectives of Church and State
were wholly unconnected and dissociated in all points; if
the interests of State and Church were enclosed within two
orbits side by side. Such, however, is not the case ; rather,
they cut into and overlap one another ; in other words,
there is a whole series of matters of a mixed nature that
on the one hand appears to belong to the realm of the
State’s purposes, and on the other hand to the domain in
which the Church is peculiarly interested. “Mixed matters,”
for example, are education of youth, contracts ratified by an
oath, matrimony, safeguarding of public morality, the care
of the poor and the sick, the institution and modification
of ecclesiastical offices, if such acts are to enjoy legal value
in the eyes of the State also ; further, the construction of
churches, convents, ecclesiastical institutions ; the estab' lishment of schools, if their certificates are to claim recognition by the State ; the designation of holy days, if they are
to be observed also as civil holidays, and so forth.
Now what course of action should be taken in these
spheres in order to secure harmony and to avoid conflicts?
The answer is: mutual understanding, by means of agreements of a more or less formal nature leading up to the
solemn contracts between Church and State which are
termed concordats.1 Leo XIII repeatedly urged this proce­
dure in his famous Encyclical on the Christian Constitution
1 Anson Phelps Stokes -writes that "In the United States there never has been a
concordat, although Benjamin Franklin was approached as to the possibility of
making one in the early days of the republic and stated that it would be im­
possible.” {Church and State in the United States, I, 32f). Father John Tracy
Ellis replied that "It is incorrect to say that in the early days of the Republic
the American minister to France, Benjamin Franklin, was approached by the
representative of the Holy See with the proposal of a concordat with the United
States. Actually the nuncio in Paris, Archbishop Guiseppe Doria Pamphili,
made no such proposal. He merely informed Franklin in a letter of July 23,
1783 that the Congregation of Propaganda Fide, in its desire to effect an
organization for the infant American Church, had determined 'to propose to
the congress the installation of one of their Catholic subjects . . . with the
powers of vicar-apostolic, and with the character of bishop . . . ' ” ("Church
and State in the United States: A Critical Appraisal,”) in The Catholic His­
torical Review (Washington, D. C.: The Catholic University of America Press,
October, 1952, Vol. XXXVIII, 288). See Doria Pamphili to Franklin, Paris,
July 28, 1873, in Jules A. Baisnée, Prance and the Establishment of the Amer­
ican Catholic Hierarchy. The Myth of French Interference, 1783-1784 (Balti­
more, 1934), 50.

!

i

AMICABLE AGREEMENT POSSIBLE

97

of the State, after his predecessors in the nineteen century
had made frequent and practical use of this means. In this
Encyclical he states: “There are, nevertheless, occasions
when another means is available for the sake of peace and
liberty, we mean when rulers of the State and the Roman
Pontiff come to an understanding touching some special
matter. At such times the Church gives signal proof of her
motherly love by showing the greatest possible kindliness
and indulgence.”2 These words suggest that in such agree­
ments the Church is almost always the giver, in that, from
her certain and incontestable rights, she always makes to
the State concessions of far-reaching import, whereas the
State on its part in most instances does nothing more than
solemnly promise what it already owes to the Church and
can hardly call into question. Leo XIII is altogether right
when in another letter he states even more clearly: In all
her dealings, “the Church is wont to be yielding and in­
dulgent as a mother; yes, it not infrequently happens that
in making large concessions to the exigencies of the State,
she refrains from the exercise of her own rights, as the
compacts often concluded with civil governments abun­
dantly testify.’” Jellinek admits as much, of course, after
his own fashion, when he says that the oldest and most
skilled diplomacy of the world has given the Roman Curia
the most wondrous flexibility, which made it possible for
the Church and the adherents of the Church to live in the
community of the State, indeed for the Church to make
herself highly useful in the fight against modern subversive
movements. As one of these means he names the concordat
by which, he maintains, the Church acknowledges State
rights (or civil legislation) only in terms of privileges
granted to the State by the Church, at the same time having
no intention of ever altering her own legal and juridical
norms. Such pronouncements of the Church, he says, are
not to be compared to the voice of threatening Furies
(Erinyes), wrathful at the violation of their rights, but,
rather, to words of blessing uttered by kind deities (Eumenides) .*
Such agreements between State and Church have this
good characteristic: They make possible adjustment of the
* Encyclical Immortale Dei, November 1» 1885, in ASS, XVTII, 15, Gerald S. Treacey
translation, 8.
* Encyclical Prttcurt trafuSalionh, June 20, 1894, tn ASS, XXVI, 712 ; published in
English translation in The Great Encyclical Letter/ of Pope Leo Xlll, 313.
4 Der Kampf de/ alien mit dem netten Recbt, 23.

98

THE CATHOLIC CHURCH AND THE MODERN STATE

relations between the two powers without the need of
opening up the question of principles. No decision has to be
made (and in view of the opposing opinions in many in­
stances, it would never be possible to arrive at an amicable
agreement) as to whether the matter at issue belongs more
properly to the sphere of civil-secular, or to the realm of
the Church’s spiritual interests, and which of the two par­
ties is of itself more competent to act as sole arbiter. At
a significant moment, when the Prussian State realized the
uselessness of a war of principles waged against the Church
by means of the so-called Speergesetz (that is, the law by
which all State payments to Catholic bishops and priests
were withheld until they or their representatives complied
with the new law), Crown Prince Frederick William, acting
in place of the Emperor, acknowledged the futility of such
a strife in his reply to Leo XIII dated June 11, 1878, a few
days after the attempts by Hodel and Nobilingen on the
life of William I. The author of the letter states even though
it is not in his power, and perhaps, also not in the pope’s,
to adjust the war of principles at this time (which for a
millenium has made itself felt in the history of Germany
more than in that of other countries) he is quite ready to
treat, in a spirit of love and conciliation, the problems that
both parties have experienced as a result of the conflict
handed down from their predecessors and forefathers re­
spectively; he will not give up hope that where a basic
understanding cannot be reached, an amicable disposition
on the part of both parties will open also to Prussia the way
to peace which was never closed to other States. He believes
that unity and agreement between both authorities will
come to pass, in which the question of principles—namely,
who in the last instance is to determine the boundaries be­
tween State and Church, should no agreement be achieved
—will be left undecided.®
Ecclesiastico-political adjustments of “mixed matters”
can concern individual points, in which case they are made
in a less solemn manner than by concordats. Thus, by
agreement with Cardinal-legate Caprara, Napoleon I se­
cured the reduction of ecclesiastical feast days to four:
Christmas, the Ascension, the Assumption, and All Saints ;
the other feasts were transferred to Sunday. Again, when
peace between France and Germany was ratified at Frank8 See Brück-KÎssIing»

op. tit,,

IV, il, 6f.

AMICABLE AGREEMENT POSSIBLE

99

fort on May 10, 1871, and Alsace became a German pos­
session, negotiations with Rome were proposed for the
adjustment of the boundaries of the dioceses of Strassburg
and Metz to make them conform with the new political
boundaries. But since one of the high contracting parties
(after the recall of Harry Arnim, Prussian ambassador to
Paris) lacked diplomatic connections with the Holy See,
the matter was not settled until October 7,1874. Then it
was announced, in protocol in which the French plenipo­
tentiaries informed the German deputies of the two papal
decrees of the Sacred Consistorial Congregation which ex­
empted the two bishoprics from the jurisdiction of Besan­
çon, their former metropolitanate, and at the same time
fixed the two boundaries.® Another illustration is offered,
this time in the sphere of public instruction, by the agree­
ment reached on December 5, 1902, between the Holy See
and the German government regarding the theological fac­
ulty of the University of Strassburg after negotations had
been under way since 1894.7 Count Paul von Hoensbroech
expressed his relentless disapproval of that compact in a
bitter anti-Catholic diatribe.
The solemn contracts called concordats usually deal with
agreements in which the whole juridical status and organi­
zation of the Catholic Church in a State are more or less
determined. The results of such compacts are not always
published as formal treaties; often they appear in papal
bulls, the contents of which are then recognized by State
law. In many cases they are termed Bulls of Circumscrip­
tion in as much as the spheres of ecclesiastical jurisdiction
are therein redefined or circumscribed anew. Often this
form is preferred by States that demur at making formal
treaties with the pope; for example, in 1821 by Prussia,
where the Bull De salute animarum became the organic
statute for the new legislation of ecclesiastical affairs after
the secularization of the State.
BINDING FORCE AND LEGAL OBLIGATION OF
CONCORDATS
The legal nature of the concordat has long been a matter
of dispute.® In deciding the question of the binding force
and legal obligation arising from concordats for the con• See Pii IX Pontificis Maximi Acta, Vol. VI, Part I, 332ff.
τ Deutsche Zeitschrift fur Kircbenrecht (1903), 151.
• See Rommen, The State in Catholic Thought, 588-590.

|·····ΗΜ®β»ΒβΪ··ΒΜβ·β®δΜΕ^

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THE CATHOLIC CHURCH AND THE MODERN STATE

trading parties in modern times, two extremes must be
avoided: both minimize the legal binding force of concordats—one in reference to the obligation of the State, the
other in reference to that of the Church. The first extreme
is to been seen in the legalist theory, so called because it
does not admit that concordats have the force of bilateral
contracts, but claims they are merely civil laws passed by
the State concerning the Church. As defenders of the mod­
ern system of a state-controlled Church, those who hold the
legalist theory regard it as absurd that the State should
make contracts with its subjects in matters touching the
exercise of its rights. They build all their arguments upon
the supposition that the Church is subject to the State, of
which it is but a department; just as any other body is
subject to the whole of which it is a part and on which,
consequently, it depends.9 Therefore, whatever compacts
may be made can indeed have the form but not the juridical
character of a concordat; they are, rather, sovereign or
ministerial ordinances, or only administrative decrees, that
remain valid as long as they are not rescinded or altered.
This concept, together with its consequences, was rejected
in thesis forty-three of the Syllabus which condemned the
proposition: “Without the consent of the Holy See and
even against its protest, the lay power has the authority to
break and to declare and render null the solemn treaties,
commonly called concordats, concluded with the Apostolic
See concerning the use of rights appertaining to ecclesias­
tical immunities.” But the legalist theory and whatever it
offered to substantiate its claims are untenable also on in­
trinsic grounds. The assertion that the State cannot make
contracts with its subjects proves nothing, for the very
reason that concordats are, of course, not made with the
Church in a State, but rather with the international world
Church, namely, with its Supreme Head, the pope. To be
sure, in making such compacts the modern State is slightly
inconsistent, since as a State which grants equality to all
denominations within its boundaries it wishes to deal only
with the Church existing within these boundaries and en­
joying the privileges of a public law corporation. And fur­
ther, if it is a State where separation from the Church
obtains, it has the intention of carrying on negotiations
only with the religious societies dedicated to Catholic worship which, of course, have only the status of private cor· See Benedetto Ojetti, "Concordet,” CMbolic Ertcjdoprdia, IV, 190ff.

AMICABLE AGREEMENT POSSIBLE

101

porations. But the State simply cannot ignore stark reality
for the sake of venerable theories of State rights. Likewise,
the assertion put forth by the regalists does not carry much
weight. They argue that the Church cannot make compacts
with the State since she lacks the material power to fulfill
and observe the terms of such agreements. Prescinding al­
together from the fact that the possibility of fulfilling a
right or obligation does not pertain to the essence of right
but is only one of its secondary characteristics,10 and that
the enforcibility of international law generally leaves a
great deal to be desired, we may safely say that the Church
by no means lacks effective reprisals to counteract the arbi­
trary actions of a contracting party. This was demonstrated
by her conduct in opposing the French law of separation.11
The other extreme is the privilege theory, according to
which concordats—if we regard their general character
and the bulk of their contents—lack for the most part the
force of a true contract, and are to be considered as impos­
ing an obligation on the civil power alone, while on the part
of the Church they are merely privileges or concessions
granted by the Roman Pontiff, which he can also revoke,
even though there be no special reason for so doing. The
very fact that it might be more useful for the Holy See not
to be bound to this or that point, for example, in the case
of nominations of bishops, would be reason enough for the
Holy See to annul the concordat. While Dr. Bockenhoff
rejects this theory, it is only fair to note that many Cath­
olic canonists stoutly defend it.12
The commonly accepted theory of concordats among
Catholic authorities in canon law and political philosophy
is known as the contractual (or compact) theory. “It holds
that the concordat is a true legal treaty in accordance
with the theory of contracts and specifically in accordance
with international law,” says Heinrich Rommen. “The con­
cordat is a bilateral, legally binding treaty under the rules
of international law, which recognizes both parties, the
State and the Church, as having moral personality, with
rights and duties, as subjects sovereign and independent,
therefore competent to contract treaties. The Holy See, the
pope, is recognized as a sovereign authority by the prac­
tice of the majority of states which entertain diplomatic
relations with the Holy See by plenipotentiary ambassadors
* See V. Cathrein, S. J., ’’Right/’ Caiboltc Encjclopfdia, ΧΠΪ, 56.
n See above, p. 92 f.
"See Ojetti, op. cit., p.

102

THE CATHOLIC CHURCH AND THE MODERN STATE

or ministers and which recognize an Apostolic nuncio as
the representative of the Holy See to their governments in
accordance with international law. Even states that do not
entertain international relations with the pope recognize
his sovereignty in the sense of international law.”13
That the concordat partakes in the nature of an inter­
national treaty becomes evident when we scrutinize the
papal views. A treaty is an agreement between two par­
ties about the same object. This definition is implied by
Leo XIII when he states that the concordat is concluded
when rulers of states and the Roman Pontiff come to an
agreement of minds on a special matter.14 The French Con­
cordat of 1801 was called a solemn bilateral pact by Leo
XIII.15 When in 1905 the French legislation regarding the
Concordat was placed on the agenda of the Chamber,
Pius X complained about the injustice inflicted on the Holy
See in terms that leave no doubt as to the pope’s conviction
that concordats partake of the nature of true contracts:
“The ties that consecrated this union should have been
doubly inviolable from the fact that they were sanctioned
by oath-bound treaties. The Concordat entered upon by the
Sovereign Pontiff and the French Government was, like all
treaties of the same kind concluded between States, a bilat­
eral contract binding on both parties to it. The Roman
Pontiff on the one side and the French nation on the other
solemnly stipulated both for themselves and their succes­
sors to maintain inviolate the pact thus signed. Hence the
same rule applied to the Concordat as to all international
treaties, namely, the law of nations, which prescribes that
it could not in any way be annulled by one alone of the con­
tracting parties. The Holy See has always observed with
scrupulous fidelity the engagements it has made, and it has
always required the same fidelity from the State.”18
According to Romen, the concordat by its very nature
involves an inherent difficulty as a legal treaty : “Both par­
ties of the treaty are sovereign powers. They are conse­
quently not subordinated to any higher authority compe­
tent to arbitrate or to judge, when a dispute arises over the
interpretation or the application of the treaty in a concrete
u The State in Catholic Thought, 589.
*♦ See Immortale Dei, Gerald C. Treacy translation, 9. \
» For other quotations from Leo XIII s writings as evidence of the treaty character of
the Concordat, see Peter Tischleder, Ursfrrnng und Trager der Staatsgewalt nacb der
Libre det bl. Thomas and seiner Scbtde
*
*· Encyclical Vehementer nos. ta ASS, XXXIX» 6f., American Catholic Quarterly Review
translation, XXXI» 212.

AMICABLE AGREEMENT POSSIBLE

103

case, or over the important problem which arises when one
party contends that the treaty has become inapplicable on
account of a substantial change in the circumstances which
gave rise to it. This is the general problem of the clausula
rebus sic stantibus. It means that, when a notable change
has occurred in the circumstances and matters with which
the treaty deals, the literal application of the treaty to the
unforeseen changes would be against equity and justice,
especially so if the application of the treaty provisions
should endanger the substance of the independence and
existence of one of the parties. If such a notable change
and a danger to the existence and independence actually
exists, this cannot be decided by a superior authority in a
final decision because no earthly authority exists over the
Church by definition, even if the utopian dream of a world
state should become true, because even then the Church
would be a potential partner to the world state and never
its subject. This seems to be theoretically a dilemma on
account of the immanent limits of the juridical form. Yet
is does not prevent the establishing of a new agreement by
mutual consent. At least the popes have shown much readi­
ness to oblige in such cases.”17
The co-operation of both powers, mutual understanding
and agreement in all matters of a mixed nature, are “a con­
summation devoutly to be wished.” But what if agreement
is not achieved, what if each power proceeds to act accord­
ing to its pleasure and in consequence opposing demands
are made of the Catholic citizen? We have then an instance
of the conflict of which the Syllabus speaks in rejecting the
forty-second thesis : “In the case of conflicting laws of the
two powers, civil law prevails.” How can one determine the
Church’s teaching on this point? Certainly not by conclud­
ing that in such an instance ecclesiastical law prevails, as
is sometimes assumed by Catholic writers, for example, by
J. Tosi18 and A. Micheltisch.19 For thereby the contrary,
not the contradictory, opposite of the condemned proposi­
tion would be the deciding norm, a procedure which in a
previous chapter we rejected as illogical.20 One must be
careful not to read into the negative thesis more than is
contained in it. Hence one may only conclude that the
greater right is not with the State in every conceivable
« The State in Catholic Thought, 590f.
“ la Vorletttngen uber den SjUabut, 105.
““Der Syllabus,” in Glaaben and Witten (Munich, 1907), XIV, 75.
* See âbvre, p. 29η

104

THE CATHOLIC CHURCH AND THE MODERN STATE

case of conflicting laws. But neither may one assert that
the greater right is with the Church in every conceivable
case of conflicting laws, although usually it is. First, this
is absolutely the case when there is not question of eccle­
siastical law in the strict sense, but of the natural law and
the Divine positive law ; and secondly, this is generally the
case also when there is question of a human law—that is,
a law framed by ecclesiastical legislation for man’s spirit­
ual and eternal welfare. For here, as everywhere else in
life, the natural norm holds sway : in case of irreconcilable
difficulties it is the end that decides ; that is, the higher end
prevails over the lower. And from the Christian point of
view it cannot be doubted that the religious—and the abso­
lute—end of mankind takes precedence over the temporal
and political end. But this is not tantamount to a categori­
cal assertion of the superior force of ecclesiastical law. For
in the first place it is not inconceivable that an ecclesias­
tical superior, a bishop, for instance, should by an errone­
ous judgment as to the status of a concrete case overstep
his authority and meddle with a purely secular and politi­
cal matter. In that event the State would certainly be jus­
tified in protecting its rights by protesting or by taking
other measures against the ventursome interference of
ecclesiastical authority. This case is interesting, of course,
only from a theoretical viewpoint; for it would be difficult
to cite from modern history a single example of a bishop
who meddled with matters not intimately connected with
the salvation of souls.
Secondly, even when there is really a question of mixed
matters, it is by no means necessary to assert categorically
the superior force of an ecclesiastical law ; for in a particu­
lar instance preference can be due a civil law because the
matter at issue is more clearly, perhaps even vitally, con­
nected with the common weal, while for the Church the
necessity or usefulness of the enforcing of a particular
ecclesiastical law is more remote.
THE CHURCH SUPERIOR TO THE STATE
If we acknowledge the juridical independence of State
and Church each in its own sphere of power, it does not
follow that there is no distinction of rank between them;
rather, we must hold firmly that the Church, by reason of
her higher end or purpose, is ethically superior to the State.
He would be a bad or illogical Christian who would ques-

AMICABLE AGREEMENT POSSIBLE

105

tion that. The value and moral perfection of a society must
be gauged by its purpose. For it is the purpose that circum­
scribes and determines the nature and mode of operation
of a society and justifies its right to exist. In his Encyclical
on the Unity of the Church Leo XIII says: “God indeed
made the Church a society far more perfect than any
other for the end for which the Church exists is as much
higher than the end of other societies as divine grace is
above nature, as immortal blessings are above the transi­
tory things on the earth.”21 The different purposes of the
two powers have been compared and weighed one against
the other by the supreme authority of God, Who states the
result of the comparison in the terrible words : “For what
does it profit a man if he gain the whole world, and suffer
the loss of his soul.”22 In order to express the moral pre­
eminence of the Church over the State, ever since patristic
times certain comparisons have entered into and become a
lasting part of Christian literature, particularly the com­
parisons of soul (Church) and body (State), heaven and
earth, gold and lead, sun and moon. The words taken from
the narrative of the creation of the world in the Bible were
sometimes utilized to stress the Church’s superiority over
the State : “And God made the two great lights, the greater
light to rule the day and the smaller one to rule the night,
and . . . God set them in the firmament of the heavens to
shed light upon the earth.”23 As in the life of the individual
spiritual and eternal interests should be the dominant ones
and those of the State subordinate to them, so also for pub­
lic life the words of Christ are of paramount importance:
“Seek first the kingdom of God!”24

THEORY OF THE DIRECTIVE POWER
OF THE CHURCH
Accordingly, the Christian State may not give any orders
which make impossible or seriously hinder the attainment
of the supreme purpose of the Church, namely, the salva­
tion of souls. It must leave to the Church unimpaired that
right which all theorists of Church-State relations unrey Sath cognitum, June 20, 1896, in ASS, XXVHI, 724 ; published in English translation
»?Jw Great Encyclical Letters of Pope Leo Xlll. 571.
a Matt. 16:26.
” Çf
*
"·
**
l’?6th» connection it is interesting to note the striking example of
medieval triviality offered by the glossators of the Corpus Juris Canonici in commenting
on the comparison of sun and moon as used by innocent III. Thev attempt to calculate
arithmetically to what degree the papal dignity surpassed the royal dignity; one thinks
t1®6? fiteater, another 57, and a third 7744%. See gloss to Corpus Juris Canonici
edited by Friedberg, vol. Π, c. 6, X, 1, 33, ad verba inter solem et lunam, 198.
*Matt. 6:53.

106

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THE CATHOLIC CHURCH AND THE MODERN STATE

servedly concede to her, even those who will not grant the
Church’s direct or indirect power over temporal matters.
We mean the so-called “directive power’’ of the Church,
that is, the authority and duty, by official pronouncements,
admonitions, expositions, counsels, commands, to enlighten
the consciences of princes and peoples, of all the faithful
or of particular classes that may be in spiritual danger, to
make them aware of their duties to God and religion, to
instruct them as to the scope and limits of such duties. This
potestas directiva is admitted even by Paul von Hoensbroech. He praises especially its application by Pope Greg­
ory I, the Great, and sees in it “the religious, Catholic, antiUltramontane interpretation and application of Christ’s
words: ‘Render, therefore, to Caesar the things that are
Caesar’s.’ ”25 But there is little doubt that Paul von Hoensbroech and many of his followers would have discovered a
lust for power in the conduct of that great pope if the
ecclesiastico-political conflict in question had taken place
in the twentieth century. This conflict came about because
the Roman Emperor Maurice had issued (592) a decree
that no one who was actually engaged in any public office
should accept an ecclesiastical office ; and he made it illegal
for such a one or for a soldier to enter a monastery until
the period of his service was over. Gregory praised the for­
mer provision but rejected the latter because it closed the
way of salvation to many and was therefore an unjust law
that was altogether at variance with the will of almighty
God. In vigorous words which appear in telling contrast
with the very mild tone of the rest of the letter, Gregory
reproaches the Emperor for his injustice but states that
he is ready to provide for the transmission of the imperial
law to the provinces in accordance with the political situ­
ation of the Emperior in Italy ; then, however, Gregory ap­
pends to the imperial decree his own, which gives the eccle­
siastical regulations for civil servants and soldiers; the
former should not be allowed to enter monasteries till they
have cleared themselves of their obligation to the State;
soldiers who wish to enter the religious state must first of
all be carefully tested as to their conduct and must submit
to a novitiate of three years ; but after that they may make
vows.26
» Mcdemer Stoat tend katbolhcbe Kircbe, lOf.
* J. HergenrÔther, Katbolische Kircbe tend chrtstlicbef Stoat, 449f. See also, Horace
Mann, The Liret of the Popet in tbg Parly Middle Ages, (London: Kegan Paul, Trench,
Tniebner, 1902). Vol. X, 117-120.

AMICABLE AGREEMENT POSSIBLE

107

Whenever the “directive power” of the Church absolutely
rejects and condems a State law, it automatically becomes
an “indirect power,” in as much as the teaching, warning
and directing activity of the Church then assumes the char­
acter of an act of jurisdiction with consequences for the
sphere of secular and political life. But if one looks closely,
it becomes clear that it is not the jurisdiction_pf the Church
that functions here, but only her teaching authority that /
verifies what isjrighLaccording_tO-.the.natural and Divine
positive law. It is not the pronouncement of the pope that
deprives a State law of its juridical character but the Di­
vine law which the State law contradicts and which the
pope authoritatively declares. Dr. Bockenhoff believes,
therefore, that there is no justification, under the circum­
stances, for speaking of the exercise of the “indirect power
of the Church in temporal matters" ; here, too, there is only
question of the guiding and directing power of the Church
(potestas directiva).27 There is, as every Christian must
admit, “a boundary line where obedience to the secular au­
thority becomes sinful, where the higher duty to God takes
precedence over the secular; but this boundary line one
may not by oneself set (perhaps according to one’s own
advantage). Here, on the contary, the teaching authority
of the Church intervenes, and is exercised in accordance
with the Divine law. By the Church’s decisions, made im­
partially and conscientiously in a spirit of strict responsi­
bility to God, on the one hand the way for the believer in
difficult situations is indicated, and on the other the State
” See above, pp. 87f.

Monsignor Joseph Mausbach points out that "when Gallicansim prevailed,
the expression (postestas directiva) was understood as designating authority to
counsel and to teach, and nothing further. Cardinal Hergenrother (Katbolische
Kirche und christlicher Stoat, I, 448), too, uses it primarily by way of contrast
to real jurisdiction; but he goes on to say that Gerson, who originated the sys­
tem, uses the word directiva, only to contrast this power with the Pope’s
'postestas civilis et juridica’; and that other later theologists include in the
potesta directiva authority not only to teach, but also to command, judge, and
punish. After surveying this whole dispute, about the potestas indirecta and
directiva, Hergenrother asks: 'Does not die controversy turn on the name rather
than on the thing? ... In essentials the two kinds of power appear to be iden­
tical’ (ibid., p. 452).
"The modem advocates of the theory do not question the fact that the au­
thority of the Church involves jurisdiction. Some (especially Dr. Bikkenhoff)
add indeed, that strictly speaking, not the juridical but the teaching office of
the Church is concerned, meaning that the foundation of jurisdiction in secular
matters is the Jus divinum, which the Church has to expound and observe in
practice, namely, the carrying out of God's law; it is not a Jus humanum
which she creates as her own legislative will.” (Catholic Moral Teaching and
Its Antagonists, 368ff).

108

THE CATHOLIC CHURCH AND THE MODERN STATE

is protected against arbitrary rebellion. Let freethinkers
and enemies of the Church inveigh as much as they will
against the pretensions and encroachments of the clergy,
against moral restraint and delusion of the people. It still
remains a fact that for every morally minded person there
exists a boundary line of obedience. But if such be the case,
it is undoubtedly more to the State’s advantage that the
boundary line be drawn uniformly and suitably by a re­
sponsible authority than to leave its determination to the
caprice of the individual. True, in that event the Church
becomes a controlling factor, a real power over the State.
But that is perfectly in order, since she represents a moral,
not a physical power, and because after all a moral power
must in some form or other assert itself, whether as indi­
vidual conscience, as local religious community, as national
church or as Catholic, universal Church, and obviously the
Catholic Church is the most favorable form. She possesses
marvellous wisdom and experience, she has only religious
interests and she is independent of the State.”28
And so we conclude our discourse regarding the attitude
of the Church towards the sovereignty of the modern State.
To sum up : The Church acknowledges this sovereignty and
qualifies her acknowledgment in the same manner as the
New Testament -writings themselves. The distinguished
jurist, F. Maassen with delicate irony has lectured the
Apostles from the viewpoint of the modern theories of
State omnipotence: “The Apostle Paul, although he hypo­
critically teaches that one ought to obey the authorities that
have power over us, has placed himself in the sharpest op­
position to the prevailing political law and the political, in­
stitutions of his country. In agreement -with the other
Apostles he challenged the sovereign rights of State power
absolutely to decide as to the limits between Church and
State, and thereby he denied the sole and indivisible sov­
ereignty of the State .. . The Apostle Paul was a disturber
of public peace.”28
• A. von Roville, Zuntck zur btligm Kircbt (Berlin. 1910), 98f.
*· Mean Kapittl Uber frète Krrcbe and Gewiiiensfrerbett (1876), 450.

St

3, CtMic
and JUdenn
ôeculanizad ÔM
A. THE CHURCH’S ATTITUDE TOWARDS
FREEDOM OF RELIGION
In the introduction to this study of Church-State rela­
tionships we showed that the essential difference between
the modern State and the medieval State, as far as rela­
tions to the Church are concerned, may be summed up in
a single statement : In contrast to the Catholic State of the
Middle Ages, the modern State is secular or suprasectarian.
Such is the essential difference between the modern and the
medieval State in this regard, for the one other distin­
guishing characteristic of the modern State, namely, its
sovereignty (from which springs the State’s exaggerated
claim to power over the Church), is closely bound up with
secularism.
The modern State is an outgrowth of the political revo­
lutions of the seventeenth and eighteenth centuries. “It is
built upon the rights of man and of the citizen,” states
Heinrich Rommen. “It adheres to the principle of popular
sovereignty. It produces a new ruling class. The clergy of
the ancient regime is succeeded by the intellectual man of
secular education who, in the European continental coun­
tries, is most often an agnostic or even a militant anti­
clerical. The nobility is succeeded by the entrepreneurs and
capitalist proprietors. Often these latter are interested in
a sustained influence of the Church only as long as that
influence serves their interest. . . Life centers around man
as the secular citizen and his economic, political, and sci­
entific interests. Undeniably there is a strong tendency to
put the religious life into the private sphere ... The Church
becomes an association, â private organization of people,
legally not different from clubs and associations of men
with hobbies . . . Hence the social institutions, as, for
example, marriage, change their meaning . . . Education
means less a strengthening of the moral character; ever
more and more it means technical preparation for a lucra-

110

THE CATHOLIC CHURCH AND THE MODERN STATE

tive job . . . But the process of dechristianizing society is
undeniable.
“Under these circumstances the modern State became
neutral in relation to the Church, however much in some
countries an aura of Christian culture survived. This neu­
trality as a practical polity was the recognition of the fact
that the people living in the State were religiously split up
into numerous groups, none of which was even a consider­
able minority, not to speak of a majority. The peaceful
separation of State and Church was thus the consequence;
for it is the unified religion of the great majority of its
citizens that makes the State a Catholic or Protestant
State. Therefore, the modern constitutions established the
principle of the free Church in the free State. When the
ruling class in the modern State is violently anti-Christian,
then, of course, the separation of State and Church be­
comes, under the name of laicism, a persecution of at least
the Catholic Church, as has happened in some Latin coun­
tries. A third type of the modern State, usually possible
only when the traditional monarchical element has not been
overthrown, is the Christian State ; that is, a State which
gives civil tolerance to all religious groups, but privileges
in public law to the Christian churches (and the syna­
gogues) under the rule of equality. This Christian State
practises a legal and political co-operation with the Church
by concordat, thus maintaining a qualified union between
Church and State. German states like Prussia and Bavaria
until 1918, Switzerland, and the Netherlands are typical
of this kind of Christian State, while the outstanding exam­
ple of a peaceful and friendly separation is the United
States. On the other hand, France under the Third Repub­
lic since 1903 and the late Spanish Republic of 1931 are
examples of the militant type of separation.”1 Even more
radical than this latter type, however, is the State that is
under the aegis of bolshevistic and atheistic Communism;
that is, the State which, as Pius XI reminds us, aims at
upsetting the social order and undermining the very foun­
dations of Christian civilization.’
Since the modern State does not identify itself with any
creed, confession, or denomination, it grants full liberty to
every citizen in respect to religion; in short, it proclaims
1 The StAte in Caibalic Tboxtbt,
.
. .
* Encyclical Dtvini Redrmptorti, March 19*
*1937· N. C· W. C. translation, 2.

CHURCH AND FREEDOM OF RELIGION

111

religious freedom,3 although in actual practise, in some
cases, such freedom may not be exercised. True religious
freedom includes three things: first, freedom to believe,
to hold as true, what one wills ; such liberty of creed is also
called freedom of conscience, although this latter concept
is broader in scope, since it extends beyond the sphere of
religious conviction. Secondly, genuine religious freedom
involves liberty to manifest religious conviction outwardly
also, by word and deed; that is, freedom of religious pro­
fession. Thirdly, it includes freedom to practise that reli­
gion in common forms of worship, in union with others
sharing the same conviction: in other words, freedom of
worship.

FREEDOM OF RELIGION
Now what is the Church’s attitude with respect to reli­
gious freedom? More precisely, what is the Church’s atti­
tude as regards freedom of belief and conscience? The
Church’s position in this matter—let us say it at once—
has been branded by liberalism as unparalleled reaction
and arrogance. Liberals, holding man’s absolute autonomy
in the intellectual, moral and social order, submit that
Gregory XVI and his successor Pius IX, asserted (in dis­
cussing the Catholic point of view) that is is an erroneous,
nonsensical opinion—ruinous to the Catholic Church and to
the salvation of souls—to say that every man has a right
to freedom of conscience and worship and that therefore
this right must be solemnly proclaimed in every wellregulated commonwealth.4 Thus the inference is frequently
drawn that the Church rejects freedom of belief and re­
gards compulsion in matters of belief, whether exercised
by herself or by the State at her instigation, as justified.
But this impression is due to a misunderstanding. To be
’ In regard to varying concepts of religious freedom, Anson Phelps Stokes re­
marks: "It is manifestly difficult for all religious bodies to unite on a definition
of religious freedom, partly because there is a line of cleavage between the
Roman Catholic Church and the other communions, as the former officially
claims that it is the sole authorized depository of religious truth and that conse­
quently it has the right to be accorded special treatment in its attitude towards
some matters connected with faith and morals, and partly because there is a
similar division between liberals and conservatives among Protestants, Jews, and
other religious groups.” {Church and State in the United States, I, 17f.). The
Declaration of Independence, the Constitution of the United States, and the Bill
of Rights guarantee religious freedom to Americans. For the pertinent sections
of these documents affecting religious freedom, see Stokes op. cit., I, xli, xlii,
where they are quoted.

♦Encyclical Mirart vos of Gregory XVI, August 15, 1852. in ASS, IV, 538; Encyclical
Quanta (untcf Pius IX» December 8» 1864» in ASS III, 162.

112

J.

THE CATHOLIC CHURCH AND THE MODERN STATE

sure, compulsion in matters of creed is the antithesis of
freedom of belief; but what is meant by the popes is not
physical but moral compulsion; in other words, duty of
conscience. What the Church refuses to acknowledge is,
first of all, merely that man has the moral freedom to
believe or not to believe ; to believe in this or in some other
manner. Neither political nor ecclesiastical authority can
exercise physical control over interior conviction, since only
God can enter the secret sanctuary of the mind, He alone
can compel the heart. Hence the principle of Roman law,
“De internis non judicat praetor.”5 But to deny the ethical
necessity of accepting the one true religion, once it has
become known, means to assume an attitude towards this
truth which the Church can never tolerate; namely, either
to question the possibility of discovering absolute truth,
or to deny the duty of accepting it. Modern critical and
skeptical philosophy holds to the former premise. Finding
it impossible to be reconciled to a church which glories in
being “the pillar and mainstay of the truth,”® it denies the
existence of absolutes outside the scientific field and main­
tains that with the rise and decay of culture all truth is
subject to continual change and evolution. This destructive
skepticism was condemned by Pius X in his rejection of
the thesis: “Truth is as changeable as man, because it
evolves with him, in him and by him.”7 The other alter­
native is equally unacceptable to the Church—i.e., that man
may remain unconcerned and indifferent as regards reli­
gious truth. Rather, the Church holds fast to Christ’s
words: “He who does not believe is already judged.”8 Man
must accept the truth which Christ has entrusted to His
Church, regardless of whether it appears to his human
knowledge as a cross or a yoke ; he is not free to embrace
some other philosophical or religious belief that perhaps
appears more acceptable to his personal reasoning. The
Syllabus indirectly affirms this teaching in its condemna­
tion of proposition fifteen, the rejection of which is so
often misinterpreted. The proposition reads: “Every man
is free to embrace and profess that religion which, guided
by the light of reason, he shall believe true.”9
• St. Thomas Aquinas says: “Man can make laws in those matters of which he is com*
petent to judge. But man is not competent to judge of interior movements which are
hidden, but only of exterior acts which are manifest/* (Summa Theologica» la, Ilae, q.
91, a. 4; see also Ila, Ilae, q. 104, a. 5).
•Z Tim. 3:15.
T Proposition 58, see Decree of the Sacred Office, Lamentabili taire, July 3, 1907, against
the errors of modernism, in ASS. XL, 477.
* John
· See above, p. 27.

CHURCH AND FREEDOM OF RELIGION

113

In his book on Ultramontanism,10 Gotz offers an admi­
rable explanation of the Syllabus by quoting a passage from
P. Roh : “Your reason has the duty and the right to examine
the grounds of belief and so to lead you to believe; but it
has not the right to set itself up as the judge of the pro­
nouncements of God and His teaching office, in order to
reject as false what it does not understand.” In the light
of these words it is all the more inconceivable how Gotz
could nevertheless say : “Therefore in proposition fifteen of
the Syllabus, the principle of compulsion in matters of faith
is preached by the same Ultramontanism whose champions
rave about religious peace and submit proposals of tole­
rance.”11 The intolerance taught by the Syllabus is theoret­
ical dogmatic intolerance, something entirely different
from civil and political intolerance. And this kind of intol­
erance the Church must unflinchingly adhere to, unless she
wishes to commit suicide.12
“Nowhere is dogmatic intolerance so necessary as in
the domain of religious beliefs,” says the German theolo­
gian Monsignor Joseph Pohle, “since for each individual
his eternal salvation is at stake. Just as there can be no
alternative multiplication tables, so there can be but a
single true religion, which, by the very fact of its existence,
protests against all other religions as false. But the love
of truth and truthfulness requires each man to stand forth
as the incorruptible advocate of truth and truth alone.”"
No matter what lengths the Church may go to in acknowl­
edging freedom of worship and denominational parity (this
we shall presently discuss in greater detail), this much is
at once certain: She can never acknowledge in principle
that other religious denominations are entitled to a place
alongside her as sister churches with equal religious rights,
“as the historical expressions of the one revelation,”
Christianity ; in other words she can never hold that in the
true religion different forms are possible. The Church can
never maintain that the objective Christian revelation in
its entirety is not the property of any one denomination;
» Der Ultramontanismus aïs Weltanschauung, 105.
u Ibid,
° Although the concept of dogmatic. intolerance and its distinction from political and
civil intolerance has been often. publicly discussed, its true meaning is repeatedly mis­
understood. To cite one example in this regard, during the Church-State relationship debate
in the Baden Chambers during the second half of the nineteenth century, acting State
Minister Alexander von JDusch expressed hope that the dogmatic intolerance of the Cath­
olic Church might vanish in the interest of religious peace. He was corrected by the
Protestant church counselor. Professor Troeltsch, who informed him that dogmatic in­
tolerance is to be found in the evangelical confession just as well as in the Catholic
Church (Allgemeine Rundschau, 1910, 446).
«’’Religious Toleration,” Catholic Encyclopedia, XIV, 765.

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THE CATHOLIC CHURCH AND THE MODERN STATE

that, rather, each denomination possesses merely concepts
of possibly valid truths, concepts about which no decision
is possible as to their objective and universal validity but
only in regard to their subjective power of binding in con­
science.14 The Church holds fast to the natural rough-hewn
idea of truth that acknowledges only the one truth and
hence only one Church; and she condemns what is alleged
to be the more subtile idea of truth that upholds the exis­
tence of differing truths that bring subjective conviction
and hence different churches. The Syllabus has confirmed
the Church’s stand in this respect by rejecting thesis
eighteen: “Protestantism is nothing but another form of
the same true Christian religion, in which it is equally
possible to please God as in the Catholic Church.”
In the light of this attitude of the Catholic Church
toward religious truth, the title ‘the one saving Church,”
which she claims and which has brought many reproaches
and bitter words, is readily understandable. It signifies
that the Catholic Church is the only society established by
Christ to impart His truth and grace and that there is no
choice in respect to her, just as there is none in respect to
truth itself, in the sense that one may not freely decide, as
in the case of any “optional” society, to join it or keep
aloof from it. The persistent refusal of one who neglects
to join the Church through his own fault is condemned
by the Church’s Founder: “. . . If he refuses to hear even
the Church, let him be to thee as the heathen and the
publican.”15 Such is substantially the meaning of Pius IX
in condemning the sixteenth proposition of the Syllabus :
“Men may, in any religion, find the way of eternal salva­
tion and attain eternal salvation.” But the Church’s claim
to be the only source of salvation does not mean that all
who are not in the Church will be lost. This same Church
in 1713 condemned the dreadful assertion of Quesnel that
“outside the Church no grace is given,”16 and even earlier
(1690) rejected the Jansenistic proposition of Arnauld to
the effect that pagans, Jews, heretics and others of a similar stamp have received no influx (of grace) from Jesus
Christ.17 In contrast with these fanatics, Catholic dogmatic
theology passes a different judgment. How much piety, god14 E. Troeltsch, Dir Trtnnang von Stoat and Ktrcbt (Tubingen, 1907), 12 8 7
18:17.
’
u Proposition 29 among the errors of Paschal Quesnel condemned in the dogmatic con
*
stitution Vnigtnitnt, September 8, 1715; in Denzinger’s Enchiridion, no. 1379.
« Proposition 5, condemned in the decree of the Sacred Office, December 7* 1690- tn
Denzmger, op. tit., no. 1293.
*
’

* Matt.

CHURCH AND FREEDOM OF RELIGION

115

liness and heroic charity toward one’s neighbor one meets
with among non-Catholics also ! In the words of Monsignor
Pohle:
. . The gentle breathing of grace is not confined
within the walls of the Catholic Church, but reaches the
hearts of many who stand afar, working in them the marvel
of justification and thus ensuring the eternal salvation of
numberless men who either, like upright Jews and pagans,
do not know the true Church, or, like so many Protestants
educated in gross prejudice, cannot appreciate her true
nature. To all such, the Church does not close the gate of
Heaven, alhough she insists that there are essential means
of grace which are not within the reach of non-Catholics.
In his allocution Singulari quadam of December 9, 1854,
which emphasized the dogma of the Church as necessary
for salvation, Pius IX uttered the consoling principle : ‘But
it is likewise certain that those who are ignorant of the
true religion, if their ignorance is invicible, are not, in this
matter, guilty of any fault in the sight of God.’ ... In her
tolerance toward the erring the Church indeed goes farther
than the large catechism of Martin Luther.”18 For there, as
Monsignor Pohle tells us, we read the words : “All who are
outside the Christian pale, be they heathen, Turk, Jew,
false Christian or hypocrite, even if they believe in the one
true God and invoke Him, but know not how He is disposed
toward them, cannot promise themselves God’s grace and
favor. Therefore they abide in His eternal wrath, and in
everlasting damnation.”19
After what has been said so far, the condemnation of
the second half of thesis eighteen of the Syllabus should no
longer seem strange, although it might be easy for a non­
Catholic to misunderstand this proposition. In its entirety
the thesis reads: “Protestantism is nothing but another
form of the same true Christian religion, in which it is
equally possible to please God as in the Catholic Church.”
The error to be rejected is religious indifferentism (which
in England came to be known as Liberalism or Latitudinarianism). It holds that the particular Christian church or
sect one belongs to is an indifferent matter; all forms of
Christianity are on the same footing, all are equally
pleasing to God and serviceable to man.20 Here it must be
aOt> cit P· 767. See also, Karl Adam, The Spirit of Catholicism, translated by Dom
Justin McCann, O.S.B. (New York: The Macmillan ζο·. 1935), 191ff.
* Deutsch Catéchismes (1529). m Dr. Marten Luther's Werke C^Jevas^t, 1910), XXX.
Part I, 192.
» See James J. Fox, "Religious Indifferentism,” Catholic Encyclopedia, VII, 759«

116

THE CATHOLIC CHURCH AND THE MODERN STATE

remembered that in the condemnation of the thesis there
is no intention of calling into question the fact that there
are many Christians in the Protestant sects who are as
pleasing to God as others who are Catholics ; or that with­
out doubt in the Protestant religion there are many, who
are more pleasing to God than are many others who live
within the fold of the Catholic Church but not according to
her spirit. In fact, in this and similar theses it is only prin­
ciples that are rejected, never men who are judged or clas­
sified.
That the rejection of freedom of conscience, or free­
dom to believe or not to believe the revealed truth, follows
necessarily from the principles held by the Catholic Church
must be admitted also by persons outside the Church. Thus,
M. Kahler states: “It (freedom of conscience) depends
upon the individuality of the conscience, and is opposed to
the claim that one may be morally bound by an authority
other than that of God. Such a claim appears in its most
obvious form when an institution like the Roman Church
identifies its utterances with divine revelation.”21 Catholics
would object only to that statement of Kahler’s which sug­
gests that the Church accepts the claim that one may be
morally bound by an authority other than that of God.
The Church has the adamant conviction of faith that behind
her teachings in matters of faith and morality stands the
guarantee of truth vouched for by God revealing.
FREEDOM OF RELIGIOUS PROFESSION
If we now turn our attention to freedom of religious
profession, we enter the sphere of social and civil life, and
its community of interests. For freedom of profession con­
sists in the absence of external limitations and obstacles,
namely, those that restrain or make impossible an outward
manifestation of an inner religious conviction, whether by
word or by sensible action.
The medieval State was unacquainted with freedom of
religious profession. Only to the Jews did it grant tolera­
tion.22 But one who as a Christian expressed a religious
opinion at variance with the Church’s teaching and who,
despite admonition and warning, finally adhered to this
error, was regarded as a rebel against the State also and
» ’’Freedom of Conscience," The Nrw Scbaff-Hertog Encyclopedia oj Religioni Knowledge,
edited by Samuel Macauley Jackson and others (New York: Funk and Wagnails, 19Q9),

a^ee Herbert Thurston, S.J., "History of Toleration," Catholic Encyclopedia, XIV, 292.

CHURCH AND FREEDOM OF RELIGION

117

was punished as such. Likewise in countries where the
Protestant Reformation gained the ascendancy, freedom
of profession was unknown.23 In the judgment of a Prot­
estant professor of church law and political science, “Re­
straint of conscience was, in consequence of the unity of
State and Church, firmly established in Protestant ter­
ritories, no less than under the Byzantine emperors and
the coercive domination of the papacy.”24 Even the police
State of the eighteenth century was little disposed to grant
freedom of profession in the full sense of the term. Witness,
for example, the capricious manner in which Joseph II of
Austria curtailed the autonomy of the recognized churches
and intervened in their inner religious life, going so far
as to forbid Catholics to recite the rosary; and finally,
consider his severe measures against various sects. On June
10, 1783, in characteristic fashion he issued a decree
against a deistic sect that had gained followers among the
peasants of Bohemia : If a man or woman, when required
to register his religious profession, reported to the district
bailiff that he or she was a deist, twenty-four stripes with
a leather whip were to be administered to the culprit and
the punishment was to be repeated as often as the person
made the same admission on the occasion of any future
registration.25 If during the nineteenth and twentieth
centuries, freedom of religious profession has gradually
come to prevail in most countries except those dominated
by Communism, this has been accomplished not so much
by the doctrines of freethinkers and the philosophers of
Illuminism, such as Locke in England, and Semmler and
Lessing in Germany, as through various factors in histori­
cal evolution : the great number of religious denominations,
the constant infiltration of their doctrines into shifting
masses of the population, the increase of communication
facilities, the rank growth of unbelief and religious in­
differentiam, excessive interest in the material aspects of
life amid the achievements of modern culture.
The modern State grants freedom of religious pro­
fession; that is, in the first place it avoids all direct sup­
pression of the profession of a religion and its propagation.
Consequently the so-called freedom of expression—freedom
»See Paul Schanz, A Christian Apology, translation by Michael Glancey and J. Schobel
(New York: Pustet, 1892 ), III, 310-314; see also, Stokes, op. tit., I, pp, 104-106; et
passim.
H W. Kahl, Lebrsystem des Ktrchtnrchts und der Kircbenpolitih, 292.
* Maassen, Nenn Kapitel Sher frete Kircbe and Gewissensfreiheit. yn.

118

THE CATHOLIC CHURCH AND THE MODERN STATE

of speech, freedom of teaching, freedom of association and
assembly—can be used for religious and irreligious pur­
poses alike. The State also refrains from, or should refrain
from, all indirect restraint in favor of, or against, a defi­
nite religious confession ; it should also leave the possession
of civil and political rights intact and independent of the
religion of the individual citizen.
To be sure, not even the modern State grants unre­
stricted freedom of religious profession ; it considers certain
limitations unavoidable. In many German states during the
early part of this century the minimum age for the free
choice of a religious denomination was set at the age of
fourteen years. But a boy or girl can very well have an
avowed religious conviction even before this age yet could
be bound by this State law to perform religious acts at
variance with such a conviction. The State also has the
power to restrict all expressions of religious conviction in­
compatible with the social order. For instance, it brings
before the criminal court persons guilty of murder, even
though such persons, goaded by religious fanaticism, regard
such a deed as heroic. As early as 1872 the Congress of
the United States of America legislated against the insti­
tution of plural marriage, commonly called polygamy,
which had been taught and practised by the Mormons, or
the Church of Jesus Christ of the Latter-Day Saints; but
the law had proved inoperative, and was later supplemented
by the Edmunds Act, and later (1887) by the EdmundsTucker Act, which disfranchised polygamists in the ter­
ritories. In 1890 the United States Supreme Court affirmed
the constitutionality of the anti-polygamy statutes, and
in consequence the General Conference of the Mormon
Church withdrew from further solemnization of plural
marriages in the Church.2®
Now what is the Church’s attitude toward the granting
of freedom of religious profession by the State? She ac­
knowledges that under present conditions there is justifi­
cation and necessity for this political large-mindedness
whereby the State permits everyone to say and do what
seems to him to be good and just in general in the sphere
of religion. The Catholic Church cannot demand, or even
desire, that in the circumstances now prevailing almost
everywhere, the State should restrict or suppress religious
» "Mormons,” EnejclofrJie Britiaxiai (11th ed., Cambridge and New York, 1911),
XVIH, 846f.

CHURCH AND FREEDOM OF RELIGION

119

opinions or positively interfere in behalf of the exclusive
claims of Catholic truths. For in so doing she would seek
something which, after the disappearance of the unity of
Church and State based on the common religious philosophy
of its citizens, is altogether outside the purpose and func­
tion of the State. For civil law, as the norm of the social life
of all citizens of the State, can protect only what is com­
mon to all. In view of the diversity of religious opinion and
profession it is impossible for the State to use its coercive
might to effect the exclusive domination of the religious
philosophy of a portion of its citizens. Nor would such
action be desirable even from the point of view of the
Catholic Church. Freedom is the sole weapon whereby the
modern man can be won again to religion. If one considers
the frame of mind of modern man, it becomes evident that
religious truth would immediately arouse hatred if, pano­
plied with the coercive power of the State, it sought to
make its way through the world. “Certainly error has no
right, but the faithful Christian must make the best of the
situation if the one truth be misunderstood and despised
by dissenters and unbelievers. He must, in the light of
existing conditions, devote himself all the more zealously
and unselfishly to the service of truth. The juridical norms
which regulate the peaceful co-existence of citizens of
diverse religious convictions can be built only on the con­
cept of freedom,” says G. von Hertling.27
Such is the viewpoint officially championed by the
Church, particularly in the Encyclical of Leo XIII on
human liberty. He writes: “The Church well knows the
course down which the minds and actions of men are in this
our age being borne. For this reason, while not conceding
any right to anything save what is true and honest, she
does not forbid public authority to tolerate what is at
variance with truth and justice, for the sake of avoiding
some greater evil or of obtaining or preserving some
greater good.” Accordingly if, “it is quite unlawful to
demand, to defend, or to grant unconditional freedom of
thought, of speech, of writing, or of worship, as if these
were so many rights given by nature to man,” it likewise
follows “that freedom in these things may be tolerated
wherever there is just cause; but only with such moderation
” Rtcht, Stent end GtstUtcbaft (Kempten. 1906). 101.

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THE CATHOLIC CHURCH AND THE MODERN STATE

as will prevent its degenerating into license and excess.”28
In an article written for the Roman fortnightly, Civiltà
Cattolica, Rev. A. Messineo, S.J., holds that religious toler­
ance is an “impervious necessity,” a practise of the virtue
of political prudence, in view of the concrete conditions of
an everchanging human society. “Right reason in matters
of action—recta ratio in agibilibus (to use St. Thomas’
expression) itself requires a prudent course of conduct on
the part of a state which would adapt itself to the evident
situation found in a mixed community, if people of differing
beliefs are to live together in peace. But over and above any
matter of prudence or Christian charity, there exists, in
Father Messineo’s view, a “true and proper requirement
(esigenza )of justice, not towards error itself, but toward
the persons who profess it.” He believes in the right to
exercise a tolerance “absolutely independent of any con­
crete situation, because it is based upon a perennial and
universal requirement of the human person, and therefore
is of the widest and most valid application as a practical
principle of individual and public conduct.”29 Catholics in
various countries who have manifested intolerance, he
maintains, have failed to grasp the full implications of the
traditional Catholic doctrine. Commenting on this article,
Rev. John LaFarge, S.J., remarks that “these words of
Father Messineo are in themselves a heartening utterance” ;
and that the assurance which Father Messineo is quoted
as having given to the editor of Time is also welcome—an
assurance “entirely in line with what Catholics in this
country and elsewhere have been saying all along. “This is to
the effect,” writes Father LaFarge, “that if the adherents
of the Catholic Church were to gain the upper hand in any
country where they are now a minority, they would still
continue to practise the same virtue of tolerance as they
justly claim for their own benefit under existing circum­
stances.”80
The idea that the Church holds to a principle of legal
intolerance of religious freedom but favors tolerance only
when it is impossible—or at least impractical—for her to
choose any other course, is an opinion that cannot now be
upheld in the light of recent pronouncements of Pius XII.
” Encyclical Liiertas, praestantiijimam, June 20, 1888, in ASS, XX, 609, 612; English
translation in The Great Encyclical Letters of Pope Leo XllJ, 157, 161.
» "La Toleranza e il suo fundamento morale,*
*
(Rome, 1950), November 4, 1950
Anno 101. 314-525,
• ■•’A Catholic Statement on Tolerance,’ Amenta, LXXXiv (January 6, 1951), 399f.

CHURCH AND FREEDOM OF RELIGION

121

The most important of these papal discourses is his address
on December 6, 1953, to Italian Catholic jurists,31 in which
he settled a question long at issue in a Catholic state. He
declared that the question is whether non impedire (passive
toleration) as regards non-Catholic religions is permitted
in certain circumstances and whether positive repression
may not always be a duty.
“Although it would be possible and easy for God to
repress error and moral deviation, can He in some cases
choose the non impedire, without coming into contradiction
with His infinite perfection?” the Pontiff queried. “Can
it be that in determined circumstances He does not give
men any mandate, does not impose any duty, does not give
even a right to impede and repress what is erroneous and
false?” A glance at reality, the Pope continued, gives the
affirmative answer. God does tolerate sin and error. Fur­
thermore, God has not given to human authority such an
absolute and universal precept, either in the field of faith
or in that of Christian conscience. Neither the common
conviction of men, nor the Christian conscience, nor the
sources of revelation, nor the practice of the Church knows
of such a precept. The affirmation, therefore, that moral
and religious deviations must always be impeded when it is
possible, because their toleration is in itself immoral, can­
not be valid unconditionally and absolutely.
“Therefore the duty to repress moral and religious mis­
direction,” the Pope continues, “cannot be an ultimate norm
of action. It must be subordinated to higher and more gen­
eral norms, which in certain circumstances permit, and
even make it appear the better part, not to impede error in
order to promote a greater good.” The Pontiff points out
that “what does not objectively correspond to truth and
the moral norm, has no right to existence, to propagation,
or to action. But in the interest of a higher and broader
good, it is justifiable not to impede this error by state laws
and coercive measures.”
Religious and moral needs will demand for the entire
community of nations a well-defined regulation (concerning
religious freedom) valid for the entire territory of sov­
ereign states that are members of such a community of
nations. Pius XII concluded, “Within its territory and for
its own citizens, each state will regulate religious and moral
« Allocution Ci riesce, in AAS. XXXV (December 16, 1953), 794-802. English trans­
lation in American Ecclesiastical Review, CXXX (February, 1954), 114-123.

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THE CATHOLIC CHURCH AND THE MODERN STATE

affairs by its own law. Nevertheless, in the whole territory
of the community of states, the exercise of their own beliefs
and religious and ethical practices will be permitted to cit­
izens of every state in so far as these do not turn contrary
to the penal laws of the state in which these persons re­
side.” Thus the common good must be the highest control­
ling principle in establishing national laws on religion.
Accordingly, Pius XII teaches that legal tolerance of
other religions in a state is not a reluctant concession to
force on the part of the Church, or a mere matter of ex­
pediency; and repression of false religions by the State
is not the ultimate norm for solving the problem of the
plurality of religious beliefs in a country.
The utterance of Pope Leo XIII quoted above,32 suggests
that according to Catholic teaching the granting of free­
dom of religious profession by the State must have its
limitations. The State, according to Catholic belief, may not
permit the spread with impunity of sects which trample
under foot the supreme principles of morality and reason
on which human society rests, principles that jeopardize
marriage, property, human life. In this sense the Syllabus
(in thesis seventy-nine) challenged the assertion: “It is
falsely maintained that civil liberty of every kind of wor­
ship and full power granted everybody to manifest openly
and publicly any opinions whatever, conduce to corrupt
more easily the minds and morals of the people and to the
propagation of the plague of indifferentism.” Accordingly,
the State, from motives of self-interest, must be careful
lest under the guise of religion and piety tendencies dan­
gerous to the State and destructive of morals seek to obtain
free outlets. It must exercise a sharp control over the new
and oftentimes fantastic creations that call themselves re­
ligious systems. On the other hand, the State may serenely
put its trust in the great communities of the Christian reli­
gion whose doctrines of faith and morals have proved to be
compatible with the common weal. The State need not
trouble itself, as did Joseph II of Austria, as to whether
there are in the breviary matters dangerous to the State
that must be deleted, or whether the Marian sodalities
which are meant to help high school students preserve the
faith and the purity of their hearts are at the same time
calculated to undermine the foundations of state govern­
ment.
” See above, p. 119.

123

. i

There are two other reservations which the Church
and any Christian philosophy of life must make when
acknowledging that the State has the limited (not absolute)
right to grant freedom of religious profession: namely, that
interdenominationalism must not progressively develop to
such a degree as to make the separation of Church and
State necessary in principle, or to cause the State to become irreligious or anti-religious. These two points will be
discussed presently.

>

CHURCH AND FREEDOM OF RELIGION

i

FREEDOM OF WORSHIP
When completely realized, freedom of religious pro­
fession leads to freedom of worship, which grants to every
citizen the right to practice his religious convictions outwardly and publicly in common with others of the some
profession ; for one can hardly speak of freedom of worship
if a denomination differing from the State religion is only
permitted to worship within the confines of the home. From
the purely religious viewpoint it is obvious that the Catho­
lic Church cannot acknowledge any other worship to be
justified save that which is willed by God—namely, her
own. Therefore she cannot desire that other forms of wor­
ship increase in number, nor can she approve of any purely
arbitrary concession, not justified by the circumstances,
whereby the State puts various religions on an equal
footing with her own. This and this only is the sense in
which proposition seventy-nine of the Syllabus, mentioned
above, is condemned. But if for political reasons (such as
are rooted in the social aspects of the State) the introduction of freedom of worship proves to be necessary—and
today that is the case practically everywhere—the Church
does not object to such a procedure. And what is more, she
will not even concern herself with freedom of worship
once it has been introduced. For even though no right at­
taches to error, yet as regards the erring—who usually can
appeal to written constitutions, special charters, or pre­
scriptive rights based on long traditions in favor of their
cults—there does exist the duty of loyalty and justice which
neither governments nor secular and religious authorities
nor individual citizens may shirk.33
Accordingly, a Catholic in the modern constitutional
State can, without becoming involved in any sort of con­
flict with the principles of his Church, demand freedom of
• See Joseph Pohle. ’’Religious Toleration,” CatboJic Encyclopedia, XIV, 764-765.

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124

THE CATHOLIC CHURCH AND THE MODERN STATE

worship for all who respect the religious and moral founda­
tions upon which man’s life in society rests.
But must not a Catholic at least deny the past history of
his Church to be able to maintain his “modern” viewpoint
in the matter of religious freedom? This problem we shall
consider in the next chapter.

B. ESSENTIAL CONSISTENCY OF THE CHURCH’S
ATTITUDE TOWARDS PERSONS OF OTHER BELIEFS
We must now examine more closely an argument
which, as experience amply shows, is repeatedly advanced
against the sincerity and trustworthiness of the Church in
its toleration of the secular or suprasectarian State. It may
be stated as follows: The Catholic Church’s acknowledge­
ment of freedom of belief and worship rests merely on
ecclesiastico-political, and not on religious, considerations;
it is a matter of expediency, not of principle; the fact that
the Church with her faith and worship has been removed
from her privileged position is regarded by her as an evil,
though a necessary one. Indeed Leo XIII in his Encyclical
on Human Liberty admits that, “Although in the extra­
ordinary conditions of these times the Church usually ac­
quiesces in certain modern liberties, not because she pre­
fers them in themselves, but because she judges it expedient
to permit them, she would in happier times exercise her
own liberty ; and, by persuasion, exhortation, and entreaty,
would endeavor, as she is bound to do, to fulfill the duty
assigned to her by God of providing for the eternal salva­
tion of mankind.”1 If, therefore, the argument continues,
the Church should ever succeed in regaining her unique
privileged position in some Catholic State, she would once
more restore all the institutions which in the Middle Ages
made her position secure, including the Inquisition with
slaying of heretics by the civil power. Paul von Hoensbroech, who considers himself an expert in matters pertain­
ing to the Catholic Church, asserts that he knows her as
no other living adversary knows her, and that he fears the
worst in this respect. He writes : “The Inquisition was not,
as one would like one to believe, a passing aberration, a
human tax which the papacy too has paid to the brutality
and want of culture of earlier times; rather, it is a system
born of the primitive, abiding, Romish Ultramontane spir1 Encyclical Liberia/, June 20, 1888, in ASS, XX, 809; English translation used here

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i■ »

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 125

it, which today is no longer active only because the papacy
lacks the external power therefor. The history of the In­
quisition with all its oppressions that desecrate freedom
and truly shock conscience is the history of Rome exerting
its power freely, the history of its basic conception of free­
dom of conscience, religion and worship, ever the same in
all ages.”2 Such assertions and inferences would indeed be
unassailable if the coercive measures which the Middle
Ages utilized for the supression of dissident opinions were
a necessary phenomenon resulting from the exclusive dom­
ination of the Catholic Church; not so, however, if they
were merely a concomitant phenomenon attributable to
historical factors of the medieval religious State, as noted
above when reference was made to the right of deposing
princes.3 Hence the question arises as to what attitude must
be taken, according to Catholic principles, towards persons
holding different religious beliefs, and whether the prin­
ciples on which these attitudes are based are always the
same.
CONVERTS
It is a fundamental principle of Catholicism that it is
immoral to induce a person outside the Church to enter it
by utilizing any compulsory measure whatever. Leo XIII
reaffirmed this point of view in clear terms in his Ency­
clical on the Christian Constitution of States : “In fact the
Church is wont to take earnest heed that no one shall be
forced to embrace the Catholic faith against his will, for,
as St. Augustine wisely reminds us, ‘Man cannot believe
except by his own free will’ ”4 Throughout the Middle Ages
Christians firmly maintained what the Prince of Scholas­
ticism stated in these words : “Among unbelievers there are
some who have never received the Faith, such as the hea­
thens and the Jews: and these are by no means to be com­
pelled to embrace the Faith.”5 In the year 1190 the prohibi­
tion of Pope Clement III was incorporated into the Church’s
Corpus Juris Canonici: “We decree that no one may compel
Jews to come to baptism against or without their will.”®
The new Code of Canon Law in canon 1351 expressly for­
bids the use of force in the matter of faith. The Church, of
1 MoJemer Stoat nd katboliscbe Kircbe, 3, 136.
• Encyclical’ immortale Dei, November 1, 1885; Gerald C. Treacey translation, 127.
• Summa Theologica, Ila, Ilae, q. 10, a. 8.
.
··»,.»»
,·
• C. 9, X, De Judaeis, lib. V, tit. vi, in Carpat Junt Canonici, Pars II. Decretalium
Collectiones, edited by Friedberg, 774.

126

THE CATHOLIC CHURCH AND THE MODERN STATE

course, did not understand tolerance toward non-Christians
as meaning that she was to dissuade the Christian State
against using energetic measures against propaganda, for
example the propaganda of Islamism, which threatened
Christian culture and civilization.

FORMAL HERETICS
The Church assumes a different attitude when there is
question of defection from the faith on the part of those
who once were in the full possession of Catholic truth and
then deserted it. St. Thomas Aquinas says: “ . . . Accept­
ance of the Faith is a matter of the will, whereas keeping
the Faith, once one has received it, is a matter of obliga­
tion.”7 The Church regards formal heretics, that is, bap­
tized persons retaining the name of Christian, who volun­
tarily and obstinately refuse to accept one or more of the
truths revealed by God and taught by the Church, as her
recalcitrant children whom she must correct and bring
back to the path of righteousness by punishment; above
all, by the most severe censure, the medicinal and spiritual
punishment that cuts off the delinquent from the Church
and deprives him of all participation in the common bless­
ings of ecclesiastical society, namely, the Church’s worship,
her sacraments and other means of grace. In fact it could
scarcely have occurred to the Christians of the first three
centuries after Christ to assume any other attitude toward
those who erred in matters of faith. St. Cyprian (d. 258)
draws attention to the contrast between the ordinances and
spirit of the Old and those of the New Testament as a rea­
son for the Christian dispensation not following the Old:
“Formerly, under the old law of the carnal circumcision,
rebels against the law paid for their rebellion with their
lives; but now that a spiritual circumcision distinguishes
the faithful servants of God, the rebellious and obstinate
fall under the edge of a spiritual sword when they are re­
jected by the Church.”8 The Church continued to be satis­
fied with this spiritual punishment even when the State on
its own responsibility persecuted heretics by penalties of
violence, including death.
The imperial successors of Constantine soon began to
see in themselves divinely appointed “bishops of the ex­
terior,” that is, masters of the temporal and material affairs
T See above note 5.
• Epistola Ixii ad .Pomponium» no. 4; in Migne, P. I~» II» 571·

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 127

of the Church. It was in fact the Roman emperors who,
after Christianity became the State religion, made heresy
a civil crime punishable by confiscation and banishment,
and who soon declared heresy high treason against the
State also and hence worthy of the death penalty. Within
fifty-seven years, sixty-eight penal enactments were thus
promulgated.8*What was the reaction of the representatives
of the Church? They were overwhelmingly opposed to such
extreme measures. The fact that St. Hilary of Poitiers
(d. circa 367) in fiery words reproached Emperor Constan­
tius with being no better than a Nero, a Decius and a
Maximianus,10*is not significant, since Constantius was an
Arian and a persecutor of Christians. But other utterances
of this “Athanasius of the West,” as Hilary was called,
are noteworthy. Especially so is this eloquent complaint
against the use of force in the province of religion. These
words, found in the memorial he addressed to Bishop Auxentius of Milan, were written at a time when the Church
of Milan was under Arian influence: “I ask you bishops
to tell me : whose favor did the Apostles seek in preaching
the Gospel, and on whose power did they rely to preach
Jesus Christ? Today, alas! while the power of the State
enforces divine faith, men say that Christ is powerless. The
Church threatens exile and imprisonment; she in whom
men formerly believed while in exile and prison now wishes
to make men believe by force. ... She is now exiling the
very priests who once spread her Gospel. What a striking
contrast between the Church of the past and the Church of
today!”11 The whole West was excited in the year 385 by
the news of the punishment which Emperor Maximus had
inflicted on the heretic Priscillian, who was accused of
sorcery, and on certain of his associates at Trier; and St.
Martin of Tours, who exerted himself to save the accused,
refused to hold converse with those who had denounced
them.12 The execution was almost universally condemned
in the Church. St. John Chrysostom, speaking of the para•A. Vacandard, The Inquisition: A Critical and Historical Study of the Coercive Power
of the Church, translated by Bertrand L. Conway. C.S.P., (New York; Longmans, Green,
1908), 9.
10 Contra Constantium Imperatorem, I, 7; in Mîgne, P. L., X, 583.
u Contra Arianos vel Auxentium Mediolanensem, I, 4; in Mîgne, P, L., X, 611. Auxentins, a native of Cappadocia, was made Bishop of Milan (335) through Arian intrigue
after the banishment of Bishop Dionysius. He was publicly accused at Milan (364) by
St. Hilary and convicted of error in a disputation held in that city by order or the
Emperor Valentinian I. His submission was only apparent, however, and he remained
powerful enough to retain possession of his see until his death. He was the main support of
Arianism in the West.
«See Otto Bardenhewer, Patrologie (2nd ed., Freiburg, 1901), 376.

128

THE CATHOLIC CHURCH AND THE MODERN STATE

ble of the wheat and the cockle and our Lord’s admonition
that the cockle should not be uprooted at once lest the good
wheat be also uprooted, explained the parable as meaning
that our Lord wishes to prevent war and the shedding of
blood; by killing heretics en masse (namely, the Arians)
relentless war would come into the world.13 St. Augustine,
too, was always opposed to the use of the rack and the death
penalty against heretics. Despite the fact that the Donatists by vulgar crimes, plunder and murder wore out the
patience of the imperial power, Augustine pleads their
cause with the Proconsul of Africa: “There is only one
thing I fear from thy justice, and that is that it will con­
sider the enormity of the offenses committed without suf­
ficient regard to Christian clemency. Do not act in that
manner, we beg thee in the name of Jesus Christ. We do
not desire to take vengeance on our enemies. . . . We love
them, and pray for them. . . . We hope that terror of the
laws and judges will enable them to escape from eternal
condemnation. We do not desire their death. . . . Forget
that thou hast power to kill, but do not forget our prayer.
We pray thee not to put them to death, as we pray our
Saviour to convert them. . . . Remember, moreover, that
these ecclesiastical causes only come before thee for trial
on the petition of the clergy . . . If thou shouldst pass sen­
tence of death, thou wilt receive no more of our complaints.
We would rather be killed by these criminals than institute
proceedings which may result in their being put to
death. . . .”14
Nevertheless, Christian antiquity did not speak out
against every intervention of the State in those days in be­
half of ecclesiastico-political unity and for the suppression
of heresy. Even St. John Chrysostom, who calls the killing
of heretics an unpardonable crime, when explaining the
parable of the wheat and cockle, asserts that Our Lord does
not forbid us to keep a tight rein on heretics, to deprive
them of freedom of speech and to break up their meetings.16
Of the greatest importance in this respect is the attitude of
St. Augustine, because in later times it served as a basis for
a stricter and more ruthless persecution of heretics than he
intended. For years he was opposed to all coercive measures
u Ho milla xlvi, al. xlvii in Matt xiii, cap. 1; in Migne, P.
LVIII, 477.
14 Epistola c ad Donatum, nos. 1 and 2 ; in Migne, P. L., ΧΧΧΠΙ, 366f. See also
Epistolae cxxxiii tt cxxxix ad Marcellinnm, in Migne. P. L., ΧΧΧΠΙ. 555-558· Etirtali
cxxxiv ad Aprin^ittm, in Migne. P. L„ ΧΧΧΙΠ. 510-512*
cptsroia
“ See above, note 13.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 129

j

I

for the conversion of the Donatists in order to avoid
pseudo-conversions; but later on, the judgment of his
brother bishops, as well as his own experience, led him to
change his opinion and to prefer a mitigated form of
coercion ( exile for their bishops and priests, confiscation
of their church property, flogging and fines). The favorable
results achieved by civil intervention, as well as the ag­
gressive anti-social and revolutionary character of the her­
etics of his time, which seemed inevitably to demand strict
measures to safeguard public security, were the proximate
reasons why Augustine modified his original viewpoint. But
what is more, he sought by abstract reasoning to establish
the right of the State to use force for the suppression of
heresy and schism. He looked upon the coercive measures
of the State not so much as a punishment as rather a de­
terrent, a powerful corrective, a painful healing process,
called forth by compassion and love for the erring. But it
cannot be proved that his attitude in this matter was an es­
sential result of his basic idea of the spiritual pre-eminence
of the Church over the State.16
To sum up : The ecclesiastical point of view during the
first five centuries of Christianity may be stated as fol­
lows: (1) The Church should for no cause shed blood (St.
Augustine, St. Ambrose, St. Leo I, and others) ; (2) other
teachers, however, such as Optatus of Mileve and Priscillian, believed that the State could impose the death penalty
on heretics in case the public welfare demanded it; (3) the
majority held that the death penalty for heresy, when the
heresy was not civilly criminal, was irreconcilable withfthe
spirit of Christianity. The help of the civil arm was there­
fore not entirely rejected; on the contrary, as often as the
Christian welfare, general or domestic, required it, the
secular power was left free to stem the evil by appropriate
measures.17 In the seventh century St. Isidore discusses
this question in practically the same terms as St. Augus­
tine.18
Germany during the Middle Ages did not at once take
over the secular legislation of the Roman State against
heretics. When Clovis became a Catholic, the conversion of
the German Arians was not accomplished by force, al­
though they were not granted freedom of worship. During
Joseph Mausbach, Die Etbik des beiligen Augustinus (Freiburg, 1909) I, ?45f.
if See Joseph Blotter, "Inquisition,” Catholic Encyclopedia, VIII, 27.
« Sententiarum, lib. ΙΠ, cap. li, nos. 4-6; in Migne, P, L., VXXXm, 723.

130

THE CATHOLIC CHURCH AND THE MODERN STATE

the long dominion of the Merovingians and Carlovingians,
heresy was not regarded as a civil crime, and was not
punished with a civil penalty. The question of the right of
the sword was not raised for the Church during the ninth
and tenth centuries, but there is no doubt as to the answer
it would have received had it been raised at that time.19
From the eleventh century accounts of the execution of
heretics become more numerous. This increase is not due
to new laws; rather, it stems from an enraged populace
which demanded the execution of the disturbers of the
peace, and which, fearing the clemency of the priests, in­
vaded the prisons in the same fashion as a lynching crowd
in modern America, and thus drew upon themselves the
condemnation of the Church.20 Deplorable as these excesses
are, to be fair one must measure them in the light of the
temper and the civilization of the times. We have become
so callous by custom that even the most monstrous and
blasphemous attacks against those things we hold sacred
scarcely disturb us. But when in the times of the oneness of
faith and religious fervor a heresiarch, Peter of Bruys, for
example, ridiculed Baptism, holy Mass, almsgiving, purga­
tory, and on Good Friday burned a pile of crucifixes, and
roasted meat in the flames,21 it is understandable that one
day a mob should seize him and drag him to the stake.
Then, too, that the selection of death by fire was the penalty
for heretics owes its origin to the custom of burning sor­
cerers in Germanic pagan times.
Hence the occasional execution of heretics during this
period may be ascribed partly to the arbitrary actions of
individual rulers, partly to the fanatical outbreaks of the
overzealous populace, and in no wise to ecclesiastical laws
or the ecclesiastical authorities. There were already, it is
true, canonists who conceded to the Church the right to
pronounce the death sentence on heretics ; but the question
was treated as a purely academic one, and the theory exer­
cised virtually no influence on real life. Excommunication,
proscription, imprisonment and so forth were indeed en­
forced but more as forms of atonement than of real punish­
ment; and capital punishment was never inflicted.22
Towards the end of the twelfth century mob justice
M See Vermeersch, Tolerance, 78f.
«Vacandard, op. cii.t pp. 33-49·
** See Petrus Venerabilis, Epistola adeetsns Petrobrnsianos; in Migne, P. L,, CT Υνχτχ
BJ. Blotter, op. tit., p. 28.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 131

yielded more and more to the State, acting in concert -with
the Church to defend—by rigorous measures—ecclesiastical
unity against religious revolution. During this period pow­
erful voices within the Church could still be heard warning
against the punishment of heretics by the executioner’s
sword,23 but they became ever less frequent. More and more
the principle was accepted that heretics found guilty by an
ecclesiastical court should be punished by the civil power.
One of the main reasons for this change, we are informed
by a modern historian of the Inquisition,21 is to be found
in the character of various sects of that period (especially
the Catharists), which menaced not only ecclesiastical unity
but also the very foundation of civil society. These sects
were not composed of priests and monks who engaged in
their speculations behind monastery walls and on the
benches of schools; their members had a mania for prop­
aganda and made proselytes among the laity; their dis­
puted questions, brought into the market place, very soon
became realities. There can be doubt of the grave danger
inherent in the fanatical spread of a doctrine which re­
jected the construction of churches, the veneration of the
cross, oaths, war, civil authority and matrimony, and which
granted its partisans, provided that they had not yet
received the so-called baptism of the spirit ( which generally
was supposed to occur on one’s death bed), the fullest lib­
erty to satisfy their lusts, since they would not thereby
imperil the certainty of their salvation. H. C. Lea, who can­
not be suspected of partiality toward the Catholic Church,
writes : “However much we may deplore the means used for
its (Catharism) suppression and commiserate those who
suffered for conscience’s sake, we cannot but admit that
the cause of orthodoxy was in this case the cause of prog­
ress and civilization. Had Catharism become dominant, or
even had it been allowed to exist on equal terms, its influ­
ence could not have failed to prove disastrous.”25
It cannot be denied that it was to the interest of the
State and it was the right of the State to resist with force
such sects as had publicly written revolution and anarchy
on their banners. That in so doing the State employed very
severe measures and even legally imposed the death sen­
tence is further explained by the revival of Roman law and
» See J. Hergenrother. Kafboliscbe Krrcbe and cbristlicber Stoat, 560.
*· Th. De Causons, Historié de ΓInquisition en France (Paris, 1909), I, 219. See also,
Slimmen ans Maria-Laacb ÇL909)» vol. 77, 263.
History of the Inqumtion tn the Middle Ages (New York, 1888), I, 106.

132

THE CATHOLIC CHURCH AND THE MODERN STATE

its enactments against heretics, as well as by the intimate
connection of the Catharists with the Manicheans, against
whom the severity of the Roman imperial laws had been
specially directed.28 “It seems to me,” says the historian
De Cauzons, “that with regard to certain heretics who
themselves indulged in the shedding of blood, murder, in­
cendiarism, and so forth, it would have been quite impos­
sible during the medieval times to have maintained the
security of the social order without having had recourse
to cruel chastiments. To be sure, we should prefer now that
the Church had left it to the State alone to suppress such
excesses. But we may not forget how intimately they were
associated with one another, socially, civilly, religiously,
and how difficult it was for the one to intervene without
the other.”27
The statements of distinguished individual churchmen
of the Middle Ages intimate how their solicitude for the
menaced common weal, for Church and State, for the in­
violable unity of Faith, was in conflict with the conviction
that spiritual errors, so long as they remain only in that
category, should be fought with spiritual weapons only.
This is especially true of St. Bernard. He lays down the
axiom, “Let us capture heretics by argument not by
force” ;28 that is, let us first refute their errors, and if pos­
sible bring these heretics back into the fold of the Catholic
Church. When he heard that a mob had applied lynch law,
to certain heretics, he declared: “. . . . But while I may
approve the zeal of the people for the faith, I cannot ap­
prove their excessive cruelty; for faith is a matter of
persuasion, not of force {fides suadenda est, non impo­
nenda).” But then immediately he envisions again the
havoc that may befall Christian society by a merely specu­
lative treatment of heretics, and so he adds : “ . . . although
without doubt it is better that heretics be coerced by the
sword—that is, that power which ‘not without reason does
. . . carry the sword, for it is God’s minister, an avenger to
execute wrath on him who does evil’ (Rom. 13:4)—than
that heretics be permitted to seduce many by their error.”2®
St. Bernard was always faithful to his own teaching that
obstinate heretics should be excommunicated by the bishop,
to prevent their doing further harm ; if occasion require it,
«•See Vacandard, op. cit., pp. 10-12.
** Op. cit., p. 489. note.
____
28 Sermo Ixiv in Cantica, no. 8; in Migne, P. L., CLXXXHI, 1085.
» Sermo Ixvi in Cantica, no. 12; in Mîgne, P. L., CLXXXHI, 1101.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 133

the civil authority should arrest them and put them in
prison. Imprisonment was a severe enough penalty, because
it prevents their dangerous propaganda. The councils of the
period voice the self-same teaching.30 Such was the theory
of the twelfth century.
And thus during the thirteenth century, events led to
a mutual procedure on the part of the popes and the civil
power against all heresy and to the gradual organization
of the Inquisition (established about 1231 A. D.), a special
ecclesiastical institution for combatting or suppressing
heresy. By means of the Inquisition heretics convicted by an
ecclesiastical court who obstinately persisted in their error
were handed over to the secular power to receive punish­
ment according to civil law; from the time of the legisla­
tion of Emperor Frederick II this punishment consisted
in death by fire.
The institution of the Inquisition is long since a thing
of the past. It is not our task to evaluate it factually or.
from the viewpoint of legal history. “The history of the
Inquisition,” writes Father Max Pribilla, “still needs fur­
ther study. In the past it has been exaggerated and dis­
torted because of prejudice and lack of attention to the
peculiar circumstances of the age. But further study will
not alter the fact that while the Inquisition was a tragic
thing in the history of mankind and of the Church, it does
not constitute an essential element in the disciplinary code
of the Church.”31 Since we are dealing with Church-State
relations, the only point that immediately concerns us is
the consistency of the Church’s attitude toward heresy:
to establish whether the Church whose medieval represent­
atives invoked the aid of the State for the violent sup­
pression of heresy, and the Church of today (which rec­
ognizes the irrevocable secularization of the State and the
coexistence of the most varied beliefs in every land im­
posing the principle of state tolerance and freedom of belief
upon rulers and parliaments as a dire necessity and as the
starting point of political wisdom and justice) is one and
the same in her basic attitude toward heresy. Catholics are
frequently asked to choose one or the other of these alter­
natives: either your Church at heart desires the return
of the days of the Inquisition and regrets that the present» See Vacandard,
cit., pt>. 46-49.
at "Dogmatic Intolerance and Civil Toleration,” ΤΛ/ Month, New Series. IV, (October,
1950), 255. This article is translated and adapted from the original. "Dogmatische
Intoleranz und bürgerhche Toleranz,” f/tmnrtn aer Zeit, CXLIV (April, 1949), 27-40.

134

THE CATHOLIC CHURCH AND THE MODERN STATE

day conditions make it impossible for the State to lend its
sword to the restoration of unity of faith, that the modern
State, because of changed conditions, is no longer willing
to send anyone to the stake for his religious opinions—and
in this event the Church’s acknowledgment of religious
freedom is intrinsically insincere—or the Church has re­
vised her ideas as to her exclusive possession of religious
truth and the punishability of religious error.

•4 ;*·ι
s I
ht

fcS- Si'H
I u:

ÎB;

THE CHURCH EXPRESSLY DISTINGUISHES
BETWEEN “MATERIAL AND FORMAL” HERETICS
Actually there is no justification for either of these
alternatives. For in the first place Christians who hold
beliefs different from ours and with whom we come into
daily contact are generally not heretics at all in the crimi­
nal and penal sense of that term.32 Therefore not even the
spiritual punishments, to say nothing of other kinds of pen­
alties, can be said to be applicable to them. The penal legis­
lation of the Church was directed solely against formal
heresy—that is, open, malicious and obstinate rebellion
against the divinely instituted teaching authority of the
Church. Now a man born and nurtured in heretical sur­
roundings and with prejudices against the Catholic Church
may live and die without ever having a doubt as to the
truth of his creed; hence willful and obstinate adhesion to
error cannot be assumed but must be proved in each indi­
vidual case. St. Augustine called attention to “the great dis­
tinction” between culpable and inculpable heresy, between
a heretic and those who believe in heresy. “Even though the
doctrine which men hold be false and perverse, yet if they
do not maintain it with passionate obstinacy—especially
when they have not devised it by the rashness of their own
presumption but have accepted it from parents who had
been misguided and had fallen into error—and if they are
with anxiety seeking the truth and are prepared to be set
right when they have found it, then such men are not to
be counted heretics.”33 Today too, it cannot be repeated
often enough that baptized members of Christian (non­
Catholic) sects are not the same as heretics, and truly one
does the Church a grave injustice by assuming that she
places a convinced non-Catholic in the same category as an
apostate priest, for example, who fancies that henceforth
« Canon 1525, |2, Code of Canon Law.
n Ephtola xliii, no. 1; in Migne, P. L.t Ιί, 160.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 135

his life’s task is to defame the mother from whose breast
he once drank the milk of Catholic truth. For those who
err through no fault of their own the Church has no rod
of spiritual punishment, let alone any coercive measures
whatsoever, but only prayer and a mother’s love for her
erring children. Therefore in so far as the Church’s penal
legislation is concerned, they are in the same position as
persons outside the pale of Christianity, but unlike these
latter persons they are infinitely closer to her motherly
heart since they have been committed to her care by Bap­
tism. Karl Adam says, “The Church’s claim to be the
Church of salvation by no means excludes a loving and sym­
pathetic appreciation of the subjective conditions and cir­
cumstances under which heresy has arisen. Nor is her
condemnation of heresy always at the same time a condem­
nation of the individual heretic.”34 Pope Pius IX in an al­
locution of December 9, 1854, declared: “It must be re­
garded as true that he who does not know the true religion
is guiltless in the sight of God in so far as his ignorance is
invincible. Who would presume to fix the limits of such
ignorance, amid the infinite varieties and differences of
peoples, countries and mentalities, and amid so many other
circumstances? When we are free from the limitations of
the body and see God as He is, then we shall see how
closely and beautifully God’s mercy and justice are con­
joined.”38
But the situation is different when there is question
of real or formal heretics, that is, persons who in spite of
adequate instruction fall away from the Church and obsti­
nately persevere in their defection; such conduct, according
to Catholic teaching, necessarily implies grievous culpa­
bility. In the eyes of the Church such persons are, by
virtue of Baptism, subject to her authority before and after
their defection, and the Church seeks to induce them to
correct the error of their ways by severe penalties, espe­
cially by excommunication. But if such punishments gen­
erally do not produce the desired results because of the
indifferentism of modern society, surely penalties of a tem­
poral nature would accomplish even less, to say nothing of
the fact that such punishments could not be carried out at
all against the will of the persons concerned. But does the
m Tbt

Spirit of Catholicism, 200.
m Sinrulari quidam, allocution against rationalism and indifferentism; in Pii IX Pontificis
Maximi Acta (Rome, 1854). I, 626f.

136

THE CATHOLIC CHURCH AND THE MODERN STATE

Church in fact claim the right to proceed against her
disobedient and recalcitrant children by means of temporal
punishments? There can be no doubt that she does, espe­
cially in view of the condemnation of the twenty-fourth
proposition in the Syllabus, which denies that the Church
has the power to employ force.36 And even at the present
time the Church cannot waive all claims to the exercise of
this power, or she would have to allow an apostate pastor,
for example, to retain the income of his benefice. But apart
from this consideration, the “curialist” canonists,87 too,
acknowledge that during the era of a refined civilization
and a sensitive awareness of freedom this exercise of the
Church’s penal legislation is inappropriate and therefore
impracticable. Felice Cavagnis (died 1906), a canonist
and cardinal of the Roman Curia, remarks : “When we say
that the Church can apply temporal penalties, we do not
inquire for what crimes; for that is another question.
Likewise we do not say that she can do so to advantage at
any time; for what is inadequate for a people on a lower
level of culture is fully sufficient for a people on a higher
level; what is adequate for the former would be excessive
for the latter. . . . Therefore we must defend the right of
the Church as such, but not every exercise thereof.”38
J. Hollweck agrees with this statement and adds: “One
can therefore admit the principle, but reject its applica­
bility for the present age.”38
But what of the further question: Has the Church, at
least in principle, the right to impose temporal punishments
of every sort? No, for just as in the case of all her power,
so too her penal power is restricted by the spirit of mildness
and mercy of Christ, her Founder and Lord.40 Punishments
incompatible with this spirit are therefore excluded also

Ρ,ιψ
ν,| Κ
t

** Especially since the phraseology of the Syllabus was explained more definitely and its
authority as regards the point at issue supported by the Encyclical Quanta cura (December
8, 1864)» which was officially dispatched together with the Syllabus and undoubtedly
contains doctrinal decisions issued by the Church’s teaching authority. This Encyclical
states that the Church has the right to punish transgressions of her laws by inflicting
temporal punishments {poenis temporalibus). Abbé Vacandard seems to attach too much
weight to the work of Don, Salvatore, who stands almost alone in his claim that the
constraint imposed by ecclesiastical law is by divine right exclusively moral constraint.
See Vacandard, The Inquisition, 252f. See also, Revue au clergl français, XLVI (1906),
579ff.
17 For a full explanation of the term cartalist, which denotes those who held that the
secular ruler receives his authority only through the pope and not directly from God, see
Rommen. The State in Catholic Thought, 534.
» Institutiones juris publici ecclesiastics (3rd ed.. Rome, 1899)» I. p. 295.
w Hergenrôther-Hollweck, Lebrbucb des katboltschen Kircbenrechts (3rd ed., Freiburg,
1905), 541. Hollweck was a member of the Roman Commission for the new codification
of canonical (penal) law.
*°St. Augustine, speaking to high officials of the State and dissuading them from in­
flicting punishment of death and mutilation on heretics, points again and again to the
mansuetudo Christi, mansuetudo catholica, see above, p. 128, note 14.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 137

in principle. Capital punishment is certainly to be reckoned
among these. “We freely admit,” says the Jesuit Father
Vermeersch, “that from the sixteenth to the eighteenth
centuries theologians and canonists claimed for the Church
the right to inflict capital punishment for certain offenses
in case of necessity. . . . Great as is the authority of such
distinguished writers, they are but human; and without
detracting from the respect due to them, we have in the
present case very good reasons for declining to follow
them.” After reviewing the evidence of tradition, he con­
tinues: “For twenty centuries the Church has had to deal
with heretics and criminals, and never, even during the
thousand years when she had every facility for doing so,
has she passed an irreparable sentence. . . . Armed with
formidable spiritual weapons to defend the faithful and
preserve them from contagion, she has the power to punish
her guilty children; but it is the power of a mother who
never gives up hope of a great joy, the joy of converting
and saving them. ... If since the thirteenth century some
great authors have taught otherwise, and if the language
of the laws themselves (though containing no mention of
capital punishment) is susceptible of a different interpreta­
tion, we desire to express our opinion with due modesty,
but we cannot change it without contradicting what seems
to us the true tradition of the Church.”41 Then, too, capital
punishment is incompatible with the end or purpose of the
Church, which does not concern only the common good, as
does the end of the State; for the Church is not merely a
society—it is also an institution of salvation that is to lead
every individual to intimate union with Christ through
grace, and to eternal bliss. Therefore the Church can never
inflict a punishment which, because of the impenitence of
the delinquent that often persists till death, puts a violent
termination to the period of grace and amendment ; but the
State can do so, for it is still able to accomplish the pur­
poses of retribution, and deterrence of others even though
the corrective purpose be impossible of achievement.”42
Father Vermeersch states the formula of the Church’s
right to punish in these words: “Originally the Church
had at her disposal spiritual punishments, and afterwards
reparable punishments and we recognize in her the right
to claim the assistance of the State in the application of
Toleranct, 63» 72, 84f.
« See ibiJ„ pp. 85-100 for a full treatment of the argument from reason.

138

THE CATHOLIC CHURCH AND THE MODERN STATE

those temporal punishments which, in view of her spiritual
end, she considers it proper in certain circumstances to
prescribe or inflict. . . . But if we confine ourselves to the
inherent power of the Church, that power which she pos­
sesses always and everywhere, we consider that her power
is limited to those penalties, spiritual and temporal, which
find their last sanction in the supreme penalty of excom­
munication.”43
The distinguished Protestant canonist Paul Hinschius
admits that the Catholic Church “has maintained that she
can neither threaten with, nor impose, such punishments
(as death and mutilation), and that, therefore, should it
be necessary to do so only the secular authority may and
should establish and carry out such penalties”; he further
states that, “particularly every exercise of criminal com­
petence and co-operation therein is formally forbidden to
clerics.” Again, he says, “Also, as regards criminals con­
demned to capital punishment by the civil authority the
Church has from the beginning used her influence that they
be spared such punishment in the interest of their amend­
ment. Likewise the development and vindication of the
right of asylum rests on the same conception, as does the
directive that at the surrender of a degraded cleric to the
secular power (one deprived of his dignity and reduced to
what is technically called lay communion) the Church must
explicitly intercede in favor of his exemption from the
death penalty. Formally the Church has maintained this
point of view also in her attempts to suppress heresy; in
practise however, she has not always done so; in as much
as there is question here of her most vital interests, she
not only at times did not intervene in the application of the
death penalty (by the State) or the spread of its use, but
actually sanctioned it and used her influence in a decisive
manner to ensure its universal introduction.”44
THE CHURCH AND STATE INTERVENTION
IN HER BEHALF
The last part of this statement of Hinschius introduces
the question as to whether today the Church still regards
as permissible State intervention in favor of her exclusive
position, or whether she defends a view at variance with
her medieval attitude. It is certain that the Church does
« Ibid.. pp. 100-102.
44 Kircbtnrtcbt, V, 50.

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 139

not change her principles. As Friedrich Maassen shows,
by no means does she subscribe to the opinion that in prin­
ciple “the Christian religion itself is contradicted when
the Church is given preference by the State over non­
Christian religions, or even when she is given preference
over other Christian denominations.”45*While the Church
admits that under present conditions the State no longer
has the vocation of intervening in favor of her exclusive
privileged position as the one true religion, she does not
acknowledge as a principle, a norm that admits of no
exceptions, that “in our times it is no longer necessary that
the Catholic religion should be the only religion of the
State to the exclusion of all others whatsoever.”49 Indeed
in those lands where she still enjoys a privileged position
as a State Church (e.g., Italy and Spain), says Monsignor
Pohle, the Catholic Church would not allow herself to
be driven from this position without protest. For she not
only has a right but even an obligation to offer such protest.
For a justly acquired right may not be surrendered in
silence.47 Thus in the middle of the last century when the
Republic of Columbia, at that time a purely Catholic coun­
try, granted freedom of worship to all persons without ex­
ception coming to reside therein, Pope Pius IX (1852)
solemnly protested against such legislation.48
On the other hand no one, even if he be versed only
in history, will believe that the Church—should she again
attain sole supremacy in some lands or universally, and
should she become closely associated with the State—could
desire the restoration of the medieval Inquisition or bloody
persecutions against apostates from the true Faith. But
this by no means implies that she places herself in opposi­
tion to the Church of the Middle Ages. For the medieval
Church did not teach that the State must inflict the death
penalty on heretics who refused to be converted. She merely
acknowledged that in view of the conditions that prevailed
*

Kapitfl Sber frtir Kircbf und frtit Grwisstftsfrtibtit, 20.

“ Syllabus, thesis 77. Father Max Pribilla points out that "This was said in
1864; since then events have altered the face of the world. At any rate, neither
this nor any other declaration justifies the view that a Catholic majority must
deny religious freedom to the non-Catholic minorities. Both Goyau and Vermeersch rightly point to Belgium as a practical example of the contrary, and
Belgium Catholics have not been accused of offending against Catholic princi­
ples. Above all, Catholics have a duty to uphold religious freedom where it has
been guaranteed by the constitution or by treaty.” (Dogmatic Intolérance and
Civil Toleration, 258).
v "Religious Toleration," Catholic Encyclopedia, XIV, 769• See above, p. JOf.

140

THE CATHOLIC CHURCH AND THE MODERN STATE

in the medieval (theocratic) religious State, the State was
justified when it judged those who denied the doctrines,
laws, and ordinances of the Church to be rebels also against
the civil power (“public enemies of our kingdom,” as the
heretics of Spain were called by Pedro II of Aragon at the
first official introduction of the death penalty in 1197),48
and made them answerable for the crime of high treason.
That the State commits an injustice, “a sin against the
Holy Spirit,” when it punishes with death a convicted and
contumacious criminal against the ecclesiastico-political
power, (as Luther taught),60 the Church indeed refused to
acknowledge. Moreover, as has already been noted, the
Church asserted often and strongly enough that it befitted
her to urge the State to pursue a milder course. Even
during the time the institution of the Inquisition was in
the process of formation, Pope Innocent III proposed a
directive which Pope Gregory IX, in whose reign the In­
quisition was established, inserted into the Church’s Code
of Canon Law, in a passage that lays down the principle
governing the relation of ecclesiastical and civil power.
This directive states: “The Church must effectivelly inter­
cede that the sentence for a degraded cleric be kept within
due bounds outside the danger of death.”61 This was a way
for the Church to inculcate more and more in her ministers
the spirit of mercy which Jesus Christ had left them as an
inheritance.62
It is therefore certain that the stand taken by those
representatives of the Church who favored the bloody per­
secution of heretics by the State was much less in accord
with the principles of the medieval Church—and for that
matter, of the Church throughout the ages—than the defi­
nite and decisive refusal with which the Church today
would reject any such help from the rulers of the State.
“Let us assume,” a modern historian remarks, “that all
the blood-curdling tales of the Inquisition were completely
true and that there was absolutely no grounds for excuse,
no extenuating circumstances for its ruthlessness ; the only
inference that could be drawn therefrom would be a fright­
ful aberration, a shocking brutalization of the clergy and
• G. Schürer, in Staatslexicon (3rd. ed., Freiburg, 1909)· Π, col. 1394.
" Thesis 33 of Luther, condemned by Pope Leo X in the Bull Exsurge Domine, June 13,
1520; See Denzinger-Bannwart, Enchiridion, do 772.
“De verborum significatione, c. 27, X, V, 40, p. 924, in Corpus Juris Canonici, edited
by Friedberg. Pert. 11.
“See Vermêersch, op. cit.,pp. 146455. for a discussion of the objection that the
prayer for mercy which the Church compelled het inquisitors to make was a sham and
a subterfuge.

.

MSH

ESSENTIAL CONSISTENCY IN CHURCH’S ATTITUDE 141

people of that age. The Church herself . . . was preserved
by God’s guidance and by countless pious and humanitarian
elements so that her inmost essence was not affected by
such conceptions, and no vestiges thereof made their way
into her doctrinal system. It must be admitted that a Divine
power resides within her, in virtue of which she was able
to preserve her essential being even through such wild
times, just as she saved herself in many another perilous
crisis.”53
M Albert von Ruville, Zurûck zur heiligen Kirche (Berlin, 1910), 138.

4. (J/ic βαΜίΰ
anJ tie Question of
ôejia/taiien a/ C/iuiïch anJ State
A. NATURE OF SEPARATION
In a previous chapter we have shown that the granting
of freedom of religious prefession and the indifference of
the State to the religious profession of its citizens may not
develop to such a degree that separation of Church and
State becomes necessary in principle. Before discussing the
nature of separation and its principal types, it is proper
to recall briefly the first appearance of separation on the
stage of history.
Separation of Church and State is of comparatively
recent origin. The idea occurs perhaps for the first time
in Luther’s spiritualistic concept of the Church in his
earlier years, when he burned the Corpis juris canonici
(1520). In this symbolic act, writes H. Rommen, Luther
struck at the visible Church with its hierarchy, its sacra­
ments and canon law. “Surprisingly soon,” says Rommen,
“Luther gave up this idea, and Lutheranism surrendered
to an Erastian subjection under the prince as summus epis­
copus, that is, to the strictest union of Church and State
with the Christian ruler as the head of an organized Church
and with membership of all subjects in this Church as a
form of political homogeneity. Many sects tried a separa­
tion in the times after Luther. Yet here, too, the sects
showed remarkable tendency to let the whole realm of civil
and political life be controlled by their religious dogmas,
whenever they could do so, as, for instance, the early Puri­
tans in New England showed in their theocracy, which is
a union between Church as an organized religious group
and the political community. Only after the principle of
tolerance had given the religious minorities a guaranty of
non-interference by the government and after acknowledge­
ment of the freedom of conscience as a human right in
states without a unified religious majority, could the idea
of a separation of Church and State arise. From now on the
State not only retires from any intervention in the spiritual
sphere, but declares full indifference to, and disinterested-

NATURE AND TYPES OF SEPARATION

143

ness in, the religious opinions of its citizens and the or­
ganized religious groups of the State, thus separating man
as a church member from man as a citizen. Politically
the sphere of religion is wholly and strictly neutralized,
and the State becomes a secular institution with a Christian
atmosphere as long as the majority of the citizens hold
some essential tenets of Christian doctrine and morals. The
State may become a wholly secularized non-Christian State
when, in its external and internal policy, even these Chris­
tian tenets are surrendered. Then even the Christian reli­
gious faith of a group of its citizens is as indifferent to
the State as is membership in a club for the promotion of
spiritism or of vegetarianism.”1
What is meant by separation of Church and State?
How does one arrive at a more or less accurate definition
of its essence? Is it perhaps by way of pure speculation,
with no immediate concern with separation as an accom­
plished fact in a group of countries? That would scarcely
be possible; indeed it would be as unrealistic and useless
as are the triviliaties of those natural-law philosophers
who construct out of their inner consciousness complete
systems of law and then pass them off as natural, moral
law. K. Rothenbücher, in his comprehensive work dealing
with the separation of Church and State,2 chose the op­
posite method exclusively, taking concrete reality as the
basis of his definition. After having meticulously examined
the juridical relationship of Church and State in the vari­
ous countries where separation is established, he strives
by comparison, and by a systematic grouping of common
elements, to arrive at the distinctive characteristics of
separation. But he is well aware of the fact that this jurid­
ical comparison cannot lead to a normal concept of sepa­
ration; For the type and degree of separation in various
countries manifest such varied and often contradictory
characteristics that it is not possible to reconcile them, to
unite them in a simple definition. One arrives at such a
definition only by a method that stands midway between
the purely speculative and the historical, comparative
methods. The historical development of the relations be­
tween Church and State shows a gradual advance from the
most intimate unity in the medieval religious State to an
ever-increasing divergence leading to the modern parity
» The State in Catholic Thought, 598f.
.
* Die Trennttng von Krrcbe und Stoat (Munich, 1908).

144

THE CATHOLIC CHURCH AND THE MODERN STATE

State—hence, a progressive separation. Now if in thought
one removes, one after the other the relations, which exist
between Church and State in a parity State, one arrives
at the minimum of contact which may be designated as
true “separation.” But complete isolation of the two so­
cieties is neither achievable in practice nor devisable in
theory. This will be shown in various ways during the
course of our investigation; and, apart from other consid­
erations, such separation must reckon with the hard fact
that both societies—Church and State—consist of men
who are at once citizens of the State and members of the
Church.
Now if, according to the method just described, we wish
to illustrate specifically the juridical status created by
separation, we must distinguish between the juridical ef­
fects separation produces as regards religious societies as
such and its juridical effects upon the individual citizens
of the State.
THE EFFECTS OF SEPARATION AS REGARDS RELI­
GIOUS SOCIETIES
According to Rommen, in general the constitutional
principle of separation implies the following. “First, no
religious group or Church enjoys any juridical privileges;
none receives any direct or indirect financial support from
the State. . . . Secondly, the churches and the religious as­
sociations, the parishes and dioceses, are legally organized
on the basis of the civil law, the law of the land. They are
not corporations of public law, that is, with privileges and
prerogatives acknowledged by the State, such as the right
to make laws, to levy taxes, to be exempt from certain
rules of civil law. In the United States cities and towns
are corporations of public law. Thirdly, from the stand­
point of secular law the organization of the churches is
left to the will of the members. . . . Fourthly, the legal
relations between Church and State are reduced to a mini­
mum. The State may regard the Church as a social and
spiritual influence able to affect a certain internal and ex­
ternal policy favorably or unfavorably. But legally the
Church and the State have no official relations with each
other. The separation presupposes full religious freedom
and at least a kind of government in which man as a be­
liever is separate from man as a citizen.”3 Such was Leo
* The State in Catholic Tbongbt, 599C

NATURE AND TYPES OF SEPARATION

145

XIII’s view of separation of Church and State. It was this
separation which he declared was the result of divorcing
“human legislation from Christian and divine legislation.”45
TWO TYPES OF SEPARATION
Two types of separation may be distinguished: the
radical or militantly hostile type and the peaceful, friendly
type. We find the first in the so-called anti-Catholic coun­
tries which have been under the influence of anti-Catholic
intellectual and social groups. The second has found its
best expression in the United States.
A. The radical type of separation, militantly hostile
to the Church, has been developed especially in France. The
Law of Separation of Church and State in 1905 proceeded
from the principle that the State professes no religious
belief. When religious worship ceased to be a department
of public service, the Chambers, in order to replace the in­
stitutions which had been suppressed, brought into exist­
ence certain private associations for religious worship (as­
sociations cultuelles) to which the Church’s property could
then be transferred. The Council of State, a purely lay
authority, was to have the right to pronounce on the ortho­
doxy of any association cultuelle and its conformity with
“the general rules of public worship.” Thus public worship
was to be withdrawn from the care and protection of the
State and yet remain under the dictatorial control of the
State. After Pius X had prohibited the formation not only
of associations cultuelles but of any form of association
whatever, the State placed public assemblies of religious
worship in the same category as ordinary public gather­
ings. The price which the Church had to pay for this valiant
defense of her rights was the loss of her property.®
Since in a State where separation holds the clergy are
not regarded as public officials, they are granted no privi­
leges by the State. Thus in France the Law of Separa­
tion (Title 6) abolished the special criminal jurisprudence
that had protected ministers of religion against outrages
directed against them or against the clerical garb as their
official attire; it likewise revoked the special tribunal for
criminal actions against bishops, various honorary rights
of the clergy, and finally—what is most painful in its
4 Encyclical Ab millien des sollicitudes, February 16, 1892, in ASS, XXIV, 529f; English
translation used here from The Great Encyclical Letters of Pope Leo XIII, 262.
5 See above, p. 66f.

STATE
effects—exemption of theological students and priests from
service in the armed forces.
With separation of Church and State the material as­
sistance granted the Church by the State generally also
ceases; in the civil economy no sums are provided for the
construction of churches, for the salaries of bishops, canons
and pastors. Article 2 of the French Law of Separation
prohibits the State, the departments and the communes
from voting appropriations for public worship. But it is
doubtful whether the suppression of appropriations for
public worship must be regarded as an essential conse­
quence of complete separation. For there is no valid rea­
son, so it would seem, why the State may not lend its support
to church affairs, however organized on the basis of pri­
vate rights, as undertakings in the interest of the common
weal, just as the State supports other scientific and benev­
olent enterprises. Belgium, for instance (which however
is not regarded by many as a State where separation really
is established by constitution), assumes the obligation of
paying the stipends of the Catholic clergy as well as of
the clergy of the Protestant and Jewish churches. This
State also assists in the expense of erecting buildings for
religious purposes and of keeping them in repair. The
parishes have been granted civil recognition and can hold
property; each parish has a board of administrators (of
which the mayor of the town is a member by law) to aid
the clergy in the management of the finances of the church.’
At any rate, the French Law of Separation, which forbids
the communes to extend material assistance to the churches,
constitutes an unwarranted interference in the self-gov­
ernment of the communes, which in other respects are free
to promote all sorts of enterprises.
Georges Goyau, one-time associate editor of Revue des
Deux Mondes, writes: “The law authorizes the State, the
departments and the communes to pay salaries to chaplains
in public institutions such as colleges, lycées, and other
schools, and in hospitals, asylums, and prisons. In the Army
the office of chaplain has not been abolished, but it remains
unoccupied. Since January 1, 1906, no minister of religion
has been a member of staff of any military hospital ; local
ministers of religion may enter these hospitals at the re­
quest of sick soldiers. A decree dated February 6, 1907,
abolished the naval chaplaincies, but certain ecclesiastics
146

THE CATHOLIC CHURCH AND THE MODERN

• Godefroid Kurth, ’’Belgium,
**

Catholic Encyclopedia, II ,406.

NATURE AND TYPES OF SEPARATION

147

who formerly filled these posts will continue to discharge
the functions proper to them. The State does not allow ap­
propriations for the maintenance of chaplaincies in schools
where there are no boarders.”7
After separation became an accomplished fact in
France, the Church was no longer permitted to exercise
influence in the sphere of public education. Regular in­
struction in religion was excluded from the curriculum in
the primary and secondary schools of the State; but indi­
vidual bodies were left free to impart religious instruction
to children on their own initiative and also to establish
denominational schools in which the entire course of in­
struction was based on the tenets of a particular belief.
Since the universities are State universities, the theological
faculties for training candidates for the ministry of a defi­
nite religion were done away with. In public elementary
schools one day each week, in addition to the Sunday, was
left free to enable parents who so desired, to have their
children instructed in religion. But the school rooms could
not be used for this purpose since this might give the im­
pression that religion was part of public education. The
establishment of private schools was indeed legally per­
missible, but in point of fact it was made very difficult
because of the exclusion of religious teaching congre­
gations.
In all these respects the Church, as a result of separa­
tion, lost that juridical and material support which a parity
State grants to her as a privileged corporation. Hence it
follows that if separation is to be just and honorable, the
State must cease that odious display of power whereby it
restricts, obstructs and fetters the Church’s freedom of
action. In other words, the multitude of laws whereby the
State seeks to regulate the affairs of the Church, the socalled right of the State to control the Church, must dis­
appear. Thus by the Law of Separation the Church in
France was supposedly freed from the yoke imposed on
her when Napoleon restored Church-State relations. The
Concordat was abolished with separation; and along with
it the important right—which had been exercised for four
hundred years by French rulers—of nominating the bishops
of France, as well as the privilege of entering protest
against the person of a designated pastor. With the repeal
of the Concordat the Organic Articles also were revoked—
’ "France.” CatMir Encjtlopuiia, VI, 187.

148

THE CATHOLIC CHURCH AND THE MODERN STATE

these, seventy-seven in number, had in various ways in­
fringed on the spirit of the Concordat and in part had
regulated the activity of the Church in an intolerable man­
ner. Likewise the decree regulating church property and
benefices, as well as many other laws, disappeared. For
after separation that domain disappeared in which ecclesiastico-civil legislation operates and in which most of
the friction between civil and ecclesiastical power occurs
—namely, the sphere of the so-called mixed matters (res
mixtae). Theoretically, after separation the State may no
longer meddle with the establishment or alteration of ec­
clesiastical offices and spheres of jurisdiction, with the dio­
ceses and parishes, just as it may not concern itself with
the organization and jurisdictional scope of a society such
as that of St. Vincent de Paul. The introduction of a new
Church feast becomes no more the business of the State
than the celebration of the feast of the dedication of a
church or of the feast of Christmas in a military barracks;
the building and furnishing of convents, churches and eccle­
siastical institutions become subject to no restrictions other
than those governing construction and sanitation generally;
church property becomes no concern of the civil authorities
but only of the civil courts should conflicts arise.
But in France this result of separation—namely, the
granting of full freedom to the Church with her disestab­
lishment in the State—has not been carried out in all
sincerity ; despite the new system there is no will to break
with Gallican traditions. Hence the strict norms of control
which the law provides for associations for religious wor­
ship; hence too, the establishment of police who supervise
worship and have the authority not only to be present at
services in their official capacity but also to break up the
assembly if they see fit; hence, the broad arbitrary power
granted to local police and mayors to forbid processions
and other acts of public worship should they deem it neces­
sary in the interests of public peace! France may be char­
acterized as a “laicized” or “secularized” State. But, how­
ever out of balance is the separation of Church and State
in countries like France, the most radical type of separa­
tion is, of course, not found in such countries as France but
in states which are under Communist domination.
World War I (1914-1918) brought about a new situa­
tion in Church-State relations in France. During the war
Catholics gave splendid proof of their patriotism, 20,000

NATURE AND TYPES OF SEPARATION

149

priests having served under the French flag and 3273
priests having laid down their lives for France. The bishops
of France took an active part in the Sacred Union, and
won the respect of their associates of every creed. The
State could no longer ignore the Church. There was evi­
dence of a desire on the part of the government to be more
generous and just in its dealings with the Church. Its at­
titude became conciliatory and many Frenchmen began to
realize the mistakes committed by the rabid anti-clericals
of the Left. The sentiment of France was that national
interests required the resumption of diplomatic relations
with the Vatican, so that French diplomacy might have its
official share in discussing questions involving French in­
terests. The Peace Treaty of Versailles presented problems
that must be solved with the help of the Holy See : for ex­
ample, in regard to the application of the old Concordat in
Alsace-Lorraine, whether to denounce the Concordat of
the German government regulating its religious policy, now
that Alsace-Lorraine had been given over to France in the
fall of 1918, or of recognizing it and assuming its obliga­
tions ; the fate of the former German missions in Tagoland,
Kamerun, and elsewhere ; and also the safeguarding of the
Catholic religion in Morocco. And so, on March 14, 1920,
diplomatic relations between the Vatican and the French
government, which had been broken in 1904, were resumed.
In May, 1921, M. Charles Jonnart, Senator, was appointed
Ambassador Extraordinary and Minister Plenipotentiary
to represent France at the Vatican.
Another significant change has reference to the asso­
ciations for religious worship established by the Law of
1905. The law of 1907 made the exercise of worship pos­
sible; nevertheless the situation remained strained and
alarming for the Church in France. To lead a normal
existence, the Church needs possessions. In default of a
legal statute, it was necessary for the Church to resort to
means necessarily imperfect, onerous and complicated since
they were not adapted to her needs and remained artificial.
In 1919, Bishop Chapon of Nice wrote an essay that had
for its purpose the formation of a new form of association
for religious worship for his diocese, but this association
was to restrict its efforts solely to the material interests
of the Church. This essay of the Bishop remained a local
effort, but it was written at a time when the question of
resuming diplomatic relations with the Vatican was being

160

THE CATHOLIC CHURCH AND THE MODERN STATE

actively discussed. After long and complicated debates and
conversations, the constitution of 1924 was adopted, which
permitted the formation of associations cultuelles diocé­
saines (diocesan associations for religious worship).8 These
associations were allowed to possess property, and intended
eventually to become legal owners of premises, buildings,
and various properties serving ecclesiastical uses. Pope
Pius XI, in his Encyclical Maximam gravissimamque, au­
thorized the French bishops to found associations cultuelles
diocésaines, and urged that their establishment be given
a trial.® Pius XI made it clear that he had withheld his
approval until the objectionable features contained in the
associations cultuelles (which Pius X had refused to accept)
had been removed. The basic rules for the new associations
were the following: (1)There can be only one such asso­
ciation in a diocese; (2) The bishop must be the head of
such association, and it is composed of such membership
as to give assurance that due respect will be given the
Catholic hierarchy; (3) it has for its exclusive object to
provide for the cost and maintenance of worship under the
authority of the bishop, in communion with the Holy See
and in conformity with canon law; more specifically, to
regulate the acquisition, hiring and administration of edi­
fices for the public exercise of Catholic worship in the dio­
cese, for the use of the bishop, pastors and assistants, also
for aged or sick priests, the temporal administration of
seminaries (major and minor) and chapels of ease.
Since 1924 there have been added several laws re­
garding these associations and confirming them. Auguste
Rivet gives a summary of the principal laws touching
religious interests that have been issued down to 1943.10
Several times, a general ruling on the status of the
Church in France has been discussed, notably in 1928,
1929,1935, and 1939. The question is still undecided. In the
absence of a general rule, several agreements have been
reached on the question of associations diocésaines, on the
question of missionary congregations of French origin,
and, above all, concerning the appointment of French
bishops. Now the Pope alone appoints bishops. Before the
• See Auguste Rivet, Traité du Culte Catholique et Det Loh Chiles D’Ordre Relitiexx,
Vol .1, Historique de la Législation 1789 d 1947 (Rutu: Edition Spes, 1947), 177-197 ; Vol.
Π, Legislation et Jurisprudence au 1er Juin 1950 (Langres: Bureau de I’Ami du Clerrf
1950), 217-268. #
5 *
*
• Encyclical Maximam gravissimamque, January 18, 1924, to the bishops, clergy and
people of France, in AAS, XVI, 5-11. The statutes governing Diocesan Associations are
appended to the French version of the Encyclical.
»Op. tit., I, 198-200,

NATURE AND TYPES OF SEPARATION

151

appointment is made public, the name of the candidate is
sent to the Minister of Foreign Affairs who has the right to
present objections from a political point of view. But Rome
is under no obligation and can ignore these criticisms with­
out being accused of unfriendliness. Except for a few local
conflicts, there are no obstacles to the practice of the Catho­
lic religion in France. Religious congregations, except those
having a special authorization, are forbidden in principle,
yet can ignore the ban with impunity; no one thinks of
expelling them. Catholic Action has never known in France,
even during the days of the Popular Front (1926), any of
the annoyances, even persecutions, borne in some countries
where a Concordat exists, writes E. Jarry.11
B. The best example of the milder, benevolent plan of
separation is that offered by the United States of America.
The American plan involves the severing of all legal ties
between Church and State, and complete freedom for all
religious bodies. This means that all churches are equal
in the sight of the State and that the State does not recog­
nize any specific form of religion. “All religions are per­
missible,” Anson Phelps Stokes writes, “provided that they
do not advocate or indulge in polygamy or some other prac­
tice that is entirely inconsistent with the ethical code which
the English speaking people have derived from their
Jewish-Christian ethical background, and that they do not
distrub the public peace or otherwise threaten the welfare
of the State.”14
In the American system of separation, the Church is
not recognized as a perfect society having her own laws.
The canon laws regulating marriage, for example, are
considered legally non-existent. Civil (public) law does not
regard the Catholic Church as a world-wide religion, nor
does it recognize the totality of adherents of the Catholic
Faith within the confines of the State as forming a corpora­
tion of public law, but only as constituting individual so­
cieties established to promote Catholic worship in various
localities where there are Catholics, with the same juridical
status as businesses or similar societies. The civil power
has contact only with these associations and that exclu­
sively on the basis of private law (that law, that is, which
governs the sphere of individual initiative and the selfu ’’France,
**
Catholic Encyclopedia, Second Section, Supplement Π to Vol. XVIII (New
York, N. Y.: The Gilmary Society, 1951), no page number given.
» Church and State in the United State/, ΙΠ, 370.

»

162

THE CATHOLIC CHURCH AND THE MODERN STATE

ruled activities of groups of individuals). Civil law offers to
religious societies the legal forms that must be complied
with to obtain recognition as juridical persons. “The
existence of the Church is thus not endangered,” says Rommen, “yet her character as a perfect society with original
authority of legislation and jurisdiction, with disciplinary
and penal law, is disregarded. Thus the Church may simply
admonish, advise, and influence the faithful, and this only
so far as these latter voluntarily accept it. Theoretically this
practice of the State denies the nature of this divine society
and treats it like any other free association of citizens in
the State.”13
Separation in the United States is, however, in striking
contrast with the unsympathetic and antagonistic separa­
tion of Church and State to be found in some other coun­
tries. Anson Phelps Stokes points out, “The tenure of
church property in the United States is secure. Confiscation
is legally impossible.... In general, churches are not incor­
porated by special act of the legislature but under general
laws which have to do with various charitable, literary,
and religious corporations. . . . Such corporations are con­
stituted in different ways in different states, and indeed
the same state frequently provides for several methods
acceptable to different ecclesiastical organizations.”14
The Roman Catholic Church does not incline toward the
American custom of tenure of church property by lay trus­
tees, preferring to have the property vest in the hierarchy.
As Stokes tells us, “This difference between the American
custom [which at first was adopted by many Catholic
churches in this country] and the tradition of the Church
—and both have been somewhat modified to meet the situ­
ation in America—sometimes resulted, especially in the
early days, in disputes between the ecclesiastical authori­
ties on the one hand, who wished to observe strictly the
canon law, and lay trustees on the other, resulting in ap­
peals by the trustees to the courts . . . New York provides
for a ‘corporation aggregate’ or membership corporation.
This implies that the church members as a whole are the
incorporators, as distinct from the trustees ; and the latter
fill the role of business managers of the corporation, the
officers being like the directors of a banking establishment.
The bishop, the vicar general, and the pastor are the ex“ The State in Catholic Thought, 60ii.
t p.
O
*
tit., Ill, p. 405.

NATURE AND TYPES OF SEPARATION

153

officio members [of the corporation], and they appoint two
additional lay members. Furthermore, the laws of the state
provide that no acts of the trustees are valid without the
consent of the bishop or archbishop. This incorporates in
essence the fabrique system of Europe, in which propri­
etary rights cannot be claimed in opposition to ecclesias­
tical authority ... This model was approved by the decrees
of the Sacred Congregation of the Council in 1911 ... It
has been applied, with slight modifications, by other states,
such as Connecticut and Wisconsin, while Oregon, New Jer­
sey, Minnesota, and Nebraska have similarly provided in
substance for the establishment of a corporation including
the bishop or archbishop of a diocese, the vicar general, the
chancellor ex officio, and two others. Several other states,
such as Alabama, New Hampshire, and South Carolina,
provide for the incorporation of a Catholic bishop as a cor­
poration sole. The archbishop of Baltimore is granted the
same privilege. This form and that of ‘corporation aggre­
gate,’ consisting of the bishop, the vicar general, and the
pastor, are the plans favored by Rome.”15 In disputes about
property rights within a religious corporation or in the
case of disputes about property between the religious cor­
porations, it is the civil court that decides the case.
Many of the major issues between Church and State in
the United States have centered around the field of educa­
tion. General education in the United States is a matter
reserved to the states. As Stokes reminds us, “American
public schools are conducted not by Washington, but by
thousands of towns and villages scattered throughout the
country under general constitutional and statutatory pro­
visions of their respective states. These are and, of course
must continue to be, consistent with the provisions regard­
ing freedom in the Federal Constitution.”18 The public
school, intended for pupils of all religious groups, is a secu­
lar institution. This, however, does not and should not im­
ply that it is irreligious, and a people with the background
which Americans have should not permit their public
schools to become irreligious. The general absence of re­
ligion in the curriculum of our public schools is more seri­
ous than most people realize. Stokes submits that, “It is the
result of our transfer from Church to State during the past
» Ibid., ΠΙ, p. 404f. For a discussion of mortmain statutes, trusts for religious purposes,
bequests, provision for supporting Masses for the dead, see Stokes, op. cit., HI, pp.
454-441.
μ Stokes, op. cit., Π, p. 489·

154

THE CATHOLIC CHURCH AND THE MODERN STATE

century and a half of the major task of molding the minds
and characters of our children, and of the belief of many
that this transfer involves not only public neutrality in the
field of religion, but also public indifference.”17 Many edu­
cators deplore this grave situation. The late Nicholas Mur­
ray Butler (1862-1947), president of Columbia University,
said: “The school child ... is entitled to receive . . . that
particular form of religious instruction and training which
the parents and natural guardians hold dear. This cannot
be done if the program of the tax-supported schools is ar­
ranged on the theory that religion is to be excluded from
the educational process or treated merely incidentally as
an element of home life.”18
Two general plans have been proposed for making the
fundamental doctrines of religion known to public-school
pupils during school hours. One plan would offer voluntary
religious instruction of an undenominational character gen­
erally within the public-school buildings as a part of the
school curriculum, often with credit attached for successful
examinations. Five different ways of carrying out this plan
have been proposed and attempted.19 The second plan would
provide religious instruction by the churches for pupils
desiring it; generally the instruction would be given out­
side public-school buildings, but with the moral support of
the school authorities, and on a voluntry basis. This latter
plan involves “dismissed”—or “released”—time features.
“Dismissed-time” means that pupils will be let out perhaps
an hour earlier than usual on some one day of the week to
attend religious instruction as their parents may wish.
“Released-time” means that they will be similarly released
at some time during the regular school hours.20
Some of these proposals have apparently been ruled out,
at least for the present, by the decision (1948) of the
United States Supreme Court in the Champaign, Illinois,
Case. Mrs. Vashti McCollum, an atheist parent in Cham­
paign, Illinois, brought the case to the court on the grounds
that the plan adopted in Champaign at the request of the
schoolchildren’s parents violated the First Amendment of
the Constitution. The plan provided a weekly forty-five
minute class in religious instruction during school hours in
the school building. Anyone who did not desire instruction
"1H4., II, p. 495.
18 Report of the President of Columbia University (1934), 21-22.
M Stokes, op. cit., II, pp. 495-515.
*>lbid., pp. 525-535.

NATURE AND TYPES OF SEPARATION

155

was given a study period instead. The classes were consid­
ered an “extra-curricular activity.” Teachers for eight-hun-'
dred Protestants and Catholics were supplied by the re­
spective religious groups ; materials were likewise paid for
by the same. The Supreme Court decision ruled out all in­
struction in religion by the churches in public-school build­
ings even though of an optional character; and, inciden­
tally, the use of “public-school machinery” for helping to
carry out “released-time” programs during school hours
even outside school buildings.21 This decision does not nec­
essarily interfere with such instruction during “dismissedtime”—that is, at the close of the school day.
It is interesting to note that an appeal was filed by two
Brooklyn mothers, Mrs. Tessin Zorach and Mrs. Esta
Gluck, with the Supreme Court of the United States, at­
tacking the “released-time” program as conducted in New
York state. The program provides that children may be re­
leased from classes for one hour each week to receive re­
ligious instruction away from school property. The Su­
preme Court in a six to three decision (April 28, 1952)
upheld the New York “released-time” program for giving
religious instruction to public school children according to
each individual’s preference off school property. The par­
ents’ request is always considered prerequisite before stu­
dents are released for religious instruction. Justice Douglas
said that the McCollum case could not be extended to cover
the New York program “unless separation of Church and
State means that public institutions can make no adjust­
ments in their schedule to accommodate the religious needs
of the people.” Justice Robert H. Jackson added : “The day
that this country ceases to be free for irréligion it will
cease to be free for religion—except for the sect that can
win political power.”
In few public school systems of this country is religion
wholly absent. In 1952 the American Council on Education
sent out a questionnaire to 47 chief state school officers,
213 superintendents of schools in cities over 50,000, and
almost 1000 college presidents and deans in its quest for
material to serve as a basis for planning a religious educa­
tion program. The findings of this survey indicated that
most public schools in the United States follow one of two
ways of integrating religion with the curriculum: (1)
Planned religious activities, such as prayer, Bible reading,
pp. 515-521.

166

$*

jiS
;

S
:>

ill·’

THE CATHOLIC CHURCH AND THE MODERN STATE

ethical lectures, etc.; (2) factual religious study (visits to
churches, a study of the influence of religion on our govern­
ment and society, etc.). Common to both the religious pro­
gram and the factual study systems seems to be the teach­
ing of the existence of a personal God as the source of all
rights and morality. Although, the report says, deliberate
avoidance of religion is rare in the American tax-supported
school, none of the schools is doing all that it can to teach
this subject. The authors of this study think no one re­
ligious policy or practise can suit all schools, and that the
problem of religious instruction will not be solved easily
or soon. But that it will be solved they are hopeful.22
The question of religious freedom, especially the right
of parents to select their own schools, has often been raised
by extremists who fear that Catholic parochial schools may
prove inimical to democracy by educating a group apart.
The courts have in general decided that it is not the policy
of the State to require public school attendance of all the
children in the State.23 The question was definitely decided
by the unanimous decision of the United States Supreme
Court in 1924 in the famous Oregon case. The state of Ore­
gon adopted a law requiring parents and guardians to send
all children between the ages of eight and sixteen, except
those in a few categories, “to a public school,” a failure to
comply being punishable as a misdemeanor. The court took
the position that the carrying out of the Oregon law would
practically force the closing of most private schools, and
supported the lower court in holding that the act was con­
trary to the Fourteenth Amendment. Important are these
words of the Supreme Court: “The fundamental theory of
liberty, upon which all governments in this Union repose,
excludes any general power of the State to standardize its
children by forcing them to accept instruction from public
teachers only. The child is not the mere creature of the
State; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and pre­
pare him for additional obligations.”24 Thus religious in­
struction and training may be, and are, imparted, without
State interference, in parochial and other private schools,
but the upkeep of these schools must be paid for from pri­
vate funds. The State has the right to insist that such
“ The Function of the Public Schools in Dealing with Religion (Washington, D. C.:
American Council on Education. Committee on Religion and Education, 1953).
B Stokes, ob. cit., II, pp. 737-741.
14 See Stokes, op. cit„ Π, p. 736.

SS·

NATURE AND TYPES OF SEPARATION

157

schools maintain certain standards and meet certain re­
quirements which the State imposes.
_____
Church-State separation in the Unitéd Statës'has~hïs^
torically very little European secularism about it. “Our fed­
eral and state constitutions forbid the legal establishment
of any form of religion, thereby ensuring the separation of
Church and State, and apparently making inevitable a pol­
icy of neutrality or indifference,” write John A. Ryan and
Francis Boland. “Nevertheless, our federal and state gov­
ernments have never adopted such a policy. Their attitude
has been one of a postive friendliness toward religion.”28
Evidences of this policy are : The appointment of an anuual
day of public thanksgiving by the President and the Gov­
ernors of the States ;26 the employment of chaplains to open
with prayer the sessions of the national and state legisla­
tures;27 the providing of Army and Navy chaplains, who
receive annual stipends for their services;28 the appoint­
ment of federal chaplains for penal institutions, old sol­
diers’ homes, and hospitals under the Veterans’ Adminis­
tration ;29 the exemption from taxation of churches, church
schools,30 and certain other forms of church property, such
as burial grounds;31 certain exemptions and special privi­
leges for clergymen;32 the fact that “under state laws cer­
tain types of business, which might be demoralizing or an­
noying to worshippers, such as liquor saloons, theaters,
fire-engine houses, and garages, are generally excluded
within specified distances of churches, or permitted only
with church approval.”33 In a word, the general policy has
been the promoting of the interests of religion. Thus the
United States truly serves as an example of the milder,
more benevolent type of separation of Church and State.

THE EFFECTS OF SEPARATION ON THE INDIVIDUAL
CITIZEN
Such is the attitude of the State in regard to ecclesias­
tical affairs in a country where separation is the policy.
Next we must present a picture of the effects of separa­
tion on the individual citizen. If the religious (theocratic)
State requires its citizens to be qualified members of the
M Catholic Principles in Politics. Revised Edition of The State and the Church.
York: Macmillan, 1941), 3I2f.
*· Stokes, op. cit., Ill, pp. 179-200.
vlbid., HI, pp. 129-138.
*lbid„ 11, pp. 110-129.
ΙΠ, pp. 140-143.
Ibid., Ill, pp. 418-428. California's Proposition 3—which exempts parochial and
non-profit, non-public schools from taxation—was carried by a plurality of 77,477
in the referendum of November, 1952. This victory puts California in line with the
47 states in the Union. It has been the only state where such tax was in effect.
« Ibid., ΙΠ. p. 417f.
» Ibid., Ill, pp. 428-432.
« Ibid., Ill, p. 369.

(New

other
votes
other

158

THE CATHOLIC CHURCH AND THE MODERN STATE

one Church recognized by the State, the antithesis of the
religious State—that is, the State that insists that all pub­
lic juridical relations with the churches be ended—must
eliminate from its laws everything that could compel the
individual citizen to maintain relations with a definite re­
ligious body. It must therefore put freedom of religious pro­
fession more consistently into effect than does the parity
State. And in this respect the first question that arises has
to do with marriage, a sphere in which even in a parity
State it is still possible to see the necessity of enlisting the
("service of the Church. All states in which the civil marriage
ceremony is obligatory for the legality of the marriage
' ÿ.
union, have already completely dissociated themselves from
vsr
the Church, since they not only enable their citizens to
p,v‘ * contract a legally valid marriage without an ecclesiastical
I
ceremony, but flatly declare that, so far as they are concerned, no union of man and woman claiming the name
j^^iAv-iof marriage merits consideration except civil marriage.
. - Here again the United States offers a happy exception; for
' ■ .'' ' in America civil marriage is merely one of the ways in
which marriage may be contracted.
1---- Another sphere in which separation does violence to the
rights of the citizen is public education; for, as noted
above, under separation religious instruction is banned
from all public schools. In our own country the laws of all
the states forbid denominational instruction in the public
schools, although some of them permit, and some require,
Bible reading without comment at the opening exercises.
But this is opposed by some groups who fear that it may be
an opening wedge for sectarian influence, and by others
because of the difficulty of agreeing upon an accepted trans­
lation. The repeating of the Lord’s Prayer at the opening
exercises is very common, and generally speaking there
is in most states little legal or other objection against this
practice, although the custom has been occasionally criti­
cized by Roman Catholics on the ground that the prayer
as translated in the King James version of the Bible is
generally used rather than that of a recognized Catholic
translation. Catholics have also protested, frequently with
success, against the practice of reading the Bible “without
written note or moral comment,”34 because such a proce*· For example, in the famous Wisconsin Bible Case involving the right of the
District Board of Education of Edgerton, Wisconsin, to have the King James version
of the Bible read in the public schools which were attended by Catholic pupils. See
State ex rel. Weiss v. District Board (1890), Wis. 177, 44 N. W. 967.

NATURE AND TYPES OF SEPARATION

159

dure infringes upon freedom of conscience. According to
canon law, Catholics are permitted to use only approved
translations of the Bible.35 “Most state supreme court deci­
sions,” says Anson Phelps Stokes, “upheld the reading of
the Bible as permitted in the absence of a statute to the
contrary, and most states by legislative or board of edu­
cation enactment, or by court decision, have permitted such
reading at school exercises when this is desired by the
local authority, and have taken the ground that the Bible
is not a ‘sectarian’ book.”36
Two New Jersey parents, Donald R. Doremus, a New
Jersey taxpayer, and Mrs. Anna E. Klein, mother of a
public school pupil, filed an appeal with the Supreme Court
of the United States, attacking two New Jersey statutes.
One New Jersey law requires that five verses of the Old
Testament be read without comment each day in the public
schools, while the other permits, but does not require, reci­
tation of the Lord’s Prayer. It was pointed out in the
arguments on the case, that any pupil who does not wish to
participate in the Bible readings may leave the classroom.
The court as of March 3, 1952, settled the New Jersey case
in a six to three decision in which it refused to assume
jurisdiction in the matter. This allows the New Jersey laws
to remain on the statute books. There are thirty-four other
states which have either compulsory or optional Bible
reading in the public schools.
In 1952 the New York State Board of Regents, govern­
ing body of that State’s educational system, proposed that
a daily prayer be recited by public school pupils. It was
suggested that at the commencement of each school day
the pledge of allegiance to the flag37 be joined with this
act of reverence to God : “Almighty God, we acknowledge
our dependence upon Thee, and we beg Thy blessings upon
us, our parents, our teachers, and our country.” A resolu­
tion supporting the proposal was made by the board of
directors of the New York State School Boards Association
(312 school boards, 98% of those in the state, are affiliated
with the association). Opposition to the regents’ proposal
was registered by the delegates of the United Parents’ As­
sociation, who maintained (under Jewish influence) that
89 Code of Canon Law, canon 1391.
*O}. cit., II, p. 564f.
.
,
. „ .
,
.
* Tne words “under God” after the words one nation” m the Pledge of Allegiance
to the Flag became law on Flag Day, June 14, 1954, by action of Congress. An already
existing law, enacted June, 1942, relating to “rules and customs pertaining to the display
and use of the flag,
'
*
was amended by the new act.

160

THE CATHOLIC CHURCH AND THE MODERN STATE

daily prayer in public schools “would bring into public
schools outward manifestation of religious differences.”
The New York Board of Rabbis opposed the measure on
the basis that it would give rise to sectarian practices. As
a substitute for the prayer suggested by the Board of Re­
gents, the New York Board of Education voted unani­
mously to have all public schoools in New York City open
each day’s class by singing the fourth stanza of “America”
as an act of reverence aimed at strengthening moral and
spiritual values. The fourth stanza of this patriotic hymn
reads as follows :
Our father’s God, to Thee,
Author of Liberty,
To Thee we sing:
Long may our land be bright
With freedom’s holy light;
Protect us by Thy might,
Great God, our King.
Another inherent difficulty in the matter of public­
school teaching has to do with incidental references to
religion in text-books. The difficulty is even greater in con­
nection with social and economic references and attitudes.
As a result, there have been complaints from time to time
from Protestant, Catholic, and Jewish sources, as well as
from agnostic groups.38
Interments and cemeteries constitute another sphere
that is affected by separation of Church and State. Even
though in France associations for religious worship have
a legal right to establish their own cemeteries, the law does
not recognize distinctions of religious beliefs in the case
of public cemeteries. The law of December 28, 1904, Arti­
cle 2, laicized the business of funeral-arrangement, assign­
ing its exclusive control to the communes, which were
obliged to make available for burial and funeral processions
draperies and other pertinent objects. These latter had to
be adaptable for use in all various religious as well as non­
religious burials,39 so that henceforth no one would be
obliged to borrow burial requirements from a church
fabrique (vestry board). No such annoying restrictions and
interference exist in the American plan of separation.40
A further consequence of separation is the doing away
“ Stokes, op. cit., II, pp. 572-584.
See Rothenbücher, op. cit., p. 266.
* See Stokes, op. cit., Ill, pp. 417f.

NATURE AND TYPES OF SEPARATION

161

with the obligation of stating one’s religion before a reg­
istrar, the police, a judge, or others. Accordingly, it would
seem, the compulsory taking of an oath must also be abro­
gated. For even though the act of calling upon God to wit­
ness the truth of a statement is not in itself an expression
of a definite religious profession, yet the way one reacts to
swearing can connote profession of an ecclesiastical belief.
For there are sects which in good faith reject swearing as
immoral. It is remarkable that the French government did
not draw this inference. In taking an oath prescribed by
French law God’s name is invoked even by freethinkers and
atheists. United States legislation, on the contrary, allows
persons, whose religion forbids oaths, for example, Mennonites and Quakers, to “affirm” the truth of their state­
ments and accepts this affirmation in lieu of an oath. The
question of the required taking of oaths by government
officials, jurors, court witnesses, and certain other persons,
has occasionally caused trouble between Church and State.
The rules governing the taking of oaths vary in different
states.41 The constitution of New York State, which has
been extensively copied, provides that no person should be
rendered incompetent to be a witness on account of his
religious belief. Moreover, as Stokes reminds us, “New
York statutes, in keeping with this constitutional provision,
are particularly broad, even going so far to meet the con­
scientious scruples of Mohammedans and Confucians. In
general the newer states have avoided all restrictions, spe­
cifically providing the jurors and witnesses should be
exempt from all religious tests.”42 Similar far-reaching
considerations are accorded religious convictions, for exam­
ple, persons whose religious beliefs forbid the bearing of
arms are given choice of service in non-combative posi­
tions.43
If, according to the principle of separation, every kind
of coercion must be removed in the civil juridical sphere
which would compel a citizen to act or to take a stand in
conformity with this or that religious denomination, then
too everyone must be given full freedom so to regulate his
religious life, within the framework of the general laws
of the State, as may seem good to him and to seek salvation
in his own way. It is brutal injustice for a State where
« See William George Torpey. Judicial Doctrines of Religious Rights its America
(Chapel Hili: The University of North Carolina, 1948>, chap. X.
a OP. cit.. Ill, p. 146.
"Ibid.. Hl, pp. 264-280.

162

THE CATHOLIC CHURCH AND THE MODERN STATE

separation is the policy to forbid persons to join with one
another in an Order or Congregation taking religious vows.
If a number of states that have introduced separation from
the Church, France and Mexico, for example, have made
this absurdity a reality, they have simply departed from the
genuine concept of separation under pressure of their anti­
Catholic tendencies. It is even more absurd to attempt to
characterize such violations of freedom of conscience as
right and lawful in the very name of freedom of conscience,
as has been done, for example, in Mexico. Article 5 of the
Mexican Constitution states: “The State cannot allow any
contract, pact, or agreement to go into effect that has for its
object the impairment, loss or irrevocable sacrifice of man’s
liberty, whatever the cause may be: work, education, or
religious vow. Consequently the law does not recognize
monastic Orders, nor can it permit their establishment,
whatever be their designation or object.”
There is a final effect of separation which is peculiar
to certain European countries. In a State that has disestab­
lished the Church there is no need for legal ordinances con­
cerning change of religious affiliation and withdrawal from
a church—such laws were formerly necessary in order to
determine how these actions were to be accomplished if
they were to be effective in the civil juridical sphere. Such
ordinances have meaning only where the church member­
ship involves civil effects, for example, the obligation to
pay church taxes. But in states where contributions for
religious worship are purely voluntary gifts and there is
no civil apparatus compelling the collection of church taxes,
membership in a denomination or withdrawal therefrom
has no bearing on civil juridical life.44

TWO DIVERGENT POLITICAL TRADITIONS
Father John Courtney Murray, S. J., observes that the
differences between the American and the Continental
types of separation of Church and State derive from a
fundamental divergence of political traditions. He writes:
“The American political tradition, whose parentage was
English rather than Continental, has remained substan­
tially untouched by the two radical vices which ruined
the medieval heritage on the Continent.”48 The first of these
** For a survey of Catholic education in present-day Europe within the frame-work of
Church-State relations, see the informative article of Erik von Kuehnelt-Leddihn, “Cath­
olic Education in Europe,” in Columbia (New Haven, Connecticut), April, 1954, 2, 20-22.
45 “Leo XIII: Separation of Church and State,” Theological Studies, XIV (June, 1953),
151.

Ç-i/l ' /1

NATURE AND TYPES OF SEPARATION

163

vices was royal absolutism. “Under its influence,” says
Father Murray “the whole of society including the Church,
was drawn inside the growing state and gradually sur­
rounded by the developing armature of civil law. Soci­
ety became the particular nations ; the nation was identified
with the State; and the nation-state itself became identi­
cally the Great Society. The political result of this develop­
ment was the ‘society-state,’ the one all-embracing, omni­
potent form of human association. ... In these conditions,
characterized by the omnipotence of the society-state, the
separation of the State from the Church inevitably involved
an apostasy from the Catholic Church. Being separate
from the State, the Church could have no existence within
the society, except such as the sovereign power chose to
grant it.”4® The second vice that ruined the medieval herit­
age of the Continent was the secularization of politics or
the modern religion of laicism, the religion of self-salvation,
wherein man becomes God and society becomes the Church.
Continental separation of Church and State was an es­
sential aspect of this movement toward the elevation of this
society-state to the level of a quasi-religious form of life,
wherein the ultimate good, “salvation,” is to be achieved.
Because of this quasi-religious character, Father Murray
prefers to call this movement the sacralization (rather
than the secularization) of politics.47
The American people repudiated the Continental con­
cept of the omnipotent society-state. “The consequence is,”
Father Murray reminds us, “that the State remains inte­
rior to society, not outside of it, as it were, surrounding it.
The State is an aspect of the life of society—a pervasive
aspect (as modern law is pervasive) but not an all-em­
bracing, or omni-competent aspect. The State stands in the
service of society and is subordinate to its purposes. It is
limited even in its office of ministry—limited by the whole
structure of personal and social rights not of its own crea­
tion, and limited too by the principle of consent. . . . And
in the sense that the spiritual is located in society, not in
the State, the principle of the primacy of the spiritual over
the political holds sway. . . . Within this structure of poli­
tics the American concept of separation of Church and
State finds place. It is a consequence of the fact that society,
the people, has made to the government only a limited
grant of powers.” Father Murray concedes that the dis«Ibid.. p. 149.

" ··
**
#

P· 150.

164

THE CATHOLIC CHURCH AND THE MODERN STATE

tinction between Church and State is exaggerated in the
American policy. But he goes on to say that “it is one thing
to exaggerate distinction into separation, as in the Ameri­
can case ; it is quite another thing to obliterate the distinc­
tion in a false unification, as in the Continental case. In the
American case the essential lines of the medieval structure
of politics are still somehow visible; in the Continental
case they are destroyed utterly.”48
Secondly, Father Murray points out that “American
separation of Church and State, unlike the Continental
brand, neither implies nor effects any secularization of
politics. The First Amendment has no religious overtones
whatever; that is, it does not imply any ultimate vision!
of the nature of man and society.... It does not imply that
there is any virtue in society whereby it can save itself^
become a good society, in separation from religion. Its pur­
pose is not to separate religion from society, but only from
the order of law. It implies no denial of the sovereignty of
God over both society and state, no negation of the social
necessity and value of religion, no assertion that the affairs
of society are to be conducted in disregard of the natural
or divine law, or even of the ecclesiastical laws. It is not
a political transcription of the religion of lajcism. ... It
does not make the State a church, nor does it establish a
political religion. ... It simply imposes restrictions on the
legal activity of the State. ... It confines laws and govern­
ment to secular purposes (which are understood to include
the moral purposes of freedom, justice, peace, and the
general welfare). The American concept therefore does not
derive from the Continental movement toward a redivinization of the society-state. It stands more directly in contin­
uity with the central Christian civilizational tradition—
the tradition of revolt against the secularization of the
political order, and insistence on its status as secular.”49
There is another important difference between the
American and the Continental separation of Church and
State which, Father Murray submits, is commonly over­
looked by canonists : “The First Amendment to the Consti­
tution of the United States is not by any means the same
kind of juridical provision as the Continental jus commune.
The difference derives from the fundamental divergence of
the political theories that are respectively the premises of
each.”50 The difference is clear. As Father Murray tells us,
«Ibid., p. 151f.

'•Ibid., p. 152-153-

"Ibid., p. 167.

NATURE AND TYPES OF SEPARATION

165

“The Continental ‘separate’ society-state presumed to have
all power in the field of religion. The American republic
declares itself to have no power in that field. The Conti­
nental jus commune supposed that the political sovereignty,
as the source of all rights, is likewise the source of what­
ever rights religion or the Church might have. The First
Amendment supposes that the rights of religion and of
the Church are primary and original; they are neither
granted by the State nor may they be limited by the State.
Religion is part of the life of the ‘Great Society,’ which is
distinct from the State ; as such, it is not under the control
of the State. The only function which the people have com­
mitted to the State in regard to religion is the protection·
of its freedom.” Accordingly, “the manner in which the
Catholic Church exists in American society is not the same
as the maimer of its existence under the Continental /ws
commune. In the latter case the Church is legally free to
be only what the sovereign society-state legally and author­
itatively declared her to be, namely, a voluntary associa­
tion owing its corporate existence to civil law. In the Amer­
ican case, the Church is completely free to be whatever
she is. The law does not presume to make any declaration
about her nature, nor does she owe her existence within
the society to any legal statute. In a word, the Continental
jus commune denied to the Church the right to declare her
own nature; the First Amendment denies to the State the
right to declare the nature of the Church. The American
denial was made by the whole people in a constitutional
act of consent.”51 The statist postulate (that is, the notion
of state sovereignty over religion) is the foundation of the
Continental jus commune ; it is not at all the premise of the
United States First Amendment.52 There is not simply a
difference of degree between American separation and
other kinds; there is a difference in kind and in principle;
because the United States is in principle a different kind
of polity than the Continental or Latin-American “sepa­
rate” society-state with their monist, totalitarianizing ten­
dencies. “It is inexact to say,” states Father Murray, “that
the First Amendment ‘grants’ freedom to the Church ; this
is again to interpret the American system in terms of the
Continental jus commune, which is irrelevant to the Amer­
ican case. The American Bill of Rights does not grant
rights; it guarantees them, as existent prior to, and inde« Ibid., p. 168f.
“ Ibid., footnote 32, p. 167.

166

THE CATHOLIC CHURCH AND THE MODERN STATE

pendent of, any government grant. ... The Church in the
United States is free with her own freedom, not a freedom
granted by the State. It is not Cavour’s ‘libera Chiesa in
libero Stato.’ ”63
Father Murray concludes that, after full consent has
been given to Leo XIII’s condemnation of separation of
Church and State, “there is still room for an unprejudiced
examination of the American concept of separation, be­
cause this latter concept is different in point of political
principle from the concept condemned. The inquiry into
the American concept should not be clouded by a confusion
of it with the distinctly different Continental concept, which
was born of a fundamentally divergent political tradition.
American separation requires examination on its own prin­
ciples, its own intentions, its own merits and defects.”64
There is, however, a disturbing development in the
theorization of the American way of life going on at the
present time which may not be overlooked, Father Murray
points out. Secularism is shaping a theory of separation
of Church and State in the United States which begins to
resemble nineteenth-century Continental theories. In point
of fact, however, it represents a departure from the orig­
inal principles of American constitutionalism.66 We shall
discuss this development in the next chapter of our study.

B. SECULARISM AND AMERICAN SEPARATION OF
CHURCH AND STATE
The United States, which pioneered the practice of
separation of Church and State, today is grappling anew
with the problems involved in separation. A wave of contro­
versy has arisen about the concept of separation. The prob­
lem has stirred discord among religious and other groups.
Some charge that the traditional “Church-State separation”
is being challenged ; others, that religion has been relegated
to an inferior position.
The American tradition, as history most certainly tes­
tifies, has been a spiritual tradition no less than a political
one; the recognized bases of our personal freedom and of
our public order are religious bases.1 This tradition is now
being challenged by a militant group among us who prefer
irreligious nineteenth-century European laicism, or secuM Ibid., footnote 33, p. 169“Ibid,, p. 185.
88 Ibid., footnote 6, p. 151.
* See Stokes, Cbttrcb and State in the United States, ΪΠ, 500-626.

SECULARISM AND AMERICAN SEPARATION

167

larism.2 They wish the government to give no encourage­
ment or countenance to religion. “Laicism,“ says Gerald
Groveland Walsh, S.J., “is not really a doctrine of separa­
tion of Church and State. It is, first a dogma of the irrel­
evance of God in human affairs ; and it is, second, a design
for the elimination of all religion from cultural life. Radi­
cally, it is a denial of the dual nature of man—as a citizen
and a creature of God. And, at least by the logic of its
system, it ends in totalitarianism and State monoply. It
wants only irreligious schools. It wants a State monopoly
of education. It wants no place for religious conscience in
the face of political power.”3
Militant secularists have already gained three major
victories in the campaign to keep religion within the four
walls of the church building. Two of these victories were
Supreme Court decisions, the Everson and the McCollum
cases. The complainant in the former case was Arch R.
Everson of Ewing Township, New Jersey, who contended
that reimbursement to parents of bus fares for the chil­
dren attending non-profit private schools was unconstitu­
tional. In this instance the children were Catholic parochial
school students. The New Jersey bus law of 1941 authorized
boards of education of school districts to provide transpor­
tation to public school children living far from any school­
house, and to school children in such districts in going to
and from school other than a public school. Mr. Everson
contended that the statute, and the resolution of the school
board passed pursuant to it, violated both the state and
the Federal constitutions. The statute and the resolution
forced the inhabitants to pay taxes to help support and
maintain church schools and so violated the First Amend­
ment’s prohibition against “the establishment of religion
* Paul Blanshard, militant spokesman of the organization Protestants and Other
Americans United for the Separation of Church and State, in his book, Amer­
ican Freedom and Catholic Power (Boston, Mass.: Beacon Press, 1949)
champions totalitarianism as his philosophy of life. He (with others) would
make it the exclusive and compulsory American philosophy of life and, indeed
the official, established American religion. This means, among other things, the
supreme power of the democratic social welfare state over all aspects of secular
life—with no other power standing outside it, beside it, much less over it. See
John Courtney Murray, S. J., "Paul Blanshard and the New Nativism," The
Month (London: Longmans, Green and Co.), CXCI, New Series (April
1951), 214-225. Professor James M. O’Neill, Catholiciim and American Free­
dom (New York, N. Y.: Harper, 1952), has presented a devastating and un­
answerable study of Blanshard's book.
1 Church and State in the United States (New York, N. Y.: Paulist Press, n. d.), 261.
This pamphlet in its original form comprises an address delivered by Father Walsh
at the annual meeting of the United States Catholic Historical Society, Hotel Commodore,
October 22. 1947.

168

THE CATHOLIC CHURCH AND THE MODERN STATE

by law.” The Supreme Court, in a decision split five to four,
said that the Constitution did not agree with Mr. Everson.4
“The Everson decision,” writes James M. O’Neill, “was
consistent with the language and purpose of the First
Amendment, and with all prior American history and prac­
tice. The opinions, however, both majority and minority,
in that case contained many errors. The majority arrived
strangely at the right decision after indulging in inaccurate
history, language, law, and logic.”8 Erroneous especially is
Justice Hugo Black’s majority opinion that the “establish­
ment of religion” clause of the First Amendment means at
least this : Neither a state nor the Federal Government “can
pass laws which aid one religion, aid all religions, or pre­
fer one religion over another.”® The phrase of this majority
opinion that is seriously questionable is the one that rules
out laws to “aid all religions.” Professor emeritus, Edward
S. Corwin, the Constitutional authority of Princeton Uni­
versity, takes the same stand on the paragraph in the opin­
ion on the establishment of religion. He writes: “Ignoring
the ambiguous first clause of the statement, my own con­
clusion is that historical data support its last clause, but
rule out its middle. In short, what the ‘establishment of
*
religion
provision of Amendment I does, and all that it
does, is to rule out any preference or discrimination which
is based on religious grounds. . . . The historical record
shows clearly that the core idea of an ‘establishment of reli­
gion’ comprises the idea of preference; and that any act of
public authority favorable to religion in general, cannot,
without falsification of history, be brought under the ban
of that phrase.”7 Anson Phelps Stokes points out if this
principle that rules out laws to “aid all religions” is logi­
cally carried out, it would mean the abandonment of such
established provisions as exemptions of taxation for
churches, Army and Navy chaplaincies, Thanksgiving Day
proclamations, etc.8
Erroneous, too, is the dissenting opinion written by the
late Justice Wiley Rutledge and concurred in by Justices
Frankfurter, Jackson, and Burton. Justice Rutledge en• Everson vs. Board of Education, 330 U. S. 1 (February 10, 1947). See also Stokes
op. cit., 702-716.
• Catholicism and American Freedom, 37. For a detailed and documented substantiation
on the Everson case, see O’Neill’s Religion and Education Under the Constitution (New
York, N. Y.: Haroer, 1949) r 189-218.
• Everson vs. Board of Education, 330 U, S. 1, 15.
.
*’’The Supreme Court as National School Board,’ Thought, ΧΧΙΠ (December, 1948),
669. 681.
• Op. cit., Π, p. 705.

SECULARISM AND AMERICAN SEPARATION

169

dorses “a complete and permanent separation of the spheres
of religious activity and civil authority by comprehensively
forbidding every form of public aid or support for reli­
gion.”9 This opinion indicates a radical departure from
established tradition in interpreting the Constitution. The
American tradition has always been a friendly attitude toward the churches by encouragement of religion. In view
of the general court tradition in this respect,10 it does not
seem unlikely that the Rutledge doctrine outlawing every
form of public aid or support for religion may be omitted
in future statements by the court in defining the scope of
the First Amendment. Professor O’Neill, after a careful
and comprehensive study of the purpose of the First
Amendment, does not hesitate to state that “the Rutledge
dissenting opinion has little relation to the realities of
language, history, biography, or law.”11
In his decision Justice Rutledge attaches excessive im­
portance to James Madison’s Memorial and Remonstrance
of 1785, which was directed against a proposal then pend­
ing in the Virginia Assembly to level taxes for the benefit
of “teachers of the Christian religion.” Madison opposed
the measure and the bill was defeated. The Memorial had no
relation to the First Amendment—namely, the problem of
avoiding a national establishment of religion or the es­
tablishment of a National Church—and should not be utilized in interpreting the First Amendment. Professor Cor­
win points out that the Memorial antedated the framing
of the Amendment by four years; that Madison himself
never proffered it as an interpretation of the Amendment;
that Madison was not the author of the Amendment in the
form in which it was proposed to the State legislatures for
ratification; and finally, that Madison asserted repeatedly
that, as to the Constitution as a whole, “the legitimate
meaning of the Instrument must be derived from the text
itself”; but where there is discrepancy between the body
that proposed the Constitution and the opinion of the bodies
which ratified it, preference must always be given the
latter.12 Justice Rutledge does not cite the actual first draft
of the Amendment as it came from the pen of Madison, as
he ought to have done. “That,” says Father Walsh, “is the
• 330 U. S. 1, 32.
»See Stokes, op. cit., Ill, pp. 562-582.
11 Catholicism and American freedom, 42. For O’Nefll’s arguments, see Religion and
Education Under the Constitution, 201-211.
12 "The Supreme Court as National School Board,
footnote, 612. Professor Corwin
points to Madison’s Letters and Writings, 4 vols. (Philadelphia, Pa.: Lippincott, 1865·
1867). ΙΠ, 228, 552.

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170

THE CATHOLIC CHURCH AND THE MODERN STATE

only document which history is interested in.”13 He sug­
gests that Justice Rutledge’s preoccupation with the Me­
morial leaves the impression “that what was foremost in
Madison’s mind at the time of the First Amendment was
the matter of ‘assessments’ or, more in general, of the use
of State funds for religious purposes. ... If Madison had
been thinking of State money for religious purposes and
not of the danger of an exclusive establishment of religion
he would, in all logic, have protested such abuses as giving
State support for the chaplains in the House and the Sen­
ate. Actually when that system was set up, Madison was
a member of the Committee which saw it through. By
mixing up money with the simple issue of religious liberty,
Mr. Justice Rutledge’s ‘history’ will long remain grist to
many a bigot’s mill.”14
In spite of the favorable decision concerning pupil
transportation in the Everson Bus Case, the unprecedented
interpretation of the First Amendment that the govern­
ment cannot aid religion, even in general, gave the secu­
larists ammunition for their second victory.
The second victory came a year later, in 1948. This
time an eight to one majority held that the religious in­
struction plan of Champaign, Illinois (the McCollum case),
was unconstitutional. As noted above,16 the plan provided
for a weekly forty-five minute class in religious instruction,
not at public expense, on a voluntary basis, on school time
and in the school building. The Supreme Court held that
“this is beyond all question a utilization of the tax-estab­
lished and tax-supported public school system to aid reli­
gious groups to spread their faith, and it falls squarely
under the ban of the First Amendment (made applicable to
the states by the Fourteenth) as we interpreted it in the
Everson vs. Board of Education, 330 U. S. l.”ie Thus, “This
decision (the first in Supreme Court history so to treat the
First Amendment, one hundred and fifty-seven years after
it became part of the Constitution),” remarks James
O’Neill, “is now the official expression of the Rutledge doc­
trine. . . . Four Justices, dissenting, in the Everson case
ennunciated the Rutledge doctrine and eight accepted it
in the McCollum case.”17 The positions of the Justices in
M Op. cit., p. 23.
lbid.,
**
p. 22f.
“ See above, p. 154f.
** McCollum vs. Board of Education, 333 U. S. 203.
M Catholicism and American Freedom, 42f. For a detailed and documented discussion
of the McCollum case, see O'Neill, Religion and Education Under the Constitution,

SECULARISM AND AMERICAN SEPARATION

171

the Everson and McCollum cases were based in the wholly
unwarranted assumption that the purpose of the First
Amendment is to uproot all relationships between govern­
ment and religion. “Anyone who knows the most elemen­
tary facts of relevant American history,” comments O’Neill,
“knows that the First Amendment was not designed to,
and did not, uproot any establishment of religion anywhere,
or prevent the constant use of Federal funds to aid religion
on a non-discriminatory basis from 1791 to the present
day.”18 Justice Stanley Reed filed a dissenting opinion in
which he stated, according to Stokes, that “he felt that the
decision went beyond the separation which Madison and
Jefferson contemplated, and beyond the Constitutional pro­
hibition of ‘an establishment of religion.’ ”le
Most of the discussion in the McCollum and Everson
cases hinged on the principle of separation of Church and
State. Actually, this phrase does not appear in the Consti­
tution. Professor Corwin remarks: “This omission from
the Constitution, however, of a phrase which was current
in 1791, is now explained, inferentially, by the proposition
that the ban which Amendment I puts on an establishment
of religion accomplished the very result which specific in­
vocation of the principle of separation would have accom­
plished. The more precise phrase was elbowed aside for a
circumlocution.”20 In other words, the actual wording of
the Constitution was shelved, its history ignored, and a
metaphor coming originally from Thomas Jefferson—"a
wall of separation between Church and State”—was sub­
stituted for it. This was the third and perhaps greatest
victory of the secularists. Gleefully they can now point to
Justice Hugo Black’s words: “The First Amendment has
erected a wall between Church and State. That wall must
be kept high and impregnable” ; 21 and to the statement of
Justice Frankfurter; “we renew our conviction that ‘we
have staked the very existence of our country on the faith
that complete separation between the state and religion is
best for the state and best for religion.’ Everson vs Board
of Education, 330 U. S. at 59. If nowhere else, in the rela­
tion between Church and State, ‘good fences make good
neighbors.’ ”22 For two reasons this metaphor is popular
« Catholicism and American Freedom, p. 43.
cit., Π. p. 521.
* “The Supreme Court as National School Board/’ 668.
n Everson vs. Board of Education, 330 U. S. 16.
* McCollum vs. Board of Education, 333 U. S. 20.

172

THE CATHOLIC CHURCH AND THE MODERN STATE

with those opposing any sort of government aid to religion.
First of all, writes Jeffrey Keefe, O.F.M. Conv., this meta­
phor originated with Thomas Jefferson; and although he
was in no way antagonistic to religion, as we shall pres­
ently show, the secularists take advantage of his pa­
triotism to deny aid to religion and to hinder the practice
of religion. “A second reason,” says Father Keefe, “is that
this slogan like all metaphors, does not have a clear-cut
meaning. ... A figure of speech means largely what its
users want it to mean. Irresponsible and uninformed writ­
ers and speakers have repeated again and again that the
Founding Fathers built ‘the wall’ high and impregnable.
True American separation, they say, is absolute; it forbids
any and all co-operation between Church and State.”23
Secularists would do well to remember the wisdom of Su­
preme Court Justice Reed’s trenchant but ignored advice:
“A rule of law should not be drawn from a figure of
speech.”24
There is no doubt that the Founding Fathers made it
fundamental to our national plan that Church and State
should be separated. They expressed their idea of separa­
tion in the First Amendment to the Constitution of the
United States in these words : “Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof.” This sentence is the yardstick for
measuring United States separation of Church and State.

THE FIRST AMENDMENT
What did the framers of the First Amendment mean
when they wrote that principle into the Constitution? They
wrote it to ensure that no single religion could be made
the official national sect. They desired equality of all reli­
gions in the eyes of the Federal government. Preference
and discrimination toward a single religion was outlawed.
Congress was prevented from passing any law, either for or
against establishing an official church. The Federal Congress
could not set up an establishment; it could not disestablish
an official Church which a particular state already had.
“An established religion,” says Father Keefe, “is a single
Church supported by the government. It is the official reli­
gion of a state or nation. The upkeep of its clergy and
places of worship is provided by public taxes. The Anglican
n American Separation of Church and State: Vbo Stretched the Principle? (New York,
N. Y.: Paulist Press, 1951), 11..
_ Λ
* McCollum vs. Board of Education, 333 U. S. 203. 247.

SECULARISM AND AMERICAN SEPARATION

173

Church in England, the Presbyterian Church in Scotland,
and the Roman Catholic Church in Italy are ‘established.’
Establishment of religion does not necessarily mean that
other churches are not allowed. It does mean that only one
is tax-supported.”29 It will come as a surprise to many to
learn that nine of the original states had established
churches when the Revolution broke out. When the Consti­
tution was being drafted, five states—Massachusetts, New
Hampshire, Connecticut, Maryland, and South Carolina—
tenaciously retained their established churches. Massa­
chusetts kept something of an established religion until
1833—forty years after the First Amendment was rati­
fied. The basic idea, the purpose, of the First Amendment
was simply to make explicit what was implicit in the con­
stitutional situation expressed in the original Constitution
as written and signed in Philadelphia in 1787; namely,
that the federal government had no authority in this area ;
that the state government, and not the federal govern­
ment, should have exclusive government authority in the
area of what Jefferson called “their domestic concerns,”
such as religion and education.26
Secularists credit James Madison and Thomas Jefferson
with drafting a separation rule which forbids “every form
of public aid or support for religion.” Nothing could be fur­
ther from the truth. Both believed in God but considered
organized religion a human invention. Both certainly real­
ized the great service religion renders to the nation by
promoting morality among the citizenry.
James Madison (an Episcopalian) was the great pro­
moter of the First Amendment. He led the fight to dis­
establish the Episcopal Church in his native Virginia. As
noted above, what Madison consistently fought was not
equal aid to all religions, but any preferred status for a
single sect or particular group of sects. “Who does not
see,” he submits in A Memorial and Remonstrance, his
polemic against the proposed bill in the Virginia Legisla­
ture, “that the same authority which can establish Chris­
tianity, in exclusion of all other Religions, may establish
with the same ease any particular sect of Christians, in
exclusion of all other Sects?”27 Madison objected to the bill
because it contained the principle of establishment—pref» Op. cif., p. 12f.
’•O'Neill, Catholicism and American Freedom, 46.
« The full text of Madison's Memorial and Remonstrance is printed in O’Neill’s Reli­
gion and Education Vnder the Constitution, Appendix C, 278-283.

174

THE CATHOLIC CHURCH AND THE MODERN STATE

erence for one sect or groups of sects, discrimination in its
“exclusion of all other religions.” Since the bill proposed
exclusive support of Christianity it was in effect an estab­
lishment.
The Virginia bill, however, was a state affair. The First
Amendment is a Federal issue. Did Madison believe in the
same principle for a Federal law as he did for his home
state? He took the lead in framing what today is known
as the Bill of Rights of the Constitution of the United
States, which comprises the first ten Amendments. What
did he intend by the First Amendment? As originally for­
mulated by Madison, what became the First Amendment
read as follows : “The civil rights of none shall be abridged
on account of religious beliefs or worship, nor shall any
national religion be established, nor shall the full and equal
rights of conscience be in any manner, or on any pretext,
infringed.”28 Later he elucidated these words, according to
an unidentified writer in Annals of Congress. This com­
mentator tells us Madison said: ‘ ... he apprehended the
meaning of the words to be, that Congress should not es­
tablish a religion, and enforce the legal observation of it by
law, nor compel men to worship God in any manner con­
trary to their consciences. ... If the word national was
inserted for religion, it would satisfy the minds of honor­
able gentlemen. He believed that the people feared one sect
might obtain pre-eminence, or two combine together, and
establish a religion to which they would compel others to
conform. He thought if the word national was introduced,
it would point the amendment directly to the object it was
intended to prevent.’28
Professor Corwin points out that “In his later years
Madison carried the principle of Separation of Church and
State to pedantic lengths, just as he did the principle of
Separation of Powers. In his essay on ‘Monopolies,’ which
was written after he left the Presidency, probably long
after, he put himself on record as opposed to the exemp­
tion of houses of worship from taxation, against the incor­
poration of ecclesiastical bodies with the faculty of acquir­
ing property, against the houses of Congress having the
right to choose chaplains to be paid out of national taxes,
which, said he, ‘is a palpable violation of constitutional
e Gales & Seaton, The Debates and Proceedings in the Congress of the United States. . . .
commonly referred to as Annals of Congress, I, c. .451. Washington, D. C., 1934. Annals
of Congress is the former name tor The Congressional Record.
*lbid., cc. 758-759.

SECULARISM AND AMERICAN SEPARATION

175

principles,’ also against chaplains in the Army and Navy.
He states, indeed, that as President he was averse to issu­
ing proclamations for days of Thanksgiving or prayer but
was in some instances prevailed upon to affix his name to
the proclamations of this character at the request of the
houses of Congress. In all these respects, of course, Madi­
son has been steadily overruled by the verdict of practice
under the Constitution, as the data assembled by Justice
Reed in his dissenting opinion show.”30
Secular propaganda attempts to make another Founding
Father, Thomas Jefferson (nominally an Episcopalian, but
a Unitarian in belief) an advocate of absolute separation in
the modern sense. As proof, secularists quote certain pas­
sages of his Bill for Establishing Religious Freedom in
Virginia and quote them out of context. If anyone reads
the entire Bill,31 he will find it concerned with compulsion,
restraint, and censorship in religious matters, all of which
often follow establishment in the historical sense of the
word. The Bill is a protest against making any one religion
official. The whole tone of the preamble is one of denuncia­
tion of the establishment of one religion as official, and
against the solitary support of any single sect. Jefferson’s
Bill, first submitted to the Legislature of Virginia in 1779
and passed in 1786, enacts four things: In Virginia no
man shall (1) be compelled by the government to attend or
support any religious worship, place, or ministry what­
soever, nor (2) be punished or interfered with by the gov­
ernment on account of his religious opinions or beliefs, but
(on the contrary) all men shall be free (so far as the
government is concerned) (3) to profess and argue for his
religious opinions and beliefs, and (4) such activity shall
in no way affect his civil capacities. “There are probably
few if any literate Americans who do not endorse all pro­
visions of the Virginia law for religious freedom," remarks
O’Neill. “I do not know of one. Nor can I recall having read
any published statements by an American of any church or
party advocating any measure inconsistent with these prin­
ciples.”32
The official acts of Jefferson consistently contradict any
attempt of secularists to make him an advocate of absolute
w "The Supreme Court as National School Board," 67 If. See also, Villiam and Mary
Quarterly, 3rd Series, ΙΠ, (October, 1946), 551-562.
« The hill text of the Bill for Establishing Religious Freedom tn Virginia is printed
in O’Neill’s Religion and Education Under the Constitution, Appendix B, 275-277.
u Religion and Education Under tie Constitution, 74.

176

THE CATHOLIC CHURCH AND THE MODERN STATE

separation of Church and State in America, or specifically
a bitter enemy of the use of public funds in impartial sup­
port of religion. The Third President approved the use of
tax money for chaplains in the army, navy, and Congress,
without contrary recommendation or countermanding order
as Commander-in Chief. He sent to the Senate a treaty with
the Kaskasia Indians which provided for government
erection of a church, and payment of a seven-year salary
toward the support of a Catholic priest.33
After he left the Presidency, Jefferson became the rec­
tor of the University of Virginia, a quasi-state institution.
Anson Phelps Stokes34 tells us that “Jefferson secured
works on the evidence of Christianity for the library, and
in planning the buildings of the university he provided in
the rotunda for a special room ‘for religious worship,’35
and gave his support to a proposal to invite the four major
religious denominations of the state to establish inde­
pendent theological schools in the immediate neighborhood
of the university, with the idea that their clerical pro­
fessors would be invited from time to time to preach
there.36 This project did not materialize, but it is interest­
ing to note that Jefferson himself acknowledged that ‘the
want of instruction in the various creeds of religious faith
among the citizens’ was a ‘chasm’37 at the new institution.”
Ignoring these plain facts of history, secularists con­
tinue to exploit a single metaphor of Jefferson’s, to impose
their own meaning on it, and claim it to be Jeffersonian doc­
trine, even though it contradicts his entire writings and
practice. The metaphor is found in his courtesy letter in
reply to an address from a committee of the Danbury Bap­
tist Association of Connecticut (January 1, 1802)
contemplate with sovereign reverence that act of the whole
American people which declared that their legislature
should ‘make no law respecting an establishment of reli­
gion, or prohibiting the free exercise thereof,’ thus building
a wall of separation between Church and State.”38 What
is even more startling is the fact that secular propagandists
88 See Stokes, op. cît., I, p. 704.
84 Op. cit., I, p. 337f.
85 See Philip Alexander Bruce, History of the University of Virginia, 1818-1919, y vols.
(New York, N. Y.t Macmillan, 1920-1922), II, 366, 369.
"Ibid., II, pp. 367-369.
97 Ibid., II. p. 366. The text of Jefferson’s Freedom of Religion at the University of
Virgina (1822) is printed in O’Neill’s Religion and Education Under the Constitution,
Appendix D, 284-285.
88 Writings of Jefferson, Monticello Edition, 20 vols. (Washington, D. Q: Thomas
Jefferson Memorial Association, 1903-1904), XVI, 281. The text of Jefferson’s Reply to
the Baptists of Danbury is printed in O’Neill's Religion and Education Under the Con­
stitution, Appendix E, 286.

SECULARISM AND AMERICAN SEPARATION

177

have succeeded in introducing that metaphor into opinions
of Supreme Court Justices. Thus, as Professor O’Neill
points out, “in the McCollum opinions the Justices did not
even discuss the language of the First Amendment, or ex­
plain how they could apply the ‘wall-of-separation meta­
phor’ (Justice Frankfurter’s words, 333 U. S. 203), instead
of the clause of the Constitution that was under dispute.”
Professor O’Neill continues: “If they were justified in pre­
ferring to ‘apply’ a figure of speech from a polite corres­
pondence of Thomas Jefferson, why cannot their successors
pick out a phrase they like from the letters of Franklin
Roosevelt, Herbert Hoover, Woodrow Wilson, or Warren
Harding, and be guided by that, instead of the language
that has been ratified by the American people as part of
the Constitution?”39
Professor Corwin sums up Madison’s and Jefferson’s
attitude thus: “not as demanding that public-supported
education should be exclusively secular and admitting no
religious elements ; but that no public authority should give
a preference to any religion or denomination. Preference,
special advantage, for this, or that or the other religion
or denomination, was what they wished to rule out and
what they thought had been ruled out by the First Amend­
ment.”40
To discover the really traditional American principle of
separation of Church and State, we have studied what
the first Congress meant when it wrote that principle into
the Constitution. We have seen that the framers of the
First Amendment wrote it to ensure that no single reli­
gion be made the official national sect. A second method
of discovering the traditional principle of separation is to
study how Presidents, Congresses, and Supreme Courts
have reflected the meaning of separation as they made
tradition during the first one hundred sixty years. More
precisely, how have the hundred and sixty years of prac­
tice reflected the First Amendment? The answer is clear:
United States history reveals a sixteen-decade period of
government co-operation with religion. That co-operation
includes appointment of chaplains in Congress, the armed
forces, hospitals and prisons, proclamations on national
days of prayer and thanksgiving, government-built and
government-purchased furnishings according to the re» Catholicism and American Freedom, Slf.
*°’’The Supreme Court as National School Board/
*

673.

■

178

THE CATHOLIC CHURCH AND THE MODERN STATE

quirements of each sect, the GI Bill of Rights, providing
eligible veterans with training in the ministry of any sect,
and numerous other practices. All could be classified as
“forms of support for religion,” which Justice Rutledge
alleges are opposed to the First Amendment. Such prac­
tices likewise “aid all religions” and are thereby illegal
according to Justice Black’s opinion in the Everson and
McCollum cases.41
Perhaps the most devastating argument against the
new and historically unsupported meaning of “an estab­
lishment of religion” is this: Professor Corwin points out
that in the McCollum case “Justice Frankfurter quotes
President Grant’s ‘famous remarks’ in 1875 to a conven­
tion of the Army of Tennessee, and his message to Con­
gress of the same year, asking for a constitutional amend­
ment which, among other things, would forbid the use of
public funds for sectarian education, and attacking the
exemption of church property from taxation. Acting on
these suggestions James G. Blaine introduced a resolution
providing that ‘no State shall make any law respecting an
establishment of religion,’ and prohibiting any appropria­
tion of public school money by any State to sectarian
schools. That proposal was adopted by the House over­
whelmingly, but was lost in the Senate. It has been re­
introduced some twenty times, without result.”42
Professor O’Neill is right when he states: “There is in
Congressional history no evidence whatever that the people
of the United States have ever changed their belief in the
doctrine of the First Amendment as it was written by the
First Congress, providing that governmental control in
such domestic concerns as religion and education shall be
the responsibility of the individual states.”43

THE FOURTEENTH AMENDMENT
The First Amendment only forbids Congress to make
a law respecting an establishment of religion. In the in­
tention of the Founding Fathers, an established church
was a possibility in any of the thirteen original states if
the people wished to provide for it in their constitutions
and statutes. Now the argument is that the “establishment
of religion” clause applies to the states through the Four41 Keefe, op. cit., p. 18.
43 “The Supreme Court as National School Board,
**
675» See also, M. A. Musmanno,
Proposed Amendments to the Constitution, seventieth Congress, Third Session, H. D.
No. 551, p. 182.
43 Religion and Education Under the Constitution, 124.

SECULARISM AND AMERICAN SEPARATION

179

teenth Amendment. This amendment was ratified in 1868
and adopted in connection with the abolition of slavery at
the close of the Civil War. Its first section—the only part
that concerns us here—is especially important in that it
extends to the states the Federal Constitutional guaran­
tees, contained in Amendment V of the Bill of Rights,
against deprivation “of life, liberty, or property, without
due process of law.” This first section of the Fourteenth
Amendment reads in full : “All persons born or naturalized
in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States, nor shall any State deprive any person
of life, liberty, or property, without due process of law,
or deny to any person within its jurisdiction the equal
protection of the laws.”
Before discussing the problem of the application of the
Bill of Rights through the Fourteenth Amendment as a
restriction upon the power of the individual states, a few
words with regard to the history of the Amendment are
in order. “This amendment,” writes Professor O’Neill, “was
conceived in passion, partisanship, and revenge, and has
been the happy hunting ground of pressure groups and
special pleaders throughout its history. It was the basis
of more litigation than all the rest of the Constitution
combined. It is the only part of the Constitution which has
the blemish of the presuasions of force rather than reason
on its right and title to a place in our fundamental law.
In addition to this it has probably the unique distinction of
being in the Constitution as the result of a strictly party
vote.”44 C. G. Haines supports this view, saying: “By
counting the reconstructed states, forcibly put under Re­
publican control, the amendment was finally declared
adopted with its meaning and intent very much in doubt.
In the controversy over the adoption very little considera­
tion was given to the significance of Section One, the only
portion which has had any noticeable effect upon the rela­
tions of the federal and state governments.”45 Professor
O’Neill submits that “Horace Flack’s careful step by step
account of the adoption4® of the Fourteenth Amendment
“Hid., 154f.
« “The History of Due Process After the Civil War.” Reprinted in Selected Essays,
I, 273. 3 Texas Law Review, I, Austin, Texos, 1924.
The Adoption of the Fourteenth Amendment (Baltimore, Md.r The Johns Hopkins
Press, 1908).

180

THE CATHOLIC CHURCH AND THE MODERN STATE

contains no reference to the first clause of the First
Amendment. In all of the discussion in Congress apparently
no one had in mind a change that would have any effect
at all on any question of religion or religious education."47
“Strangely enough,” writes Anson Phelps Stokes, “the
Fourteenth Amendment was in force over half a century
before it began to be made use of by the Supreme Court
through a prevailing opinion to guarantee to the citizens
of the individual states the fundamental provisions of the
Bill of Rights regarding religious freedom. . . . For nearly
a quarter of a century, that is, through 1896, the majority
of the Supreme Court seemed to consider that the Four­
teenth Amendment was concerned with slavery and eco­
nomic rights alone and did not otherwise affect the inter­
pretation of the Bill of Rights.”48 Indeed, in James O’Neill’s
judgment, “The problem of the application of the Bill of
Rights by the Fourteenth Amendment as a restriction upon
the power of the individual states, is still a matter of spec­
ulation, clouded by confusion and conflict in the separate
opinions of the Justices and in the Supreme Court decisions.
The decisions not only conflict directly with each other;
there are conflicting theories in regard to the authority
of the Supreme Court in this matter and also in regard to
the proper limitations to be observed in applying to the
several states through the Fourteenth Amendment any
of the restrictions on Congress in the United States Con­
stitution.”49 The problem is not yet solved—eighty years
after the ratification of the Amendment. In O’Neill’s
opinion, “No one in the United States from the Chief
Justice down to the youngest law school freshman knows
today just what parts o£ the Bill of Rights are now through
the Fourteenth Amendment restrictions on state legisla­
tures, or to what extent any part is such a restriction.”80
The two parts of the Fourteenth Amendment which
bear directly upon our problem are the phrases concerning
“the privileges or immunities of citizens of the United
States” and “due process of law.”
Secularists claim that the “privileges or immunities”
clause of the Fourteenth Amendment furnishes the basis
for granting legal force and effect to their slogan “separa­
tion of Church and State.” This is wholly unfounded. The
41 Religion and Education Under the Constitution, 160.
« Op., cit„ I, pp. 580f, 591.
49 Religion and Education Under the Constitution, 153f.
M Ibid., p. 156.

SECULARISM AND AMERICAN SEPARATION

181

“privileges and immunities” protected by the Fourteenth
Amendment are those of national, not state, citizenship.
This principle has been consistently held by the Supreme
Court almost without exception from 1873 (in the Slaugh­
terhouse cases, the first instance in which the Court con­
sidered the Fourth Amendment) to 1948 in the McCollum
case, as well as by recognized scholars in constitutional
law.51 The privileges and immunities clause of the Four­
teenth Amendment, therefore, furnishes no basis for the
slogan of the secularists.
“It is obviously impossible to show,” writes Professor
O’Neill, “that the objectives pursued by the devotees of this
slogan are privileges and immunities of national citizen­
ship. Neither freedom from an established religion nor
freedom of worship in this country were ever privileges
of national as distinct from state citizenship. Freedom of
worship in the First Amendment had no qualifications on it.
It was endorsed. Congress could not ‘restrict it.’ Invasions
of freedom of religion were condemned. But ‘an establish­
ment of religion’ was not condemned. The only ‘establish­
ments’ this country had ever known, state establishments,
were left untouched and some of them went on for years.
The First Amendment made a national establishment im­
possible and so protected the people of a state against a
national establishment only. If it is argued, therefore, that
there is a privilege or immunity here that is an aspect of
national citizenship, it is clearly and inevitably only an im­
munity from a national establishment of religion, and can­
not be applied to protect the people of Illinois (in the Mc­
Collum case) from a state establishment of religion. This
should be sufficiently clear from the simple and specific
language of the clause itself, according to the meaning of
the words in eighteenth-century America and the constitu­
tional situation in which the clause was framed. . . . When
the Fourteenth Amendment, therefore, is held to channel
the First Amendment to the several states in such a way as
to deprive them of their freedom to do as they please in
regard to a state establishment of religion through state
constitutions and state laws, each applicable only in the
individual states concerned, it takes away from the people
of the several states the precise freedom which the First
Amendment was explicitly designed to preserve. The presnilid., p. 156f.

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THE CATHOLIC CHURCH AND THE MODERN STATE

ervation of this precise freedom has been specifically de­
fended by Congress many times.”62
The attempts of the propagandists for secularism in the
earlier period of our history (between 1870 and 1888) to
reduce state freedom in the area of the relations of govern­
ment to religion and education, were carried on according
to the democratic tradition and the Constitutional provi­
sions, by seeking an amendment to the Constitution to put
their new doctrine into the fundamental law of the nation.
Congress rejected all of such attempts. But their modern
counterparts—such as “Protestants and Other Americans
United for Separation of Church and State”—seek to avoid
the democratic process of amendment, and to circumvent
the will of the American people, by knocking out the First
Amendment by an edict of the Supreme Court. And yet,
these people keep on proclaiming that this doctrine of ab­
solute, complete and unqualified separation of Church and
State is a great constitutional principle, and is endorsed
by the American people.63
The Court’s decision in the McCollum case (March 8,
1948), in Professor O’Neill’s judgment, “in spite of history,
the English language, and the doctrine of stare decisis,184
reversed the total record of the court up to date. This great
reversal was accomplished under the theory that the Four­
teenth Amendment channeled the doctrine of complete
separation of Church and State from the First Amend­
ment to the Constitution and laws of the several states. It
was done with little attempted justification except in the
erroneous dicta in the Everson case and the Justices’ ‘zeal’
and ‘prepossessions’ in the realms of religion and educa­
tion.”66
Turning next to the phrase “due process of law” (found
in the Fifth and Fourteenth Amendment) which has a
bearing upon our present subject, we find it necessary to
stress that this phrase has undergone a change of meaning
from its century-old significance (clearly the only meaning
it had to those who wrote and ratified the Constitution and
the Bill of Rights). Originally, “due process of law” meant
83/W., p. 163f. See also, p. 124.
n Ibid., p. 165f.
MThe maxim, stare decisis et non quieta movere,—to stand by precedents and not to
disturb what is settled ... is founded on the principle that stability and certainty in
the law are of first importance. When a point of law is once clearly decided by a court
of final jurisdiction, it becomes a fixed rule of law to govern future action .... It
is better to have a bad law with certainty of its meaning than a good law whose scope of
operation is undefinable and unknown. (C. W. Collins, The Fourteenth Amendment and
the States (Boston: Little, Brown and Company, 1912), 110.
a Religion and Education Under the Constitution, 167.

SECULARISM AND AMERICAN SEPARATION

183

roughly “according to law,” or “through proper legal pro­
cedure.” In other words, the government could not imprison
or execute a person or take away his property without pro­
ceeding against him according to the laws and procedure
which were known and applicable in question. Now “due
process of law” is interpreted as involving reasonable pro­
cedure and reasonable law; that is to say, what a majority
of the Supreme Court find to be reasonable in one or an­
other sense of that extremely elastic term. In effect, it
means the approval of the Supreme Court.66 “This is the
new substantive theory of law (as against the ancient pro­
cedural meaning of the phrase) : That the substance or con­
tent of the law, the law itself, must be reasonable in order
to be Constitutional,” says Anson Phelps Stokes.®7
According to outstanding legal scholars generally the
changing of the meaning of “due process” phrase was
brought about by the Supreme Court Justices. In the period
from about 1870 to 1925, they were concerned about the
protection of the property of American corporations from
the attacks of State legislatures seeking to make effective
social legislation on such subjects as taxes, minimum wages,
rates charged by public service corporations, maximum
hours of labor, and conditions of labor for women and
children. Professor O’Neill writes: “In order to make
possible such protection of the ‘property’ of the corpora­
tions in spite of the provisions of the Constitution and the
laws of the several states, the Supreme Court did violence
to both history and language in taking the following two
positions. First, the Court in 1886,88 announced that a cor­
poration was a ‘person’ within the meaning of the Four­
teenth Amendment, and that therefore the corporation as a
person could not have its life, liberty or property (espe­
cially property) taken from it without ‘due process of law
*.
... In this way the property of the corporation (person)
could not be taken from him by a new social legislation of
the individual states unless the Supreme Court approved
of the new laws as reasonable measures. . . . Second, the
Court in further bending the law and language in defense
of corporation property, played havoc with the word ‘liber­
ty’ in the due process clause of the Fifth and Fourteenth
Amendments.”88 Charles Warren in discussing the Supreme
••See Edward S. Corwin, The Constitution and Wbat It Means Today. 9th edition
(Princeton, N. J.: Princeton University Press, 1947), 155-156.
w Op. cit., I, p. 577.
M Santa Clara County ns. Southern R. R., 118 U. S. 394 (1886).
M Religion and Education Under the Constitution, 170f.

184

THE CATHOLIC CHURCH AND THE MODERN STATE

Court’s juggling with the word “liberty” says: “That the
single word ‘liberty’ will have become a tremendous engine
for attack on state legislation—an engine which could not
have been conceived possible by the framers of the first ten
amendments or by the framers of the Fourteenth Amend­
ment.”60
Before the adoption of the Fourteenth Amendment in
1868, the literal language of the First Amendment was ac­
cepted as meaning exactly what it said and the Bill of
Rights in the Federal Constitution was consistently held
to impose no restrictions on the individual states. “Follow­
ing the adoption of the Fourteenth Amendment,” writes
O’Neill “the question was raised from time to time as to
whether or not the Fourteenth Amendment transferred
as restriction upon state legislatures the various items in
the First Amendment: freedom of speech, religion, press,
etc. From 1868 to 1925 the Court many times and without
a single exception refused to recognize that any part of
the First Amendment had made a restriction on the legis­
lative powers of the states.”61 Since 1925 the Court simply
assumed that certain fundamental rights and liberties “of
the very essence of ordered liberty” (which were also men­
tioned in the First Amendments as restrictions on Con­
gress) had been made restrictions on the states by the due
process clause of the Fourteenth Amendment.62 “To do this,
says O’Neill, “the Justices gave to the word ‘liberty’ a
meaning which it could not possibly have had to the
authors of the Fifth Amendment, and therefore could not
properly be the sense of the word in the phrase of the Four­
teenth Amendment. This phrase was copied from the Fifth
(and so stated by Representative John A. Bingham of
Ohio, the chief author and sponsor of the first section of
the Fourteenth Amendment, speaking in Congress on
February 26, 1866, when that amendment was under de­
bate).”63 O’Neill continues, “I submit that a logical and
literate person has to grant that this juggling with the
word ‘liberty’ in the Fourteenth Amendment either (a)
so reads the Fifth Amendment in the Bill of Rights as to
make the First Amendment redundant and ridiculous, or
• "The New Liberty under the 14th Amendment.” 39 Harvard Law Review, 431 (19261
Reprinted in Selected Essays, Vol. Π, 263-264.
1
n Religion and Education Under the Constitution, 172.
e The first case in which the Supreme Court considered religious freedom as one of
the personal liberties protected from state violation by the Fourteenth Amendment was
Hamilton vs. University of California, 293, U. S. 245 (1934) See O’Neill, op. cit., 177-178.
·* Congressional Globe, Thirty-ninth Congress, Washington Congressional Globe Office
*
1866, Part 2, 813f.

SECULARISM AND AMERICAN SEPARATION

185

(b) make necessary the belief the identical words copied
from the Fifth into the Fourteenth Amendment mean one
thing in the Fifth and something else in the Fourteenth.”64
And all this in spite of the fact that “the Supreme Court
has more than once said that the due process clause of the
Fourteenth Amendment has the same scope as the similar
clause in the Fifth Amendment.”65
A study of the case history of the Court, writes O’Neill,
will show “the casual, almost absent-minded way in which
the Justices of the Supreme Court have let fall from time
to time a few phrases which mark their wanderings from
1920 to 1948. They have moved backwards and forwards,
and in circles, sometimes arriving at a position held earlier,
then abandoned, and then arrived at again. It is a clear
case of ‘Now you see it, and now you don’t.’ At no time is
there any explanation, argument, or defense of any sort
of the new doctrine, or even any evidence that the Justices
realize that a long established position is being abandoned
and a new one being assumed—or later that the new one
is being given up and the old one reoccupied.”66 The basic
purpose of the Fourteenth Amendment, O’Neill continues,
“to create and protect the citizenship of the Negroes, has
been almost wholly neglected. Its loose, vague language
gives free scope to that appetite for dictatorial powers
which seems to be latent in many members of the human
race. Some men who carry the germ of this disease apparently sometimes get on the Supreme Bench. If the specific
provisions of the other parts of the Constitution are all
by the Fourteenth Amendment essentially rendered subject
to the discretion of the Justices, this makes the Constitution
only an interesting historical document illustrating the
futile aspirations of those who thought constitutional democracy could be made to work.”67
The McCollum case is a shining example of the absurdities and inaccuracies of the Supreme Court opinions. The
paragraphs solemnly “interpreting” the fantastic “interpretations” of an imaginary amendment to the Constitution are, or well may be, tragic.68 Professor Corwin submits
that, properly speaking, the only question before the Court
was this: If the ‘released time' program involved amounted
to an invasion of anybody’s freedom of religion it was
·* Religion and Education Under the Constitution, 174.
* Charles Warren, op. cit., p. 244.
·« Religion and Education Under the Constitution, 175. See also, 175-184.
* Ibid.. P- 187.
"Ibid., p. 250.

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186

THE CATHOLIC CHURCH AND THE MODERN STATE

unconstitutional; and the talk about “an establishment of
religion” was entirely beside the point “unless the ‘released
time’ program of the Champain schools involved an es­
tablishment of religion of such a nature as to deprive the
plaintiff in the case of freedom of religion. In other words,
the Fourteenth Amendment does not authorize the Court
to substitute the word ‘State’ for ‘Congress’ in the ban
imposed by the First Amendment on laws ‘respecting an
establishment of religion.’ So far as the Fourteenth Amend­
ment is concerned, States are entirely free to establish reli­
gions, provided that they do not deprive anybody of reli­
gious liberty. It is only liberty that the Fourteenth Amend­
ment protects.”69
In Father Keefe’s judgment it is a frightening omen
that “after a hundred and sixty years, during which a
constitutional amendment has meant one specific thing,
we now find it suddenly enlarged. Who extended it? Con­
gress did not propose any change. In a democracy the
legislature represents the people. As their representative,
Congress has rejected twenty-one proposals to alter the
First Amendment. The new strategy is to promote new laws
through the Supreme Court. When the Court says the First
Amendment forbids public aid or support for religion, that
strategy seems victorious. Can five men—five make a Court
majority—change the Constitution?”70 Professor O’Neill
calls questions like that of bus rides for parochial school
children or “released time” for religious education in Illi­
nois or elsewhere of trifling importance compared to the
question of “whether the Justices of the Supreme Court
shall pass on constitutional questions in the light of the
language and meaning of the Constitution or in the light
of their private philosophies of religion and education.”71
Not only Catholics but other intelligent citizens have
appraised the new First Amendment interpretation. The
Journal of the American Bar Association censured the
McCollum decision and warned that the McCollum case
may be one of those fateful decisions which is ignored at
the time but regretted in the future. It deserves considera­
tion now.72 Leading Protestants, too, have spoken against
the misinterpretation of traditional separation of Church
• "The Supreme Court as National School Board,
**
677f.
ro Op. cit., p. 22.
T1 Religion and Education Under the Constitution, Preface, xi.
n Editorial, "No Law But Our Own Presuppositions?" in American Bar Association
Journal, XXXIV, No. 6 (June, 1948), 482-484/

REJECTION OF PRINCIPLE OF SEPARATION

187

and State in phrases that are almost identical with the
statement, The Christian in Action, issued by all the Catho­
lic bishops in the United States.73 The complete-statementof these Protestant leaders was widely reported in the
press.74 In the majority opinion of the Supreme Court
(1952) which upholds the “released-time” program of
New York State, Justice Douglas pointed out that the Con­
stitution “does not say in every and all respects there shall
be a separation of Church and State.” He added, “Rather,
it studiously defines the manner, the specific ways in which
there shall be no concert or union or dependency of one on
the other. This is the common sense of the matter.”
The First Amendment of the Constitution expresses
the American brand of separation of Church and State.
The First Amendment does not outlaw co-operation. Nor
does it legalize discrimination. American Catholics favor
separation of Church and State in the true American
sense. “Spokesmen for the last fifty years, from Cardinal
Gibbons76 to Archbishop McNicholas,”73 writes Father
Keefe, “have repeated that Catholics have no design on
changing the First Amendment. Actually those preaching
the new separation gospel are the ones trying to change the
Constitution. And these ‘patriots’ are circumventing the
proper democratic process to do it.”77 It behooves Catholics
to remember that liberty is the price of eternal vigilance.
C. REJECTION OF THE PRINCIPLE OF SEPARATION
BY THE CHURCH
In a former chapter we utilized the empirico-logical
method to ascertain the proper concept and nature of the
separation of Church and State. We also found that abso­
lute, rigid, complete separation is indeed not yet a reality
anywhere in the world; not even in countries under Com­
munist domination, although it is the avowed aim and the
relentless endeavor of Boshevistic Communism ultimately
to separate mankind not only from the Church but also
from the very idea of God. We will now discuss the ques­
tion: How is the principle of separation to be judged and
evaluated from the Catholic point of view?
n Washington, D. C., National Catholic Welfare Conference, November, 1948.
’< The press release was introduced by a statement, signed by the initials of Dr. J. G
Bennett, discussing ’’The New Conception of ’Separation,’ ” Christianity and Crith (New
York, 1948). O’Neill quotes the text in Catholicism ana American Freedom, 55-57.
” See John Tracy Ellis, The Life of James Cardinal Gibbons, Archbishop of Baltimore.
1834-1921. 2 vols. (Milwaukee, Wisconsin: Bruce, 1951), I, 308f., 321f.
’· ’’The Catholic Church in. American Democracy,” Press release, January 26, 1948,
N. C. W. C. Quoted in part tn O’Neill, Catholicism and American Freedom, 34f.
w Ob. ch., p. 22.

188

THE CATHOLIC CHURCH AND THE MODERN STATE

DIVERGENT OPINIONS
It is a remarkable fact that often an inclination—at
times even an enthusiasm—for the policy of separation has
appeared in Catholic circles. The enticing feature of sepa­
ration is the full freedom it promises to the Church; set
free from the crushing tutelage of the State, the Church,
it is thought, will be able to develop and act unrestrained.
Thus Félicité de Lamennais, in his struggle against the
State-controlled Church of France (1829), called upon the
clergy to break the bonds that tied them to the State and
its payroll ; to seize the right to communicate with the pope ;
to enjoy freedom of instruction and worship ; to become no
more subject to the laws of the State than any other group
of citizens. Such complete independence would be possible
only by foregoing all remuneration from the State treas­
ury.1 At a congress of Catholics in Belgium in 1863, in two
rousing speeches Count de Montalembert developed his
thoughts about separation and coined the alluring catch
word “a free Church in a free State.”1
2
It was not enthusiasm for separation but rather the mis­
ery and distress of the Kulturkampf that for a time aroused
the statesman Ludwig Windthorst, leader of the Centre
Party and German Catholics, to champion separation. “I
am not of the opinion that separation of Church and State
is in itself desirable,” he said ; “rather do I hold that only
an amicable co-operation is suitable for establishing the
happiness of peoples, but... I am beginning to believe that
conditions are gradually so shaping throughout the world,
by virtue of the development which the spirit of man is
undergoing, with unchristian ideas gaining the ascendancy,
that such a co-operation can no longer be maintained in the
long run. Thus it will become a matter of our attempting
this temporary or lasting separation calmly and with due
consideration of all the circumstances.”3
At a later date the Bishop of Cremona in Italy, Geremia
Bonomelli, in his volume The Church4 and in his Lenten
pastoral of 1905, spoke out at great length—hypothetically,
it is true, but nevertheless optimistically—in favor of sep­
aration. He looked upon it under current conditions as the
1 See Antoine Degert, “Félicité de Lamennais,” Catholic Encyclopedia, VIII. 762ff. See
also, Raymond Corrigan, S.J., The Church and the Nineteenth Century, 129-133.
* George Goyau, “Count de Montalembert,” Catholic Encyclopedia, X, 515.
* Speech in the Prussian Chamber of Deputies on June 22, 1883 ; stenographic records,
p. 2127.
4 The Church is the third volume in Bonomelli’s series entitled Seguiamo la raggione, 3
vols. (Milan, 1898-1899).

REJECTION OF PRINCIPLE OF SEPARATION

189

lesser evil and therefore as the relatively higher good. He
writes: “I have unbounded confidence in the might of
reason, and it seems to me that when the Church possesses
full and certain freedom under the shadow of the common
law and is able to count only on herself she will double her
zeal to do what she now cannot do. . . . Having come into
being without monarchs and republics, yes, under their
scourge and in opposition to their laws, the Church, made
strong only by the love of peoples and of the common law,
will be able to grow and flourish also under lack of sym­
pathy (from the same monarchs and republics). This is the
new period of history that opens before us, into which we
must and will enter bravely.”6
From the polemic viewpoint the attitude of non-Catholics might seem to oifer an indirect argument in favor
of separation. For many non-Catholic voices are raised in
urgent warning against the experiment of separation of
Church and State since by separation the Catholic Church
might be able to gain more power and elbowroom. We have
already called attention to such objections to separation in
the Introduction to this study.
Two Berlin professors of canon law who are commonly
regarded as authorities in this branch of jurisprudence
have often spoken out against separation as a policy that
will actually redound to the prestige of the Catholic Church.
It would be short-sighted and unrealistic politics, remarks
Paul Hinschius, were the State to treat the Catholic Church
as a private society; for by so doing it would only be
closing its eyes to the real phenomena of life and would set
free the greatest and most dangerous enemy in its own
midst, an enemy trained for hundreds of years in the art
of politics ; an enemy which knows how to utilize the free­
dom of the modern State and political life for the one pur­
pose it has at the present time, namely, the spread and
vindication of the Catholic philosophy of life; and which
at the same time with its marvelous tact and skill knows
how to enlist in its service the current actualities of internal
and external politics in the individual states.® Wilhelm Kahl
develops these thoughts more fully. If the State were to
surrender its sovereign rights over the Church, by de­
grading her to the status of a private society, such action
* Translated from the German edition, Dit Kirche, by Valentine Holzer (Munich, 1903),
393f.
• "Staat und **
Kirche,
in Marquardsen, Handbuch dtj ofientlhchen Rechfs, 265.

190

THE CATHOLIC CHURCH AND THE MODERN STATE

would menace the most vital interests of the State itself.
The Catholic Church would only seem to be the loser; in
reality she would gain proportionately all the more, by
an enlargement of her competence, because all matters of
the “mixed forum,” where the Church and State both feel
they have juridical competence, would cease to exist; and
secondly, also by the cessation of all State control and
supervision. The freedom thus obtained would gradually
be used by the Church for a renewal of Church control
over the State, Kahl holds. To this end the Church would
know how to use two means in particular to recapture
control over the State: first, constitutionalism, for she
knows how to gain influence in parliaments ; and secondly,
her own independent status as a society after separation.
All this would lead to a situation that could be designated
as a free Church in an unfree State, as the example of
Belgium already shows. In North America, thanks to demo­
cratic constitutionalism and the right of universal suffrage,
Catholicism dominates the Federal and state governments
to such a degree that the transition to some other ecclesiastico-political system can only be a question of time,
Kahl believes.7
Many others agree with these appraisals. Then, too, the
point is stressed that in the event of separation the Catholic
Church, by reason of her independent juridical organization
that relies in no way on State support, holds a position
more favorable than that of any other denomination. For
the Evangelical church, Paul Drew remarks,8 separation
spells ruin. In short, there is fear that the catch phrase
“a free Church in a free State” would be changed by the
advantage of the Catholic Church into the slogan “a free
pike in a free (or open) carp-pool,” as the Protestant theo­
logian Ernst Troeltsch once phrased it.9

THE CHURCH’S ATTITUDE
Despite such optismistic judgments, the Catholic Church
refuses to give her approval to the system of separation.
Rome’s rejection of Félicité de Lammenais’ theory10 is
evidence enough in this respect, and the unfavorable treat­
ment accorded Bonomelli’s proposal at the hands of Pius
X leaves no further doubt as to the Church’s stand. When
T Lehtsystem des Kirchenrechts und det Kircbenpolitik, I, 305f.
• Zeitschrift fût Théologie und Kitche, XVI (1906), 80.
• Die Trennung von Stoat und Kitche (Tubingen, 1907), 36.
10 Encyclical Mirari vos, August 15, 1832, in ASS, IV (1868), 541S. See Also, *Denzfager
»
Enchiridion, nos. *
1616.
1613

REJECTION OF PRINCIPLE OF SEPARATION

191

the bishops of Lombardy expressed to the pope their regret
with regard to the indiscreet utterances of their episcopal
colleague, he assured them that he too regarded the publica­
tion as deplorable, since it was calculated to make propa­
ganda for modern liberalism. The fine distinctions and
reservations in the proposal, he believed, would remain un­
noticed by the masses and the only impression Bonomelli’s
writings would create would be astonishment that a person
of such authority championed such views.11 When Bishop
Bonomelli visited Rome to plead his cause, he was refused
an audience.
The principle of separation was officially condemned by
Pius IX in the Syllabus (thesis fifty-five) : “The Church
should be separated from the State, and the State from the
Church.”11
12 A simple application of the rules governing the
correct interpretation of propositions rejected in the Syl­
labus, shows that the Church does not condemn the separa­
tion of Church and State absolutely and under all circum­
stances, but merely does not approve of it in principle. We
are dealing with the principle of the thesis, which is that,
normally, Church and State belong together and should
not be torn asunder. Monsignor Joseph Pohle puts it in
these words: “As it is unnatural for a married couple to
live separated, although separation may be defended in
particular instances as the better or less harmful arrange­
ment in view of quarrels which have arisen, so also the
ideal relation between Church and State is to be found, not
in the separation of the two, but in their harmonious co­
operation.”13
Six weeks after the Syllabus was published, Felix An­
toine Dupanloup, Bishop of Orléans, France, published a
commentary which removed all misunderstanding regard­
ing the meaning of the condemnation of the theses in the
Syllabus. “His famous distinction between la thèse and
l’hypothèse,” says Father Corrigan, “satisfied all wellmeaning objectors and received, moreover, the warm ap­
probation of Pius IX and six hundred and thirty bishops.
It had, in fact, been anticipated by the ultraconservative
Civiltà Cattolica in its issue for October 2, 1863.”14 An
anonymous writer, discussing the Congress of Malines,
11 J. Sâgmûller, Dit Trennunç ton Kircbe und Stoat (Mainz, 1907), 20.
12 See also. Allocution of Pius IX, Acerbissimum, September 27, 1852; Leo ΧΙΠ, En­
cyclicals, Arcanum, February 10, 1880 ; Immortale Dei, November 1, 1885 ; Ubertas,
January 20, 1888.
μ ’’Religious Toleration,” Catholic Encylopedia, XIV, 771.
** The Church and the Nineteenth Century, 182.

192

THE CATHOLIC CHURCH AND THE MODERN STATE

Belgium, and Modern Liberalism, insists on the distinction
between tesi and ipotesi. He writes: “These liberties,
stated as a thesis—that is, as principles of universal appli­
cation to human nature and the divine plan—should be
and have been condemned absolutely by the Roman Pon­
tiffs, particularly by Pius VI, Pius VII and Pius IX (in
1852). But in the form of hypothesis—that is, as an ar­
rangement suitable to special conditions in this or that
nation, they may well be legitimate. As such Catholics may
cherish and defend them. . . . ”15 Thus, as the historian
Father Corrigan remarks, “Bishop Dupanloup placed all
the anthemas of the Syllabus, including the one against
separation of Church and State, in their proper context,
showing that they held for the Christian society which
should exist, but that in the unfortunate conditions then
prevalent, in which insistence upon the ideal would be
futile, the Church might be content with less.”16
Accordingly, the Church cannot fairly be accused of in­
consistency if in a country where she has been oppressed
and obstructed, perhaps even persecuted, she seeks by
separation to make her status more tolerable. For example,
the Catholics of Geneva, Switzerland, joined with the radi­
cals and socialists in presenting a resolution for separation
which by plebiscite on June 30, 1907, became law. But
actually ever since 1873 the Church had been denied recog­
nition as a society sanctioned by public law, a status she
had previous to that date enjoyed on a par with the Pro­
testant church on the basis of solemn international agree­
ments. The Geneva Kulturkampf aroused indignation
among Catholics against the injustice meted out to them
because the “Old Catholics,” who yielded obedience to the
anti-Catholic law of the State, were regarded as the na­
tional Catholic Church, whereas Catholics loyal to the pope
and the Roman Catholic Church were robbed of their
churches, parsonages and their share of public monetary
support for divine worship, and were obliged to organize
as private associations. At the same time, Catholics were
compelled to contribute to the budget of the Protestant
church, and to that of the Old Catholic Church as the juri­
dically recognized “Catholic” Church, while for their own
religious needs they received not even the smallest pecuniary aid from the treasury. The Protestants, on the other
« CMlti Catlolica, ΙΠ (Rome, 186Î), Sirie V. 149.
χ· Op. cit., p. 298. See also, Maurice Bévenot, S.J., “Thesis and Hypothesis,’’ Theological
Studies, XV. (September, 1954), No. 440-446.

REJECTION OF PRINCIPLE OF SEPARATION

I

i

,

'

193

hand, had been favored, for to them a lump sum of
800,000 francs (about $160,000) had been paid at the
outset.17 In consequence of the law of separation in Geneva
all denominations are now placed on a par to the extent
that none of them any longer receives funds from the State
or communal treasuries, and so they have all become free
churches.
The conduct of the Geneva Catholics is in perfect accord
with the view expressed by Leo XIII much earlier in a let­
ter to the bishops, clergy and faithful of France. The pope
said that in certain countries where there is separation,
“It is a condition, which, if it has numerous serious inconveniences, also offers some advantages—above all, when,
by a fortunate inconsistency, the legislator is inspired by
Christian principles—and, though these advantages cannot
justify the false principle of separation nor authorize its
defense, they nevertheless render worthy of toleration a
situation which, in practice, might be worse.” Then he
added : “But in France, a nation Catholic by her traditions
and by the present faith of the great majority of her sons,
the Church should not be placed in the precarious position
to which she must submit among other peoples.”18
What are the reasons that make it impossible for the
Church to approve in principle the policy of separation?
For clarity’s sake they can perhaps be epitomized in two
propositions: (1) The State may not separate itself from
the Church; and (2) the State cannot and does not desire
to divorce itself from the Church.
(1) The State may not effect a separation from the
Church, for such action is irreconcilable with the will of
God ; separation, as we shall presently see, leads almost of
necessity to separation from religion. An irreligious State
or a State that puts Judaism, Mohammendanism and pa­
ganism on a par with the Christian religion is also incom­
patible with the Christian faith. The Church has condemned
the doctrine that “the best political system and civil prog­
ress absolutely demand that human society be organized
and ruled without regard to religion, as if religion did not
exist, or at least without discrimination between true and
false religions.”19 Every man is in duty obliged to serve
ir See Gregor Reinhold, ’’Diocese of Lausanne and Geneva,” Catholic Encyclopedia, IX, 42.
M Encyclical Au milieu des solicitudes, February 16, 1892, in Leonis X1I1 Pontificis
Maximi Acta (Rome, 1893), ΧΠ, 39. English translation from The Great Encyclical
Letters of Pope Leo Kill, 262.
» Encyclical of Pius IX, Quanta cura, December 8, 1864, in ASS, III, (1867), 162. See
also, Denzinger’s Enchiridion, no. 1689.

194

LJ
Ιί
H

THE CATHOLIC CHURCH AND THE MODERN STATE

God, not only as an individual, but also as a member of
society; therefore the State, being the most perfect of
purely mundane institutions, cannot get along without reli­
gion. In other words, the State too has its religious obliga­
tions. The objection that the State is not a physical person
and hence cannot have religious duties is superficial, even
though this objection is at the present time exploited anew
in academic and juridical quarters. “The idea of ‘the rea­
son of the State’ as something beyond morality,” says H.
Eommen, “is irreconcilable with the Christian idea of the
end of the State, because it ignores the service character
of the end of the State. The genuine Christian contribution
to the philosophy of the State has been the doctrine of this
service character of the State.”20 For the State represents
the community, and the community must on its part look
after the interests that are essential to the temporal wel­
fare of individuals and of society, and among such interests
is religion. If the citizens no longer agree in religious pro­
fession, the State must, as long as the majority of its citi­
zens still hold firmly to Christianity, make the heritage of
Christian ideas which is the common possession of the
great Christian confessions the basis of its institutions and
its actions. Pius X, speaking of the French law of separa­
tion, states that “It contains the notorious denial of the
supernatural. It restricts State action to the striving for
temporal welfare, which indeed is the proximate end of
civil society; it leaves altogether out of consideration the
ultimate purpose of existence, eternal happiness, promised
to men after this short life, as if it does not concern the
State in any way. And yet the State has the duty not to
place any obstacle in the way of, but rather to promote the
attainment of, this highest and absolute good, to which the
entire order of perishable things is directed here on
earth.”21
There are, it is true, states where separation holds in
which separation from ecclesiastical affairs does not in any
way signify a surrender of solicitude for religion and
Christianity on the part of the State. This is especially true
of the oldest type of separation, that of the United States
of America, where the Christian religion holds a very im­
portant place not merely as a matter of fact, but also on
the basis of legal maxims and arrangements. The consti* The State in Catholic Thought, 309.
«Encyclical Vehementer nos, February 11, 1906, in ASS, XXXIX, 5; English trans­
lation from American Catholic Quarterly Review, XXXI, (April, 1906), 211.

REJECTION OF PRINCIPLE OF SEPARATION

195

tutions of most of the states in the union emphasize the
importance of religion for public life. The sessions of Con­
gress and of practically all the state legislatures are opened
with prayer, special chaplains being appointed and paid
for such service; and the President of the United States,
as well as the governors of the individual states, has by
prescriptive right the authority to appoint days of thanks­
giving and prayer. We have already mentioned that in state
institutions, as well as in the army and navy, chaplains of
various denominations are appointed by the state and sup­
ported from the public treasury. “There is no Federal legis­
lation in the United States on the observance of Sunday,”
writes Father Thomas Slater, S.J., “but all the states of
the Union have statutes tending to suppress unnecessary
labor and to restrain the liquor traffic. In other respects
the legislation of the different states exhibits considerable
variety.”22 Then too, in the United States we find many
penal statutes against blasphemy which have been declared
constitutional as not subverting freedom of speech or lib­
erty of the press.23 In the article on American Decisions
(recorded in the American and English Encyclopedia of
Law, Vol. V, 335) we read that “Christianity being recog­
nized by the law, therefore blasphemy against God and pro­
fane ridicule of Christ or the Holy Scriptures are punish­
able at common law.”24 Gatherings for religious worship
are protected under criminal law. Marriage is recognized as
valid even when contracted only according to forms pre­
scribed by Church law.
It is precisely conditions so favorable to religious and
Christian life in the United States that have largely
brought the policy of separation into such good repute. The
American type of separation, so unlike that in many Euro­
pean countries, is not the product of hostility to religion
and the Church, rather, it resulted by political necessity
from conditions existing at the founding of our republic.
The juridical basis of separation was there and it was ex­
pressed in the First Amendment to the Constitution : “Con­
gress shall make no law respecting an establishment of
religion, or prohibiting a free exercise thereof.” But a
» See article "Sunday,” Catholic Encyclopedia, XIV, 336. See also, Stokes, op. cit.,
ITT, pp. 153-176.
** American and English Encyclopedia of Law (1900), IV, 582. See also, Stokes, op. cit,,
III, pp. 149-153.
** Cited by John Webster Melody, "Blasphemy,” Catholic Encyclopedia, Π, 596. See also,
William George Torpey, Judicial Doctrines of Religions Rights in America (Cherry Hill,
N. ramtina: The University of North Carolina Press, 1948), 58-60.

196

THE CATHOLIC CHURCH AND THE MODERN STATE

separation was not effected after the manner of separation
in most European countries, for there never had been an
established national or State church in the United States.
About one hundred seventy years ago, the thirteen original
states harboring members of various religious sects willed
to combine to form one great commonwealth based on a
new social order, and therefore the only practical proce­
dure was for the new republic to be indifferent as to the
arrangement and administration of church affairs, al­
though it always manifested numerous evidences of a defi­
nite desire to encourage religion as a basic factor among
the people.
It has been asserted that American Catholics condemn
the type of separation of Church and State which is ex­
pressed in the First Amendment to the Constitution. No­
thing can be further from the truth, as we have already
shown.25 Competent non-Catholic scholars have recognized
the participation of leading Catholic laymen in the writing,
ratification, and the support of the original Constitution
and the Bill of Rights. The position of the American hier­
archy has been open, emphatic, unequivocal, and consistent,
from John Carroll down to the present.26
On the other hand, in nations where formerly the State
recognized the privileged position of the Church and, tiring
of living with her, then gave her, so to speak, a bill of
divorce, the State almost of necessity presses on to the
renunciation of religion too. The neutrality which the
State in such cases desires to assume with respect to the
various religious denominations easily develops into an
avowed endeavor to expel religion from public life or, as
the saying goes, to “laicize” the State itself. This is clearly
manifest in the case of France. The bonds which had
existed betwen Church and State were, one after the other,
torn asunder with bitter logical consistency. Public prayer
at the opening of the Chamber had already been abolished
in 1884; in 1904 by order of the Minister of Justice cruci­
fixes and religious symbols were removed from courtrooms;
a decree in 1907 did away with the inscription Dieu protège
la France on coins. In the law of separation itself it was
henceforth forbidden to affix a religious symbol to public
buildings, or to display it in public places, except on build­
ings of religious worship, in cemeteries, museums and
“ See above, p. 186f,
MFor a detailed proof, see James M. O'Neill, Catholicism and American Freedom, 17-36.

REJECTION OF PRINCIPLE OF SEPARATION

197

exhibition. How conscientiously this legal enactment was
carried out even to the point of absurdity is evidenced by
the fact that, on the occasion of the repairing of the
famous clock on the Palace of Justice in Paris, the words
Anno Domini in the memorial tablet that recorded previous
repairs were stricken out and the simple inscription sub­
stituted: “R. P. restituit 19O9.”2T “The Years of the Lord”
have vanished in France!
The only thing still wanting was that priests should
be forbidden to wear the clerical garb, as had been several
times (in 1905 and 1909) proposed in the Chamber. Ac­
cording to the statement of Aristide Briand, minister of
public instruction and worship in France (1906-1908),
the Commission on recommendations for the new law of
separation had fully considered this point, too, but in the
end had dropped it so as not to risk the semblance in intol­
erance or the danger of absurdity. The mania for portray­
ing the ideal of the irreligious State in terms of so-called
culture leads to deeds devoid of tact and even of inhu­
manity. Thus, official France kept its representatives from
the ecclesiastical burial service commemorating the vic­
tims of a national disaster and made the President of the
Republic in his speech at the open graves of the victims
scrupulously refrain from any mention of the hereafter.
Pius X did not therefore exaggerate when he wrote to the
Catholics of France: “You know the aim of the impious
sects which are placing your heads under their yoke, for
they themselves have proclaimed with cynical boldness that
they are determined to ‘decatholicize’ France. They want
to root out of your hearts the last vestige of the faith which
covered your fathers with glory.”28
It is obvious that the Church cannot in principle admit
as just and defensible a system of separation which, if
carried out fully and with absolute consistency, leads to
such a situation. For it must be granted that the ideal of
the French rulers, the laicization or secularization of public
life, is only a further development of the concept of separa­
tion. Separation from the Church is on the high road to
separation from religion. This can be shown by the follow­
ing consideration: If we ignore ecclesiastical affairs, the
net result is the equality of religious denominations and the
* Kôlniscbe Volkrzeitung (1909), n. 206.
M Encyclical Vehementer nos, in ASS, XXXIX, 15 ; American Catholic Quarterly Review
translation, 219·

198

*
i
t

THE CATHOLIC CHURCH AND THE MODERN STATE

fact that none enjoys preference over the others. If we
wish to make freedom of conscience a full reality, we must
grant full parity to the individual citizen’s theological and
philosophical view of life and give no preference to a
Catholic’s or a Protestant’s philosophy as opposed to that
of a Jew, a positivist, a freethinker, or an atheist. Very
illuminating in this respect is the argument presented
by Deputy Chabert in the resolution he offered forbidding
the wearing of the clerical garb. The garb, he argues,
makes the priest stand out unduly from the mass of other
citizens, as though he were a being of a higher order; it
awakens in many a one who sees it hostile and painful
feelings; on the other hand, it also prejudices its wearer
with respect to the enjoyment of freedom, for it subjects
him to continuous supervision by his superiors and the
public; a gesture, a word, even his entrance into a house
often suffices to expose him to suspicion. Chabert then con­
cludes his cynical remarks with the statement: “Forbid
the soutane and the priest will disappear among the
masses; free him from his superiors and that monstrous
tyranny (i. e. of universal controls) which weighs on him
every moment, and he will hasten into the arms of the
world, of ideas, of life !”28
(2) If in purely natural and Christian thought it is
the duty of the State to support and promote religion for
religion’s sake, the same duty devolves on the State too
from the viewpoint of the State’s own interest, especially
if the State is historically united with the Church by
countless ties. The State which separates from the Church
creates for itself the gravest difficulties because thereby it
exposes the finest roots of its power to destruction; and
the most efficacious protection with which religion sur­
rounds and nourishes these roots then vanishes or is weak­
ened. But the deepest, yes, really the only root of the State’s
power is the obedience of its citizens. “Looking at the
matter more closely,” says Jellinek, “the entire power of
the State rests on the obedience of its subjects; all the
State’s activity is transmuted obedience. That power can
fulfill its functions only by the real and personal achieve­
ment of individuals and associations. Only through these
can it exist, will, and carry out what has been willed. This
holds true for every State; only in proportion to the meas” Rerae da clergi français (LX1), 238ff. Obviously discussion of the deHeal garb is
of value in countries where by long custom the soutane has been worn in public. It has
little bearing on conditions in our country.

t>■

REJECTION OF PRINCIPLE OF SEPARATION

199

ure of obedience and the performance of duty by its
members can the State achieve the fullness of its power
and strength.”30 Now it is the Church, above all the Catho­
lic Church as the principle of authority, that establishes
obedience religiously and morally and thus engraves a con­
sciousness of the sense of duty in the depths of the human
heart as on a rock foundation. “Hence it is that the
Church,” Leo XIII teaches, “the guardian of the truest
and highest ideas of political sovereignty—since she has
derived it from God—has always condemned men who
rebelled against legitimate authority, and disapproved
their doctrines. And that, too, at the very time when the
custodians of power used it against her, thereby depriving
themselves of the strongest support given their authority
and of efficacious means of obtaining from the people obe­
dience to their laws.”31
So it is ; for every other foundation for supporting the
sense of authority is exposed to fluctuation and collapse.
What if I look upon the State as the product of evolution?
What has come into being by historical factors can become
obsolete and fall into decay and as a citizen I can arrive
at the conviction that the State is no longer worthy of pres­
ervation and forbearance. What if I regard the law of
the land as merely an expression of the will of society or
of the majority of the people? The fact that the great
majority would have it so cannot convince me that what
has been so willed is good and just. Consequently it is
precisely the modern State that has every reason for
guarding and promoting belief in God.
Modern France has chosen the school in particular as
the field for scientific experimentation to try out “laicization,” that is, the dechristianization of the State. And it
has done so with telling success, as statistics irrefutably
demonstrate. In a report submitted for a bill proposing
legislation against crime, Deputy Raiberti announced that
the number of crimes and misdemeanors committed by
minors up to sixteen years of age in 1907 (the second year
of separation of Church and State in France) had in­
creased by 1892 cases as compared with the previous year;
in 1908 once more by 992 cases. Among youths from sixteen
to twenty years of age, the corresponding increase
*>Das Recbt des modemen Staates, I, 412.
n Encyclical Au milieu des solicitudes; English translation from The Great Encyclical
Letters of Pope Leo Xlll, 256.

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THE CATHOLIC CHURCH AND THE MODERN STATE

amounted to 1580 cases. The number of persons accused
under military law increased 50% ; the number of military
personel accused of crime against the common law in­
creased by 39%.
Gradually even French radicalism and its press were
horrified at the Mane-Thecel-Phares inscription which the
hand of statistics had written on the wall of the nation’s
public schools, now “purged” of crucifixes. But in seeking
the ultimate reason for all this mischief, radicalism is still
groping in the dark. If it were really sincere, it would
have to ask itself, as Figaro, popular French newspaper,
advises it to do, “whether it acted wisely when it banished
religious instruction from the schools and all those tradi­
tional dogmas which had produced the education that once
was the pride of France. Radicalism would also have to
ask itself what had supplanted that education in the lay
schools. Then it would have to confess that no substitute at
all was provided for the old religious and moral education
and that here is the fountain head of all the evil.”32 What
the great Bishop von Ketteler recognized as the most
serious danger of his age,33 presents itself today to the
mind of even a casual observer of the signs of the times;
namely, that it is the spirit of denial of authority that now
seethes in the bosom of mankind, that breaks forth in in­
dividual events, now here, now there, like a devastating
stream of fire to gnaw at the foundations of human society
secretly, as a worm at the roots of a mighty tree.
There is another foundation and source of national
strength and political power that needs today, perhaps even
more urgently than at any time in the past, the protection
of the Church’s unhampered action. Marriage, under the
aspect of the purity and sacredness of sexual life, is so
seriously threatened by countless dangers too well known
to require further explanation, that the distinguished phi­
losopher and pedagogue Friedrich Paulsen, was roundly
applauded when, shortly before his death, he wrote the
words: “If we permit (these dangers) to go on spreading
like wildfire, it will be said of the life of the German people,
too, that the ax is laid to the roots of the tree.” He too
candidly admits that the “old” Church has earned lasting
merit for her work of imparting a moral tone and a
spiritual character to our life in that she made it her
“Alfred Beunier in Figaro. August 16, 1910.
n Freiheit, Autoritat und Kirfbe,
1862), 65.

DIFFICULTIES IN APPLICATION OF SEPARATION

201

business to educate the will especially, and in the persons
of the saints had educated heroes of self-denial. Then he
adds: "That even today we find life and nourishment in
that heritage is to me beyond doubt. Actually the greatest
danger for us is that we are wasting it carelessly, that we
allow it to be wasted by perverse theories.”34 For this
reason, also, the modern State ought not to seek separation
from the Church; on the contrary, it ought to address an
earnest entreaty to the Church, in whose actions streams
of divine power are always stirring: “Save us! We are
perishing !”35
D. DIFFICULTIES IN THE APPLICATION
OF SEPARATION
In the preceding chapter we pointed out the reason
why the State should not separate from the Church. For
the sake of religion, as well as for its own good, it should
not do so. Moreover, the State cannot divorce itself from
the Church. It actually does not wish to do so, and it will
be increasingly reluctant to apply the system of separation
concretely or formally; that is, to carry through strictly
and inexorably the consequences of separation in a manner
just and fair to both parties.
The reason for the great difficulty—indeed, the moral
impossibility of absolute separation—as Pius X shows,
lies in the fact that separation “upsets the order provi­
dentially established by God in the world, which demands
a harmonious agreement between the two societies, the
civil and the religious, although each exercises its author­
ity in its own sphere. It follows necessarily that there are
things belonging to them in common, regarding which
the two societies must have relations with one another.”1
There are many such points of contact and a community
of interests, and because of the commanding position which
has come to the Church in the course of history she exerts
her influence in the most varied spheres of public life.
The efficacy of any other society, however widespread in
the State, however zealous and versatile its activity, cannot
be compared at all with the activity of the Church, with
the depth and amplitude of her influence on the life of
·* Die Woche (The Week), 1907, n. 48; quoted above according to the report given in
Allgemeine Rundschau, 1907, n. 49, 708.
» See Matt. 8:25.
* Encyclical Vehementer nos, February 11, 1906, in ASS, XXXIX, 5; English trans­
lation in Amertcan Catholic Quarterly Review (1906), 211.

202

THE CATHOLIC CHURCH AND THE MODERN STATE

peoples. Therefore it is impossible for the State to show in
practice the same indifference to the Church as it mani­
fests toward any other society. The Church and Christi­
anity are the most public affair in existence. Hence the
Church by its very nature cannot be treated as if it were
identical with a private society, a joint-stock company,
a scientific organization, an amusement association, or a
political party.2
Italy offers a famous, indeed a unique, example of the
difficulties that result from separation of Church and
State. After the capture of Rome on September 20, 1870,
when plans were being made to carry out Count Cavour’s
ideal of separation, the so-called chiesa libera in libero
stato (a free Church in a free State), the old difficulty
that had been recognized as early as 1860 emerged once
more : what stand to take with respect to the pope. Despite
separation, it was not feasible to classify Pius IX merely
as Count Mastai-Ferretti, one of Italy’s citizens. To do so
the Italian statesman Marco Minghetti believed, would
have been possible if separation had been introduced out­
side Italy also, in all the states of Europe. But as long as
the Catholic hierarchy was still recognized in the public
law of any European state, as long as relations with the
pope as a sovereign continued in force, there would have
been energetic opposition were Italy to treat him as a sub­
ject. Had it been possible to carry out that plan, antiCatholic statesmen argued, Italy’s prestige would have been
able to make religious interests, and papal influence over
the whole world, subservient to secular purposes. But if all
the states were to protest against the abasement of the
pope to the position of Grand Chaplain and Almoner of
the king of Italy, that would, on the other hand, be dan­
gerous for Italy ; the pope then leaving Italy and traversing
the various states of Europe, would become the greatest
threat to peace. Thus, compelled by necessity, the State
had to safeguard the pope’s sovereignty with the Law of
Guarantees.3
At the beginning of the present century, the influence
and significance of the papacy as head of the Catholic
Church throughout the world moved another State also,
where separation is the law, to break through the barriers
’ W. Kahl, Lebrsystem, I, 305,
» M. Minghetti, Stato e Chiesa (Milan, 1878); here translated from the German editon,
Staat una Kirche (Gotha, 1881), 241ff. See also, U. Benigni, “Law of Guarantees,’*
Catholic Encyclopedia, VII, 48f.

DIFFICULTIES IN APPLICATION OF SEPARATION

203

of its constitutional principle, in a single instance, for
political reasons. This was the United State of America.
As noted previously, so far as the United States government
is concerned, the hierarchy and its head have no existence.
But there did exist in the newly acquired Philippine Islands
ecclesiastico-political difficulties which the United States
could hardly settle without direct negotiations with Rome.
And so it was decided in 1902 to appoint the Honorable
William H. Taft chairman of a special mission to the Vati­
can to adjust various difficulties. His colleagues on this
mission were Associate Justice James F. Smith, of the
Supreme Court of the Philippines, the Most Reverend
Thomas O’Gorman, Bishop of Sioux Falls, and a repre­
sentative of the Judge Advocate’s Department of the U.
S. A. The most difficult question the commission had to
settle was that of the ownership of the friars’ lands, these
being the lands held by Spanish priests and Brothers of the
Dominican, and Augustine Orders, and the Recollects and
Friars Minor, two branches of the Franciscans. In order
to cover at least formally the infringement of the princi­
ple of separation of Church and State, in the instructions
to the members of the commission from the Secretary of
War, the Honorable Elihu Root, it was stated that the
mission “will not be in any sense or degree diplomatic in
its nature, but will be purely a business matter of negotia­
tion.”4
The cases just mentioned had indeed to do with some­
what isolated, casual difficulties involved in the logical
application of the system of separation. But there is an­
other difficulty that must recur in some form or other in
every State where separation is the policy. If in private
associations established for the maintenance of worship,
difficulties arise as to doctrine and discipline, and appeal
is made to public courts, such tribunals, in order to be
competent to award the society’s property to one or the
other party in a congregation where one sector has lapsed
into schism, require a precedent (a previous legal decision)
as to which of the litigating parties represents the orthodox
viewpoint as regards doctrine and discipline. This prece­
dent can only come from either an ecclesiastical or a civil
court. But in either case the principle of separation is
violated. For a State that does not recognize the hierarchy
♦ See Anson Phleps Stokes, op. cit., II. pp. 315-320; John Tracy Ellis. The Ufe of fames
Cardinal Gibbons, II, 103-116.

Μ■

204

I

ϊ

THE CATHOLIC CHURCH AND THE MODERN STATE

cannot empower it to make juridical decisions, and on the
other hand a State where separation holds cannot on its
part intervene juridically in the sphere of religious doc­
trine and discipline which it has freely surrendered and
ignored. Hence in practice a choice must be made between
these two illogical procedures.
Under the American system of separation, churches,
though not of the State are in it. “In general,” says Anson
Phelps Stokes, “the position of the courts toward the
Roman Catholic Church is precisely what it is toward
other religious bodies, and they refuse to pass on theological
or ecclesiastical matters unless the case at issue has some
relation to civil or property rights.”5 The civil courts recog­
nize the authority of ecclesiastical courts in all matters of
religious faith and practice when it is shown that the latter
have competent jurisdiction and that procedure has been
regular. But there are times when one of the parties in a
church dispute is dissatisfied with the ecclesiastical decision
and strives for redress in the civil courts. Cases before the
civil courts involving discipline are relatively few, but
those regarding the ownership and administration of prop­
erty and breaches of trust are many.®
In the United States, in awarding church property to
a party in cases of schism where the Roman Catholic
Church is concerned, the courts generally take cognizance
of the decision of the archbishop or bishop, as head of the
parish organization, who decides which of the parties in­
volved has retained the correct doctrine and norms. Under
the French Law of Separation, on the contrary, it was left
to the discretion of the Council of State to decide which of
the several associations for religious worship laying claim
to the same aggregate of church property is the genuinely
Catholic association.7
•Op. cit., Π, p. 393.
• "Among the types of cases involving the Church which have come before the
courts in this country are: the power of the archbishop to appoint directors of a
corporation; the relations between bishop and priest; the rights of pew owners;
the relative powers of the bishop and the congregation in appropriating church
property; the liability of bishops on contracts and on the manner of a priest's
salary; the question of land title in cemeteries; the determination whether a per­
son is a Catholic; the exclusion of non-Catholics from Catholic cemeteries; the
powers of independent Catholic corporations; the legal status of the Jesuit So­
ciety; the rights of the minority membership of a congregation; the admissi­
bility of parish registers in evidence; the question of the legality of a priest’s
expulsion; the removal of a priest without notice; excommunication for slander;
the liability of a church for a sexton’s salary, etc." (Stokes, ob. cit., ΠΙ, p. 593)
’ See above, p. 66f.
’
’

DIFFICULTIES IN APPLICATION OF SEPARATION

205

In the Philippines at the beginning of the present cen­
tury, a few priests, tiring of celibacy, joined with the
politico-revolutionary party headed by the schismatic and
insurgent general Gregorio Aglipay, to form the so-called
Philippine National Church. The schismatic parish or­
ganized by the Philippine National Church in Tambobong,
in the province of Rigal, brought action against the Catho­
lic Church in an effort to obtain surrender of the building
and property belonging to the original Catholic parish.
Sèveral other churches also belonging to the original catho­
lic body were seized by the schismatics. “In an effort to
settle these troubles,” says Father John Tracy Ellis, “the
American government in Manila in July, 1905, empowered
the supreme court of the Philippines to render the final
judgment concerning the ownership of the properties. After
a long delay, the court finally gave its decision in Novem­
ber, 1906, in favor of the right of the Catholic Church to
the ecclesiastical edifices constructed originally for the use
of its communicants, and a short time thereafter the Aglipayan clergy were compelled to turn over the churches
which provided a tremendous blow to the schismatic
cause.”8
A similar difficulty may arise when perchance a priest,
because of an unorthodox faith or some crime not punish­
able by civil law, is disciplined by ecclesiastical authority
and deprived of his income. Ought then the State to whose
courts the disciplined cleric appeals against the ecclesias­
tical judgment, to decide whether there was an offense
against doctrine or clerical discipline on the part of the
accused cleric?9 The problem remains.
So far as Germany is concerned, a settlement of prop­
erty rights necessarily resulting from separation of
Church and State involves an almost insurmountable ob­
stacle. On the occasion of secularization in 1803, the Ger­
man states took over, in Article 35 of the Resolutions of
the Deputation of the Empire, the international obligation
of providing for the expenses of public worship, school
instruction for children, and the founding of useful insti­
tutions within the areas of their respective governments.
This promise was honored very belatedly, and only in part,
in concordats and bulls of circuminscription in which the
maximum sum to be regularly paid by the states for public
■ The Life of James Cardinal Gihbonst Π, 101f.
•See Stokes, op. cit., ΙΠ. 391-395,

206

THE CATHOLIC CHURCH AND THE MODERN STATE

worship was fixed.10 Now on the supposition of separation
of Church and State, how was this point to be adjusted?
The modern State, Kahl admits, cannot shirk a conscien­
tious and involved settlement of its obligations without
denying its own moral character. Either a return of con­
fiscated property or a cancellation of its obligations would
be impossible; the states can satisfy their obligations only
by small but steady payments from their funds for public
worship. But as long as this procedure continues, separa­
tion cannot be taken seriously.11
France was in a similar juridical situation with respect
to the Church. In the Concordat of 1801 it had assumed the
obligation of providing bishops and pastors with a suitable
salary.12 This was a very modest return (modest, especially,
in its execution) for the concession of the pope which was
equivalent to an express surrender of the church posses­
sions which had been confiscated during the Revolution. The
settlement of the property problem on the occasion of sepa­
ration (1905) was certainly not difficult for the French
State; it had divorced itself from a legitimate marriage
with Church, just as Abraham had divorced the bonds­
woman whom he dismissed, early in the morning giving
her bread and putting a bottle of water on her shoulder as
he sent her away into the desert of Bersabee.13 The thought
that it had some duty or other to make restitution for the
church property that had been placed at the disposal of
the nation did not suggest itself to the French State ; prac­
tically all the non-confiscated church property the State
had restored after the Concordat also reverted to the
State ; all donations that had been made to the Church for
charitable purposes were transferred to State or com­
munal public institutions; the donors and their heirs in
the direct line could reclaim what had been donated in the
form of foundations for purposes of public worship. What­
ever remained after these requirements had been fulfilled
10 See Heinrich Bruck, History of the Catholic Church, translated by E. Pruente (3rd
revised edition, New York, hi. Y: Benziger Bros., 1885), Π, 342ff.
11 Lehrsystem, I, 307.
14 “When the French government assumed in the Concordat (1801) the obligation of
supplying the clergy with a revenue sufficient for their subsistence (Article 14) and for
the requirements of public worship, it was an obligation assumed by the State to make
restitution, at least m part, to the Church, whose property had been confiscated during
the first Revolution. On the other hand, when the Roman Pontiff in this same Con·
cordât bound himself and his successors, for the sake of peace, not to disturb the pos­
sessors of property taken from the Church, he did so on one condition; that the French
government should bind itself in perpetuity to endow the clergy suitably and to provide
for the expenses of Divine worship/’ (Encyclical Vehementer nos; English translation,
216).
“ Genesis 21:14,

DIFFICULTIES IN APPLICATION OF SEPARATION

207

was left to the Church’s determination, on condition that
associations for religious worship (such as the law pre­
scribes) be established with the funds. Since the pope de­
clared that such associations could not be permitted, be­
cause they contravene the Divine constitution of the
Church, the residue of the Church’s property also reverted
to communal institutions for the care of the poor and for
other charitable purposes.
Accordingly, the French government showed that it
did not desire an honorable separation at all. This is like­
wise evident from other peculiarities of its policy of separa­
tion. This policy provides for a strict police supervision of
public worship,14 by means of which the State sought in
a roundabout way to recover what had of necessity to be
surrendered by the abrogation of the State-controlled
Church with its traditions of political Gallicanism : namely,
limitations of freedom of worship under police restriction
and despotism. The law of Separation, lamented Pius X,
subjects the associations for public worship “to a whole
series of prescriptions not contained in common law, ren­
dering their formation difficult and their continued exist­
ence more difficult still, when, after proclaiming the liberty
of public worship, (the law) proceeds to restrict its exer­
cise by numerous exceptions; when it despoils the Church
of the internal regulation of the churches in order to invest
the State with its functions ; when it thwarts the preaching
of Catholic faith and morals, and sets up a severe and
exceptional penal code for clerics. When it sanctions all
these provisions and many others of the same kind in which
wide scope is left to arbitrary ruling, does it not place the
Church in a position of humiliating subjection and, under
the pretext of protecting public order, deprive peaceable
citizens, who still constitute the vast majority of French­
men, of the sacred right of practicing their religion?”™
The allusion to “a severe and exceptional penal code for
clerics,” certainly means, above all, the famous pulpit para­
graph of the Law of Separation (Article 35), according to
which a priest is punishable with a prison term of two
years, if by sermon, poster, or the distribution of writings
he urges resistance to the execution of the laws, or, if his
sermon, etc., is merely aimed at causing citizens to resist.
M See above, p. 148.
» Encyclical Vehementer nos; English translation cited, 215. See also, A. Rivet, Trail/
da Celle Catholique et des Lois Civiles d* Ordre Religieux, II, 292’32$.

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THE CATHOLIC CHURCH AND THE MODERN STATE

It is easy to see to what injustice this latter provision can
lead in the administration of justice. Moreover, this para­
graph in the penal code is materially offensive to the foun­
dation stone of the civil law of the French Republic, namely,
to the doctrine of human rights as formulated by the Revo­
lution, which declares that a revolt on the part of the peo­
ple is a most sacred right and an indispensable duty if the
government violates the rights of the people (Article 34).16
The impossibility of absolute separation appears most
clearly and omninously in the sphere of public education.
The matter is not settled merely by excluding sectarian
instruction from the public schools. Indeed it is utterly
impossible to conceive education as a whole separated from
every definite concept of life, whether religious or philo­
sophical. Religion is of vital importance in any complete
education. Especially is the elimination of religion the more
serious in view of the psychological effect upon students
of this noticeable omission. And this is indeed the most
perplexing, the weakest point also in the American system
of separation. “In general, Americans are almost equally
concerned about two things—” says Anson Phelp Stokes,
“that sectarianism in every form shall be kept out of our
public schools ; and that the schools shall not de dominated
by secularism, which would be out of keeping with the
best American tradition.”17 The solution of the problem
has not yet been arrived at.
In France there was a definite awareness of the fact
that complete elimination of religion from public life, strict
neutrality with regard to the various concepts of life, was
impossible, particularly in the sphere of the school. M.
Payot, whose two manuals of ethical instruction the French
bishops had forbidden for the use of Catholic school chil­
dren, frankly acknowledged that fact: “We wish to uproot
the error which the founders of laicized instruction have
allowed to arise and spread when, in order not to frighten
their opponents, they introduced the concept of neutrality,
which in practice will prove to be an impossibility. It is
“ See Rothenbucher, Die Trtnnung von Kircbe ttnJ Stoat, 310.
Op, cit,, II, p. 497.

DIFFICULTIES IN APPLICATION OF SEPARATION

209

not possible to teach history, civics and morality without
taking a definite stand. . . . One does not translate and
explain a single page of Demosthenes, Tacitus and Pascal
without taking sides. There is no neutrality in respect to
truth and falsehood.”18
And the parties in control of French affairs did make
a choice. They suppressed the Catholic view of life—which
from time immemorial had been the prevailing concept and
had been protected by law—in favor of their own view of
life—which rejects all problems beyond sensible perception
as matters inaccessible to human knowledge; and, with
their cult of the fatherland and of humanity, with their
irreligious, or, more correctly, their anti-religious instruc­
tion, they regarded themselves as called upon to pioneer a
systematic and rational education based on a purely scien­
tific foundation.
Just how this neutral ethical education operated (and
still operates) in practice can be gleaned from the sum­
mary published in Catholic newspapers and periodicals on
the occasion of the protest of the Catholic bishops against
a number of textbooks (1909) ;19 and also from the dis­
cussion of “principles” which the speaker on the budget for
education presented to the Chamber: “We do not carry the
battle of religion into the school; we do not attack the
assertions of the Catholic Faith, but it goes without saying
that we will not submit to its contradictions and challenges.
We will go wherever our path may lead us.... We will seek
to teach in every branch whatever an impartial and con­
scientious method shall assure us is true. We care little
if this truth at times touches harshly on dogma. That
cannot be helped.”20 This “freedom from all presupposi­
tions” on the part of public school instruction appears in
its true guise in the instance of courts punishing Catholic
priests because in their catechism instruction they had
opposed the errors, insults and calumnies against the Catho­
lic Faith and the Church set forth in the textbooks and in
M Rerue du Clergf français, LXI (1910), 62 ff; see also, 617.
"Ce qu'on enseigne aux enfants dans nos écoles publiques,”
LX (1909),
6865.; LXI (1910), 27ff., 167ff.
» Revue du Clergi français, LXI (1910)· 212.

du Cltrgi français,

210

THE CATHOLIC CHURCH AND THE MODERN STATE

the schools. For by so doing they were said to have unduly
intervened in a sphere reserved to the school !21
If the State cannot observe a real, sincere and honorable
separation, a French publicist rightly remarked, if it
cannot instruct without injuring Catholics, it ought at
least to desist from playing the master in the school. Free­
thinkers are permitted to build and support, at their own
expense, schools where they can mutilate dogma at their
pleasure, but Catholic private schools are not allowed to
operate with such independence. State support ought to be
granted to both private and non-sectarian public schools
in proportion to the number of poor children instructed.
Only under such an arrangement is it possible to speak of
freedom, equality and religious peace.22 But instead, by a
resolution adopted in the Chamber on February 11, 1910,
Catholic free schools were taken from their already precari­
ous position into one which was equivalent to strangulation.
The schools were to enjoy freedom in all respects—as re­
gards curriculum and teaching methods, except that both
were to be cut to the pattern of the public schools; with
respect to the choice of textbooks, except that whoever held
the office of Minister of Education was authorized at any
time to inspect the books to determine whether they might
offend against the public order and morality as he under­
stood them; as regards the planning and arrangement of
the school buildings, except that the schools were to be sub­
ject to the danger of being closed if they did not comply
“ Kolnische Volkszeitung, 1910, n. 609. In 1910 between a quarter and a half
of France’s pupils were in Catholic schools. These schools found it increasingly
difficult to continue operation and demanded that the State help defray at least
part of the educational expenses of Catholic pupils. In 1951, over the bitter op­
position of Communist and Socialist deputies, the French National Assembly
passed the first of a series of compromise measures designed to extend govern­
ment aid to France’s hard pressed Catholic schools. By a clear majority of 370
to 238, indirect relief was authorized for Catholic secondary schools, that is, an
annual expenditure of 850,000,000 francs (about $2,500,000) to provide schol­
arships for needy high school students, which may be used either in public or
Catholic schools (about 309,000 secondary students attend Catholic institutions
in France). A bill, amending a 1951 law, approved by the National Assembly
provides allowances up to 1500 francs annually for every student finishing the
sixth grade of school, whether in Catholic or public school. This represents
about a $2,000,000 increase in State aid to primary schools. The school law
gives money, not to the schools, not even to parents as individuals, but to asso­
ciations of parents. Thus, at long last, despite the fact that France is a "secular
State,” the ever-present conflict over education shows hopeful signs of yielding
at least to the exigencies of practical life. (See Eric von Kuehne]t-Leddhin,
"How Pagan Europe," Catholic World (September, 1953), 441; see also his
article, "Catholic Education in Europe," Columbia (April, 1954), 4.
” Rtrne du Clergl francair, IXI (1910), 212.

DIFFICULTIES IN APPLICATION OF SEPARATION

211

with regulations of health and comfort; with respect to the
choice of teachers, except that, despite their certificates of
qualification from the State, they might be denied by the
State actual authorization to teach. And so a French news­
paper was indeed right when it remarked that a fourfold
halter had been put around the neck of the “free” schools
and placed in the hands of the government, which could
draw the end tightly whenever it chose to do so.23
The same absence of just neutrality is apparent also in
other spheres of public life. We have already alluded to the
legal ordinances that prohibit the display of religious to­
kens and symbols on public buildings and property under
the French Law of Separation. But there is no prohibition
against affixing all sorts of symbols that glorify non-religious, and even free-thought, philosophies of life. And yet
such symbols can cause offense or scandal just as readily
to a religious-minded citizen as a religious symbol can to a
freethinker,24 especially if the intention to offend is as
apparent as in the case of the marble statue erected on the
slope of the Montmatre, at the foot of the Sacred Heart
church, to honor the memory of Chevalier de la Barre, a
man who a century and a half ago was executed for heap­
ing insults on the Catholic Church.
While it is true, says Dean Stokes, that in the United
States “there has been no such rigid separation between
Church and State as so often developed in some European
countries,” but rather “mutual sympathy and understand­
ing,”25 there are nevertheless many questions—for exam­
ple, those concerning education, marriage, and divorce
(questions which canonists call res mixtae, that is, matters
of the “mixed forum”)—which are bound to lead to con­
flicts.26 He lists as serious difficulties at the present time,
“the question of the support of parochial schools; the civil
laws and regulations regarding marriage and divorce; and
the problem of legislation regarding the giving of birthcontrol information by licensed practitioners.”27 He re­
peatedly speaks of the necessity of “adjustments” in
Church-State relations.
What we have illustrated by pertinent examples in the
case of France and the United States, all other countries
** L’Unirerj, quoted in Der Ebassor, 1910, n. 79.
24 See Rothenbucher, op. cit., p. 208.
« Op. cit., ΠΙ, p. 649·
» Ibid.
n Ibid.» HI, p. 639.

212

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THE CATHOLIC CHURCH AND THE MODERN STATE

where separation has been introduced help to confirm;
namely, the tremendous difficulty, indeed impossibility, of
applying the principle of separation in its formal and com­
plete connotation. Infringements of the principle of sep­
aration may assert themselves even when the spirit that
motivated the introduction of the system was a friendly,
peaceful one, or amicable relationships have been consist­
ently preserved in general, as in the case of the United
States especially and Belgium and Brazil. More serious in­
fringements (or even, a blatant disregard for the basic
rights of the Church as a society) occur in countries where
separation has been motivated by a radical or militantly
hostile policy toward the Church, as in France, Mexico,
Guatemala and other Central-American countries, or by a
blatantly anti-religious attitude, as in countries under Communist domination.

S. fî/œ Pteikm &/anJ
Pe/iqbus fîtesJsm in fyiïteni
^ai/iû/ic fîZsuç/it
Today the perennial question of democracy and religious
freedom is being debated anew in contemporary Catholic
periodicals. Victor R. Yanitelli, S. J., points out that the
occasion of this controversy is the awareness of freedom in
political and economic life that is stirring the remote cor­
ners of the still free world. The modern democratic system,
which seems to be founded on the order of nature, appar­
ently demands, by virtue of its own internal structure, that
civil liberty be extended also to religious liberty—that is,
freedom of the Church, in the sense that all religions be
considered equal in such a regime and all enjoy a free play
of propaganda, since any exception to the rule or any pref­
erence for one religion over another would necessarily de­
stroy that system. Hence if such freedom of the Church
can prevail in a democratic regime, then the State-Church,
or the confessional State, is not a necessary and permanent
exigency of Catholic principles.1 This theory is being chal­
lenged by those Catholic writers who insist that the State
must profess Catholicism in a country where society is
mainly Catholic. They claim that this teaching enjoys all
but universal acceptance in Catholic circles. In other words,
restricting the study solely to the American political ar­
rangement, these writers hold that freedom of religion in
terms of its usual meaning in discussions of Church-State
relations would seem to be irreconcilable with American
democracy.
Despite the fact that United States Catholics, because
of their religious affiliation, have from time to time through
the centuries, been accused of being disloyal citizens by
some of their fellow countrymen, it is beyond controversy
that actually they have never experienced any conflict in
conscience between duty to the Church and loyalty to coun­
try. And they rightly resent all implications to the contrary.
1 "A Church-State Controversy,*·
(Autumn, 195I)» 444.

Thought,

Fordham

University

Quarterly»

XXVI

214

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THE CATHOLIC CHURCH AND THE MODERN STATE

ATTEMPTS TO CLARIFY THE CATHOLIC POSITION
In spite of this patent fact, today an attack from with­
out has been centered on what is purported to be the official
Catholic teaching on the relationship between Church and
State. Professional propagandists such as Paul Blanshard
have contended that the Church is a danger to democracy
because of her official teaching on freedom of worship. The
emphasis in this attack, it is important to observe, is not
on the actions of Catholics in the present-day democratic
setup but on the logicality of the Church’s attitude in the
U. S., in view of her official stand, as Gustav Weigel, S. J.,
points out.2
As a result of this attack theologians have been re­
examining the Catholic doctrine on Church and State. This
is not because they are wondering if Blanshard and his
school are right and they are wrong, but because they want
to make unmistakably clear the authentic position of the
Church in this matter.
The first consequence of this research has unfortunately
been a theological controversy. This controversy centers
about the proper formulation of the perennial doctrine of
Church and State, in order to determine its compatibility
with the American democratic system. There is nowhere
any intention of watering down Catholic doctrine, which
Catholic theologians always revere in its integrity.3
THE DYNAMIC EXPOSITORS
There is a group of Catholic theologians which is en­
gaged in presenting a fresh formulation of the Catholic
position. They are called the dynamic expositors. So far
this group has done no more than ask questions and make
observations—its members clearly state that they have not
proposed a conclusive theory. Among these dynamic exposi­
tors, John Courtney Murray, S. J., is best known, having
lectured and written on his subject.4 He resents any ref­
erence to a “Murray theory,” however, saying that there
is no such thing. There is, Father Murray emphasizes, no
question of a new doctrine. He does not speak for others,
and others in the group do not speak for him.
* “The Church And The Democratic State,” Tboagbt, XXVII (Summer, 1952), 167f.
A condensation of this article is found in Tbtology Digest (Kansas City, Missouri), I.
(Autumn 1953). 169-175.
* Weigel, op. cit., p. 168.
* Father Murray's articles are listed in ”A Church-State Anthology, the Work of Father
Murray,” edited by Victor R. Yanitelli, S.J., Thought, XXVII (Spring, 1952), 7,

DEMOCRACY AND RELIGIOUS FREEDOM

215

THE STATIC EXPOSITORS
The opposing trend is to be found in another group of
able theologians (called by Father Weigel the static expos­
itors). They feel that the statement of the Church-State
question in current treatises cannot be substantially im­
proved upon and that to attempt to do so is dangerous,
needless, and misleading. They concur, rather, in a clear
statement of extant formulations. Much of the thought of
members of this group has been published in the American
Ecclesiastical Review.6 Dr. George W. Shea of the Darling­
ton (N. J.) seminary and Monsignor Joseph C. Fenton and
Francis J. Connell, C.SS.R. , the two latter of the Catholic
University of America staff, are among the leaders of this
group.

DIFFERENCES OF THE TWO SCHOOLS
The dynamic expositors and the static expositors hold
opposite views of the harmony that is required between
Church and State. More specifically, the static expositors
believe that the State has the objective obligation of rec­
ognizing the Catholic Church as the true religion. The
State, therefore, has an obligation to defend the Church
to the point of suppressing, when necessary, freedom of
speech. Moreover, the State must legislate according to
Catholic doctrine and not merely according to the natural
law. It must even profess the Catholic religion and perform
acts of cult according to the requirements of the Church,
although it is not permitted to force non-Catholics into the
Church.®
The static expositors in laying down these norms do,
however, admit that these are objective obligations, and
that subjectively, by reason of their ignorance of an obli­
gation, legislators and governors can be freed of these
duties. The circumstances which make for such conditions
must be tolerated but, the static expositors insist, there
must be recognition of the fact that the restriction in the
Constitution whereby governors as such are deprived of
the power to profess and defend the Catholic religion, is an
error. Even so, the static expositors hold that Catholics
can remain loyal to the Constitution with no problem of
■The principal articles of this group are noted in Theology Digeit, I (Autumn. 1953),
173-175. See also, A. Messîneo, S.J., ’’Democrazia e liberta religiosa,” Civiltj Caitohea,
CII, Vol. Π, (1951), 126-137; Democrazia e la/cirmo dello Stato,” ibid., 586-596.
« weigei, op. crf.t p. 170f.

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THE CATHOLIC CHURCH AND THE MODERN STATE

conscience. Non-Catholics, if they be unprejudiced, will
easily see the logic and reasonableness of this version of
the Catholic position.7
The theory of the static expositors follows along the
lines set down more than thirty years ago by Doctor John
A. Ryan. Ultimately, however, its source is the Encyclicals
of Leo XIII. Leo knew the American State, and it has not
changed fundamentally since his time. Hence any new for­
mulation in this matter, they maintain, would serve as an
implication that Leo XIII was in error or ignorance—
tenets that are theologically unsound.
To the dynamic expositors the position of the static ex­
positors would place the American Catholic in an ambigu­
ous and therefore disturbing situation. For in the face of
an objective obligation of the State to profess the Catholic
religion the Catholic would have the duty to see that this
obligation is carried out as soon as it would be possible to
correct the conditions he must now tolerate. And if an ob­
ligation to alter the Constitution exists, can the Catholic be
honest with his non-Catholic neighbor if he remains silent
on this matter? Even if prudence dictates that he do noth­
ing now to remedy the situation, in view of the turmoil
which would be created, his position is an anomalous one.8
THE POPES AND THE AMERICAN GOVERNMENT
In the light of history the dynamic expositors challenge
and deny the existence of an obligation to change the norms
of American civic life. They point out that the Popes have
never spoken of this objective obligation when praising the
progress and vitality of American Catholicism. The dy­
namic expositors have accordingly re-examined the propo­
sitions by which the static theologians have arrived at their
conclusions. To do this, they have carefully reconsidered
the teachings of Leo XIII, the source of the static exposi­
tors’ theory, and have especially examined them in the light
of the further teachings of later Popes, among them the
reigning Pontiff, Pius XII. Studying the precise meaning
of the Leonine teachings they have kept in mind the con­
crete situation of Leo’s time, just as the static expositors
have examined the pronouncements of Popes Gelasius and
Boniface VIII in view of their history of Church and State
during the period in which these latter lived.
’ Itid., p. 171.
p. 172.

DEMOCRACY AND RELIGIOUS FREEDOM

217

THE HISTORICAL BACKGROUND OF
LEO’S PRONOUNCEMENTS
A study of the background against which Leo XIII
made his pronouncements shows that his was an era of
political liberalism and that the liberals of his time justified
their actions on the basis of naturalistic principles and a
rationalistic philosophy. Leo denied the theory of the abso­
lutely autonomous state, showing that the State is, on the
contrary, obliged to truth and religion because its citizens
are not mere creatures of reason but rational beings re­
deemed by Christ. He disproved that the end of govern­
mental action is the well-being of man in a materialistic
sense, pointing out that man is God’s creature.
From Leo’s doctrine the dynamic expositors also derive
the principle that the concrete pursuit of the common good
can objectively, and not merely subjectively, dispense legis­
lators, under certain circumstances, from following the
true theory of government. A distinction must be made be­
tween the philosophic theory of government and the prag­
matic task of governing. Prudence will dictate when the
pursuit of the common good justifies such a dispensation.8
But as long as the true theory of government is not denied,
the dispensation is possible.
CAN THE STATE WORSHIP?
Leo states unequivocally that not merely the individual
but the State also must worship God according to the di­
vinely ordained cult (by which he means Catholic worship
alone). Therefore he meant what he stated explicitly at
other times: The State must be Catholic.
The word State is capable of a variety of interpreta­
tions. If by State we mean the commonwealth made up of
individuals, then Pope Leo is laying down the principle
that men as citizens must render acts of worship according
to Catholic rites (although by the law of the Church non­
Catholics could not actively participate). If by State we
mean the abstract principle of governmental organization,
the constitutional form of the commonwealth, then the
State is incapable of worship, since human acts are essen­
tial to worship. If the legal institutions of government are
meant by the State, there can be no worship since these
institutions are not human beings. If, however, by State is
• IkiJ n 173f· See also Encyclical Likertas, ptaestantissmimnm, Jone 20, 1888; English
translation in The Great Encyclical Letters of Pope Leo XIII, 157.

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THE CATHOLIC CHURCH AND THE MODERN STATE

meant the governors and legislators, then worship is, of
course, possible. Therefore it is clear that Leo XIII, sup­
posing Catholic citizens and Catholic governors, declared
that these as citizens and governors must take part in wor­
ship as one of the acts of the commonwealth.
Father Weigel observes that this doctrine is not imme­
diately pertinent to the American governmental situation,
for Leo’s doctrine is in the realm of the ideal order and
does not concern the pragmatic task of governing. The
American Constitution is based on a prudential program
for pragmatic action.10

CORRECT UNDERSTANDING OF LEO’S DOCTRINE
As a result Leo’s doctrine is not to be interpreted as
critical of the American Constitution, which is a practical
instrument for the common good; Leo’s doctrine, an ab­
stract theory of government, is indeed on a different plane
from the objectives of the American Constitution, and the
two do not conflict.
Indeed the principles that Leo laid down for the con­
crete task of governing are carried out in the Constitution,
and an examination of the document bears this out. The
true ideal of society is not denied in our commonwealth.
And the theory of government that the Catholic must ac­
cept (that the State must be Catholic according to the ideal
which we are now prevented from realizing because of the
effects of original sin) does not hamper the Catholic’s ac­
ceptance of the practical arrangement of the Constitution.
In a country like the United States tolerance is the only
condition which makes possible collaboration and co-oper­
ation among all citizens. Thus Pope Leo made it clear that
a dispensation from the theoretical ideal is, under certain
circumstances, valid; it is this that we have in the Amer­
ican arrangement, for the purpose of the prudent pursuit
of the common good of society.
Leo’s teachings resolve the question of worship by the
American State. Only a person can render worship to God
—an abstraction cannot. Where government is so organ­
ized that the individual in power can say, “L’état, c'est
moi,” there is an obligation for the State, in that individ­
ual, to worship God. Such is also the case where one man
is the symbol of the nation. But neither of these conditions
MIM., pp. 175-177.

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DEMOCRACY AND RELIGIOUS FREEDOM

219

holds for the United States. In the American State all
power is reserved to the people as a whole. Though instru­
ments have been established whereby this power is exer­
cised, the men who make these instruments work are not
personally vested with power. They remain simple citizens.
The President of the United States is essentially an
organ and not a person, though by a figure of speech we
call the man who fills the office the President. To Americans
the term President may mean either the office or the man.
As an office it is the executive branch of the governing de­
vices set up by the Constitution. As a person the President
is a simple citizen who actually has no other title than
“Mister,” and who is rightfully open to criticism for the
manner in which he makes an instrument of the people
function. Therefore the lack of “State” worship in the
United States government involves no problem. In the
Leonine ideal of civil society such worship is necessary,
but in the concrete situation of the American people, con­
sidering their history and culture, it is legitimately dis­
pensed with. This is the only arrangement that will achieve
the end of the American Commonwealth—the peace and
prosperity of American citizens.
The static expositors base their claims to the objective
obligation of worship on the part of the government, on
Leo’s theory of civil society; but they neglect the distinc­
tion made by Leo. In abstracto, the obligation is universal,
but in concreto an objective situation may cancel out the
obligation here and now. The theory is of obligation only
when its application is not de facto detrimental to the end
of society—the peace and prosperity of the commonwealth.
When it is detrimental, the obligation disappears.11 This
seems to be the express doctrine of Leo XIII when he ex­
plained the flourishing condition of the Church in Amer­
ica.12 That our generic kind of governmental arrangement
is good and could be used expediently elsewhere is stated
strongly by the present Pope, Pius XII.13
11 Weigel, ob. cit., pp. 177-180.
u See Encyclical Longinqua Oceani, January 6, 1895; English translation in The Great
Encyclical Letters of Pope Leo XIII, 323.
ί» ·Ί1 sesto Natale/
*
December 24, 1944. ΛΛΓ, XXXVII (1945), I, 13: **
By reason of
the extent and nature of the sacrifices demanded of all citizens, in our time when the
activity of the State is so vast and decisive, the democratic form of government seems
to many as a natural postulate imposed by reason itself. Yet the cry: ’more and better
*,
democracy
is a demand which can have no other mining than to place the citizen more
and more in a condition that permits him to have his own personal opinion, to express ft
and make it effective in a manner compatible with the common good.”

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THE CATHOLIC CHURCH AND THE MODERN STATE

CONCLUSION TO BE DRAWN
The dynamic expositors, in Father Weigel’s opinion
have received no demolishing objections to the question
that they have proposed and answered. By papal teaching,
in the concrete setting of the United States, neither citizen
nor governor has an objective obligation to change the
American way of life and government; on the contrary,
he has the obj'ective obligation to defend it and thank God
for it. Further, from the writings of Gelasius, Boniface
VIII, Pius IX, Leo XIII, and Pius XII, as Father Murray
has shown, they have garnered the following principles in
regard to Church-State relations : Father Weigel cites them
thus: “(1) The Church as a supernatural society is superior
to the State and free from its jurisdiction; (2) The ar­
rangements of the commonwealth must be prudently dic­
tated by the truth applied to, and tempered by, a concrete
situation so that it can effectively promote the common
good in terms of peace and prosperity of the citizen-body;
(3) The Church and the State must collaborate, since both
are for the same human person.”14 The Church is always
the same, but the State takes on different forms of organi­
zation in different circumstances.
The static expositors have made an important contribu­
tion in the controversy by stressing what the dynamic ex­
positors have taken for granted: that the Church has au­
thoritatively pronounced upon the ideal structure of the
commonwealth and the Catholics may not be indifferent to
this pronouncement. But the static expositors have over­
looked the principle that the Catholic philosophy of gov­
ernment is not a pragmatic norm for government in the
concrete, and that therefore the immediate obligation—the
concrete good of peace and prosperity— can under certain
circumstances dispense citizens and governors from the
theoretical ideal. In our country tolerance is necessary for
the common good, and as Leo XIII conceded our method
of government has worked admirably.
The final result of the controversy, Father Weigel con­
cludes, has been a clarification of many points of doctrine,
among which are the following: (1) That no conflict be­
tween his loyalty to State and loyalty to God exists for the
Catholic; (2) That one aspect of Catholic thought has not
been thoroughly covered and investigated heretofore by the
« Op. cit., pp. 180-182.

DEMOCRACY AND RELIGIOUS FREEDOM

221

manuals on Church and State—that is, the practical as­
pect; (3) That Catholic philosophy concerns the ideal gov­
ernment, which as a result of original sin, has perhaps
never existed anywhere; that a dispensation from the the­
oretical ideal is to be allowed when the common good de­
mands it, though this is not to say that a false concept can
ever be embraced nor the ideal itself rejected.15

CARDINAL OTTAVIANI’S DISCOURSE
The static expositors point to a recent clarification of
Church-State principles which in part at least seems to
confirm their view in the present controversy. It is the dis­
course delivered by Cardinal Alfredo Ottaviani March 2,
1953, before the Lateran Academy, Rome, on the occasion
of the celebration of the fourteenth anniversary of Pius
XII’s pontificate.1® Cardinal Ottaviani's address reproves
the well-intentioned effort of certain Catholic writers (no
names are mentioned) to disarm the opposition by attempt­
ing to attenuate the Church’s teaching on her place in civil
society. He criticized especially what he calls the “pendu­
lum” theory, according to which the Pope’s encyclicals say
one thing to the people of one age, and then, in accordance
with changed conditions, reverse their directions. The Car­
dinal submits that, on the contrary: it is certain "that no
one can prove that there has been any kind of change, in
the matter of these principles, between the Summi pontifi­
catus of Pius XII and the encyclicals of Pius XI, Divini
Redemptoris against Communism, Mit brennender Sorge
against Nazism, and Non abbiamo bisogno against the
state monoply of fascism, on the one hand ; and the earlier
encyclicals of Leo XIII, Immortale Dei, Libertas, and Sapi­
entiae christianae, on the other.”17

PRINCIPLES FOR CATHOLIC STATES
Answering the charges of an unnamed Catholic writer
who contended that the State as such cannot perform an
act of religion, and that even a Catholic State has no obli­
gation to profess Catholicism, Cardinal Ottaviani replied:
“If there is any certain and indisputable truth to be found
** Op. cit., pp. 182-184. See also. Monsignor Joseph Fenton's reply to Father Weigel’s
article, ’’Toleration and the Church-State Controversy," American Eccleriaaical Review,
Vol. CXXX (May. 1954), 330-343.
Parts of the address were reported in Ossereatore Romano. The May, 1953, issue of
American Ecclesiastical Renew, Vol. CXXVIII, 321-334, prints the whole text, as trans­
lated from the Italian by Monsignor Joseph G Fenton, editor, under the caption "Church
and State: Some Present Problems in the Light of the Teaching of Pope Pios XII."
« Fenton, op. cit., p. 328f-

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THE CATHOLIC CHURCH AND THE MODERN STATE

among the general principles of public ecclesiastical law, it
is the truth that the rulers in a state composed almost en­
tirely of Catholics and consequently and consistently gov­
erned by Catholics, have the duty to influence the legisla­
tion of that state in a Catholic sense.” This duty involves
three consequences: “(1) The social, and not merely the
private profession of the religion of the people; (2) the
Christian inspiration of legislation; (3) the defense of the
religious patrimony of the people against every assault
which seeks to deprive them of the treasure of their faith
and of their religious peace.”18
Cardinal Ottaviani then shows these three principles as
espoused in papal documents. (1) Leo XIII, in Immortale
Dei, declared : As it was not licit for any individual to fail
in his duty to God and religion, in the same way, “states
cannot, without serious moral offense (citra scelus) conduct
themselves as if God were non-existent or cast off the care
of religion as something foreign to themselves or of little
moment.”19 Pius XII, in Summi pontificatus, condemns the
errors that absolve “civil authority from all dependence
upon the Supreme Being . . . and that concede to civil au­
thority an unlimited power of action, a power left to the
ever changing wave of whims or to the sole restraints of
contingent historical exigencies and of relative interests.”20
(2) Against the moral and religious agnosticism of the
modern secularized State and of its laws, Pius XII held up
the concept of the Christian State in his letter of October
19, 1945, for the nineteenth Social Week of the Italian
Catholics, during which, precisely, the problem of the New
Constitution was to be studied. The question which before
every other ought now to attract the Catholic’s attention
and stir up his activity, “is that of assuring for this and
for future generations the benefit of a fundamental law of
the State which is not opposed to sound religious and moral
principles, but which rather draws vigorous inspiration
from them and proclaims and wisely pursues their lofty
purposes.”21 On this point, the Supreme Pontiff has not
failed to refer to “the praise due to the wisdom of those
rulers who either always have favored or wished and knew
how to honor, in the best interests of the people, the values
of Christian civilization in the happy relations between
» Ibid., p. 325.
n Leonis XIII Pontificis Maximi Acta, V. (1886). 123.
» AAS, XXXI, 466.
“AAS, XXXVII, 274.

DEMOCRACY AND RELIGIOUS FREEDOM

223

Church and State, in safeguarding the sanctity of mar­
riage, and in the religious education of youth.”22 (3) The
Encyclicals of Leo XIII uphold the duty of the Catholic
State to protect against everything that would undermine
the religious unity of the people, who unanimously know
that they are secure in the possessions of religious truth.
In condemning the religious indifferentism of the secular­
ized State, Leo XIII, in the Encyclical Immortale Dei, ap­
pealed to the divine law. Rulers “are obliged to follow, in
the matter of divine worship, those laws and those means
by which God Himself has shown that He wills to be hon­
ored: quo coli se Deus ipse demonstravit velle.”23 And in
the Encyclical Libertas, Leo appealed also to the principles
of justice and reason: “Justice and reason forbid a state
to be atheistic or to be what comes to the same thing as
being atheistic, to have the same attitude towards various,
so-called ‘religions’ and indifferently to grant the same
rights to all of them.”24 Cardinal Ottaviani submits that
“these principles are firm and immovable. They were valid
in the times of Innocent III and Boniface VIII. They are
valid in the days of Leo XIII and of Pius XII, who has re­
affirmed them in more than one of his documents.”25'

THE RIGHTS OF TRUTH
Catholics are often called “inconsistent.” In a Catholic
country they uphold the idea of a confessional State, with
a duty of exclusive protection for the Catholic religion. On
the other hand, where they constitute a minority, they
claim the right to tolerance or frankly to the equality of
cults. Hence for them there are two standards or norms of
action, their critics state. Cardinal Ottaviani notes that
this is begging the question.
“Men who perceive themselves to be in sure possession
of the truth and of justice are not going to compromise.
They demand full respect for their rights. How, on the
other hand, can those who do not perceive themselves se­
cure in the possession of truth claim to hold the field alone,
without giving a share to the man who claims respect for
his own rights on the basis of some other principle?” The
Cardinal pointed out that: “It ought not to be considered
strange that the Church appeals at least to the rights of*28
° From the Holy Father’s 1941 Christmas Radio Message, AAS, XXXIV, 15.
** Leonis XIII Pontificis Mixisni Acta, V, 123.
**lbi<L, VIII, 231.
28 Fenton, ofi. cit.,
328.

224

HI’·

a

>>3

THE CATHOLIC CHURCH AND THE MODERN STATE

man, when the rights of God are not recognized.” Against
those who say that rights inhere in neither truth nor error
but in persons only, Cardinal Ottaviani observes : “It seems
to me, on the contrary, that the fundamental truth consists
rather in this: that the rights in question have very well
as their subjects those individuals who find themselves in
possession of the truth; and that other individuals cannot
demand the same rights by title of the error they profess.
And, in the encyclicals we have cited, it appears that the
first Subject of these rights is God Himself. From this it
follows that only they who obey His commands and who
possess His truth and His justice have true rights.”26 In
other words, it follows that there can be no objective right
to act against God’s justice and truth.
The Cardinal referred to a letter of the Sacred Congre­
gation of Seminaries and Universities to the Bishops of
Brazil, on March 7, 1950. This letter, which refers contin­
ually to the teachings of Pius XII, warns against the er­
rors of renascent Catholic liberalism, which “admits and
encourages the separation of the two powers. It denies to
the Church any sort of direct power over mixed affairs. It
affirms that the State must show itself indifferent on the
subject of religion . . . and recognizes the same freedom
for truth and for error. To the Church belong no privi­
leges, favors, and rights superior to those recognized as
belonging to other religious confessions in Catholic coun­
tries . . . ”27
The Cardinal deplored the inconsistency of those who
cry out when Catholic states in Europe conduct themselves
in accordance with Catholic principles, and yet have small
resentment for the Soviet war on religion. Against the
secularist school that accuses the Church of mixing in
politics when it claims the right to lay down principles
guiding conduct, the Cardinal quoted Pius XII’s Lenten
sermon to the parish priests and the Lenten preachers of
Rome in 1946 : “The Catholic Church will never allow itself
to be shut up within the four walls of the temple. The sep­
aration between religion and life, between the Church and
the world, is contrary to the Christian life and Catholic
idea.”28
»ZW., pp. 529-331.
** Ibid., p. 331.
XXXVHI, 187.

1

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225

FATHER MURRAY’S REJOINER
In response to a request from the New York Times for
clarification of its position, the Vatican said on July 20,
1953, that an address made by Cardinal Alfredo Ottaviani
was “not official or semi-official but was nevertheless ‘unex­
ceptional.’ ”29 In a statement made to the Times following
the Vatican pronouncement, Father John Courtney Mur­
ray, S. J., respectfully declined to consider the matter set­
tled by the Cardinal’s address. He states: “Cardinal Otta­
viani was speaking only in his purely personal capacity.
His statement was neither an official nor a semi-official ut­
terance. It was just a statement of a private theologian—
one of very considerable reputation, of course,—speaking
on his own authority. It is still entirely possible and legiti­
mate for Catholics to doubt or dispute whether Cardinal
Ottaviani’s discourse represents the full, adequate and bal­
anced doctrine of the Church.”
And so the controversy continues. Perhaps an authori­
tative pronouncement, a second Humani Generis, will one
day appear, closing the discussion of this question.
See Monsignor Fenton, ’’Catholic Polemic and Doctrinal Accuracy,” American Reeledasiical Review, CXXXIÏ, No. 2 (February, 1955), pp. 107-117.