Innocent III.)* every man of sense must know that the cognisance belongs to our ministry. In the year 1329, the prelates of France had the assurance to tell king Philip de Valois, that, to prevent causes of any kind from being brought before the ecclesiastical courts, was depriving the church of all its rights, omnia ecclesiarum jura tollere.†62 And accordingly it was their aim to have to themselves the decision of all disputes. They boldly opposed the civil authority, and made themselves feared by proceeding in the way of excommunication. It even happened sometimes, that, as dioceses were not always confined to the extent of the <76> political territory, a bishop would summon foreigners before his tribunal, for causes purely civil, and take upon him to decide them, in manifest violation of the rights of nations. To such a height had the disorder arisen three or four centuries ago, that our wise ancestors thought themselves obliged to take serious measures to put a stop to it; and stipulated in their treaties, that none of the confederates should be summoned before spiritual courts, for money debts, since every one ought to be contented with the ordinary modes of justice that were observed in the country.* We find in history that the Swiss on many occasions repressed the encroachments of the bishops and their judges.
Over every affair of life they extended their authority, under pretence that conscience was concerned. They obliged new-married husbands to purchase permission to lie with their wives, the first three nights after marriage.†
§156. 11. Money drawn to Rome.
This burlesque invention leads us to remark another abuse, manifestly contrary to the rules of a wise policy, and to the duty a nation owes to herself,—I mean the immense sums, which bulls, dispensations, &c. annually drew to Rome, from all the countries in communion with her. How much might be said on the scandalous trade of indulgences! but it at last became ruinous to the court of Rome, which, by endeavouring to gain too much, suffered irreparable losses.
§157. 12. Laws and customs contrary to the welfare of states.
Finally, that independent authority intrusted to ecclesiastics, who were often incapable of understanding the true maxims of government, or too careless to take the trouble of studying them, and whose minds were wholly occupied by a visionary fanaticism, by empty speculations, and notions of a chimerical and overstrained purity,—that authority, I say, produced, under the pretence of sanctity, laws and customs that were pernicious to the state. Some of these we have noticed: but a very remarkable instance is mentioned by Grotius. “In the ancient Greek church,” says he, “was long observed a canon, by which those who had killed an enemy in any war whatsoever, were excommunicated for three years.”‡ A fine reward decreed for the heroes who defended their country, instead of the crowns and triumphs with which pagan Rome had been accustomed to honour them! Pagan Rome became mistress of the world:—she adorned her bravest warriors with crowns. The empire, having embraced christianity, soon became a prey to barbarians:—her subjects, by defending her, incurred the penalty of a degrading excommunication. By devoting themselves to an idle life, they thought themselves pursuing the path to heaven, and actually found themselves in the high road to riches and greatness. <77>
§158. A nation ought to make justice reign.
Next to the care of religion, one of the principal duties of a nation relates to justice. They ought to employ their utmost attention in causing it to prevail in the state, and to take proper measures for having it dispensed to every one in the most certain, the most speedy, and the least burthensome manner. This obligation flows from the object proposed by uniting in civil society, and from the social compact itself. We have seen (§15) that men have bound themselves by the engagements of society, and consented to divest themselves, in its favour, of a part of their natural liberty, only with a view of peaceably enjoying what belongs to them, and obtaining justice with certainty. The nation would therefore neglect her duty to herself, and deceive the individuals, if she did not seriously endeavour to make the strictest justice prevail. This attention she owes to her own happiness, repose, and prosperity. Confusion, disorder, and despondency, will soon arise in a state, when the citizens are not sure of easily and speedily obtaining justice in all their disputes: without this, the civil virtues will become extinguished, and the society weakened.
There are two methods of making justice flourish,—good laws, and the attention of the superiors to see them executed. In treating of the constitution of a state (Chap. III.) we have already shewn, that a nation ought to establish just and wise laws, and have also pointed out the reasons, why we cannot here enter into the particulars of those laws. If men were always equally just, equitable, and enlightened, the laws of nature would doubtless be sufficient for society. But ignorance, the illusions of self-love, and the violence of the passions, too often render these sacred laws ineffectual. And we see, in consequence, that all well-governed nations have perceived the necessity of enacting positive laws. There is a necessity for general and formal regulations, that each may clearly know his own rights without being misled by self-deception: sometimes even it is necessary to deviate from natural equity, in order to prevent abuses and frauds, and to accommodate ourselves to circumstances; and since the sensation of duty has frequently so little influence on the heart of man, a penal sanction becomes necessary, to give the laws their full efficacy. Thus is the law of nature converted into civil law.* It would be dangerous to commit the interests of the citizens to the mere discretion of those who are to dispense justice. The legislator should assist the understanding of the judges, force their prejudices and inclinations, and subdue their will, by simple, fixed, and certain rules. These again are the civil laws. <78>
The best laws are useless, if they be not observed. The nation ought then to take pains to support them, and to cause them to be respected and punctually executed: with this view she cannot adopt measures too just, too extensive, or too effectual; for hence, in a great degree, depend her happiness, glory, and tranquillity.
§161. Functions and duties of the prince in this respect.
We have already observed (§41) that the sovereign, who represents a nation and is invested with its authority, is also charged with its duties. An attention to make justice flourish in the state must then be one of the principal functions of the prince; and nothing can be more worthy of the sovereign majesty. The emperor Justinian thus begins his book of the Institutes: Imperatoriam majestatem non solum armis decoratam, sed etiam legibus oportet esse armatam, ut utrumque tempus, & bellorum & pacis, recte possit gubernari.63 The degree of power intrusted by the nation to the head of the state, is then the rule of his duties and his functions in the administration of justice. As the nation may either reserve the legislative power to itself, or intrust it to a select body,—it has also a right, if it thinks proper, to establish a supreme tribunal to judge of all disputes, independently of the prince. But the conductor of the state must naturally have a considerable share in legislation, and it may even be entirely intrusted to him. In this last case, it is he who must establish salutary laws, dictated by wisdom and equity: but in all cases, he should be the guardian of the law; he should watch over those who are invested with authority, and confine each individual within the bounds of duty.
§162. How he is to dispense justice.
The