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in a certain degree: and therefore when he is at liberty from the civil law, which, in this case, gives him no command, and he is not at liberty from the ecclesiastical law, which hath made a prohibition, he must obey the church ; which if it had no power over him, could have made no law, and if it have a power, it must be obeyed; for, in the present case, there is nothing to hinder it. So it is in such things, which are permitted 'for the hardness of men's hearts' or the public necessity. The permission of the prince is no absolution from the authority of the church. Supposing usury to be unlawful, as it is certain many kinds and instances of it are highly criminal, yet the civil laws permit it, and the church forbids it. In this case the canons are to be preferred. For though it be permitted, yet, by the laws, no man is compelled to be a usurer; and therefore he must pay that reverence and obedience, which are otherwise due to them, that have the rule over them in the conduct of their souls.
31. The case is alike in those laws, where the civil power only gives impunity, but no warranty. As in such cases, when laws indulge to a man's weakness and grief; as when it permits him to kill any man, that creeps in at his windows, or demands his purse of him on the highway, or to kill his adulterous wife, if he surprises her in the sin: if the civil power promises impunity, and does not intend to change the action from unlawful to lawful, as in some cases it does, in some it cannot; then, if there be any laws of the church to the contrary, they pass an obligation upon the conscience, notwithstanding the civil impunity. And there is great reason for this. For since the affairs of the world have in them varieties and perplexities besides, it happens, that, in some cases, men know not how to govern by the strictest measures of religion, because all men will not do their duty upon that account; and therefore laws are not made . ut in Platonis republica,' but as in fæce Romuli,' with exact and purest measures, but in compliance and by necessity, not always as well as they should, but as well as they may: and therefore the civil power is forced sometimes to connive at what it does not approve. But yet these persons are to be governed by conscience; and therefore it is necessary, that that part of the public government, which is to conduct our consciences more immediately, should give a bridle to that li
berty, which, by being in some regards necessary, would, if totally permitted, become intolerable. And therefore the spiritual power puts a little myrrh into their wine, and supplies that defect, which, in the intrigues of human affairs, we bring upon ourselves by making unnatural necessities.
32. But then if it be inquired, whether it be lawful for the spiritual power by spiritual censures to punish those actions, which the civil power permits; I answer, that the church makes laws, either by a declarative and direct power, or by a reductive and indirect power: that is, she makes laws in matters expressly commanded by God or forbidden, or else in such things which have proportion, similitudes, and analogies, to the divine laws. In the first, she is the declarer of God's will, and hath a direct power. In the second she hath a judgment of discretion, and is the best judge of 'fit' and 'decent.' If the church declares an act to be against God's commandment, or bound upon us by essential duty, in that case, unless there be error evident and notorious, she is entirely to be obeyed : and therefore the refractory and the disobedient she may easily coerce and punish by lier censures, according as she sees it agreeable and conducing to God's glory and the good of souls, although the civil power permits the fact for necessity or great advantages. And the reason is, because as the civil power serves the ends of the republic by impunity and permission, so there is another end to be served, which is more considerable, that is, the service of God and the interest of souls, to which she is to minister by laws and punishments, by exhortations and the argument of rewards: and as every power of God's appointment is sufficient for its own end, so it must do its own portion of duty, for which so competent provisions are made. And therefore the spiritual power may, in this case, punish what the civil power punishes not. With this only caution, if the civil power
does not forbid the church to use her censures in such a particular case : for if it does, it is to be presumed, that such ecclesiastical coercion would hinder the civil power from acquiring the end of its laws, which the ecclesiastical never ought to do: because although her censures are very useful to the ends of the spiritual power, yet they are not absolutely necessary ; God having by so many other ways provided for souls, that the church is sufficiently instructed with means of saving souls, though she never draw her sword. But the civil power bath not somany advantages.
33. But if the laws of the church are made only by her reductive and indirect power, that is, if they be such, that her authority is not founded upon the express law of God, but upon the judgment of discretion, and therefore her laws are concerning decencies and usefulnesses and pious advantages, in this case, the church is not easily to proceed to censures, unless it be certain, that there is no disservice nor displeasure done to the civil power. For it will look too like peevishness to cross the civil laws, where it is apparent, there is no necessity, and no warranty from a divine commandment. The church would not have her laws opposed or discountenanced upon little regards; and therefore, neither must she, without great necessity, do that, which will cause some diminution to the civil laws, at least by interpretation.
34. And after all this, if it happens, that the civil power and the ecclesiastical command things contrary, there is fault somewhere, and there is nothing to be done but to inquire on which side God is; for if he be not on the church's side by a direct law in the matter, he is not on the church's side for her relation, but on the king's side for his authority.
From the matter of the former question arises another like it.
Question VI. Whether in the civil affairs and causes of the ecclesiastical power and persons, the presumption ought to lie for the king, or for the church.
35. This question must suppose the case to be dubious, and the matter equal on both sides as to the subject-matter; for else there needs to be no question, but judgment must be according to the merit of the cause : and it must suppose also, that neither of them will yield, but use their own right; for if either did, themselves would make an end of the question: but when both are in pretence, and the pretence is equal in the matter and the argument, and that the cause is to be determined by favour and privilege, whether is to be
preferred ? I do not ask which is to be preferred in law; for in that question, the laws and customs of a people are the rule of determination : but whether there be in conscience any advantage of presumption due to either.
36. To this I answer, that, in the most pious ages of the church, the presumption was ever esteemed to lie for the church, when the princes were Christians: and when the question is of piety, not of authority,—of charity, not of empire,—it is therefore fit to be given to the church. 1. Because if the civil power takes it to itself, it is a judge and a party too. 2. Because whatever external rights the church hath, she hath them by the donation, or at least enjoys them by the concession, of the supreme civil power, who, in this case, by cession do confirm at least, and at most but enlarge, their donative. 3. Because the spiritual power is under the king's protection, and hath equal case with that of widows and orphans. It is a pious cause of the poor and the unarmed. 4. The king is better able to bear the loss, and therefore it is a case of equity. 5. The church is a relative of God and the minister of religion, and therefore the advantage being given to the church, the honour is done to God; and then, on the king's side, it would be an act of religion and devotion. 6. If the civil power, being judge, prefers the ecclesiastics in the presumption, it is certain there is no wrong done, and none hath cause to complain : but if it be against the ecclesiastics, the case is not so evident, and justice is not so secured, and charity not at all done.
37. And if it be thought, that this determination is fit to be given by a churchman, though it be no objection while it is true and reasonable, yet I endeavoured to speak exactly to truth, and for the advantage of the civil power, though the question is decided for the ecclesiastics. For in such cases, as the ecclesiastics will have advantage, if they in dubious cases never will contend, so the civil power will ever have the better of it, if in these cases they resolve never to prevail.
38. Although these inquiries have carried me a little further than the first intention of the rule, yet they were greatly relative to it. But I shall recall my reader to the sense and duty of it by the words of St. Gregory", who says, that “ Christus imperatori et omnia tribuit, et dominari eum non
h Epist. 64. ad Theodorum Medicum.
solum militibus, sed etiam sacerdotibus concessit:" " Christ hath both given all things to the emperor, and a power of dominion not only over the soldiers, but even over the priests themselves.”—And that great wise Disposer of all things in heaven and earth,—who makes twins in the continent of their mother's womb, to lie at ease and peace, and the eccentric motions of the orbs, and the regular and irregular progressions of the stars, not to cross or hinder one another, and in all the variety of human actions, cases, and contingencies, hath so wisely disposed his laws, that no contradiction of chance can infer a contradiction of duty, and it can never be necessary to sin, but on one hand or other it may for ever be avoided ;-cannot be supposed to have appointed two powers in the hands of his servants to fight against, or to resist, each other : but as good is never contrary to good, nor truth to truth, so neither can those powers, which are ordained for good. And therefore, where the powers are distinct, they are employed upon several matters; and where they converse about the same matter, as in external actions and persons they do, there one is subject to the other, and therefore can never be against it.
The supreme civil Power hath Jurisdiction in Causes, not only
ecclesiastical, but internal and spiritual. 1. ΒΑΣΙΛΕΥΣ των προς τους θεούς κύριος, said Aristotle, “Of things belonging to God, the king is the governor." Therefore besides that the supreme civil power is to govern all persons, and all actions and ministries which are directly external, it is to be considered, that actions internal, as they can be made public, have also influence upon the persons and lives, the fortunes and communities, of men; and therefore either are so far forth to be governed by them, who are governors of men in their lives and fortunes, in their societies and persons, that they may do good to them, or at least do no hurt. 2. Therefore, as the supreme princes and magistrates,
i Polit. lib. 3.