Jus gentium

“ While the jus civile studied the interests only of citizens, and the jus gentium those of freemen irrespective of nationality, the law of nature had theoretically a wider range and took all mankind within its purview. ”

“ They subsequently “digested” them in their books. See Munroe Smith, “Problems of Roman Legal History,” Columbia Law Review, 1904, p. 538.
[344] Dig. i. 1 (“De Just. et jure”) 1. See Savigny, System des heutigen römischen Rechts, i. p. 109 sqq. Apparently some of the jurists (e.g. Gaius, Ins. i. 1) draw no substantial distinctions between the jus naturale and the jus gentium. Others seem to distinguish. With the latter, jus naturale might represent natural or instinctive principles of justice common to all men, and jus gentium, the laws and customs which experience had led men to adopt. ”

“ As the later writers on the Law of Nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is res nullius has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. But, as soon as the Law of Nature is traced to its source in the Jus Gentium, we see at once how the goods of an enemy came to be looked upon as nobody's property, and therefore as capable of being acquired by the first occupant. ”

“ On the whole, however, it is astonishing, as I have observed before, how small a proportion the additions made to international Law since Grotius's day bear to the ingredients which have been simply taken from the most ancient stratum of the Roman Jus Gentium. Acquisition of territory has always been the great spur of national ambition, and the rules which govern this acquisition, together with the rules which moderate the wars in which it too frequently results, are merely transcribed from the part of the Roman law which treats of the modes of acquiring property jure gentium. ”

“ To the _jus gentium_ belong those laws which are derived from the Natural Law as conclusions from premises, e.g., the right to private property without which men cannot live peacefully in society. To civil law belongs whatever is derived from Natural Law by way of positive determination by a legislator; e.g., Natural Law dictates that the evil-doer be punished ”

“ The state here is bound by its own constitution to respect and protect the rights of the citizen. Among these rights, the most precious is the right of conscience—the right to the free exercise of my religion. This right does not decide what the civil law shall be, but it does decide what it shall not be. Any law abridging my right of conscience—that is, the freedom of my church—is unconstitutional, and, so far, null and void. This, which is my right, is equally the right of every other citizen, whether his conscience—that is, his church—agrees with mine or not. ”

“ Should we have stood passive to watch the gradual growth of that cursed spirit they miscall independent judgment,—that rankest heresy that ever corrupted the human heart? Should we have waited till Protestantism with its Bible had sowed the seeds of that right of judgment which they proclaim is inherent in all men? Would it have been safe policy to admit of discussing what was obligatory to obey, and look on while this enlightenment—as they blasphemously term it—was arraigning the dogma of the Church as unblushingly as they questioned the decree of a minister? ”

“ If any man say that the supreme rule of conscience lies in the law of the State, or in public opinion, and that the judicial power of the Church does not extend to pronouncing them legitimate or illegitimate, or that by civil law that can become legitimate which by divine law is illegitimate, let him be anathema. ”

“ It is beyond all just, human, or created power, to abolish or oppose the same, or the due execution thereof in the Church of Christ; for what is of divine right, is held of God, and not of man; and to oppose that, were to fight against God. The supreme magistrates in such cases should be nurse-fathers, Isa. xlix. 23, not step-fathers to the Church; their power being cumulative and perfective, not privative and destructive unto her; for she both had and exercised a power in church government, long before there was any Christian magistrate in the world ”

“ Neither can We pass over in silence the audacity of those who, not enduring sound doctrine, assert that "the judgments and decrees of the Holy See, the object of which is declared to concern the general welfare of the Church, its rights, and its discipline, do not claim acquiescence and obedience, under pain of sin and loss of the Catholic profession, if they do not treat of the dogmas of faith and of morals." ”

“ Neither tradition, nor remote antiquity, nor ecclesiastical decisions, nor statutes, but the Bible is supreme in our religion. Second, the Bible allows, and demands, the right of private judgment in all matters of faith and duty. This is based upon the well-defined principles of individual and personal responsibility. “Let every man prove his own work.”
[pg 047] The true and intelligent Christian has always been opposed to ecclesiastical establishments by law, and the authority of the state to produce unity of faith and worship. In all such matters we are responsible to God alone. ”

“ Hereupon ensueth that no power on earth can forbid or punish any action which we are bound unto by the law of God, which is the true pattern of all justice. So that the laws against recusants, against receiving of Priests, against confession, against Mass, or other rites of Catholic religion, are to be esteemed as no laws by such as steadfastly believe these to be necessary observances of the true religion. ”

“ And the more sensible part of mankind are evidently in a progress to the belief, that ecclesiastical and civil jurisdiction, being things of a totally different nature, ought, if possible, to be wholly disengaged from one another. Religious sentiments, with respect to their influence on civil society, will perhaps be regarded, in time, as a theory of morals, only of a higher and more perfect kind, excellent to enforce a regard to magistracy, and the political duties, but improperly adopted into the same system and enforced by the same penalties. ”

“ Once admit that principle, and no curb can be set upon its operation. Who shall restrict what God has appointed? And thus the extent to which the conscience of men may be constrained, or persecution for truth's sake may be carried, depends entirely on the ignorance or enlightenment of the civil magistrate. There is no safety out of the principle that religion is a matter entirely between man and his God, and that the whole duty of the magistrate is to secure every one in the peaceful observance [Pg 57] of it. ”

“ So the church may be a divine institution, and by the assistance of the Holy Ghost infallible; but her teaching is addressed to my intelligence, and must be passed upon by my private judgment, which is finite and fallible, therefore incompetent to pass upon the infinite and absolute. Hence, the Catholic rule no more gives infallible faith than does the Protestant rule. The principle of the objection the lawyer urges is that authority is intrinsic, not extrinsic; comes not from without, but from within, from the mind, and can never be greater than the mind itself ”

“ You must either lay aside the mask of Catholicism, which no longer becomes you, and boldly avow that the Church has defined good as evil, justice as injustice, an inherent right of the crown as an absurdity and a wrong, and done so in a judgment perpetuated from her foundation to our own day; or you must, on the other hand, confess that you are in an error not to be tolerated. ”

“ The adoption of such a resolution by our highest ecclesiastical judicatory,—a judicatory composed of the most experienced and the wisest brethren in the Church, the choice selection of twenty-eight Annual Conferences,—has inflicted, we fear, an irreparable injury upon eighty thousand souls for whom Christ died,—souls who, by this act of your body, have been stripped of the dignity of Christians, degraded in the scale of humanity, and treated as criminals, for no other reason than the colour of their skin! ”

“ While you resist the claim of civil right, the Roman Catholic is armed with truth and justice. Grant him what he ought to have, and if he refuses the reasonable conditions or aspires to more, you transfer to yourselves these invincible standards, and you may look with confidence to the result. ”

“ By the very principle of the Catholic religion, those who profess it can never abandon or change these principles, and they thus receive the strongest guarantee of their perpetuity in the number and the moral power of those citizens who profess this religion. By our religion we must hold and profess that human rights are conferred by the Creator, that they are inviolable, and that civil society has been established by Almighty God, with its institutions of government, in order that these rights may be secured. ”

“ Even before those supreme civil tribunals where written and oral pleadings are both permitted, the latter are usually regarded in the solution of the question, and this is what gives to the advocates of those illustrious courts their influence and renown. The Roman congregations are also supreme tribunals; but there passion has no echo and needs no interpreter; there causes stand upon their own merits, stripped of all attendant circumstances; there the gravest questions of dogma, of morals, and of right are decided by reason alone, but by reason illuminated both by science and by faith. ”

“ This is the third stage to be observed in the order of correction, that those who are unwilling to listen to him who admonishes them, nor yet to the witnesses, may be brought before the Church, that is to a pastor and superior, or a prelate, as to a spiritual father and a judge, that he may paternally, but with greater authority, correct the sin, and so bring about amendment. But that if the sinner will not be reformed, he may as a judge cut him off from the company of the faithful. ”

“ More, we might say all the Christian sects of the first two centuries; for, it was only at the end of the second century, that the sect of the Millenaries, who believed in a general judgment, sprung up; and, besides, history is silent about the belief of the Church of Rome (which then was confined within the boundaries of the Province of Rome,) in regard to the doctrine of a general judgment.
3d. The doctrine of a general judgment is irrational, because a first judgment, by Jesus Christ, having taken place, a second one would be useless. ”

“ In all the courts of Christendom it binds the consciences, if it does not mold the convictions, of judge and jury in passing judgment upon the rights of life, liberty, and property. The Bible is everywhere to be found. ”

“ The faith needs no definition except in rare intervals of periodical intellectual disorder. The discipline of the Church reigns by an universal common law which seldom needs a change, and by local laws which are provided on the spot. Nevertheless, the legislation of the Church, the Corpus Juris, or Canon Law, is a creation of wisdom and justice, to which no Statutes at large or Imperial pandects can bear comparison. Human intellect has reached its climax in jurisprudence, but the world-wide and secular legislation of the Church has a higher character. ”

“ Christianity proclaims the dignity of law and order, and supports it—teaches that the magistrate is the minister of God, and that he does a divinely-appointed work; but Christianity does not proclaim the infallibility of human laws or of human magistrates. [136] Christianity does not teach that any human law or human magistrate can dictate to the individual conscience, or intrude itself into the inner temple of the soul. ”

“ The Bible, even conceding its divine inspiration and sufficiency, cannot be the rule or standard for private judgment, if [Pg 489] it is to be interpreted by private judgment, for that would require private judgment to judge what the faith is, before it has any rule by which to judge what it is. The Protestant doctrine confounds the rule of faith with the place of faith, and private judgment with individual judgment. ”

“ Hence we easily perceive that much of the more modern portion of the corpus juris civilis, though bearing the impress of imperial authority, is in reality little more than a copy of the rules laid down previously for the spiritual and social guidance of the children of the church, and that those grand principles and delicate distinctions which are as true to-day as in the time of the apostles, and are as applicable to our advanced state of civilization as they were then, are simply the result of the infusion of the spirit of Christianity into the civil polity of a once pagan people. ”

“ No wonder that the Jesuit casuists have found in this provision of their constitution the source of that odious and demoralizing maxim that "the means are justified by the end;" in other words, if, in the judgment of the general, the end is considered right, howsoever criminal or sinful, it becomes sanctified, and may be accomplished without "the fear of offense." ”

“ So entirely have political ideas and jealousies infected our mode of judging of spiritual things—to such a degree is our peculiar civil liberty made the standard of Church government—that it is necessary to insist again and again on what to Christians ought to be a first principle, viz., that "all power and jurisdiction in the Church, like the Church herself, ought to rest not upon natural and human authority, but on the divine authority of Christ. ”