Francisco Suárez: The Ecclesiastical power for making laws is more excellent than the civil in its end, origin, and subject

In April we published a translation of Suárez, De legibus, lib. IV, c. ix, on the way in which the civil power is subject to the ecclesiastical. We now publish the preceding chapter of the same book (De legibus, lib. IV, c. viii), which gives the foundation for that teaching— the superior excellence and perfection of spiritual power. The translation is by Timothy Wilson.


Whether the Ecclesiastical power for making laws is more excellent than the civil in its end, origin, subject, and other properties.

1. Although this question has been determined in great part in the previous chapters; nevertheless, in order that the excellence of this power be illustrated better, and so that we might answer some difficulties, we have judged it to be opportune in this place. And so firstly we set down as certain, that this Ecclesiastical power in the Evangelical law is far more excellent than the civil power. This truth can readily be shown from the things which we have adduced in chapter 1 of this book, especially the third conclusion, where we have also brought forward the Doctors. It is also the common opinion of the Fathers: Ignatius, Epistola ad Smirnenses: Now I say, honor God as the author and Lord of all, and the Bishop as the Prince of priests, bearing the image of God, and the principality according to God, and the priesthood according to Christ, and after this, it is necessary also to honor the King.[1] Ambrose, De dignitate sacerdotali, cap. 2: The Episcopal honor and loftiness can be equaled by no comparisons. If you compare it with the splendor of kings, and the diadem of princes, they will be so far inferior, as if you compare leaden metal to the brilliance of gold, for indeed I see the necks of kings and of princes bowed to the knees of the priests. These words are referred and approved by Gelasius in the c. Duo sunt, dist. 96. And Innocent [III], in the c. Solitæ, de maiorit. et obedient., compares these two powers to the Sun and the Moon. And, Chrysostom, in De sacerdotio, lib. III, says: The priesthood is so much more excellent than the kingdom, in the same degree as the spirit and the flesh are distant from one another. This opinion he follows, and amplifies, in his Homilia 60 in Matthæum, saying: If the prince be crowned with the diadem, but accedes unworthily, forbid him; you have greater power than he. And he says many similar things in Homiliæ 4 and 5 on the words of Isaiah 6, I have seen the Lord, etc., and in Homilia 3 ad populum, a little ways from the beginning, where, speaking of Flavian, he prefers him to the Emperor, and says that he has a sword, not indeed of iron, but spiritual. And we shall refer many things from the Fathers in the following chapter. But in the aforementioned places, they almost always speak generally of the priestly power according to its entire amplitude, including the power of order, according to which it embraces the power of censuring, of remitting sins, of creating priests, etc., and simultaneously the power of jurisdiction, which also includes the dispensation of the spiritual treasure of the Church, and the power of binding and loosing through censures, and many other things. This power being considered in such universality, it is clearer than day, that it is far more excellent than the civil power. Now here we speak not only in this mode, but also precisely in discussing these powers under the aspect of legislative power. And thus we also say, that the Ecclesiastical power is preeminent, as Pope Boniface clearly says in Extra., Unam sanctam, de maiorit. et obedient. And the reason can be given from what has been said in chapter 1, that this power (even insofar as it is legislative) is of the supernatural order; while the civil power is natural, as has been shown above: therefore the former is more excellent in its being [esse] and substance. And this difference can be established between these two powers, which is sufficiently clear from the things said in chapter 1, and it shall be further explained forthwith. But in order that the excellence of this power be made clearer, there are some other differences which are to be assigned on the part of the causes, and principles, and actions of both powers.

2. The second excellence of this power, therefore, is drawn from the part of the end: the end of Ecclesiastical power is supernatural, while that of the civil is contained entirely within the order of nature; the former is spiritual, the latter material; the former eternal, the latter temporal. Indeed all these things are clear from what has been said in chapter 1 and 2 of this book, and in chapter 6 of the prior. There we show, that the end of civil power and law is not eternal and supernatural felicity, but at most the natural felicity of this life; and that not final and perfect, but insomuch as it can be obtained in the perfect human community; and that power is per se and in its intention not extended to the life to come after death, or to its state. But now, one must think quite differently of the Ecclesiastical legislative power; for it has per se been given to direct men to the eternal and supernatural felicity of the life to come: for this is the final end firstly and per se intended by this power. For just as Christ the Lord poured out his blood for men unto this end, so he instituted his Church for the same end, and committed to men the power for ruling it in the order to the same end. And this is the sense of those words, I will give to thee the keys of the kingdom of heaven, etc., and of the words, The Holy Spirit hath placed you as bishops, to rule the church of God, which he hath purchased with his own blood. And thus often in the Canon laws there occurs express mention of this end, as in the cap. Inter cætera, de offic. ordin.: Amongst the other things which pertain to the salvation of the Christian people, etc., and in the cap. Quoniam, dist. 10, it is said, that Emperors have need of the Pontiffs for eternal life, and the same in cap. Cum ad verum, dist. 96. And hence it is also, that this power, through its laws, principally intends the salvation of souls, and that sins be avoided, as I have shown from many laws in the previous book, chapter 6, and the same is drawn from cap. 2 de constit. in 6 where it says, So as to meet the perils of souls, and cap. ult. de poenit. et remiss., where it says, Lest peril of souls should threaten on account of the postponement of penitence, and in the entire cap. Omnis utriusque, in the same place, and especially where it says, making use of diverse experiments in order to save him who is ill. Likewise from the cap. Ut constitueretur, dist. 50, where Augustine says, that the ancient irregularity imposed upon those doing public penance on account of unusually great crimes, was introduced from the rigor of discipline pertaining to the power of the keys, signifying, that this most of all was given for the spiritual correction of crimes, and for procuring the salvation of souls. Finally, it is manifest from almost the whole of canon law, and the decretal Letters of the Pontiffs.

3. The reason is also clear, because this power is supernatural, as we have shown broadly above in chapter 1; therefore per se and by its very nature, it tends to the supernatural end, whether that of the future life, or of the present: for these two are so connected and subordinated between themselves, that the one cannot be separated from the other; therefore in this end, this power differs most of all from the civil power, which is merely natural, and of itself can tend only to the natural end, as has been shown above. And thus it is clear, that the opinion of Fortunius discussed above, in book 3, chapter 11, insofar as it confounds the ends of these powers, is not probable, and can furnish an occasion for many errors. For surely, if the ultimate end of both powers is the same, the means will also be the same, and the matter will be the same, and consequently the acts also, and whatever the one is able to do, the other will also—all of which are plainly erroneous. Now the reason is, that these powers in their very being [esse] are very much distinct in terms of their genus; therefore it is necessary that they be distinguished in their ends also. The antecedent is clear from the things said, because the one is supernatural, not only because it is granted by God in an extraordinary mode, but because, of itself, and by its very nature, it cannot be found in nature itself, nor can it arise from its principles, which is not the case with the civil power. Wherefore the royal power, even as it was in Saul, or David, although it had in these men a kind of supernatural mode, was very different from this power: for theirs was only civil power, and of itself natural in its substance, although it had been granted in a preternatural mode; but this power is per se supernatural, and of the divine order, because it can in no way be connatural to men. Now the first consequence is clear, because the whole being [esse] of any power whatsoever is in the order to its end and object; therefore, if a power is supernatural, it is necessary that it tend, by its very nature, to a supernatural end and object.

4. You might say: canonical laws often make ordinances regarding things which are merely exterior and natural: for canon law also intends external peace, and the conservation of justice, as it is said in the proœmium of the Decretals, and unto this end it coerces and punishes vices. Many are also found in the canon laws, which pertain only to the order of causes and contracts, as is clear from Book II, and from a great part of Book III of the Decretals. Therefore, although the Ecclesiastical power, insofar as it is a power of handing on the doctrine of the faith, and the sacraments, and insofar it is a power of remitting sins, or of dispensing spiritual things, is supernatural, and concerns a supernatural end—nevertheless, insofar as it is legislative, it seems to be of the same nature and order with the civil power. It is answered by denying the consequence. First of all, because even in the matter of faith and the sacraments, it commands many supernatural things, and that supernaturally, such as, to believe this or that, to receive such sacraments in such a way, or at such a time, to offer a supernatural sacrifice, or to assist at it, and similar things: and in all these things it conducts itself insofar as it is a legislative power, according to the things which John XXII discusses in Extrav. Quia quorundam, de verbor. significat. Secondly, because even in all these things which this power establishes, and which pertain to external Ecclesiastical polity, or to lawsuits, contracts, etc., it always commands supernaturally, that is, under a supernatural aspect, and in the order to the supernatural end. For the legislative power is the same in any matter whatsoever, and always operates under the proper aspect of its object. This can be declared, according to a similitude, from the acts of the infused virtues. For by faith, e.g., we not only believe the supernatural mysteries, but also many natural things, such as, that God exists, or that the soul is immortal, yet just as faith is concerned with these things, it tends under a supernatural aspect, and operates supernaturally; the same can be seen in charity and hope, and most of all in the per se infused moral virtues; therefore this power has itself thus in making these laws which seem to be political and quasi-civil: for always in these it has regard for the salvation of souls, and for the religious worship of God, as can be regularly apparent from the tenor of the canons themselves. And there is a very good example in the cap. Qualiter et quando, 2. de accusat. where, discussing the order to be observed in judgments or denunciations, the Pontiff works to gather this from the authorities of the new and old Testament. From which, he says, canonical sanctions afterward proceed. Now the reason is, that since this power is of a superior order, it comprehends lower things also, insofar as they are of use to higher things in some way, either according to the mode of a subject, or according to the mode of an instrument, or some similar way, and thus it can make laws regarding things or matters of an inferior order, yet always under the superior and supernatural aspect.

5. The third excellence of this power can be assigned from the part of the efficient cause and of origin: for this power is as it were per se infused, wherefore it can flow immediately from God alone, insofar as he is its author, and the supernatural governor, as from its first and chief principle; while the civil power is given by God insofar as he is the author of nature, and is not properly conferred per se, but through the mode of a property flowing from nature itself, in the manner explained in book III. Whence it is clear, that even on this point, this power is far more excellent. This is more importantly declared thus: for this power, according to its adequate character and excellence, has been conferred by Christ the Lord, and in him it was as a property flowing from the hypostatic union of the humanity to the Word, as we have explained at length in the first tome of the Third Part, disp. 47. From this it is clear, that this power is so much the more excellent in its source than the civil power, as the hypostatic union surpasses the human community. Now this power is derived from Christ and through Christ to his Vicar through a certain very great kind of participation of that power of excellence which was in Christ, and thus had its foundation not only in the incarnation itself, but also in the merits of Chris the Lord, and in his blood, which cannot be said of the civil power considered in itself; therefore from all these things, the excellence of the Ecclesiastical power is manifestly apparent.

6. This excellence can be asserted, fourthly, from the part of the subject, because the Ecclesiastical power much surpasses the civil in its primary and as it were immediate subject. For the civil power is immediately in the human community; while this power resides principally in Christ the man, whence it happens, that as regards the proximate subject, the civil power is in that man to whom the community has committed it, or in his successors; whereas this power is in him to whom Christ has committed it, or his successors; or through his mediation in others. But amongst these persons, there are three differences to be noted. The first, that the civil power is able to be in any man whosoever, even one unbaptized, whereas this Ecclesiastical power can be in none except such as have the Baptismal character. For Baptism is the door of the Church, and thus, just as before the character of Baptism no man is directly subjected to the Church, so also, without that character, no man is capable of Ecclesiastical power, whence neither can he have the power of orders. You might say, hence that inconvenience can be inferred which we inferred above regarding a mental heretic, because if, faith having been lost, he were to lose power, this power would be very uncertain; so also in the present it is uncertain whether someone has the Baptismal character, because in many ways it can happen that the Sacrament is not valid; therefore the same incertitude follows from the necessity of the character. Yet it is responded, that the cases are not similar, because the certitude of Baptism, although it is not wholly infallible, nevertheless has that moral certitude which can be had in human things, and the character, once impressed, can never be removed, while faith can easily be lost.

7. Another difference is, that the civil power can be in men and women; but the Ecclesiastical power cannot be in women, at least by ordinary law. We speak regarding the power of jurisdiction, with which legislation is concerned: for as regards the power of orders, it is certain that women are incapable of it, as is to be shown explicitly in the matter on Orders against the authors of novelties stirring up the ancient heresy of the Papuzians, which was rebutted by Augustine, De hæresibus in 27, and Epiphanius in 49, from Paul, 1 Cor 14 and 1 Tim 2, where he permits women neither to teach nor to speak in the Church. Now, I have said it cannot, because this power, inasmuch as it is given immediately by Christ, that is, the supreme and Pontifical power, cannot be in a woman, because she is not capable of orders, or of Episcopal consecration, and thus is not capable of the Pontificate either. That which some have dreamt up regarding John VIII, is fabulous, as Bellarmine, De Romano pontifice, lib. III, cap. ult., has shown from Onuphrius, and Baronius copiously, ann. 853, n. 56ff, where he refers other authors. And in n. 63 he rightly notes, that even if that fabulous story had occurred as it is thus related, that woman would not have been Pontiff, but the see would have been vacant for that time, and afterward, in the election of Benedict, the succession would have continued, concerning which more elsewhere. But hence I gather, that this phrase it cannot is to be extended to the whole of ordinary Ecclesiastical jurisdiction. For he who is incapable of the power of orders, is also incapable of ordinary Ecclesiastical jurisdiction, because from the divine institution of the Church, she ought to be governed, in spiritual things, by priests or clerics, according to ordinary law. And nevertheless, I have added, at least according to ordinary law, on account of Ecclesiastical jurisdiction, insofar as it can be delegated by the Pontiff, concerning which there is a controversy whether an act of this power can be committed to a woman. In this it is certain, that it ought not to be committed, and it is the more received view that it cannot be, as I have discussed in the matter on Censures, disp. II, sect. 3, from n. 5. And as regards the present legislative power, it has never been seen in the Church, which is a sign that it cannot occur.

8. Finally, there is a difference in this part, that the civil power can be in mere laymen; while this power cannot but be in clerics, which is to be explained in the same way as the preceding. Although regarding the Pontifical power, it is not so certain that a mere layman is wholly incapable of it, if he be otherwise duly elected, provided that he be immediately ordained. But it is certain that it has never occurred in the Church, nor ought it, on account of the novelty and the peril. And it is similarly certain, that one thus elected ought not to use the power of jurisdiction, unless he be ordained, although he is able to use it prior to the Pontifical consecration, as soon as he is elected and placed on the chair. Now, regarding inferior power, the ordinary law of the Church is that it not be committed to laymen, and thus, lower than the supreme Pontiff, no one can commit it to a layman. Wherefore, although it has sometimes been seen that a layman is elected, or postulated for the Episcopate, such as Ambrose, and others, yet it has not been seen, that the use of power is given to him, until he receives some sort of ordination. And thus the supreme Pontiff, making use of the ordinary law, does not grant it except to a man constituted in some clerical grade, at least of the first tonsure, although in respect of his absolute power, he could perhaps do otherwise. Finally, there are other excellences in this Ecclesiastical power which can be considered, namely, that it is much more universal, and is, in its supreme degree, unique for the whole world, and that it is most of all necessary, and that in its mode it is the foundation of the Church, as the blessed Thomas said in 2. dist. 44 in ult. dub. lit. And finally, that it has more noble effects, which shall be made clearer by explaining its laws.

[1] But see e.g. Bardenhewer’s summary and account regarding the authenticity of the Long Recension of the letters of Ignatius, from which Suárez here quotes. — Trans.