Works By John Courtney Murray, S.J.

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Leo XIII: Separation of Church and State

JOHN COURTNEY MURRAY, S.J.

Woodstock College

Leo XIII developed the theory and practice of Church-State relationships amid the conditions created by the peculiar nineteenth-century plight of the so-called Catholic nations of Europe and Latin America.¹ The major feature of the situation consisted in the efforts of an activist ideological sect to effect, through the control and use of governmental power, the politico-social change known as "separation of Church and state." This current phrase was pregnant both of an ideology and of a political and social program. It meant, first, the alteration of the Christian structure of politics, which had been characterized by the traditional duality of Church and state, in the direction of a juridical and social monism. It meant, secondly, the evacuation of the Christian substance of society through the establishment of a surrogate political religion which went by the name of "laicism." The first subject of the present article is separation of Church and state in this pregnant sense, which is the sense in which Leo XIII understood the thing.

The idea of separation was carried in the bosom of the sweeping historical movement which issued from the eighteenth-century lumières as translated by Jacobinism into a political ideology and program. This movement has already been described under its proper name, totalitarian democracy. The purpose now is to bring forward the texts in which Leo XIII gives his understanding of the separation of Church and state at which this movement aimed. A second purpose is to indicate the differences which set off the condemned Continental meaning of the formula from the meaning it has had within the American constitutional system. These differences are numerous and significant. The intention in noting them is initially descriptive. If judgment, whether of approval or of condemnation, is to be passed upon the American constitutional system, it is important that the judgment

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should be based on a clear appreciation of the uniqueness of this system, which is radically different from the systems familiar to Continental Europe.²

TWO TRADITIONS

Antecedently, it may be said in general that the differences between Continental and American separation derive from a fundamental divergence of political traditions. In our own day research has illuminated the paradoxical fact, not fully appreciated in the nineteenth century, that the spirit, the principles, and the forms of the Christian medieval polity have better survived in the so-called Protestant countries, England and the United States, than in the so-called Catholic states of Continental Europe and their Latin-American derivations. American separation of Church and state owes its special character to the fact that it was conceived within the framework of a political tradition that was directly tributary to the medieval heritage, even though this heritage reached the shores of America

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in secularized and Protestantized form. In contrast, Continental separation of Church and state, of which Revolutionary France exhibited the exemplar, owed its very different peculiarities to the fact that it represented the final state in the corruption of the medieval political heritage.

This corruption did not begin with "the principles of '89," or even with the Reformation. It began with the beginnings of that state absolutism which became the distinctive mark of the ancien régime, setting it off sharply from medieval polity, whether imperial, royal, or municipal. The most fateful, corrupting consequence of absolutism was the development of the notion of sovereignty as one, indivisible, and omnicompetent. Absolutism enthroned the unchristian principle of the primacy of the political, the supremacy of the raison d'Etat. It led to the irrational idea of law as simply the command of the sovereign. It destroyed the Christian concept of an organic society, whose several orders and institutions have their own autonomy and freedom. It cancelled out all distinction between state and society. It abandoned the principles of medieval constitutionalism. Reviving the lex regia in its degenerate form, absolutism nullified the medieval Christian doctrine of consent. It also wrecked the medieval ideal of representation and of popular participation in power. It fundamentally altered the whole notion of "civil man," turning the medieval homo liber et legalis, who had an intangible charter of freedoms and a real personal existence within his immediate community, into a passive unit who got lost in an undifferentiated mass of "subjects."

Finally, absolutism revived the originally pagan, and later Germanic, notion of the "religion of the state," the Eigenkirche, placed under royal surveillance, and made more or less an instrumentum regni. By the same token it validated the theory of regalism, with all its artful techniques for inhibiting the freedom of the Church. In consequence of a legal rationalization of the whole of public order, effected in the spirit of Roman law, political absolutism forced a new modality upon the Church-State relation, which became a static, formally legal relation, established between sovereignties and regulative of their respective acts, whereas it had been a dynamic, moral, customary relation whose effects had been pervasive through the whole of society. Absolutism was indeed devoted to the cura religionis; there

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would be one faith, as there was one king and one law. But this care of religion was itself largely an aspect of absolutism's fundamental drive towards a monism of state power and law. This drive is inherently destructive of the Christian structure of politics.

Out of the process of the destruction of the medieval political heritage, begun in the absolutist era, there came Gallicanism, the religious Caesarism of the French classical monarchy and of the Spanish Crown, Hispanidad in the sense of Philip II's Inquisition, Febronianism, Josephinism. The reception of Roman Law, to the relative extent that it was a damnosa hereditas, assisted the process. So too did the post-quattrocento nationalisms, and the unprecedented confusion of religion and politics introduced by the Reformers and abetted by Catholic princes. The whole movement gathered force from the sixteenth-century principle of territoriality, from the seventeenth-century principle of the divine right of kings, from the eighteenth-century principle of the public good as wholly embodied in the state (of which the enlightened despot was the First Servant and therefore the absolute master, possessor of the total ius politiae), and finally from the nineteenth-century principle of the sovereignty of the people with all its monistic overtones. The destruction of the ancient Christian heritage became complete with totalitarian democracy, which bettered the instruction of the ancien regime in point of state monism and an absolutism of political rule.

In one decisive aspect the rise of the absolutist national monarchies progressively turned the medieval situation inside out. The traditional structure of politics had been marked by a distinction between society and state. This political distinction was a historical development consequent on the Christian distinction between state and Church. This latter distinction established the principle of the freedom of the Church. Since in medieval times the Church itself was the Great Society, free under its own law, there was inherent in the freedom of the Church the concept of a free society, a whole area of human concerns—the sacred concerns of man and also those temporal concerns which have a sacred aspect—which had its own structure in terms of man's original rights and responsibilities. This area was marked off as being outside the legitimate sphere of interest of the secular power. The power itself stood within the Great Society, as a limited aspect of its ad-

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ministrative life, constituent of a minor order distinct from the order of the Great Society, set to serve the order of the Great Society.

Royal absolutism reversed this situation. The whole of society, including the Church, was drawn inside the growing state and gradually surrounded by the developing armature of civil law. Society became the particular nation; the nation was identified with the state; and the nation-state itself became identically the Great Society. The political result of the development was the "society-state," the one all-embracing omnicompetent form of human association. In it the state-aspect—the aspect of power and law—increasingly assumed the primacy over the society-aspect, the aspect of culture, education, associational life (including marriage and the family), and even religious life. Totalitarian democracy represented the end-form of this lengthy corruption of traditional political principle. Amid the jumbled ambiguities of the Third Republic (and its Continental and Latin-American imitations) hardly a vestige of the medieval political heritage remained visible. It was in the conditions created by this disintegration that Continental separation of Church and state took its rise and assumed its special character. In these conditions, characterized by the omnipotence of the society-state, the separation of the state from the Church inevitably involved an apostasy of society from the Catholic religion. Being separate from the state, the Church could have no existence within society, except such as the sovereign power might choose to grant it.

Continental separation was also the outgrowth of another development—I mean the movement towards a redivinization of society which was intimately related to the movement toward the absolutization of the state. In a brilliantly argued thesis Eric Voegelin has pointed to this development as constituting "the inner logic of the Western political development from medieval immanentism through humanism, enlightenment, progressivism, liberalism, positivism, into Marxism."³ The movement claimed for itself the name of "progress"; actually, at its most profound level it represented reaction. It was a repudiation of the central civilizational tradition of the West.

The essential political impact of Christianity had consisted in a

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radical de-divinization of the temporal sphere of power. Christianity brought a new truth, a new hope, a new law, and a new community. In the name of these new things it denied that the state represents the ultimate milieu of man's perfection, the embodiment of the highest values in human life, a moral end in itself, and the sphere for the achievement of salvation. It denied too that secular government is the existential representative of ultimate truth. "Dux hominibus esse ad coelestia, non civitas sed Ecclesia esse debet," as Leo XIII succinctly phrased the tradition. However, this Christian devaluation of the civil power and of the temporal sphere of its exercise has continually met resistance. The resistance is part of the permanent recalcitrance to the Gospel—its truth and its grace—which is inherent in unregenerate nature, and in nature even when regenerate.

The resistance has taken many historical forms, not least in Catholic empires and states.⁴ But it assumed its most self-conscious and organized form in the modern religion of.laicism. The name is misleading.

The "man" of this religion is not the layman but the divinized man of rationalist theory. The "society" of this religion is not a secular but a sacralized society—a society invested with the historic religious functions of the Christian Church, which are to teach man the full truth and to lead him to salvation. Laicism was the religion of self-salvation, wherein man becomes God and society becomes the Church. It is indeed customary to speak of the secularization of politics as the specific modern phenomenon. A more revealing term would be the sacralization of politics, or the redivinization of society, meaning the elevation of the society-state to the level of a quasi-religious form of life, wherein the ultimate good, "salvation," is to be achieved. Continental separation of Church and state was an essential aspect of this movement toward the redivinization of society. Unless this is understood, its meaning cannot be grasped. So Leo XIII understood it, as will appear.

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The immediate point here is that the American political tradition, – whose parentage was English rather than Continental, has remained substantially untouched by the two radical vices which ruined the medieval heritage on the Continent—absolutism and the sacralization of politics.⁵ The link of continuity with the great tradition has indeed been weakened; in America too there has been a certain treason of the clerks, although its results have never been so radical as they were on the Continent. A most urgent intellectual task confronts those Americans who see that the future of their political experiment depends on the success with which its principles will now be restated in their deepest connection with the ancient patrimony.⁶ What is centrally significant, however, is the fact that the link with this patrimony, for all that it has grown tenuous, has never been broken. In consequence, the American constitutional system, as a structure, still reveals the essential lines of the Christian structure of politics. Furthermore, the American idea of the political order in its relation to the larger order of human social living, in remaining untainted by sacralization, has remained substantially true to the great tradition.

Decisive here is the firmness with which the United States Constitution asserts the distinction between society and state and the principle of a government of limited powers. The American people have repudiated the Continental concept of the omnicompetent

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society-state. The consequence is that the state remains interior to society, not outside of it, as it were, and surrounding it. The state is an aspect of the life of society—a pervasive aspect (as modern law is pervasive) but not an all-embracing or omnicompetent 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 a whole structure of personal and social rights not of its creation, and limited too by the principle of consent. The state is not primatial; society possesses the primacy over the state. 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. Moreover, the channels for the enforcement of this primacy exist in the form of popular institutions of rule, through which the conscience of society makes itself the norm for the action of the state.

Within this structure of politics the American concept of separation of Church and state finds place. It is a consequence of the distinction between society and state. It is a consequence of the fact that society, the people, has made to government only a limited grant of powers. It is a consequence of the general theory of a pluralism of powers whereby society is directed. Undoubtedly the distinction between Church and state is exaggerated. But it is one thing to exaggerate a distinction into a separation, as in the American case; it is quite another thing to obliterate the distinction 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.

Furthermore, American separation of Church and state, unlike the Continental brand, neither implies nor effects any sacralization 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 veil any pretence on the part of the state, to embody ultimate values. 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 purpose 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

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of society and state are to be conducted in disregard of the natural or divine law, or even of ecclesiastical laws. It is not a political transcription of the religion of laicism. It is a legal rule, not a piece of secular ecclesiology.

It does not make the state a church, nor does it establish a political religion. It does not envisage an evacuation of the Christian substance of society; it simply imposes restrictions on the legal activity of the state. It has an effect quite opposite to that of Continental separation. So far from sacralizing the political community or the legal order, it secularizes both. That is, it confines law and government 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 towards a redivinization of the society-state. It stands more directly in continuity with the central Christian civilizational tradition—the tradition of revolt against the sacralization of the political order, and of insistence on its status as secular. You may say that it carries this revolt, this insistence, too far. However, it is one thing to carry a tradition too far, but still in its own line; it is quite another thing to subvert the tradition entirely, and inaugurate a fundamentally divergent tradition. Certainly the effects of the two procedures have been, from the standpoint of the Church, spectacularly different.

The foregoing general confrontation of two concepts of separation has been made, as I said, for the purposes of description and differentiation, and with a view to pointing out the root of difference. It will appear from what follows that Leo XIII condemned Continental separation for a variety of reasons, all of which were related to its root. This vitiating root is not the source from which the American concept of separation took its origin.

Perhaps at the outset note should be taken of an objection. There may be those who will wish to foreclose discussion by saying that separation of Church and state is always and everywhere per se damnable; therefore any attempt to distinguish American and Continental concepts, and all this appeal to divergent political traditions are so much waste of time. Their reason will be that the Catholic Church is the one true Church; that separation of Church and state denies this truth; that separation is therefore damnable. In reply,

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I can only allege the authority of Leo XIII. His massive corpus on the subject does not offer evidence that would justify the reduction of the argument to this simplisme.

For an individual to deny, in the face of the revealed truth known to him, that the Catholic Church is the one true Church is indeed heresy. For society to make this denial, again in the face of the truth individually known, would be what Leo XIII calls a social apostasy. This is most certainly true. But the fact is that Leo XIII did not locate the root-principle of separation of Church and state in this naked denial of a revealed dogma, as if somehow separation immediately flowed from this denial. Obviously, la philosophie denied that the Catholic Church is the one true Church. This is the reason why the philosophers themselves personally rejected the Church. But this is not the immediate reason why the Jacobin politicians, who followed the philosophers, sought to alter the traditional relation between Church and state. The reason was because they gave a political transcription to their philosophy, in the form of totalitarian democracy, a unified society-state, monist in its structure, pseudo-religious in its substance.

It was upon this political conception that separation of Church and state immediately followed. It was in accord with this political conception that Continental separation assumed the special character lengthily described by Leo XIII. It was because of the vices inherent in it by reason of its political principle that Leo XIII condemned it. Its monist totalitarianism shattered the traditional structure of society, which rests on the distinction and ordered relation of Church and state. Its pseudo-religious substance expelled the true substance of society, which is constituted by the heritage of Christian and rational truth. Disestablishment of the Church was indeed part of the process of separation. But even this disestablishment did not follow immediately upon a theological denial of the nature of the Church. It followed immediately on a political assertion about the nature of the state—the assertion of a self-sufficient monism of society, law, and sovereignty. That this is the heart of the matter will appear from the evidence. There can be no objection to efforts to distil, as it were, the juridical essence of separation. There may be objections to the definition of this juridical essence as consisting in the absence of legislation

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constituting Catholicism the religion of the state; there was a dispute among canonists on this point in connection with the Portuguese Concordat.⁷ The important thing, however, is to be aware that the real essence of separation is not juridical. This awareness is required, unless one is to do violence to the thought of Leo XIII.

LEO XIII ON SEPARATION

Leo XIII's first mention of the term, "separation," proves his grasp of the problem that he faced. It occurs in a letter to Cardinal Nina, Secretary of State, written a few months after his coronation : "We said that the most powerful cause of all this ruin lies in the proclaimed separation and the attempted apostasy of present-day society from Christ and from His Church, in which alone there resides a virtue sufficient to make good all the disastrous social losses."⁸ The coupling of the notions of "separation" and "social apostasy" indicates the complexity of the problem. There is the problem of the alienation of the public power: ". . . potestatis publicae saepe ab Ecclesia aut aversa voluntas aut aperta defectio."⁹ In Christian Europe the public power had turned its back on the Church or openly deserted it. More is implied here than is meant by separation of Church and state in the narrow juridical sense of the disestablishment of the Church. The apostasy of the power was not unto simple unbelief, neutrality, or indifference, but unto an alien faith, a new political

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religion. The power now stood in the service of a militant secular faith.¹⁰ Hence there followed the second and more important problem—that of the apostasy of society in the whole range of its institutions. The apostate power was to be the instrument of this social apostasy, this collective attempt to abandon the traditional Christian foundations of society and erect a new structure on purely secular bases. This was the larger, more crucial problem.

Although Leo XIII practically never uses the classic distinction between state and society, it is implicit in his view of the architecture of the problem that confronted him. It is also implicit in the structure and orientation of his doctrine and action. In fact, the lines of his doctrine and action would gain greatly in clarity if this distinction, implicitly made, were brought to explicitness. The outstanding historical merit of Leo XIII, and the brilliant witness to his breadth of view, lay in the fact that he subordinated the problem of Church and state in the narrow juridical sense to the problem of the Church and human society in the broadest sense. There is no doubt that Leo XIII set very great value upon legal and diplomatic relations between the Church and civil governments; as I shall later say, in speaking of the action of the Pope, this was the primary problem from a tactical point of view. However, for all its importance, the solution of the juridical problem was a means to a wider end, the rechristianization of society, its recall from its apostasy to the natural and supernatural truths which are the necessary basis even of social salvation. Whatever value Leo XIII set on legal and diplomatic relations with governments lay in their contribution to this supreme spiritual end.

The reference in Da grave was to the theme of Inscrutabili. This Encyclical is usually entitled, "On the Evils of Human Society." A title more indicative of its content, and of the new positive note that it struck in pontifical literature, would be (in a phrase from the text itself), "On the Church as the Mother and Mistress of Human Civilization." There is no reference to separation of Church and state in the narrow juridical sense. The problem envisaged is broader: ". . .

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the widespread subversion of the supreme truths on which, as on its foundations, the stability (status) of human society depends. ..."¹¹ This is the problem of the treason of the clerks, who have deserted to a new allegiance, the power of unaided reason as completed by the power of government. Leo XIII lays emphasis on the fact that a principal subversion consisted in the rejection of the authority of the Church. In consequence, ultimate supremacy was accorded to secular government, whose inspiration was "the impudence of those who, although they greatly err, put up the pretence of being the champions of the fatherland, of freedom, and of all manner of right."¹² The political and legislative depredations of this new omnipotence are given in some detail, in obvious dependence on events in France, Italy, and Germany. Already therefore in Inscrutabili there is touched that cardinal element in the ideology of separation which Leo XIII constantly signalizes as characteristic. He calls it the "new regalism" :

If one takes a look at the record, what is the trend today? It has become a general habit to regard the Church with suspicion, distaste, hatred; to make charges that cast odium upon her. What is much more serious, every effort and resource is employed to make her subservient to the sovereignty of political rulers. Hence her properties are confiscated; her freedom is restricted; difficulties are thrust in the way of the education of aspirants to the priesthood; the clergy is subjected to laws of exceptional severity; her valuable auxiliaries, the religious congregations, are dissolved and outlawed. In a word, the maxims and practices of the regalists have been reinforced with new harshness.¹³

Fourteen years before this statement, the same name, "regalists," was used of the theoreticians of the "new matrimony" within the framework of the new political religion.¹⁴ They distinguished between the nuptial contract and the sacrament, took the contract under the sole jurisdiction of the state, and left to the Church the function—to them, idle—of blessing the parties.

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The name, "regalists," applies with genial appropriateness to the theoreticians of the Continental concept of separation. However, Leo XIII does not trace the direct line of continuity between the new regalism of the Revolution and the old regalism of the classic Catholic state, so called.¹⁵ The continuity lay in the shared notion of the society-state, a political notion that conferred upon the state a competence, if not in "religion," at least in "ecclesiastical affairs" (as the received distinction had it —a distinction by no means clear in itself or in its applications). The new separation of Church and state and the old Union of Throne and Altar, whatever their differences, had one thing in common—a tendency toward the politicization of the whole of society, religious matters not excluded. It was with this tendency of the Continental state that the American political experiment broke, by a return to the older Western distinction between society and state. In the American concept of separation there is no trace of regalism, old or new.

The Continental meaning of separation is further developed by Leo XIII in the Encyclical, Quod apostolici, against the socialist sect. The facet that here emerges is the essential link between separation as a political doctrine and the rationalist ideology of the Enlightenment, with its theory of the absolute autonomy and omnipotence of reason. (The Pope objects to using the word, "reason," in connection with this ideology; he understands it to be simply what is called today "the theory of passionate existence.") This ideology, he says, has not only taken possession of individual minds; it has become a theory of society :

"In consequence, by a new sort of impiety unknown even to pagans, societies are organized without any regard for God or for the order established by Him. The assertion is repeatedly made that the public power owes neither its origin nor its majesty nor its power of command to God, but rather to the multitude. Furthermore, the multitude considers itself to be independent of all divine ordinances; and it permits itself to be made subject only to those laws which it has itself enacted at its own pleasure. The supernatural truths of faith are attacked and rejected as hostile to reason; and by a slow and gradual process the Author and Redeemer of

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the human race is forced into exile from both higher and lower education and from all the public usages of human life.¹⁶ "

Behind this text one can see the whole theory of totalitarian democracy. There appears the Jacobin theory of "the people," as meaning the Jacobins themselves and their good friends. There also appears the distinctive Continental theory of the sovereignty of the people, understood in the sense of Rousseau. Finally, there appears the naturalist deformation of the ancient Christian doctrine of consent. The absolutism of sovereignty claimed by the old rex legibus solutus, monarch by divine right, is now claimed by "the people" in the Jacobin sense, with the difference that the new sovereignty is absolute by right of "reason," which in the philosophy of the Enlightenment has become the divine majesty. This collective reason is legibus soluta in an altogether radical sense. It is also monist in that it allows no other sovereignty over the society-state; it rules entirely and it rules alone. The political result is separation of Church and state, as meaning the exile of God from society, and the complete irrelevance of divine law, revealed or natural, in what concerns the structures and processes of organized social life.

Moreover, this exile does not imply that a vacuum is to be left; actually, God is crowded out by an ideology which, under rejection of Him, itself pretends to furnish the foundations and substance of society. This notion of the exile of God and the banishment of the Church from society is constantly alluded to by Leo XIII as characteristic of the separation he condemns. The notion goes far beyond anything implied by separation in the technical juridical meaning.

It may be remarked here that the famous American constitutional phrase, "We, the People. . .," is the very negation of jacobinism. The American concept of "government by the people" does not attribute to the people the divinity implied in the Revolutionary idea of "the sovereignty of the people"; it simply embodies the ancient principle of consent in a developed and still recognizably Christian sense. The American system neither supposes nor effects an exile of God from society. Finally, the state itself, in its distinction from society, rests

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on no pretence that even political life can be organized "without any regard for God or for the order established by Him." On the contrary, the Constitution of the U.S. has to be read in the light of the Declaration of Independence, in which there is explicit recognition of God and of an order established by Him—the order of human rights,; which is part of the universal moral order to whose imperatives the political order must be obedient. The phraseology is indeed touched with the flavor of the Enlightenment, but it is in no sense redolent of Jacobinism. It states a traditional idea.

Further clarification of the Continental concept is furnished in Leo XIII's Letter, Ci siamo, protesting against the Italian law which made the religious celebration of matrimony a penal offense. The premise of the law was the affirmation that "matrimony is a creation of the state, and nothing more than a common contract and a social cohabitation, entirely of a civil character."¹⁷ As a purely civil affair, therefore, marriage is to be "separated" from the Church, which is to retain only the right of giving a private ritual blessing. The Pope attributes the theory to the "sworn vassals of the autocracy of the state."¹⁸ This example is illustrative of the juridical monism that was inherent in the separatist theory and practice of the unified society-state. The only law is the civil law; ecclesiastical law is not a source of juridical values. Furthermore, in analyzing this example the Pope brings out what I have called the political religion of separatism, here shown in its pretence of constituting an autonomous morality of society:

"From all this you will understand, Venerable Brethren, what judgment is to be formed of a Catholic state which throws overboard the sacred principles and the wise enactments of the Christian law on matrimony, and sets about the wretched job of creating a marital morality all its own, purely human in character, under forms and guarantees that are merely legal; and then with all its power goes on forcibly to impose this morality on the consciences of its subjects, substituting it for the religious and sacramental morality, etc." ¹⁹

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The society-state is to have its own morality, "separate" from Christian morality: "They have dared to say without ambiguity that social morality is not religious morality, and that the civil legislator is not to act as a moralist in constituting it," but simply as an official of the state.²⁰ In other words, social morality is simply legality; its source is the civil law, the will of the legislator, who has no higher norm than his own will. This example well illustrates what I meant by speaking of the new substance of society which the Continental concept of separation sought to create. It is hardly necessary to say that, whatever may be the defects of the American civil code (and they are many, not least in regard of matrimony), the code itself rests on no such premise as this—the premise of an utter divorce between civil law and moral law, which means, in the practice of civil life, the absolute priority of the civil law.

In the light of this example one can better understand what was in Leo XIII's mind when he speaks of "the principle of separation of Church and state—which is equivalent to separating human legislation from the divine and Christian legislation.^"21 The initial principle of the theory and its basic absurdity is the omnipotence of the political sovereignty. Logically consequent is the absurdity of positing the omnicompetent civil law, which is held to be the one and only law, as an independent source of morality. Further consequent is the absurdity of establishing between this pseudo-source of morality and the true source, the divine and Christian law, an absolute separation, a great impassable gulf, in such wise that no reciprocal influence is permissible or possible. Legal enactments are not to reflect the higher law; the higher law is without relevance to the legal order, which is the total all-embracing order of society. This theory of total separation is altogether different from the Christian jurisprudential theory which admits that a certain variable distance, as it were, may obtain between the civil code and the precepts of divine and Christian law, in consequence of the actual state of the popular conscience and the exigencies of the common good—the "public utility," as St. Thomas calls it.²² Again I would remark that none of the absurdities of the theory of total separation—above all not its cardinal principle of

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omnipotent state sovereignty—are to be found in the American constitutional and legal system.

This same idea of a monist indivisible sovereignty, all-embracing in its control over the society-state and creative of the very substance of society, lies behind the text in the Encyclical, Cum multa, to the Spanish bishops. This text is a brief introduction to a reproof, which the Pope had several times to administer, of the traditional Spanish tendency to confuse religion and politics:

"It will, first of all, be in place to recall the mutual relations of sacred and civil affairs, because many fall into contrary errors. Some are wont not only to distinguish political affairs from religion but completely to sever and separate them. They wish the two to have nothing in common; they think that neither should have any influence on the other. These men do not greatly differ from those who are in favor of a society which would be constituted and ruled under banishment of God, the Creator and Lord of all things. Their error is the worse for the reason that they recklessly hold society apart from a source of rich benefits. When religion is taken away, the stability of the principles on which the public good depends must necessarily begin to waver; for these principles receive their strongest support from religion. Chief among these principles are the following: that government should be just and temperate; that obedience should be a matter of conscientious duty; that the passions should be controlled by virtue; that to each should be given his due; that no one should lay hands on what belongs to another.^"23

Here again one sees the essence of Continental separatist theory. The question here is not disestablishment—the detachment of the Church from a place in the legal order as the religion of the state. In question is the root-principle of separation in its pregnant sense—the constitution of a quasi-religious concept of the society-state as self-enclosed and completely autonomous, ruled by a single sovereignty than which there is no higher sovereignty. This society-state undertakes to base both its political and its social life on principles of its own creation. It claims to have a theory of civil rule and obedience, and an ideal of civic virtue and justice, which owe nothing to religion. In other words, it has an ethical substance of its own, separate from the substance of religion. It has a monistic structure of its own, and it shuts religion completely out of this structure; or, if religion enters, it becomes subordinate to the single sovereignty. The processes of this

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politico-social entity are completely "free," that is, they may not in any way be directed or corrected by religion—by religious authority or by religious principle. This is the Continental "separate" society-state. This is not in any sense the American idea.

The Continental concept of separation is again clearly defined in the Encyclical, Humanum genus. As usual, Leo XIII first sets forth its basic principle, a monism and totalitarian absolutism of political sovereignty. Individual reason is the only authority in the realm of truth and morals. Consequently, the collective reason, represented by government, is the only authority in all that concerns both the structure of the state and the substance of society. Over the unified society-state in all its affairs, religion included, this single authority holds indisputable sway. On these grounds the society-state "separates" itself absolutely from the Church, both in the sense of rejecting her authority and in the sense of denying to her truths any foundational value for social life or any directive influence on the structures and processes of the state.

"Take a look now at what the Masonic sect does in those affairs which relate to religion, especially when its licence to act is more unrestrained. Judge for yourselves whether it be not true to say that the sect wishes to give expression in social fact to the doctrines of the naturalists. A lengthy and stubbornly laborious effort is being made to see that the teaching and the authority of the Church should have no influence upon society. To this end they publicly preach and contend for the idea that sacred and civil affairs must be completely sundered. When this result is achieved, they exclude the saving virtue of the Catholic religion from the laws and from the administration of public affairs. Their consequent position is that the whole of the organized community is to be constituted quite aside from the teachings and precepts of the Church. Nor is it enough for them to pay no attention to the Church; they must wreak injury upon her by hostile action."²⁴

(This action, the Pope goes on, seeks to undermine the foundations of the Church and to put impediments to her freedom.) The "separate" society-state is, therefore, the political transcription of philosophical naturalism. Its constitutive principles are the primacy of the political, a monism of sovereignty and of law, a conscious rejection of Christian truth and the authority of the Church, and the intention of establishing naturalism as the religion of the society-state. The Church,

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both as an authority and as a doctrine, is put aside in a "separate" place not only outside the legal order of the state but also outside society itself; for outside the state there can be no society. In theory the Church is somehow to disappear into exterior darkness. For the rest, the theory is that all the institutions of the closed society-state are to be animated, not by Christian principles, but by the principles of naturalism. As these principles are the "soul" of the state, so they are likewise to be the soul of all social institutions. On account of its resistance to this totalitarian ideology the Church is literally outlawed.

This ideology of the "separate" society-state is again fully outlined in Immortale Dei. The same principle of totalitarianism again appears—the primacy of political sovereignty; its monism, indivisibility, and omnicompetence; its presumption both to dictate the structure of politics and to create the substance of society. The society-state based on these principles is the political transcription of the philosophia assentatrix principum, the philosophy that is sycophant of power:

"When society is animated by these principles, government is nothing but the will of the people; and the people, as it is under its own single governance, alone gives orders to itself . . . . There is no mention of the divine sovereignty; it is as if God did not exist . . . . In this view, as is evident, the state is nothing but the multitude as master and ruler of itself; and since the people is said to possess within itself the source of all rights and of all power, the consequence is that the state considers itself bound by no sort of obligation toward God.^"25

In this conception the society-state itself becomes the divine majesty; for he who is the source of all power and rights must certainly be God. Leo XIII speaks of it as a theory of state atheism; state and society have completely separated themselves from God. The genius of the theory—its quasi-religious totalitarian character—would be better conveyed by using the later term, familiar to us today, "state idolatry."²⁶ The theory goes beyond irreligion or indifference to religion. The society-state, autonomous and self-enclosed, is made the bearer of a new religion, a new ultimate view of man, sovereignty,

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law, and society. The "man" of the philosophes himself becomes the object of his own worship. The state, which is this "man" writ large, becomes with Hobbesian literalness the mortal god. And this god makes divine claims to absolute and total sovereignty. The consequences for the Church of this idolatrous totalitarian democracy, born of a separation of man from God, are then given a statement whose exactitude can be verified by the legislative proceedings in the Continental nations which were touched by the new political religion. The point is that the Church was not really "separated" from this society-state; no totalitarian theory can admit that anything in society is "separate" from the state. The essence of the "separate" Continental state was its totalitarianism; and therefore it unified the Church with itself, making her simply an agency within the state, dependent on the civil law for her legal existence and freedom, and subordinated to the political sovereignty:

"When the state is established upon such foundations as these (so much in favor in our day), one may readily see the situation into which the Church is forced, and how unjust it is. When governmental action is in harmony with these principles, the place in society accorded to the Catholic Church is on a par with, or even inferior to, the place granted to associations of quite a different nature. No account is taken of ecclesiastical laws. The Church, which must by the command of Christ teach all nations, is forbidden in the slightest way to touch public education. Civil officials on their own authority and at their own pleasure decide even those I matters which are under a twofold jurisdiction [such as marriage and Church possessions]. In a word, they deal with the Church in terms of their own supposition, that she is to be deprived of the character and tights of a perfect society; they hold her to be entirely similar to all the other kinds of associations contained within the state. For this reason they maintain that all her rights and all her legitimate powers of action are possessed by her by the grant and grace of secular government ....²⁷

In this kind of political order, presently so much admired, it is a deliberate policy either to drive the Church wholly out of public existence or to hold her bound and fettered to the regime. The conduct of public affairs is in great part ruled by this intention. The laws, governmental administrative measures, the education of youth under exclusion of religion, the plundering and the destruction of religious orders, the overthrow of the civil dominion of the Roman Pontiffs—all these things look to the same end; they are designed to put an end to the vigor of Christian institutions, to fetter the freedom of the Catholic Church, and to shatter all her remaining rights."²⁸

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The main religious consequence of the root-principle of Continental separation is that the Church too is overtaken by the process of politicization which the whole of society undergoes beneath the power of the state. This process overrides and obliterates the essential distinction between the state and Church. It also cancels the principle of the primacy of the spiritual by establishing the opposite principle of the primacy of the political. The process itself is a road to tyranny; the inevitable outcome of such totalitarianism is religious persecution. Hence Leo XIII can say: "If anywhere there exists, in reality or imagination, a state which boldly and tyrannically persecutes the Christian name, and if the new kind of polity about which we are speaking is compared with it, this new polity may appear to be more tolerable. Nevertheless, the principles on which it rests are such, as we have previously said;that no one ought to approve them on their own merits (per se ipsa)."²⁹

The basic principle is the on which Leo XIII constantly insists. The statement of it in Immortale Dei is simply a repetition of what he said in Humanum genus: "The source of all right and law and of all civil duties is either in the multitude or in the power which governs society—and in this power inasmuch as it is animated by the principles that have been lately come by.³⁰ These are the principles of naturalism. They determine the structure of the state, as monist and totalitarian. They furnish society with its new substance, a new political religion. And the new state-church, fully in the non-Christian tradition of the Continental état enseignant, undertakes to communicate its own ethical content to its citizens: "The moral instruction which is the single object of Masonic approval is that which they call ‘civic morality,’ ‘autonomous and free morality,’ that is, a morality which includes no notion of 'religion.'"³¹

It may be well to state here that only a very superficial view can situate the essence of Continental separation in the equality of all religions before the law. The doctrine of Leo XIII forbids this superficiality. Whenever he mentions this juridical equality of religions in the face of positive human law he is careful to show its relations to a much more radical theory. There is the principle that the new society-state has its own secular religion which provides it with its foundations

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apart from any appeal to the Christian religion. There is also the novum ius, the new concept of indivisible state sovereignty—a prolongation of royal and confessional absolutism—which empowers government to reduce all traditional religions to the common level of private cults, which are of concern only to the individuals who comprise them. These equal cults, insofar as they are socially organized, all share the formally appointed legal status of voluntary associations. They owe their legal existence within the society-state to the ius commune. They equally share the privileges authoritatively granted by the ius commune, with a special privilege of hostility being reserved for the Catholic Church.

It is necessary to point out here an essential distinction; my impression is that it is commonly overlooked by canonists. The First Amendment to the Constitution of the United States is not by any means the same kind of juridical provision as the Continental ius commune. The difference derives from the fundamental divergence of the political theories that are respectively the premises of each. The Continental ius commune in the "separate" society-states was predicated on the laicist prolongation of the older absolutism and regalism. Its supposition was that a power inhered in the sovereignty of the state which empowered it to formulate a statute whereby the legal status of the Church would be determined, and then to impose this statute on the Church.³² (Obviously the statute was formulated in accord with

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the "separate" society-state's own idea of religion.) In contrast, the supposition of the First, Amendment is that no such power inheres in the political sovereignty as embodied in the Congress of the United States. Furthermore, the sovereignty has no such power because it was not included in the grant of power made to government by the common consent of the people. The American government is, by the act of the people which constituted it, a government of limited powers. And one of the limitations is stated hi the First Amendment: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...."

The difference is dear. 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 Continental ius commune supposed that the political sovereignty, as the source of all rights, is likewise the source of whatever 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 a 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 committed to the state in regard of religion is the protection of its freedom.

Hence the manner in which the Catholic Church exists in American society is not the same as the manner of existence possessed by the Church under the Continental ius commune. In the latter case, the Church was legally free to be only what the sovereign society-state legally and authoritatively declared her to be, namely, a voluntary association owing its corporative existence to civil law. In the American case, the Church is completely free to be whatever she is. The law does not presume to make any declarations about her nature, nor does she owe her existence within society to any legal statute. In a word, the Continental ius 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 a whole people in a constitutional act of consent. The Continental denial was made by an ideological party in an arbitrary assertion of power. The Continental denial was conceived within the context of a political tradition corrupted by absolutism. The American denial was conceived within the

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context of the central political tradition of the West, surviving in its essential soundness. All these differences prove a radical divergence of political theories. The United States presents a political form fundamentally different from what Leo XIII was talking about.³³

The Encyclical, Libertas, adds nothing but further clarity to the doctrine already set forth. The same root-principle of the "separate" society-state appears:

"Once the persuasion has become fixed that no one is superior to man, it follows that the efficient cause of civil union in society is not to be sought in any principle outside of man or above him, but in the free will of individuals. It further follows that the public power finds its ultimate origin in the multitude. And it follows finally that, as the reason of the individual is the only guiding norm of action for the individual in his private life, so the reason of the collectivity must similarly be the only guiding norm of action for the collectivity in the sphere of public affairs."³⁴

This is the familiar monist principle of political sovereignty, which is the intimate essence of the "separate" society-state. Its advocates, the Pope says, "make government a master unlimited in his powers." Or to cite a later text (and thus show the continuing emphasis on the idea), "Those who are in authority over the people claim for human

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reason a power that knows neither measure nor law.^"35 If the society-state is singly the creation of the free will of man, owing nothing to nature or to God, then it is up to the free will of man alone to determine its structures and to provide it with its substance. In neither task will man look for normative guidance from religion. Society is "separate" from religion, since religion is a purely private matter, irrelevant to all that is social or political in character: "... the moral life of individuals ought indeed to be directed by the dictate of divine laws, but not the life of society; in public affairs it is permitted to depart from the commands of God, and to have no regard for them in the process of law-making. From this premise there follows the disastrous conclusion that society and the Church are to be dissociated.^"36 Society has nothing to receive from the Church, since it generates its own principles of life; the Church has nothing to give to society, since Christian truths are socially irrelevant. Public religion is an absurdity, since religion is by definition private. Religion must be private, because by definition that which is public is created and ruled in accord with the principle, "homini antistare neminem." Man in his social and political activity has no such Sovereign Lord as religion postulates. Civil man is his own god.

This is the root-principle common to the different kinds of "Liberalism" distinguished by the Pope. Upon this principle there follows that politicization of society against which the Pope constantly protests. The Church herself is politicized: "Accordingly, they falsify the nature of this divine society; they diminish and inhibit her authority, her teaching, all her action. At the same time they aggrandize the power of civil government to the point of subjecting the Church of God to its sovereign rule, as if the Church were just another voluntary association of citizens.”^"37 An affair of the Church is dealt with by gov-

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ernment "as if it were a matter of purely civil business, entirely under the judgment and authority of the political power."³⁸

This monist totalitarian politicizing sovereignty is meant by the Pope in the phrase, "Eadem libertas, si in civitatibus consideretur...."³⁹ That is, it is the same absolute freedom which naturalism attributed to individual reason, only now in its political transcription. This political power, as an assertion of its primacy, assumes the power to decree that "no one cult is to be preferred to another; all are to be placed on an equal footing of right."⁴⁰ As the single ultimate source of rights, it presumes to confer upon various cults an equality of rights. And in so doing it does not even consider itself bound by any representative function in regard of the body politic: "Nor does it take any account of the people, even in the supposition that the people

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profess the Catholic name.^"41 Bettering the instruction of the ancien régime, the civil power considers itself to be representative of a new "truth of society." It assumes the function of enforcing this truth upon all its people in all their social forms of life. It represses heresy ("les préjudices") in public life; it shows tolerance by granting equal rights of private existence to voluntary societies of dissenters from the new and true political religion. And it thus acts repressively or tolerantly in virtue of a power claimed to be inherent in the nature of political sovereignty as such.

This again is the Continental "separate" society-state, monist in its structure, totalitarian in its tendencies. And once more I remark, this is not at all, either in principle or ethos, what came to birth in the American Republic.

This description of the Continental concept of separation may be concluded by a citation from the Encyclical on the ralliement, Au milieu des sollicitudes:

"We shall not use the same language on another point, concerning the principle of the separation of Church and state—which is equivalent to separating human legislation from Christian and divine legislation. We do not wish to pause here to demonstrate the full absurdity of the theory of this separation; each one by himself will understand it. From the moment that the state refuses to give to God what is God's, it refuses by necessary consequence to give to its citizens what they have a right to as men. For, like it or not, the true rights of man derive precisely from his duties to God. Whence it follows that the state, in missing under this respect the principal purpose of its institution, really winds up by denying itself and believing what is the reason for its own existence. These higher truths are so clearly proclaimed by the voice of natural reason itself that they impose themselves on every man who is not blinded by the violence of passion.

"In consequence, Catholics cannot too carefully beware of supporting such a separation. In effect, to wish that the state should be separated from the Church would by logical consequence be to wish that the Church should be reduced to the freedom of living according to the law common (droit commun) to all citizens.

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"This situation, it is true, obtains in certain countries. It is a manner of existence which, if it offers numerous and serious disadvantages, also offers some advantages, especially when the legislator, by a happy inconsistency, does not cease to be inspired by Christian principles. These advantages, although they cannot justify the false principle of separation or authorize a defense of it, render worthy of tolerance a state of affairs which, practically speaking, is not the worst of all.

"But in France, a nation Catholic by its traditions and by the present faith of the great majority of its children, the Church ought not to be put in the precarious situation which it experiences among other peoples. Catholics can so much the less extol separation in proportion as they better understand the intention of the enemies who desire it. To these enemies—and they themselves say so clearly enough—this separation means the entire independence of political legislation in the face of religious legislation. What is more, it means the absolute indifference of the power in regard of the interests of the Christian society—that is to say, the Church—and the very negation of her existence.⁴²

"What Leo XIII understands by the "principle" of separation ought by now to be clear. There is, first, the principle that the structure of the state is monist, ruled by a sovereignty conceived according to the novum ius—a sovereignty which is legibus soluta, the single author of the only law there is, totalitarian in its pretension to politicize the whole of society, religion included. Second, there is the allied principle, founded on the same ideology, that the substance of society is provided by the new "truth" about man, not by Christian truth. The power stands in the service of this new "truth"; it is completely "separate" from Christian truth and from its vehicle, the Church. Moreover, since there is a clash of truth and of authorities here, the "separate" power fights for its own truth and authority, against the Christian truth and the authority of the Church. Leo XIII thus concludes the passage cited: "They make, however, one reservation, which is thus formulated: As soon as the Church, taking advantage of the resources which the droit commun offers to the least of Frenchmen, is able to make her work prosper by a redoubling of her native activity, the state can and ought immediately to intervene and place the Catholics of France outside the droit commun itself."⁴³

In the sentence, "From the moment...," the Pope seems to be making the point that totalitarian democracy, inspired by its secular faith, is a self-defeating proposition. Human law, the state, and political sovereignty exist in order to create a temporal order of justice and

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freedom—a reflection of the moral order—wherein citizens will be in peaceful possession of their rights, and wherein men will be able to carry out their duties to God and reach their eternal destiny. By attributing to itself the sovereignty that belongs only to God the state belies its own reason for existence. It exists for a function of ministry to man; but it assumes a function of mastery. In destroying man it destroys itself. Its political religion is not the stuff of which justice and freedom can be made. It is too airy to support even civil order, whose only stable support is the moral order sanctioned by God.

It is obvious that Catholics could not possibly consent to the principle of Continental separation, especially in view of the persecuting lengths to which the adherents of this principle were prepared to go. Nor could the Church consent to be reduced to "la liberte de vivre selon le droit commun." The reason lies in the meaning of this juridical concept as already explained, and in the whole structure and ethos of the political system in which this concept found place. Such a consent would mean infeudation to an inherently totalitarianizing regime; it would mean capture within the iron cage of a political and juridical monism; it would mean the acknowledgment that the state has the power to enfranchise the Church; it would mean a betrayal on the part of the Church of the freedom with which the Incarnate Word has made her free.

The next sentence reads: "This situation, it is true, obtains in certain countries." Perhaps Leo XIII was thinking, for instance, of Belgium. It could hardly be that the United States was in his mind. One who has a genuine understanding of the historically unique character of the American political system, and who likewise understands the concept of separation as it is evolved in the Leonine corpus, could not flatly say that this latter kind of separation obtains in the United States. There is doubtless room for criticism of the American system; but at least it is free from the two essential vices that the Pope constantly alleges as the principles of Continental separation—a monist totalitarianism of state power, and a pseudo-religious concept of the substance of society.

Moreover, it is not a "happy inconsistency" when the American legislator is inspired by Christian principles. Such an inspiration is entirely consistent with the American concept of the state and society;

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it is by no means outlawed, as in the Continental concept, by the American legal rule of separation of Church and state. This is not to say that Federal and State legislation in the United States is always obedient to such inspiration. The point is that the American legislator is under no necessity to cast himself in the role of a Continental anti-clerical. American legislation does not on principle repudiate the demands of Christian morality, because, unlike the Continental "separate" society-state, it does not pretend to have an ethical and quasi-religious substance of its own.

Finally, there is the question, in what sense would it be true to say that the Church in America is in a "precarious situation" in consequence of our constitutional law? The question concerns a matter of fact; it must be answered in terms of fact. On the evidence of history the fact would seem to be that the Church in America has enjoyed greater security, precisely by reason of the Constitution, than she has enjoyed in any Continental country over the same span of years. Many adjectives, some of them possibly pejorative, might characterize the situation of the Church in the United States, but hardly the adjective "precarious." The Pope rightly characterizes as "precarious" the situation created by Continental separation of Church and state. But this precariousness derives from a political hypothesis. In her Continental state of separation the Church was truly at the mercy of the totalitarianizing sovereignty of the unified society-state; hence her situation, as a power and as a people, could not be other than precarious. This, however, is not the American political hypothesis. The substantial preservation of the Christian structure of politics in the American system has contributed powerfully to make the situation of the Church not precarious but secure.

If the question is to be put in terms of precariousness vs. security, it will be impossible to make any absolute assertions. It is undeniable that the legal institution of establishment has afforded the Church a measure of security in various countries. If legal protection were withdrawn in Spain today, for instance, the situation of the Church would doubtless be quite precarious. On the other hand, there have been situations wherein this manner of legal security was joined with a great precariousness in the social situation of the Church. One might perhaps again cite the case of Spain. It was, in fact, this latter precariousness

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that enhanced the value of legal security. On the other hand, the major value of the American experience would seem to lie in its showing that the absence of legal establishment does not of itself result in a precarious situation for the Church. The decisive question is, in the name of what political tradition—what concept of the state, of sovereignty, of law, of society, indeed of man himself—is separation predicated? Continental separation was indissolubly connected with a political ideology that had broken at every fundamental point with the classic and Christian tradition. Therefore it put the Church in a precarious position; in fact, the "very negation of her existence" was entirely in the logic of the new structure and meaning of politics. On the other hand, where no such rupture with the central Western tradition has occurred, the case is profoundly different. This is the American case.

One last detail in the text of Au milieu should be noted—the Pope's citation of the fact that France is a "nation Catholic by its traditions," and by the residue of social fact that history had left, the Catholic majority. This is an instance of the frequent Leonine appeal to history. History had established between France and the Church the special relation symbolized by the image, "the eldest daughter of the Church." By 1892 (Au milieu), in the circumstances of "the two Frances" created by the Revolution and by the advancing dechristianization of the masses, the image had become largely nostalgic in its connotations. Nevertheless, sacred memories clustered about it. The century-long, thrice interrupted movement toward separation had sought to shatter the image as well as the historical reality it symbolized. What God, the Master of history, had joined together, men were now striving to put asunder.

The traditional union for which the Pope here speaks, against a separation which would shatter it, was not merely or even primarily legal; the relationship of mother and daughter is not a legal relation. Not the rupture of the Concordat but the rape of the daughter was foremost in the Pope's mind. This would seem to be clear from the immediately preceding context, which deals with the question of the Concordat. The Pope states the two views in France: the extreme Left desired its abrogation, "in order to give the state full freedom to harass the Church of Christ"; the Opportunists desired its retention, "as a chain whereby to fetter the freedom of the Church."⁴⁴ The Pope

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mentions the dispute in order to warn Catholics against entrance into it; it is a "matter which belongs to the Holy See." In contrast, "We shall not use the same language on another point, concerning the principle of the separation of the Church and the state. . . ." On this point all the faithful are to take a side—against separation.

The issue of the Concordat, which guaranteed to the Church the legal status of "the religion of the great majority of Frenchmen," was ambiguous, to say the least. In fact, the whole history of legal relationships between the Church and France had been ambiguous, since the days when Francis I set the pattern for the Union of Throne and Altar—a pattern under which the freedom of the Church had suffered grievously. In contrast, the issue of separation was not ambiguous. The real issue here was not juridical—a question of union by law established. The real issue was religious in the most profound sense—a question of union established by faith, and by fidelity to a providential history and destiny. To this union separation was an unambiguous menace. The question was, which of "the two Frances" would be France? A passage from an earlier Allocution renders the Pope's thought. After mentioning the "lovely title of `eldest daughter of the Church,'" he goes on:

"She could not forget that her providential destiny has united her to the Holy See by bonds too close and too ancient for her ever to wish to break them. From that union there have come forth her true grandeurs and her most pure glories. She has continually found occasion to congratulate herself on the victories and triumphs of the Church and Papacy. To destroy the harmony of this traditional union would be to take away from the nation itself a part of its moral force and its high influence in the world." ⁴⁵

This is a valid appeal to history—to the bonds and union which history, under the providence of God, had created between France and the Church. The Pope is not thinking of these bonds and union in juridical terms. (What part of the grandeur of Christian France—say, in its seventeenth-century apogee—had been due to the legal arrangements of the Concordat of 1516? And was the Edict of Nantes one of the "most pure glories" of French Catholicism?) Here, as habitually, Leo XIII was contending for a union, and opposing a separation, which went far beyond anything that law could create or destroy.

In this connection the American situation appears in its most strik-

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ing uniqueness. In what concerns the Church-State relation there is a sense in which it is true to say that the Catholic Church in the U.S. has had no history. It has been obliged to begin a history, just as the American Republic itself began a history. In a true sense, there never was a separation of the Catholic Church from the state in America, because there never had been a historical union of the Church with the state. The term, "separation," cannot have the same meaning in the U.S. as in Continental Europe; it cannot mean in the U.S., as it did in Europe, a rupture with the past. Leo XIII could write to France in 1896 on the centenary of the baptism of Clovis (in 496, the traditional, but probably not correct date): "It can be said that the baptism of the glorious victor of Tolbiac [or was Siegebert the victor of Tolbiac, with the aid of the Salian Franks?] was at the same time the baptism of the kingdom of the Franks. . . ."⁴⁶ But there never was a Clovis in the history of America. There never will be one; for the age has passed when the baptism of a man can mean the baptism of a nation. This fact has consequences. The founding of the American Republic inaugurated a distinctively different political context and history. They are hardly to be compared with the contexts and histories within which the Church in Europe has been obliged to seek proper applications of her principles with regard to the Church-State relation. One can say, I think, that the Church in the U.S. can be guided only in terms of pure principle, not in terms of past applications of principle, made in alien contexts. Actually, the Church-State problem had always previously been posited in terms of the political history of Europe—in terms of the early Christian, Carolingian, and high medieval Empires; later in terms of the centralized, absolutist monarchies, of which the France of the ancien régime was the exemplar; later still in terms of the confessional absolutisms of the post-Reformation era; finally in terms of the bastard political creations of Napoleon, the Restoration monarchies, and the Revolutionary republics.

But the American Republic, as a political structure, represented a break, in different ways, with all this history. As a modern state it represented a break with the medieval imperium in all its forms—a break, that is, in what concerns the institutionalization of power, not in what concerns the essential medieval principles of politics. Again,

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as a new kind of modern state the American Republic represented a break with the modern state as the Continent knew it, not only in regard of the institutionalization of power but also in regard of principle. Chiefly, it broke with the unchristian principle of the one indivisible sovereignty and its unmedieval corollary, the unified society-state with its politicization and legalization of all aspects of social life.

This new political fact, the inauguration of a new history in what used expressively to be called the New World, has had consequences for the Church. Perhaps the main consequence is best indicated by the absence from the American scene of that laborious and elaborate, distinctively Continental thing known as Staatskirckenrecht, which is itself the relic of a long and special kind of history. I expect it would be very difficult for the normal American Catholic, even though he be a canonist, to regret the absence of that wondrously intricate branch of law, or to mourn the non-existence of the history which in Europe made it necessary. However, my only point here is that, if appeals to history are to be ranked as valid, the Catholic Church in America has a history to appeal to—its own distinctive history. This history has meant for the Church a new kind of spiritual experience, not tasted on the Continent the experience of reliance on its own inner resources, under a regime of constitutional law that has been equitable (as the droit commun of Revolutionary Europe was not), but not creative of legal privilege (as the various regimes of establishment were).

This experience requires evaluation in its own context, which is not the context of modern Continental political history. American constitutionalism broke with that history, for excellent reasons; there is neither the intention nor even the possibility of returning to it. The United States, as a new political and social phenomenon, will go on making its own history, for good and ill. The Church in the United States is engaged in that history, for good and ill, just as the Church in France, for good and ill, was engaged in the very different, but likewise unique, and somewhat ambiguous history of France, and of the other socalled Catholic nations of Europe. Hence a question rises. Is the Church in America to be allowed to travel her own historical path and fashion her own particular solution to the Church-State problem, remaining faithful to essential Catholic principle, but likewise striving for effective application of principle to the specific character

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of the political tradition within which her institutional life is lived? Or, on the other hand, is the Church in America to repudiate the history of America in what is most unique about it—its installation of a political tradition sharply in contrast with that of modern Continental Europe? Is she to be bound to those special applications of principle which were necessary and legitimate within political contexts alien to her own?

The wisdom of St. Thomas teaches that a political system and its whole structure of law (including the laws–or in St. Thomas' day, the customs—in which the Church-State relation finds expression) are the work of nature in the full Roman and Christian sense. They are therefore to some extent a product of historical forces and experience; they are not created by naked reason or by sheer Christian principle. (The Church did not create feudal Europe, or the national state; least of all did she create the ancien régime.) It was the folly of the philosophes to suppose that the state is simply a work of art in whose construction history can be denied, custom abolished, social experience disregarded, and the lines of the structure altered at the mere command of the rational will, to conform to the exigences of abstract ideas.

Leo XIII therefore was on sound ground in appealing to the history of France against the heirs of the philosophes. By the same token one would be on sound ground in appealing to the history of the United States against any who would somehow repeat the error of the philosophes in the name of juridical essences. Three hundred years of American history—about as long as the span of the ancien régime—have firmly established a political tradition. The structure left by these centuries can indeed be improved and the tradition itself purified; but neither can be abolished. The history of the United States will never "repeat" that of Continental Europe. The Church in America will never "repeat" her historical situation in the so-called Catholic nations. This is a fact, with consequences.

In this connection one must ask, of what relevance to the American case is the notion of a "Catholic majority"? Obviously, as used by Leo XIII in the context cited, the notion was entirely relevant, for the simple reason that it was not an abstraction, not a statistical notion. It was a reality that formed an essential part of his appeal to history. The Catholic majority in France was a residue of history. It was not a

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numerical sum of individuals, an aggregate, a formless crowd. It was the historical reality of "the old France," in present conflict with the "new France." Moreover, this "old France" came out of the past bearing with it not simply the Catholic faith as such, but a particular national heritage, compounded of multiple national traditions. It represented—to use a familiar distinction not simply l'Eglise catholique which France had long honored, but le monde chrétien which France had long been. Therefore this determinate French Catholic majority could be made the premise of a valid argument.

Basically, the argument was for the old faith; but it was also for the old France. Both were under attack by the newly concocted secular faith and by the newly organized "separate" state (the Third Republic was really "separate" from the Church long before the juridical act of 1905). Leo XIII was prepared to defend both the old France as well as the old faith, the "Christian world" of France as well as the Catholic Church in France. (Up, that is, to a point; there came a time when he was no longer willing to sponsor what had been a part of the French monde chrétien for so long that many Frenchmen had. come to think of it as an integral part of the Catholic Church—namely, the monarchy.) In arguing from the historical reality of a Catholic majority, the Pope was arguing for the particular "Christian world" which had been, as it were, the "form" of that existent entity. He was arguing from history, not from statistics. He was arguing for history, not for an abstraction, a juridical essence.

What was, in point of religious and social fact, this Catholic majority? To answer the question, one must recall that the "Christian world" which was France (or the other so-called Catholic nations) was not the pure creation of the Catholic faith as such; it was the result of a juncture between Christianity and a particular political culture. It had two characteristics. First, the construction of this particular Christian world had been chiefly the work of great kings. Second, the dominant experience of the Catholic majority had been the experience of tutelage by Christian princes. This was even more emphatically true after the enforcement in the post-Reformation world of the "pagan principle,"⁴⁷ cuius regio, eius et religio. It is not likely

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that anyone will contest these assertions on the ground of historical fact. The Christian world of the so-called Catholic nation bore the mark of Clovis, and Recared, and especially of Charlemagne, who revived a pagan tradition, as he revived the Roman Empire, by assuming the function of episcopus externus, charged with the construction and administration of the Church, i.e., the Christian world. The Catholic majority in this Christian world likewise bore an ancient stamp. It was in effect the army of Clovis, three thousand strong, following their chieftain—the "new Constantine," as Gregory of Tours called him—to the baptistery and under the obedience of Bishop Remigius.⁴⁸ The relation of Clovis and his national Church, especially as later given something of form in a sort of Concordat between the Church and royal power at the Council of Orleans in 511, was a prefiguration of the Union of Throne and Altar that became characteristic of the later Christian world of the Catholic nation, as it issued from the crack-up of Christendom. All the value is there, and all the ambiguity too.⁴⁹

The point is that the Christian world, characteristic of the Catholic

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nation, bore these identifying marks upon it in consequence of the circumstances of a particular political culture.⁵⁰ That a multitude should be in the image, more or less close, of Clovis' army is not a per se proposition, part of a thesis; it is an historically contingent fact, a hypothesis. Given the fact, religio-political tutelage—after the fashion of Clovis, or Louis XI, or Garcia Moreno, it does not matter—properly follows as an adaptation to the fact. The Church was pleased to make the adaptation. But this kind of tutelage does not on that account become itself a per se proposition, a thesis.

It seems to be clear that Leo XIII considered the Clovis-army concept of a Catholic majority to be still a social fact in his own day. France was still the "baptized nation"—which is not a theological concept or a juridical one. The "old France" which he had to defend was the France which still stood in need of the kind of tutelage to which it had been accustomed in the historical monde chrétien from which it came. Whatever may be said about Leo XIII's ideals, and per se propositions, and theses, it cannot be forgotten that he was an unremitting realist. As I shall say later, he knew the conditions of religious and political culture that prevailed in the old France, the old Spain, the old Austro-Hungary, the old Italy, the old Bavaria. To him the Catholic majority was not, I repeat, a statistical notion. It was the "ignorant multitude" (multitudo imperita),⁵¹ which is the factual premise of an important part of the theory of government found in Libertas. As I shall also say later, Leo XIII bent every effort to alter

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this deplorable social and religious fact. In the meantime he saw his Catholic majority—the old Catholic nations, the old Christian world—menaced by the contrefaçon of Clovis, a new kind of "external bishop," showing traditional favor towards an untraditional thing—a new political religion."⁵² This was the factual situation which the Pope faced. He faced it with complete realism, as his paternal concept of government shows. This topic will return later.

But what sense does this notion, a Catholic majority, make in the American case? There is no such residue of history in the United States; there is no "old America" to be defended or restored. The notion becomes merely statistical, and therefore meaningless. It offers no kind of premise for argument, such as it offered in Leo XIII's text. In using it one is at best talking in terms of futuribles—and non-pure futuribles at that, as far as any human foresight can go. Even if it should prove to be a pure futurible, what warrant is there for prophesying that an American Catholic majority would reveal the lineaments of the historical majorities in the so-called Catholic nations as described by Leo XIII? Would it be ignorant, religiously apathetic, socially inert, a mass of "subjects," standing in need of tutelage by some Clovis-like power in a regime that would be a repetition of the old monde chrétien? Does anyone know what a "Christian world" would be like that is not fashioned by great kings but by a genuine Christian people, whose historical experience has not been of subjection to the power and tutelage by it, but of active participation in the power and control of it? Can anyone describe the spiritual reality of a Catholic majority that would be the historical product of an American future and not a relic from a European past? And if one cannot describe this spiritual reality, one cannot argue from it not, that is, and remain faithful to the concrete Leonine manner of argument.

This notion of a Catholic majority has been victimized by what Gabriel Marcel stigmatizes as "the spirit of abstraction." It has been

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stripped of the existential reality which it has in the argument of Leo XIII. He was not arguing from numbers but from history, and from the determinate sociological reality, with distinctive spiritual and cultural characteristics, which had been the heritage of history, the product of the juncture of Christian faith with the facts of a particular political culture within the so-called Catholic nations. If you change these facts—as the United States has changed them, largely by validating the proposition that government is to be by the people, and is to be limited in its powers you will supposedly change your historical product. Certainly, the present American Catholic minority is not the predominantly peasant and proletarian Catholic population of the old Catholic nation, so called. They have the same faith, but they are not the same kind of people, because their history has been different. The futurible majority which might grow from them will not be the Catholic majority of Leo XIII's argument. His argument was valid because his premise was real. But it is unreal to equate an actual Catholic majority, residual from a particular segment of history and a special kind of political culture, with a futurible Catholic majority prophesied as eventual in a new segment of history and a different political culture.

Conclusion

The purpose of this article so far has been to explore what exactly it was that Leo XIII condemned when he condemned separation of Church and state. If I understand his doctrine correctly, the conclusion is that, after full assent has been given to this condemnation as a matter of Catholic duty, there is still room for an unprejudiced examination of the American concept of separation, because 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 principles, its own intentions, its own merits and defects.

It should be already clear that American separation may enter a valid plea of "not guilty" on the two basic counts in the papal indictment of Continental separation. The first count in the indictment bore upon the social and juridical monism that was the immediate premise of

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Continental separation. The consequences for the Church of this monism of societies, law, and sovereignty were such as to make it radically incompatible with basic Catholic doctrine. The separation predicated on this monism shattered the traditional structure of politics and put an end in principle to the freedom of the Church. However, American separation is not based on any such monist theory. The traditional structure of politics is preserved by the distinction between society and state. The consequences for the Church are quite different from the consequences of Continental separation. Notably, the freedom of the Church is not destroyed, but guaranteed.

The second count in the papal indictment bore upon the social apostasy inherent in Continental separation. This apostasy consisted in the conscious repudiation of the Christian and rational truths which tradition asserted to be foundational to the union of men in society—to the "coniunctio societatis humanae," in Leo's phrase. The apostasy also consisted in the attempt to substitute a new political religion—a new truth, a new law, a new concept of social man—as the ethical substance of society. Furthermore, the civil power undertook the protection and propagation of this new political religion, this new secular ecclesiology, as it might well be called. However, American separation has no such pseudo-religious meaning or consequences. It does not entail the exile of God or of the Church from American society. It does not mean the enlistment of the civil power in the service of a political religion. It does not involve a social apostasy. In a word, the "separate state" of the American formula is not in any recognizable sense the "separate society-state" of the Continental formula. More simply, the American "state" is not the Continental "state"; this is the root of difference.

The American system can therefore validate its plea of "not guilty" with regard to the two basic charges in the indictment of Continental separation. This fact is of considerable importance. However, the inquiry has to be carried further. Leo XIII not only described and condemned the Continental concept of separation; he also outlined, in opposition to it, a concept of christianitas. The term is here used, and will hereafter be used, with its medieval connotation of a certain solidarity, amid all proper distinctions, of the sacred and the secular, the spiritual and the temporal orders of human social life. The Leonine

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development of the concept of Christianity—in certain respects a new development was the obverse, positive side of his condemnation of Continental separation. It remains therefore to examine this concept. One will thereafter be in a better position to determine the status of the American system in the face of Catholic doctrine. Or, what is more important, one will be in a better position to state the full Catholic doctrine on the relation of the Church to state and to society, as conceived by Leo XIII.

THE LEONINE CONCEPT OF CHRISTIANITY

Leo XIII set forth his concept of Christianity in the course of developing two great themes. The first theme is the Christian structure of politics, as over against the separationist structure and its juridical and social monism. This theme deals with the problem of Church and state. The second theme is the Christian substance of society, as over against the political religion of laicism. This theme deals with the problem of the Church and society—a broader problem than that of Church and state. A principal part of the historical significance of Leo XIII, in the history of the development of doctrine, lay in his distinction of these two problems, and in the emphasis he laid upon the latter. This latter theme may also be called that of the social necessity and value of religion. It is a metapolitical and metajuridical theme.

Leo XIII's statement of the Christian structure of politics is contained in the seven major texts in which he gave a newly refined statement to the central tradition whose first classic enunciation was made by Gelasius I. The Leonine statement, like the Gelasian, is properly theological, not juridical. The propositions contained in these texts are antecedent to any statements that may be made about formally legal arrangements between Church and state. They are superior to, and regulative of, the whole problem of the concrete institutionalization of the Church-State relation. They contain the absolute and final truth, in that mode of generality which alone can make the statement of the truth absolute and final, independent of historical contingencies, valid for the year 53 as for the year 1953.

A positive expose of what Leo XIII meant by Christianity ought to

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begin with these texts. Treatises on public ecclesiastical law frequently follow a more apologetic pattern. The question of separation of Church and state is treated antecedently to the question of what is called their union. The first step is the exposition of errors—state atheism, indifferentism, separationism. The essence of separation is conceived in juridical terms; separation is made a legal concept. After the refutation of errors in the matter, the true doctrine is sometimes presented as a deduction from the refutation of these errors. So, for instance, by Cardinal Ottaviani: "Since all these things [state atheism, etc.] are erroneous and pernicious, one can properly deduce that some positive system of juridical relations ought to exist, whereby the necessary relation (colligatio) between the two powers may be established."⁵³ The argument is that, since the essence of separation—the wrong, disorderly relation—is legal, therefore the essence of the right, orderly relation must likewise be legal. There must be a legal "union" of Church and state, through the incorporation of the Church into the legal structure of the state, i.e., the national state, usually conceived by the canonists as a society-state.

It is not my intention to criticize this fairly common apologetic method of approach. One may, however, doubt whether it is always safe thus to back into the truth, so to speak, on the rebound from error. Continental separation was indeed to some extent a matter of legal act; it involved the rupture of legal bonds that had previously existed between Church and state. Whether the proper essence of Continental separation was therefore legal or juridical is a proposition that I would myself question, in the light of Leo XIII's doctrine in the matter. The idea of legal disestablishment played an extremely minor role—if any role at all—in his lengthy and minute description of separation. In any event, there is a problem in the consequence of the argument. Because Continental separation involved injurious legal action on the part of totalitarianizing political sovereignties, does it therefore follow that the essential exigencies of Catholic principles on the Church-State relation are satisfied only by a "union" also legally effected? The consequence here is not luminously clear. If legal union, in the sense of an establishment of Catholicism as the religion of the state, is to be asserted as the only right and orderly relation, this legal concept of

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establishment ought to be derived directly from a scrutiny of positive principles—the origin, nature, and functions of political power as such; the distinct origin, nature, and functions of the sacred authority as such; the fact that they rule over the same man, who is Christian and citizen, a member of two societies; and the consequence of this fact, that there must be a harmony and an orderly cooperative relation between the two powers and the two societies. Whether a process of dialectical argument, under no appeal to history, will lead from these principles to the concept of legal establishment seems to me doubtful. It will be as unsuccessful as an attempt to conclude to a jurisdiction of the Church over the temporal power as such from the premise that the end of the spiritual society and power is in a higher order of reality than the end of the temporal society and power. This theological and political premise does not yield such a juridical conclusion.

Actually, the apologetic approach contributes to the avoidance of a fundamental problem. Is a system of formally juridical relations a deduction from essential principles, or is it the product of history—the consequence of the special kind of legalization that public order has undergone, in Continental Europe, notably after the reception of Roman law, at the hand of the developing modern sovereign state, in consequence of which the Church, in order to obtain any place in national public order, had to obtain a legal place, and hence had to legalize her relation to the state? If this second alternative be true (as I think it is), it will, of course, leave untouched the validity of this juridical system in its own context; but it will set the system itself in a different light by showing it to be a historical development in the application of principles rather than a nakedly dialectical deduction from the principles themselves.⁵⁴

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Moreover, in this view of the matter one will be in a better position to understand the high medieval situation, wherein there was, properly speaking, no system of formally juridical relations between the two powers, such as the modern era introduced. These may have been the "ages of perfect agreement" (foederis perfecti), as Cardinal Ottaviani calls them.⁵⁵ One could easily exaggerate the perfection of the medieval situation; in any event, to speak of an era of "perfect agreement" fails to indicate the peculiarity of the situation—the religio-political conception of the Church as the one Great Society with two administrative hierarchies; this was not a piece of perfection but of immaturity, proper to a particular stage of civilizational development. Moreover, to speak simply of "perfect agreement" leaves in the air the nature of the agreement; it has a distinct modality, hardly comparable with what obtained under the ancien régime.

A more serious difficulty is that this apologetic approach results in a certain distortion of Leo XIII's doctrinal edifice. To put the juridical problem (legal establishment vs. non-establishment) in the foreground is to alter the perspectives of the Pope and to shift emphasis to an aspect of the matter that was not primary with him. The Leonine notions of "ordinata colligatio" and "concordia" are not in the first instance juridical notions. If it is permitted to deal in abstractions, one can readily conceive a polity in which there would be an ordinatissima colligatio between Church and state without any sort of system of juridical relations. One can indeed arrive at the notion of legal relation from the notion of orderly relation, but not by a process of immediate deduction. There is need of a middle term, which only history can supply, in the form of a particular kind of political society, produced by the forces of history, which required the formal legalization of the Church-State relation in virtue of a particular concept of

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the structure of public order. It is the special merit of Leo XIII that in formulating the tradition in his Gelasian texts he went beyond history and gave his statements a generality that makes them—unlike the legal concept of state-religion— transhistorical, purely doctrinal.⁵⁶

From a theological point of view, therefore, and also in the interests of a more correctly accented presentation of Leo XIII's doctrine, it is preferable to begin an exposition of the Leonine concept of Christianity where he himself began it—not with a refutation of errors but with a statement of the truth, the central tradition regarding the structure of society. This tradition is contained in the seven Gelasian texts in his corpus. They state the two irreducible data, rational and reveal