The Catholic Lawyer

Volume 8 Number 1 Volume 8, Winter 1962, Number 1 Article 4

The State's Guarantee of Liberty - A Moral Evaluation

Rev. William F. Cahill

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REV. WILLIAM F. CAHILL*

T HE GUARANTEE to be evaluated may be described in a few words. The state pledges, by its internal law or by treaty, that it will protect persons within its jurisdiction against molestation in the exercise of their religious and ethical beliefs, and that this exercise, as such, will not deprive them of any benefit provided by the state's laws. The pledge is, of course, limited by operation of laws that safeguard the peace of the state and security of its residents. Our evaluation will be made by inquiring into the moral object, intent and effects of the acts by which the state gives and implements the guarantee. If the state, or at least its chief organ, be an individual prince, no one but a Machiavellian will question this approach to our task. Certainly the man whose political power is absolute is still a man, obliged by his human nature and God's will to know the relation of his every concrete act to his ultimate end, and to choose in each such act means that will lead him to that end. When a prince pledges , his act has a dual impact upon the moral order. As a concrete human act, it is either an act of sin or an act of virtue, according as it impedes or advances the prince's progress to moral perfection and . But because his act makes law, it also affects his moral rights and the moral obligations of his subjects. His act has this second effect by expanding the subject matter of his rights and the content of his subjects' obliga- tions. Assuming, of course, that the prince's pledge is a morally valid exercise of political power, his subjects are now obliged, though they were not before, to forbear the use of private or public force to coerce others in the exercise of their ethical and religious beliefs. The prince has a new moral right, which his subjects violate if they use the coer- cion he has forbidden.

t Paper read at the annual meeting of the Catholic Theological Society of America held in Ottawa in June 1961. Subsequently published in Vol. 16-1962 of the Proceedings of the Society. * B.A., LL.B., J.C.D.; Priest of the Diocese of Albany; former editor of The CatholicLawyer. STATE'S GUARANTEE

The state which is not, and whose prin- Our principal purpose in attempting a cipal organ is not, a physical person has no moral evaluation of the state's guarantee of personal end of moral perfection and no toleration is to determine whether and destiny of personal fruition in God. Unlike when the state's act has the effect of creat- their citizens, officials, stockholders, direc- ing moral rights and duties. This evaluation tors, members and leaders, the United will, of course, be a necessary premise in States of America, the General Motors any judgment upon the acts by which an Corporation and the United Mine Workers individual man exercises his human facul- are not destined to heaven or even to ties either alone or in conjunction with the nor, by the same token, are they powers he enjoys in his political system, in danger of hell. Having no human person- to advance or impede, implement or vio- ality, the state which is a moral entity is not late, the pledge of his state to protect the capable of those personal acts of knowing exercise of . This paper will discuss and willing which incur the guilt of sin, or the moral quality of the state's guarantee, perfect virtue, and achieve grace and . without attempting the broader task of The pledge of toleration given by such a judging the conduct of individual persons. state has not the primary impact of fault or virtue in the moral order. Nevertheless, the The Moral Object of the Guarantee state, like the corporation and the volun- The object of the guarantee is quite tary association, does effect the second distinct from the object of the acts by impact upon the moral order - its imper- which religious and ethical belief is exer- sonal acts alter the complex of rights and cised. The moral object of the believer's act duties in which men live, by affecting the is good or evil as his practical judgment, material subjected to those rights and premised on his belief and implemented duties. That material may be a line of in his exercise of belief, is a true or a social conduct, a period of labor, a check, false reflection of the theological, ontologi- an automobile, or a piece of real estate. cal and moral orders. If that practical General Motors can, by an act of sale, give judgment is erroneous, representing as per- me moral title to a car, so that it is my missible or mandatory an act which is evil car and no one can take it from me with- in its object, the objective moral order is vio- out doing a moral wrong which violates my lated no less than if the believer had acted moral rights. There should be no difficulty contrary to a correct practical judgment. in seeing that the United States can mor- Human sacrifice is, in its object, murderous ally oblige me not to put my hand over and blasphemous. To advocate or the mouth of a canting Jehovah Witness, free love, even when one is motivated by though I might have done so without moral a horror of superstition and hypocrisy, is fault if the law had not forbidden it. One to attempt to turn the minds and wills of supposes, of course, that the act of sale and one's hearers away from God Himself, the act of lawmaking have the qualities or from the kind of love God imposes needed to make them effective in the objec- mandatorily upon His human creatures. tive order of morals.' On the other hand, the act by which

1 See Bortolotti, Obligationis Status Veram Relig- RIODICA 298, 303-05 \Rome, 1959) [hereinafter ionem Profitendi Praemissae et Limites, 48 PE- cited as Bortolotti]. 8 CATHOLIC LAWYER, WINTER 1962 the state protects some murderers and some An act of toleration which purports to advocates of atheism and free love from confer or protect a right to teach error or punishment and molestation, does not have to do evil, has an object which is evil per murder or atheism or free love for its se. Leo XIII taught that a state object. The object of this act is to forbear guarantee of total religious liberty as a 4 punishing, or to save from molestation, a gift of nature is never morally right. person whom the state is able, physically Father points and morally, to punish or to leave open out that some of Our American contempo- to molestation. This object is dissonant raries advocate this kind of guarantee, and from the moral order if a moral principle profess to find it imposed upon all Ameri- or precept requires, unconditionally, that cans, as an "agreement on ultimates," by the state shall punish and shall refuse pro- the federal constitution. 5 The Protestant. tection to all wrongdoers. It is submitted thesis asserts that the first amendment's that the object of the state's guarantee of religious liberty clause imports the doctrine religious and ethical toleration is not evil that individual conscience is the absolute per se nor by reason of divine precept. voice of God, not answerable to any ex- The act of toleration differs, again, from ternal norm of good and evil. The secularist an act which purports to give a moral right1 thesis similarly maintains that the clause to teach error or to do evil. 2 A moral right has a dogmatic sense, and that the doctrine is a faculty, valid in the realm of morals, imposed by the clause is either absolute to act in a certain way. When the act is or agnostic moral and religious indiffer- external, the right imports a moral claim entism. These doctrines are, in sum, that upon the aid or forbearance of others. The there are no moral or religious absolutes, or moral right and its concomitant claim are no knowable ones, because if there be any always premised upon the mind and will divine order for human life we cannot know of God Who is author of the moral order. it by scientifically empirical methods, and God Himself cannot command or authorize metaphysical reflection has no validity. 6 a man to act in violation of that moral Father Murray shows clearly that the human nature which, in its essential addic- clause, in our history and in our present tion to truth and goodness, is God's own social reality, has no such import. Rather, image. The nature of man prevents his it is an "article of peace," a guarantee of receiving from anyone a right to do evil. free exercise which makes no doctrinaire a moral right to God Himself cannot give torum catholicorum, habita 6 Dec., 1953, ACTA teach falsehood or to do evil. The nature APOSTOLICAE SEDIS 45:794, 798 [hereinafter cited of the state's authority over human con- as Pius XII, Allocutio]. For English translation duct, as a sharing in and a derivative from see 52 CATHOLIC MIND 244 (1954). 4 Leo XIII, Litt. Encycl. Libertas, 20 Jun. 1888, God's authority, prevents the state from ILRIS CANONICI FONTES 3:295, 3 GASPARRI, CODICIS conferring such a right. 310; N. 600, § 30. 5 MURRAY, WE HOLD THESE TRUTHS 51 (New York, 1960) [hereinafter cited as MURRAY]. See 2 See Boucher, Liberte Morale, DICTIONNAIRE DE also Father Murray's essay in A Church-State THEOLOGIE CATHOLIQUE 9:col. 701 [hereinafter Anthology (Yanitelli ed.), 27 THOUGHT 6 (1952) cited as Boucher]. and Father Gustave Weigel's, The Church and the 3 See Pius XII, Allocutio iis qui interluerunt Con- Democratic State, 27 THOUGHT 161 (1952). ventui quinto nationaliItalico Unionis lureconsul- 6 MURRAY 51. STATE'S GUARANTEE

assertion that total religious liberty is man's the Pope, has God given to any human 7 endowment, either by nature or by grace. power a command, absolute and universal, The clause is not now, and never was, an to impede all trespasses upon the truths "agreement on ultimates;" it is "an agree- of faith or upon good morals.'1 ment on the good of man at the level of Our thesis, that the state's guarantee performance."s of toleration is not evil in its moral object, Father Bortolotti has found it necessary is clearly implied in these conclusions of to refute a distortion of Pope Leo's doctrine Pope Pius XII: "The duty to repress moral on the guarantee of religious liberty. In and religious deviations cannot be, there- his study of the obligation of states to fore, an ultimate norm of action. This profess religious truth, he points out that (duty) must be subordinated to higher and

there is no logical inconsistency between moral general norms ...."12 But the duty a state's profession of true and its to repress evil would be an ultimate norm simultaneous grant of entire freedom to of action, and would be subject to no propagate false and to exercise higher norm, if the act of tolerating evil their public worship. 9 He does not advocate by giving to evildoers legal protections and such a grant. He holds that a state which immunities were wrongful in its very object. professes Catholicism must protect the The Pope, in developing these conclu- Church against the unjust aggressions of sions, refers to the parable of the wheat and false propaganda, when the Church asks the cockle13 as one of many scriptural for such protection. But he expressly rejects passages which show that toleration of evil the notion that the state's profession of is not evil in its object. This parable seems Catholicism directly obliges it to refuse particularly apposite to our problem. The all toleration. 10 This very wise man re- parable teaches that an immunity from stricts his discussion of toleration to a punishment or molestation can be conferred single aspect of "this complex and rugged upon evildoers by an authority which im- question," but he says enough to indicate poses upon other men a moral duty not that toleration which imports only an agree- to molest the wrongdoers and to leave them ment on the good of man at the level in the enjoyment of the common goods of of performance has not a moral object human life. If the parable does not teach which is evil per se. this, then one would have to say that the Pope Pius XII taught that the practice servants who found the cockle were morally of toleration - the forbearance of the state free to disobey their master, to gather the to impede violations of religious truth and cockle though in doing so they uprooted moral law, when the means of impeding the wheat. The parable was addressed those things are at hand- is not an evil directly to the Apostles, and seems quite in se, because God Who holds the world clearly to be intended as a norm of action in His hand does not violate His own for the Church. If the Church, whose very holiness by such forbearance. Nor, said mission is the preservation of truth and the salvation of souls, may follow the 7 MURRAY 57-63. 8 MURRAY 54. 11 Pius X1I, Allocutio 799. 9 Bortolotti 317. 12 Ibid. 10 Bortolotti 318. 1" MATT. 13:24-30. 8 CATHOLIC LAWYER, WINTER 1962 householder as an exemplar of prudence, judgment, or at least its premises, seems why may not the state also imitate him? to support the conclusion that the broader It may seem to some that the guarantees guarantee here described is not wrongful in we have described are broader than those its moral object. Pope Pius contemplated in his allocution, I believe we should at this point show, and that our vindication of the broader at least summarily, that traditional Catholic guarantees is not warranted by our prem- theology does not insist that state toler- ises. The subjec.t of the Pope's address was ation is an evil in se or by reason of divine a treaty which would assure to all citizens precept. For this purpose, it may suffice of a number of associated states the guaran- to point out some of the teachings of St. tee of freedom to exercise their beliefs in Thomas on the duty of states to impede the territory of any of the member states. error and evil. He answered negatively this specific ques- The premise which underlies all of St. tion: Is it absolutely wrong for a Catholic Thomas' doctrine on this matter is that state, as a member of the association, to human authority, because it derives from adhere to the treaty which will give this the power of God, should imitate God in guarantee for exercise in its territory of the use of power. Particularly, human any and all religious beliefs admitted by authority should learn of God to tolerate 14 the other associated states? evil. God, though almighty and supremely The Pope's remarks do not advert to good, permits evil happenings which He the question of an internal law of a could prevent, lest through the removal of Catholic state which would give the same them greater goods should be lost or guarantee to its citizens as the treaty would greater evils should follow. 15 give to aliens sojourning within its borders. Jews and pagans who have never ac- But the direct moral object of the treaty cepted the Christian Faith should not be and of the law are the same. Clearly, if coerced in any way to profess it.' 6 Thomas the treaty is not evil, either in se or by sees a positive good resulting from tolera- divine precept, then the law is not evil in tion of the Jewish ritual. The beliefs of its object. the Jews reflect the historical and prophetic Again, the Pope speaks explicitly only background of the Christian Faith. Their of immunity of friendly aliens from coer- ritual is a witness, more effective because cion by the laws of the state which is an unfriendly witness, to the truth of their host. He does not mention a guarantee , and it teaches Christians some 7 that the host state's laws will protect the of the truths of their own Faith.' aliens from molestation by private persons. On the contrary, there is no affirmative But to grant to either aliens or citizens an good resulting to the Church from the immunity from legal action, without pro- toleration of heretics which can offset the tecting them from molestation by those grave harm threatened by the dissidents' who are not state agents, would be an intent to corrupt the faith of the members absurd and provocative invitation to vio- 15 SUMMA THEOLOGICA 2-2, 10, 11, c. [hereinafter lence and disorder. So the Pope's moral cited as SUMMA, with indication of Part, Question, Article, place in the Article.] 16 SUMMA, 2-2, 10, 8, ad 2. 14 Pius XII, Allocutio 797. 17 Ibid. STATE'S GUARANTEE of the Church.18 other heretics to practice their beliefs in Thomas adverts to the etymology of the order, as Thomas says, to avoid scandal. term heresy. It derives from the Greek The scandal might be suffered by true be- word for choice and imports that every lievers, by reason of the quarreling that man shall and may choose whatever teach- intolerance would cause, or it might be ing he thinks best.'0 A heretic is a Christian suffered by the heretics and other un- who rejects a doctrine of Christ and believers whose gradual and sincere con- chooses in its stead a doctrine which version might be jeopardized by the refusal pleases him, for reasons of profit, power of toleration. 2 6 One should note that this or prestige,20 or because the doctrine ap- toleration in temporal matters does not 21 peals to his carnal fancy. import relaxation of excommunication of It is the intent of heretics to corrupt heretics. the Christian Faith.22 Certainly the Church Thomas says that the "perfidious apos- must excommunicate them, lest they suc- tates," those who once held the Christian ceed in that intent, and the Church may Faith but now reject all faith in God, are permit the state to put them to death, for in far worse case as regards salvation than the same defensive purpose. 23 The threat of the pagans, Jews or even heretics. 27 He death is not made against them in order considers the menace offered to the Chris- to bring the heretics to salvation, for no tian community by apostate rulers, 28 but one can be forced into union with Christ. he does not exclude apostates from the Death is inflicted, and justly, to punish men toleration he declares may be given to 29 who have broken the pledge they made to unbelievers generally. hold the Faith when they accepted it, and In all this, Thomas does not consider the threat of death is made in order to directly the rights and duties of the state in compel performance of that pledge by those respect of tolerating or repressing unbelief. whose stand in the Faith is weakened by His remarks on the death sentence for the carnal attractions that draw men to heretics imply that this can be justly in- 24 heresy. flicted by the state, but all the evils and Yet Thomas teaches that there are rea- goods he balances in this discussion are sons sufficient for the Church to save even things which affect the Church or the the most pertinacious heretics from death salvation of individuals. Yet he must have and other harms of the temporal order. intended that the state, as a human au- The most cogent reason is to avoid a thority, should learn of God to tolerate evil schism in the Church, caused by those who for the sake of securing a greater good sympathize with the heretics. 25 The Church or forfending a greater evil. And he must has, in fact, permitted the Pelagians and be taken to imply that goods and evils which affect the temporal common weal, 18 SUMMA, 2-2, 11, 3, ad 2. which is the charge of the state, should be 19 SUMMA, 2-2, 11, 1, arg. 1. weighed in the balance with the spiritual 20 SUMMA, 2-2, 11, 1, arg. 2 and c. 21 SUMMA, 2-2, 11, 1, ad 3. 22 SUMMA, 2-2, 11, 3, ad 2. 26 SUMMA, 2-2, 10, 11, c. 23 SUMMA, 2-2, 11, 3, ad 3. 27 SUMMA, 2-2, 12, 1, c. 24 SUMMA, 2-2, 10, 8, tot. art. 28 SUMMA, 2-2, 12, 2, tot. art. 25 SUMMA, 2-2, 10, 8, ad 1. 29 SUMMA, 2-2, 10, 11, tot. art. 8 CATHOLIC LAWYER, WINTER 1962 goods and evils he enumerates as objects yet the moral person's act has intent of the Church's immediate concern. analogically and juridically. A corporation Vitoria, the great theologian and jurist, can give a deed which is absolute on its considers the application of St. Thomas' face, but the deed will operate in law as doctrine by a Christian prince who rules a trust or a mortgage if the court finds that unbelievers. He argues that when the prince the corporation intended the transfer in has undertaken to rule the pagans upon trust or to secure a debt. The legal and a stipulation that he will permit them to moral rights of the corporation and of its retain their ritual, then he cannot coerce grantee, and even those of third persons, them in these matters, "for in this they are different in each of the three cases. are not his subjects, since he has no power Similarly, the acts of democratic and but what they gave him."' 30 Vitoria insists other corporate governments may be said that no Christian prince has power to im- to have intents which have effect in the pose higher taxes or diminish the liberties juridical and moral orders. We are all of his pagan subjects in comparison to his familiar with the effect of a legislature's Christian subjects, for he has no more intent upon the rights and duties of persons power over one that over the other. The subject to its laws. Christian must rule a pagan country so We should remember that the law's in- that its material resources are conserved tent is the intent of the law- the intent and increased, and not despoiled,3 1 nor of the state or its lawmaking organ, ex- should he deny the right of coinage if the pressed or implied in the official action by prosperity of the country demands it.32 which the law is made. One cannot attrib- ute to the state or to its law every purpose The Moral Intent of the Guarantee for which individuals have advocated the Every human act, precisely because it is law or voted for it, or now execute it or human, proceeds from a deliberate will. take advantage of it. A law may be un- The will always takes its direction from exceptionable in its legal intent, though a final purpose or end. The end is so called many or even most of the citizens or because it is the first in the series of officials of the state support it or employ causes that bring a man to act. It is first it for evil purposes. The existence of such for the reason that if the man who is about evil private intents may very well raise to act knows that the end cannot be a proper question concerning the moral 33 achieved, he will not act. value of the law's effects, but that is a Though the will-act of a moral person question quite distinct from the question has not the psychological process which we of the law's intent which concerns us here. call intent in the act of a physical person, It is not necessary to imagine a case in which the legal guarantee of religious 30 VITORIA, De La Templanza, Fragment, IX Con- liberty was given with morally evil intent. clusion, OBRAS DE FRANCISCO DE VITORIA 1053-54 Pius IX describes the enactments of the (Madrid, 1960) [hereinafter cited as VrrORIA, Mexican revolutionary regime of the with reference to textual division and to this 3 4 edition's pagination]. 1850's. He says that freedom of expres- 31 VITORIA, X and XI Conclusions, 1054-55. 34Pius IX, Allocutio, Namquam fore 15 Dec. 32 VITORIA, X1I Conclusion, 1055. 1856, GASPARRI. C.I.C. FONTES 2: 913; N. 522, 33 SUMMA, 1-2, 1, 3, c. §4. STATE'S GUARANTEE sion was guaranteed by law for three pur- that the rule were made as part of a scheme poses: to corrupt the people's minds and of family law whose design was to en- morals, to further indifferentism, and to courage the use of contraception. The ob- root out the Catholic religion. Aside from ject of the rule - to pass the estate to the any explicit declaration of the "legislative firstborn son- is not evil in se, and the intent," his judgment is supported by the rule may, in given social circumstances, fact that the same set of laws expressly have an actual effect in which good out- forbade anyone to assume any religious weighs evil. obligation, by contract, promise or vow. In the area of toleration, however, I It was from this allocution on the Mexican believe it is very difficult to postulate a laws that the Syllabus of 1864 drew its concrete situation in which the law's intent seventy-ninth proposition, which we will to accomplish an evil purpose would not 35 discuss later. cause the object of the law to be so formu- When, in fact, a state guarantee of free- lated that the object itself would be evil, dom to exercise religious and moral belief or would not cause the law's operation is endowed of an evil intent, that intent to yield effects which would, on balance, certainly affects the law's impact upon the weigh well on the side of evil. Certainly moral order. And the moral impact of a the Mexican government's intent to destroy law whose intent alone is evil differs from religion inspired it to embrace the legisla- the impact of a law whose very object is tive object of conferring an unlimited right evil. A law whose object is to establish a to express erroneous opinions. As to the right to do moral wrong is an attempt effects of the government's conduct, even a to do the impossible, as has been shown century later any serious student of Mex- in the previous section. Such a law is a ican life must conclude that religious belief nullity in the moral order - it cannot create in that people has been weakened more moral rights or obligations in anyone. This by the law's attitude of contempt for re- kind of law is exemplified in the Mexican ligion than by its actual persecutions. enactment forbidding the assumption of It hardly needs to be said that the prin- religious obligations. On the other hand, a ciples governing formal and material co- law whose object is not evil in se but whose operation must be applied in evaluating the intent is to accomplish moral evil, such as acts of citizens and officials of a state the perversion of men's consciences in the where toleration is proposed or has been Mexican example, does not, for that reason enacted for an evil purpose. alone, fail to create moral rights and duties. For example, I do not think that a The Moral Effects of the Guarantee firstborn son would do his brothers and In the circumstances of the politically sisters an injustice by taking his father's free and mature nations of our time, one entire estate under a rule of primogeniture, is not likely to encounter laws of toleration simply because. the rule had been intro- which can be categorized as evil in their duced into the law with evil intent. Suppose object or in their juridical intent. The moral impact of these guarantees must be 35 Pius IX, Syllabus Errorum (a. 1864), GAs- evaluated chiefly from their moral effects. PARRI, C.I.C. FONTES 2: 1009; N. 543, § X. The test here may be put as a question: 8 CATHOLIC LAWYER, WINTER 1962

Is the legal quarantee justified in the inter- bus, civil liberty of belief still serves the est of a higher and broader good? That last purpose of dogmatic indifferentism. The phrase, "justified in the interest of a higher recent pastoral letter of the Bishops of Italy and broader good," is the language of Pius describes the thesis of the atheistic human- 3 6 XII. He was at pains to follow it im- ists and shows clearly how that thesis is mediately with a declaration that the ques- imp'emented in their country. Religious tion of for a law or a treaty principle and practice are purely private guaranteeing toleration is a question of matters - the life and activity of civil so- fact, to be decided in the concrete case. ciety has no place for them. Therefore the In the process of decision he describes, humanist educators, sociologists and pol- the very first consideration is that of "the iticians protest and contest every application harmful consequences of toleration." In his of religious values in public affairs, and try statements that toleration needs to be to -eliminate every juridical basis for such 3 8 justified, and that in doing so its harmful application. effects may never be passed over, I think I believe, therefore, that it would be we may see implied two judgments which inadmissible for a Catholic, in discussing serve to guide this discussion. Toleration, civil toleration, to accept the premise that since it needs the justification of a higher the guarantee of freedom in the practice of and greater good, is certainly not a good all religious and ethical beliefs is a good in se. For the same reason, and because in itself, or that the guarantee is only a attention must always be given to tolera- remote and relative, rather than proximate tion's harmful effects, it must be that harm- and absolute, occasion of evil. To accept ful effects are produced by toleration in st'ch a proposition might import a de- the strict sense of being caused thereby, and parture from papal teaching and from a not merely in the broad sense in which prime premise of all Catholic thought on effects are attributed to an act which only the problem of toleration. No servant of occasions them. These two judgments, I Christ's household, though he forbears to believe, hark back to the seventy-ninth root out the cockle of error, can blink the proposition of the . Pius fact that cockle allowed to grow in a wheat IX said that civil liberty of worship for field harms the wheat. Alternatively, a everyone, and full civil authorization given Catholic's acceptance of such a premise all men openly and publicly to set forth all would seem to involve him, conscious or opinions and ideas, tend readily to the not, in dishonesty, moral or intellectual. corruption of the minds and morals of peo- I advert to this aspect of our problem, ples, and to the spread of the plague of not because I know any Catholic writer indifferentism. 7 A century after the Sylla- who has accepted the objectionable prem- ise, but because some secular writers and 36 Pius XII, Allocutio 799. their readers seem to have taken the im- 1 Tpius IX, loc. cit. supra note 35: "Enimvero pression that the Church, or the late Pope, falsum est, civilem cuiusque cultus libertatem, itemque plenam potestatem omnibus attributam quaslibet opiniones cogitationesque palam pub- 38The text of the letter, titled L'Atteggiamento liceque manifestandi conducere ad populorum della Chiesa di Fronte al Fenomeno del Laicismo, mores animosque facilius corrumpendos ac indif- and dated 25 March 1960, is offered in 7 MONI- ferentismi pestem propagandam." TOR ECCLESIASTICUS 577 (Rome, 1960). STATE'S GUARANTEE

or some Catholic publicists, have come to munity of men, willed by their Creator, view toleration as a good in itself. rooted in their common origin, nature and What Father Murray has said about the last end. 4 2 Surely, the achievement of peace consent given by Catholics to the first and union within the existing national states amendment as an "article of peace," 39 states is a great good in respect of those states. well the Catholic moral evaluation of any Indeed, in the given circumstances of a guarantee that falls within the description national state, the achievement and con- set out at the beginning of this paper. Guar- solidation of these goods may require tol- antees of this sort have their origins in eration as necessarily as in the international moral principle and impose moral obliga- community, or perhaps more so. tions when, in the concrete case, they are St. Thomas dignified as "secundum se for the common good. bonum" the public peace of a country. The An enactment of the sort described is peace has that dignity- it is not merely for the common good when, in the par- useful , because many more men will use ticular case examined, 40 the law of tolera- it for good purposes than for evil. It gives tion brings to the community good effects security against evils far worse than those greater and higher than the good lost perpetrated under its protection, so that through the erroneous propaganda and evil it does not become evil when some use 43 practice which the law permits. According it for evil purposes. to Pope Pius XII, the weight of the good Of course peace in its most proper sense effect, as against that of the evil, may be is in the individual whose heart is at one with so great that the state has no duty, and even itself. Peace in the larger sense - the union 41 no right, to deny toleration. of wills among a number of men - is prop- One should note that the good effects erly called concord, and civil peace is of 44 which can justify the act of toleration this kind. But even peace in this larger despite the evil the act occasions are the sense is the product of charity, in which effects of the act of toleration itself; there we love our neighbors as ourselves, desiring 45 is no question of seeking to throw into the what they desire. moral balance any good effect which er- Men's faith in the human community, roneous teaching or evil conduct may national or supranational, cannot be real- produce. ized without charity to their fellows. What sort of good effects can free the Against any good achieved by state action state of any duty to impede evil, or even repressing the exercise of erroneous belief, deprive it of any right to do so? Pope Pius must be weighed the effect of this repres- mentioned those goods directly pertinent sion upon that charity without which the to the supranational community to whose peace and unity of the community cannot formation the treaty he examined was flourish. Even when an evildoer acts from directed. He spoke of peace and the realiza- conviction, it is difficult for those who use tion of the human faith in a higher com- his action as a premise for punishing him

39 MURRAY 63. 42 Id. at 795. 40 Pius XII, Allocutio 798: "in determinate cir- 43 SUMMA, 2-2, 123, 5, ad 3. costanze." 44 SUMMA, 2-2, 29, 1, C. 41 Id. at 798-99. 45 SUMMA, 2-2, 29, 3, c. 8 CATHOLIC LAWYER, WINTER 1962 or depriving him of some share in the com- and embrace the truth in religion and mon goods of life to wish him well. On the ethics, by bringing to their attention the other hand, it is almost impossible for him appeal of truth itself to the human mind, under the limitations of human psychology, and its value as a guide to human hap- to desire the welfare and happiness of his piness. By abhorring to use coercion in just oppressors. matters of religious and ethical belief, it is Pope Pius notes some human tendencies said that the state gives honor to three which work against peace and union on truths whose recognition is invaluable to the supranational level. These have the human happiness. The truth itself has same effect within nations, and the effect power to engage the assent of honest minds. is intensified where the population is di- Goodness itself attracts men's free alle- versified by racial, cultural and religious giance. God's grace is the only outside influ- differences. There is the tendency to assim- ence properly effective within the citadel of ilate or to remove, even by force, those who man's mind and will. differ from the group, and there is a con- The state's effective acknowledgment of trary tendency in each group to close and these truths is a good in itself. The state's segregate itself, refusing to give anything of employment of toleration is still not a good 46 itself to outsiders. in itself, but it is justified as a means of The Pope states a fundamental principle making this profession, provided that this for dealing with these tendencies. Within and other good effects outweigh toleration's the limits of the possible and lawful, every- tendency to confirm men in error or evil thing that makes union more easy and doing. The scale which weighs toleration's efficacious must be done. All that disturbs effects will indicate even greater justifica- concord must be restrained. Sometimes tion, when the state's profession of these what cannot be corrected must be borne, truths causes individual men to recognize more than that, it must not be permitted and embrace the opportunities and duties to wreck the community, for the com- which nature and grace offer and impose. 47 munity serves a higher good. We should note that ours is not the first His Holiness remarked that the real generation of Catholics to perceive these difficulty lies in applying that principle. We good effects of toleration and to value them owe much to Father Murray for his excel- highly. Vitoria, following St. Thomas and lent exposition of how the authors of the Aristotle, held that a Christian prince federal constitution made that application should repress human sacrifices and other in a country whose population was frag- immoral practices which formed part of the 48 mented by deep religious differences. religious ritual of pagan people under his The Pope did not speak of another good rule.49 He pointed out, however, that effect of legal guarantees of toleration though such repression is good in its object, which has engaged the attention of many one must judge it by its effects in the con- Catholics in recent years. This is tolera- crete. He felt that to compel men by severe tion's effect of attracting men to explore penalties to abjure immediately and entirely the customs of their ancestors was an 46 Pius XII, Allocutio 796. 47 Id. at 797. 48 MURRAY 57-63. 49 VITORIA, I and II Conclusions, 1041-47. STATE'S GUARANTEE insufferable oppression.5 ° Further, the good excludes its acceptance by force, and by object of the law would not save it from respect for the action of God in the souls giving great scandal if it actually or seem- of men.54 Assuming the same historical ingly compelled men by force to become postulate of good faith, Father Enda Mc- Christians. Vitoria regarded as one of the Donagh of Maynooth shows that tolerance glories of Christianity, and a weighty argu- is a necessary characteristic of the sincere ment for its truth, the fact that Christians proponent of religious truth. Intolerance in have always approached infidels with argu- a Catholic so gravely and obviously violates ments of reason and the evidence of mira- the virtues of justice, charity and humility, cles rather than with force, and have never that it obscures the evidence of the true compelled them to become Christians. 51 faith and confirms men in dissent. 55 57 If one could be sure that coercion would Father Bortolotti5 6 and Father Hayoit make sincere Christians, a coercive law have given us explicit treatments of the might be justified, but Vitoria believed that state's duty to profess philosophical and repressive laws are much more likely to religious truth. Of civil toleration, Father arouse hatred for the true religion and thus Bortolotti says only that it is not incom- work against the common good which all patible with the state's profession of truth. 52 law should promote. On reading Father Hayoit's later article,5 In his book on man and the state, one wonders if it may be suggested that Maritain insists that a modem democratic civil toleration is an apt means by which society inspired by Christianity must not the state, in pursuit of its teaching mission, infringe the right of each citizen to dissent may profess the truths concerning man's from the faith held by his fellows, even personal dignity and the workings of truth 5 if he be utterly alone in his dissent. ' Card- and grace that have been cited by Cardinal inal Lercaro's famous lecture demonstrated Lercaro. Alternatively or concommitantly, that the Catholic doctrine of toleration has is civil toleration to be urged as an exercise not changed in principle, though its histor- of the law's role in the moral improvement ical applications have varied. The variance, of its subjects? Good law, says St. Thomas, 59 as the Cardinal indicates, is proportioned leads men to virtue, at least gradually. to the presence or absence of good faith in unbelievers. When one rejects the truth Conclusions he knows, there is nothing in his act which When this paper was proposed, I was demands respect or motivates tolerance. 54 Lercaro, Tolleranza ed intolleranza religiosa, When, by the circumstances of history, dis- 69 IL Dmrrro ECCLESIASTICO 97-112 (Milan, sent has become hereditary and is therefore Aprile-Guigno 1958). See English reprint in 7 generally maintained in good faith, toler- CATHOLIC LAWYER 125 (1961). 55 McDonagh, Tolerance, 12 Tim FURRow 49-55 ance is demanded by the duty to respect (Maynooth, Jan. 1961). the human personality of the dissenter, by 56 Bortolotti, loc. cit. supra note 1. the respect due to the nature of truth which 57 Hayoit, l'Etat a-t-il une mission doctrinale? 11 REVUE DIOCESAINE DE TOURNAI 196-212 (Fev. 50 Id. at 1056, First Consideration. 1956). 51 Id. at 1056, Second Consideration. 58 Hayoit, La doctrine catholique de la tolerance 52 Id. at 1056, Third Consideration. civile, 15 REVUE DIOCESAINE DE ToURNAI 83-89 53 MARITAIN, L'HOMME ET L'ETAT 170-71 (Paris, (Fev.1960). 1953). 59 SUMMA, 1-2, 96, 2, ad 2. 8 CATHOLIC LAWYER, WINTER 1962

asked to offer in it an opinion regarding fer from them on matters of religious or the direction and scope of recent develop- ethical principle. At the same time, this ments in Catholic thought on toleration. writing and its impact upon the Catholic Elements of that opinion have been ex- community will do much to spread among pressed in the course of the paper. They non-catholics a better understanding of are summarized here. truth in general and of Catholic doctrine, There has been no real development in and it will inspire and strengthen in them the view that civil toleration is not evil in a great good will toward their Catholic fel- its moral object, although the truth. of that low citizens. proposition has been clarified, especially by There is much force in the axiom that Pope Pius XII's discourse. Our generation men in society need truth more than they cannot claim to have discovered the true need bread, yet from this it does not follow significance of the seventy-ninth proposi- that the law of the state can be as effective tion of the Syllabus of Pius IX, for that was in meeting the one need as in providing for clearly set out in Father Boucher's D.T.C. the other. I doubt seriously the effectiveness article on moral liberty, which was written of the state and its coercive laws to explain in the early twenties. 60 and gain acceptance for the subtle truths There has been offered in recent years in which salvation has its root. Any direct only one practical occasion for discussing effort in this direction is better left to the guarantees of toleration loaded with doc- personal influence of good men inspired by trinaire intent. That was afforded by the the Cardinal of Bologna and the Professor litigation in the United States Supreme of Maynooth. State guarantees of religious Court of problems related chiefly to relig- and ethical liberty will- do well if they keep ious schools. Father Murray, following the peace and avoid scandal, as the guaran- Father Parsons, 61 has exonerated our tees of Irish law certainly did during the founding fathers from the allegation that regime of the Free State and seem to have they perpetrated an atrocity of that kind in done for over twenty years since they were the first amendment. written into the Constitution of the Repub- Most significant, I believe, has been lic of Ireland. 62 If we may judge from re- Pope Pius XII's lucid exposition of the cent attacks upon them and upon Father demands of peace and the development of McDonagh's defense of them, 63 it is to be the world community as affirmative goods doubted that they are, in themselves, ef- of very high order which must, in present fective to teach high principles. circumstances, be secured through guaran- 62 The guarantees are contained in the Constitu- tees of toleration. tion of Ireland, Art. 44, 2, 1 and 3'. They were The kind of writing that Cardinal Ler- carried over from the law of the Free State, in caro, Father McDonagh and Father Hayoit which regime their effect gave satisfaction to all have given us will produce, I am sure, ex- religious groups. See the debates on this Article, June 4 and 9, 1937, in Dail Eireann Parliamentary cellent effects. It will help to deepen the Debates, Official Report, 17: col. 1888-95; 18: charity of Catholics toward men who dif- col. 229-35 (Dublin, 1937), and see BLANCHARD, LE DROrr ECCLESIASTIQUE CONTEMPORAIN D'IR- 60 Boucher, loc. cit. supra note 2. LANDE 6 1 (Paris, 1958). PARSONS, THE FIRST FREEDOM (New York, 63 See II THE FURROW 768 (Maynooth, Nov. 1948). 1960).