Excursus on the Coercive Power of the Church, and Especially on the Right of the Sword

I. General Statement of the Case.

Summary : Statement of the case.—Interest and importance of the question.—The whole question comprises three points.—Force of the declarations of Pius IX. in the Encyclical Quanta cura and the Syllabus.—Common opinion.—Plan of the discussion.

The temporal punishments which the Canons of Councils and pontifical decretals have prescribed against heretics since the twelfth century render a clear understanding desirable on the subject of the right of punishment which admittedly exists in religious society or the Church ; a further reason for explanation is suggested by the more severe punishments which have been approved by Popes, if not agreed upon between them and temporal Sovereigns, and of which we propose to treat in the following section.

These extreme measures receive a different explanation, according to the extent which we allow to the coercive power of the Church.

It must be borne in mind, in order to remove any misconception which may prevent us from following the argument, that the explanation offered does not settle the question of responsibility. There are two distinct questions involved. A Church which has not the power to strike with the sword may still be morally responsible for having suggested or counselled its use.

The coercive power of the Church may be original or derivative ; given by God as something permanent and essential, or conferred by men, according to the age, the country, and the actual constitution of society. Even when this fullness of power comes from the Sovereign, it is not necessarily granted as a favour ; it may be the fulfilment of a promise or a covenant, or, again, an obligation created by circumstances.

The complete question of the Church’s right to punish embraces these three points : How far does the original right of punishment extend ? Does it include absolute condemnations to temporal punishments,—that is to say, such that the guilty person cannot escape from them by leaving the Church and submitting to a spiritual penalty, such as ex- communication ? Does this original right extend to all temporal punishments that might be inflicted by the State ?

Can the Church demand from the State the right to inflict effectively certain temporal punishments for which the consent of the Sovereign is materially necessary ?

Can the Church accept from the State the right of passing all sentences whatever, including sentence of death ?

Before discussing the question it is necessary that we should form an opinion as to the force, or rather the meaning, of certain pontifical declarations. Pius IX. says, in the Encyclical Quanta cura : “ We condemn the error of those who do not hesitate to assert that the Church has not the right to visit with temporal punishments those who offend against her laws ” ; and, in condemning the twenty-fourth proposition of the Syllabus, [The Church does not possess the power of bringing force to bear], the same Pope affirms the existence of a coercive power within the Church. According to one interpretation, which, though minimistic, is admissible, the error dealt with in the Encyclical Quanta cura is avoided by attributing to the Church the right of inflicting temporal punishments in the sense that we have called “ conditional.” Expressly or implicitly the judgment takes this form : “ Under pain of suspension, or interdict, or excommunication, the accused person is ordered to pay such and such a fine, or to reside in such and such a place.”

A Bull of John XXII. similarly prevents us from condemning, as theologically incorrect, the proposition which would limit to the moral order the right of constraint affirmed in the Syllabus. John XXII., in his Bull of 1317 against Marsilius of Padua and Jean de Jeandun, expressly censures the adversaries of the coercive power, and condemns their opinion as at least erroneous. To show the existence of this power he appeals simply to the right of excommunication. We account in this manner for the fact that Don Salvatore di Bartolo, in the corrected edition¹ of his book, Nuovo espo- sizione di criteri teologici, has been able to maintain these two assertions : “ The coercion by material force, exercised for the execution of ecclesiastical laws, is derived from human powers. By Divine law, the constraint of the ecclesiastical laws is purely of the moral order.”

¹ The first edition was put on the Index.

This interpretation of the decrees of Pius IX. seems a little forced. Don Salvatore di Bartolo finds few supporters, and his voice is almost lost in the chorus of theologians and canonists who assert the innate right of the Church to inflict certain material punishments.² We prefer to follow the opinion of Father Choupin:³ “ The universal and firmly established right of the Church in the matter of penalties certainly includes material punish-ments.¹ ... To justify the coercive right, the Sovereign Pontiffs have continually appealed to their Apostolic authority and their spiritual and universal primacy of jurisdiction, which is of Divine right.”

² The Abbe Vacandard seems to attach too much weight to the work of Don Salvatore. Father Choupin has made it very clear that the opinion of this author cannot claim the authority of Cardinal Soglia, or Pope Celestine III., or Nicolas I., all of whom exclude, as we shall do also, the right of the sword.

³ Nouvelle Revue Théologique, 1910, pp. 82, 83.

¹ In proof of this, see the particular Councils of Gaul and Spain, the decretals of Gregory IX. and Boniface VIII., the Clementine decretals, and the Council of Trent; also the fines inflicted and restitutions ordered by existing law. notably in matters of simony.

This point being established, we shall touch upon the very interesting question of the right of the sword, in order to arrive at the formula which accurately describes the repressive right of the Church.

In order to obtain full light on the question submitted to our examination, we shall appeal successively to authority, tradition, and reason—authority —that is to say, writers skilled in theological science, who, since the age of the Fathers, have formulated their opinions according to revelation and the study of principles and facts ; tradition— that is to say, the mind of the Church, as recorded in her ancient doctors and her laws ; reason—the deductions which are logically drawn from established data concerning the nature and mission of the Church.

II. The Church and the Right of the Sword.

1. The Argument from Authority.

Summary : Opinions of authors from the sixteenth to the eighteenth century, especially Bellarmine and Suarez. —They are but little supported by St. Thomas.— Different opinion of Bianchi de Lucca.—Contemporary opinions : Cardinal Tarquini, Mazella, Father Lépicier ; and on the other side, Cardinal Cavagnis, Vicchiotti, Cardinal Soglia, Cardinal Satolli, Soliera, Lega (afterwards Dean of the Rota), Lombardi, Father Biederlack, Mgr. Douais.—The book of Father de Luca.—Causes of error in the great authors of the sixteenth and seventeenth centuries.—Conflict of opinion between Bellarmine and older authors.

We freely admit that from the sixteenth to the eighteenth centuries theologians and canonists claimed for the Church the right to inflict capital punishment for certain offences in case of necessity. Thus the theory which attributes this power to the Church counts famous and even classical writers among its supporters. Heirs of St. Thomas, they sprang up in an age in which the new social order was taking shape, the development of which has continued to the present day, and they seem to have transmitted to us for our own times the true formula of religious society and civil society. They were the first to state propositions as to the public law of the Church, which are still taught, and which are, to many persons, almost indisputable. Far be it from us to object entirely to the acceptance which they have deserved by their learning and virtue.

We may, however, remark that, while giving the sword to the Church, they hesitate as to the manner in which the Church is to wear it and use it. They instinctively perceive the real contradiction between the maternal spirit of the Church and excessive severity, and are inclined to represent the secular power as a mandatary, bound to obey orders, who will in extreme cases inflict capital punishment on behalf of the Sovereign Pontiff. In the scholastic precision of their formulæ they say that for ecclesiastical criminal cases the right of the sword exists in the Pope, as in one who has the power of ordering punishment, tanquam in imperante et movente, and in the Sovereign, as in one who carries out the order of another, tanquam in exsequente et moto ab alio. Without making this opinion, even in its modified form, an article of faith,¹ Bellarmine and Suarez give it as that of the schools.² Certain authors of repute,³ such as the late Cardinals Tarquini¹ and Mazella,² and Father Lépicier, C.S.M.,³ share this opinion. The contradiction which it meets with in our own days in the most different countries and in the most Catholic circles seems to us so much the more significant.

¹ Certain expressions may easily be misunderstood. Thus Suarez (De Fide, d. 20), after having stated (s. 3, n. 10) that in his opinion the existence in the Church of the power of punishing heretics was an article of faith, subsequently (n. 18) raises this question only, in whom this power resides : for, he observes, there are in the Church temporal princes and ecclesiastical prelates ; and although (n. 21) he severely condemns the opinion of those who recognize in the spiritual authority the power only to inflict punishments of the same spiritual order, he does not go so far as to declare that opinion heretical.

² Does this include the Angelic Doctor ? It may be doubted. Observe the expressions which St. Thomas seems designedly to have chosen ; he does not say that the Church condemns heretics to death, but that she leaves them to the secular tribunal (see 2, 2, Q. 11, Art. 3 c ; Art 4 c and ad 1).

³ Father de Luca was violently attacked by the Catholic Germania for having, in a Latin treatise of two volumes on Public Law, devoted four lines to the law and opinions of former times. The book was written in 1901, and the author has been dead several years. Nevertheless, the anti-Catholic Press does not cease to exploit this passage. After Germany, where the work was even brought up before Parliament, the liberal papers of Belgium had their turn. This year it is the turn of Holland. Under the bombastic heading, “ Abominable Doctrines,” one of these articles begins thus : " This is how a Jesuit Father, a certain De Luca, Professor of the University of the Vatican (!), wishes to treat heretics : ‘ The civil power may condemn the heretic to death at the order, and on behalf of, the Church.’ ” The whole is a gross calumny. Speaking of the jurisdiction of the Church over those who have gone astray, Father de Luca divides his answer into two parts. In the first, he makes heretics subject in theory to the Church ; in the second, he declares them in certain cases exempt, by the express will of the Church. With reference to the first part, he quotes the legislation of the earlier Middle Ages, which he sums up according to Tanner, an author of the sixteenth century ; as, later on, when speaking of the exceptions of the present day, he quotes two contemporary authors, Aichner and Ballerini-Palmieri, who declare that in the present day the Church takes no punitive action against heretics. Father de Luca expresses no personal wish ; he simply borrows from an old author the interpretation of a law which is expressly declared to be obsolete. The journal in question has therefore in a few words succeeded (a) in raising a dead author to life ; (b) in inventing a Vatican University which does not exist; (c) in imputing to one author as his own opinion what is simply a quotation from another ; and (d) in falsifying the meaning of the quotation itself. In this connection it is well to take note of the wise words with which Father Brandi concludes one of his articles : “ To attempt to treat ex professo of delicate questions, without even taking into account the changes which have taken place in the position of the Church, is always useless, and often imprudent and mischievous, by reason of the bitter controversies which are certain to follow ” (Civiltà Cattolica for June, 1902, series 13, vol. vii., p. 18, Del potere coattivo della Chiesa).

¹ Juris Ecclesiastici Institutiones, ed. ii., p. 42 sqq.

² De Religione et Ecclesia, d. 4, Art. 6, n. 704, 31, nota 1.

³ De Stabilitate et Progressu Dogmatis, pp. 174, 175 ; Rome, 1908.

The late Cardinal Cavagnis,¹ who was Professor of Law in the Roman seminary, did not hesitate to say that the great majority of authors deny to the Church the power of the sword—that is to say, the right to inflict capital punishment. Among these authors the celebrated Bianchi de 'Lucca deserves special mention ; he dedicated to the Prince of the Apostles a great work in six volumes,² devoted entirely to the defence of the rights of the Church, especially its political rights, against the novel theories of Pietro Giannone. His work was printed and approved at Rome in 1746. In the fourth volume (1. 2, c. 4, sec. 9) he deals with this objection : “In earlier ages the Church had not the power to condemn to corporal inflictions or to exile ; still less to mutilation or death.” “ When, then,” asks Bianchi, “ did the Church possess this power of punishing by death or mutilation ? Whoever pretended that the Church had the power of condemning to a bloody punishment ? Does she not expressly forbid it by her Canons, both of modern and of ancient law ? Who does not know that the desire of the Church, in punishing delinquents by corporal inflictions, has always been to bring about their repentance and conversion, and never their extermination ?”

¹ Institutiones juris Publici, first edition ; Rome, 1906.

² Della potestà e della polizia della Chiesa ; Rome, 1748.

It would be difficult to answer more categorically than this.

More recently, Vecchiotti,³ whose lectures at Rome were classical, and the late Cardinals Soglia¹ and Satolli,² similarly deny to the Church the power of inflicting capital punishment; and Father Brandi,³ the editor of the Civiltà Cattolica, on the same side, quotes three other courses of lectures on Canon Law delivered at Rome, and published in 1900 and 1901, by Solieri, Lega (afterwards Dean of the Rota), and M. Lombardi; and Mgr. Douais considers it an established truth.⁴

³ Institutiones Canonicæ, t. 2, l. 4, c. 1, sec. 4, pp. 37, 39 sqq., and 46 sqq. ; Turin, 1868.

¹ Institutiones juris publici, l. 1, sec. 8, p. 31 ; Modena, 1850.

² Conferenze storico-giuridiche di diritto pubblico ecclesi- astico, p. 47 ; Rome, 1889.

³ Series 18, t. 7, p. 18, June, 1902. Del potere coattivo della Chiesa.

⁴ Revue pratique d’apologétique, January 15, 1909, p. 602.

Following so many distinguished authors, we may, then, without temerity circumscribe the coercive power of the Church within limits other and narrower than those laid down by the theologians and canonists of the sixteenth century. The latter were led to their conclusions, perhaps unconsciously, by the bias of preconceived opinions, and we cannot accept their judgment on the point at issue.

Under what influence, then, was the rigorist theory constructed ? Under the influence of various factors which made it difficult to grasp the exact truth. We have to consider the psychology of an age which tolerated and applauded the pitiless Calvin—an age wholly given over to the most rigorous ideas. Absolutism reigned in the Courts, and a rigorist current of ideas ran through the Church. The former declared the Divine right of Kings, and the latter was the precursor of the icy blast of Jansenism. A Judaistic method of under-standing and practising their religion crept into Christian consciences, and one might have thought that the old Mosaic Law had been revived. The same spirit appeared in the highest lyric poetry of France. Moralists and heretics alike took their stand on the antiquated law of Sinai,¹ the former to explain and justify the ecclesiastical observance of Sunday, the latter to excuse themselves for removing the pictures of the Saints and breaking their statues. Even ascetic theology was imbued with an extravagant severity, which preached pure love while sowing the seeds of fear and keeping the soul far from that God to whom it owed all its affection. What wonder, then, if men searched in the institutions of the Jewish people for lessons of religious policy ?

¹ Even the moral precepts of the old law do not bind by- reason of their promulgation by Moses ; but their present force comes to them from the natural law, and the positive confirmation given to them by the Gospels. The Mosaic Code is, in fact, entirely abolished.

We must remember, moreover, that the intimate union which had existed between the Church and the State of the Middle Ages was dissolved, and with the separation began a readjustment of their respective powers—a division of rights never before attempted. Human efforts do not reach perfection except by repeated trials, and we have no right to expect a division of rights so perfect from the first as to require no subsequent amendment.

Should we be rash, then, if we ascribed certain claims to the effect of the shock which a great religious disaster naturally caused to hearts most devoted to the old Christian faith ?

During the lifetime of Bellarmine and those writers who were the first to claim distinctly for the Church the right to punish with death, the Protestant heresy dealt a deadly blow to Christianity and the religious unity of Western Europe. Religious authorities naturally sought to preserve that unity by enforcing the laws enacted for the punishment of heresy ; it was their duty. The secular rulers gave way, for to make the observance of those laws a matter for their exclusive jurisdiction was only to increase their desire to abolish them. We can easily understand, then, that the theologians of the time, disturbed and agitated by a catastrophe from which Europe has not even yet recovered, in spite of their wide learning, in spite of their excellent intentions, or rather, to some extent, because of those intentions, lacked the calmness and judicial spirit necessary to define precisely the law which had been in force until that time, and trace that law back to its source. The Church pressed for the execution of the old edicts of Frederic II., and had recourse to the secular arm to obtain an effective repression ; therefore, they thought, the Church was competent to regulate that repression herself. The Church, on the other hand, never ceased to make profession of clemency; therefore, according to their view, the secular arm became the medium, executing purely ministerial functions, by which the Church had to exercise her terrible power. Let us frankly admit it: the argument was faulty, and the expedient only half saved the clemency of the Church; for it is only common sense that a person is not more merciful merely because he gives effect to his severity through the medium of another.

Moreover, it appeared to these men that every position taken at any time whatever by religious authority was necessarily that of the primitive Church, and must remain that of the future. We ourselves, without seeing shifting sand where our Lord declared that He was building on a rock, have learned, from a more attentive examination of successive theories and facts, to make reasonable allowance for inevitable changes, and to admit that very few ideas and institutions remain for ever unalterable. In the sixteenth century men did not take sufficient account of the fact that, though the foundation was Divinely laid, the superstructure was only human ; Catholics and Protestants alike, with an exaggerated horror of any change, condemned a practice as new, or defended it as the expression of an unchanging principle. There was great risk that such a prejudice would distort all their views of history ; and, as Gratian, in his Concordia discordantium canonum, did violence to the texts in order to reconcile discrepancies which were most simply explained by differences of date, the theologians of the sixteenth and seventeenth centuries gave to earlier events and statements a forced interpretation in order to bring them into agreement with contemporary institutions and opinions. We cannot, therefore, be surprised to see them appeal to the evidence of the Fathers, whose method of reasoning contradicts their own, and who, consequently, instead of strengthening their position, only show its weakness.

Two examples, taken from Bellarmine, will show how remarkable is this contradiction. In support of the argument that the punishment of death should be inflicted on heretics, the illustrious controversialist quotes the severe measures which the Old Testament directs to be taken against false prophets.¹ The Fathers refused to see in the politico-religious organization of the Jewish people the model of the laws which were to govern a spiritual society, thenceforward entirely distinct from the State ; and the spirit of the New Testament was to them a reason for not following the Old Testament in this matter. Origen answered Celsus in these terms : “ Jews, when they become Christians, are bound no longer to follow the laws of Moses, but those of Jesus. . . . Christians could not kill their enemies, nor could they burn or stone those who offend against the law, as the Mosaic Law directed.”² St. Theodore the Studite wrote to Theophilus of Ephesus : “ You may quote to me Phinees and Heli a thousand times ; Jesus reproved His disciples for using such language to Him, and thus showing themselves destitute of His mercy and His, kindness.”³ St. Cyprian draws attention to this contrast between the two Testaments : “ Formerly, under the old law of the carnal circumcision, rebels against the law paid for their rebellion with their lives ; but now that a spiritual circumcision distinguishes the faithful servants of God, the rebellious and obstinate fall under the edge of a spiritual sword when they are rejected by the Church.”¹ And yet Bellarmine appeals to the great Bishop of Carthage !² He relies also on St. Jerome, quoting his commentary on that passage from the Epistle to the Galatians³ which the Canon Law understood as referring, not to the penalty of death, but to separation from the Church.⁴ The ancient writers quoted the Parable of the Wheat and the Cockle against the punishment of heretics.⁵ This parable becomes an objection in the treatise of Bellarmine.⁶

¹ Controv. de Laicis, 1. 3, c. 21.

² Contra Celsum, l. 7, c. 26 (M.P.G., t. 11, cols. 1457, 1458).

³ Ep. 155 to Theophilus of Ephesus (M.P.G., t. 99, cols. 1481 sqq.).

¹ Ep. 62 ad Pomponium, n. 4. (M.P.L., t. 4, col. 371).

² Ep. ad Fortunatum de Exhortatione Martyrii, c. 51 (M.P.L., t. 4, col. 659). St. Cyprian reminds him of the severities of the old law against idolatry ; but when he says that, according to Christ, the precepts concerning the worship of God and contempt of idols ought to be more strictly observed, he means to speak, not of the punishments to be inflicted on idolaters, but of the generosity with which men should be willing to give up their lives rather than deny their God. The context leaves no doubt upon this point. The a fortiori argument of St. Cyprian is founded on the example of Christ suffering, who exhorts us to suffer and die ; and his conclusion inculcates contempt for death. The whole epistle is an exhortation, not to violence, but to martyrdom, which means death accepted without resistance.

³ In Epist. ad Galatas, c. 5.

⁴ Can. 16, Secundæ, c. 23, Q. 18. The Eighteenth Canon, Ecce autem, speaks more expressly of the amputation of corrupt flesh by the sword of excommunication.

⁵ For example, St. John Chrysostom, Hom. 46, on St. Matthew, n. 182 ; St. Simeon the Studite, Ep. 155 to Theo- philus of Ephesus (M.P.G., t. 99, cols. 1482, 1483) ; Wazon (eleventh century), Anselmi Gesta Episc. Leodiens. (Mon. Germ. Script., vii., c. 227, 228).

⁶ Op. cit., c. 22.

Great as is the authority of such distinguished writers, they are but human ; and without detracting from the respect which is due to them, we have in the present case very good reasons for declining to follow them.

2. The Argument from Tradition.

Summary : Tertullian, Lactantius, St. Cyprian, Origen, St. John Chrysostom, St. Euthymius the Great, St. Theodore the Studite, Alcuin, Rabanus Maurus, Wazon, St. Peter Damian, St. Anselm, Ivo of Chartres, Rupert, Hugo of St. Victor, St. Bernard, Peter the Venerable, Peter Cantor, Gratian.—Canonical legislation does not include capital punishment.—Taparelli’s conclusions.

Taparelli says in his Treatise on Natural Law (n. 1483) : " If I had to decide, as a canonist or theologian, the question of the extreme limits placed upon the coercive power of the Church, I should search tradition or ecclesiastical legislation to see what explanation the Church herself has given on this subject.”

We propose to follow this prudent advice, and to take the evidence of ancient writers and ecclesiastical laws as to the mind of the Church.

During the whole of her existence the Church has shown the greatest repugnance to the shedding of blood. Tertullian, naturally somewhat inclined to exaggeration, is disposed to forbid Christians to take any part in war or in the execution of a capital sentence.¹ Lactantius, with greater moderation, expresses the general rule of religious toleration in the antithetical form he was accustomed to use : “ Religion should be defended, not by killing, but by ' dying ; not by cruelty, but by patience ; not by crime, but by faith. ... If you profess to defend religion by bloodshed, by tortures, by wrongdoing, you do not defend it, you sully it, you violate it.”¹ The testimony of St. Cyprian, the illustrious Bishop and martyr of Carthage, and Origen, the learned doctor of the East, has been quoted above.

¹ De Corona Militum, c. 2 (M.P.L., t. 2, col. 92).

¹ Div. Inst., l. 5, c. 20 (M.P.L., t. 6, col. 516).

In time of persecutions these protests may seem natural, and no special merit attaches to them ; but they were repeated with equal energy in the hour of the first excitement of victory. It was at such a time that St. Chrysostom in the East showed his reluctance to have any threat held out over the heads of heretics. “ We must not put heretics to death, or we shall have war without quarter throughout the Empire. . . . The Master certainly does not forbid us to restrain heretics, to close their mouths, to reject their oaths ; what He does forbid is to shed their blood, and to put them to death.”²

² Hom. 46 on St. Matthew, n. 1 and 2.

It was at such a time that St. Euthymius the Great displayed against heretics a zeal which won the admiration of other Saints, both for its ardour and its gentleness.³ It was at such a time that St. Augustine in the West used all his eloquence to clear the Church from all complicity, even indirect, in sanguinary repression ; and yet he was dealing with those very Donatists whose cruelty and excesses he has painted in such vivid colours—vulgar criminals, plundering murderers, who wore out the patience of the imperial power. These are the men whose cause he pleads with the Proconsul of Africa : “ There is only one thing I fear from thy justice, and that is that it will consider the enormity of the offences committed without sufficient regard to Christian clemency. Do not act in that manner, we beg thee in the name of Jesus Christ. We do not desire to take vengeance on our enemies. . . . We love them, and pray for them. . . . We hope that terror of the laws and judges will enable them to escape from eternal condemnation. We do not desire their death. . . . Forget that thou hast power to kill, but do not forget our prayer. We pray thee not to put them to death, as we pray our Saviour to convert them. . . . Remember, moreover, that these ecclesiastical causes only come before thee for trial on the petition of the clergy. ... If thou shouldst pass sentence of death, thou wilt receive no more of our complaints. We would rather be killed by these criminals than institute proceedings which may result in their being put to death.”¹

³ See his Life by Genier, O.P.; Paris, 1909, p. 172.

¹ Ep. 100, n. 1 and 2 (M.P.L., t. 33, cols. 366, 367).

Augustine wrote this letter in 408 or 409, and therefore at a time when experience had already modified his earlier opinions on the treatment of heretics, by showing the usefulness or necessity of some degree of severity. Three or four years later (in 412) he renewed his entreaties in his letters to the Tribune Marcellinus² and the Proconsul Aprin- gius.³ Read, finally, his letter to Count Boniface (417), which contains his “ complete theory on the repression of heretics.”⁴ How can we help being struck by the distress which was caused to St. Augustine by the violent death of certain Donatists ? If he rejoices at the deliverance of many Christians who were kept in heresy by terror, he resigns himself to the temporal loss of a few wicked wretches only because it is rather their own act than that of the law.¹ Again and again he falls back on this same explanation—these heretics have put themselves to death. “ Such is their madness,” he says, “ that they are determined either to kill us in order to satisfy their cruel passion, or to kill themselves to show that they have not lost the power of killing.”² Such language as this is far from recommending the systematic repression of heresy by blood, and farther still from putting the avenging sword into the hands of the Church. On the contrary, St. Augustine declares that he does not desire the death of any.³ “ The charity of the Church labours to save these heretics from eternal damnation without any one of them being put to death.”⁴

² Ep. 133 (M.P.L., t. 33, cols. 509, 510).

³ Ep. 134 of a.d. 412 (M.P.L., t. 33, col. 510).

⁴ Portalié, Dict. de Vacant, Augustin, cols. 2278-2280).

¹ Observe that these laws did not prescribe capital punishment for the Donatists. See Code Théodosien, xvi., 5, l. 54.

² Ep. 185, n. 11. Cf. n. 14, 32, 33, 34 (M.P.L., t. 33, cols. 797, 798, 807, 808).

³ Ibid., n. 11 (col. 797).

⁴ Ibid., n. 32 (col. 807).

We may, then, come to this conclusion : St. Augustine gave up his opposition on principle to measures of severity, it is true ; but capital punishment always seemed to him opposed to that Christian rule of mercy from which we may not depart, even with the most unworthy, and he never thought of attributing to the Church the right to punish by death. To the very last he insisted on the distinction between civil and ecclesiastical proceedings which he had laid down in 412 : “ The mission of the Pro- consul is one, that of the Church is another ; the former may be accompanied by terror, but the latter must always be recommended by its clemency.”¹

¹ Ep. to the Proconsul Apringius (M.P.L., t. 33, col. 511).

The whole of the West was excited by the news of the punishment which the Emperor Maximus inflicted on the heretic Priscillian and certain of his associates ; and St. Martin, who exerted himself to save them, refused to hold any communication with those who had denounced them. How deeply rooted must be the Catholic opposition to the shedding of blood ! St. Leo the Great had no favour for the Priscillianists, whom he classed with the Manich- seans. He denounced their error, as fifteen centuries later Pius X. denounced Modernism, describing it as the common centre of all heresies;² he recognized, moreover, that the imperial severity had served the cause of religion, and induced many persons to return to the faith. And yet how carefully is the office of the Church distinguished from that of the State by that Pope whom Lea³ accuses of having distinctly pledged the Church to the suppression of heresy at whatever cost ! The Pope declares that the Church is content with an ecclesiastical judgment, and uses these words, which have become axiomatic : “ The Church abhors sanguinary vengeance.” He calls for prayers on behalf of heretics, for he says : “ In this life we must not despair of any, but hope for the conversion of all.”⁴

² Letter to Turribius (M.P.L., t. 54, col. 679).

³ History of the Inquisition in the Middle Ages, vol. i., p. 215.

⁴ Sermon 33 (M.P.L., t. 54, col. 249).

In the eighth century, St. Theodore the Studite, a Greek Saint, devotes the whole of his letter to Theophilus of Ephesus to the statement and demonstration of the same proposition ; his testimony is the more significant because he appeals to the New Testament and the Fathers. He concludes thus : “ It belongs to temporal princes to punish material offences, but not offences of the spiritual order ; these causes are reserved to those who have the direction of souls, and they inflict excommunications and other punishments. . . . The Church does not take vengeance by the sword. If you have another Gospel of which we know nothing, well and good ; but if you have not, remember the teaching of the Apostle.”¹

¹ Ep. 155 to Theophilus of Ephesus (M.P.G., t. 99, cols. 1485, 1486).

The question of the right of the sword was not raised for the Church in the ninth and tenth centuries, but there is no doubt as to the answer which it would then have received. At the beginning of the ninth century, Alcuin, who represents the science V and theology of his time, had been very energetic in condemning the forced conversion of the Saxons. His words, which we have already quoted, show us what he would have said of the introduction of the penalty of death into the Ecclesiastical Code.

Rabanus Maurus (786-856) complains, as Augus- fy tine did, of the violent excesses of heretics,² but concludes only that they should be excommunicated. " Let the heretic fall under the sword of the Church, and let his portion be with the unbelievers.”³ Hinc- mar of Rheims, in his synodal capitula of 881, makes too clear a distinction between the spiritual jurisdiction of the Pontiff and the temporal jurisdiction of the Sovereign ever to empower the Church to inflict capital punishment.¹ In the work known as the Collectio Pseudo-Isidoriana no temporal punishment is prescribed against heretics.

² Commentary on 1 Kings, c. 13 (M.P.L., t. 109, col. 42).

³ Commentary on Ezechiel, l. 12, c. 13 (M.P.L., t. 110, cols. 838, 839).

¹ Cap. I. (M.P.L., t. 125, col. 1072).

In the midst of the popular indignation aroused in many places by the antisocial heresy of the Catharists, Wazon, a great Bishop of Liège, whose voice was listened to even in Rome, expressly denies that the Church has the power to sentence to death. “ Let us remember,” he writes to the Bishop of Châlons, “ that in our episcopal consecration we do not receive the sword of the secular power, and that the Divine unction calls upon us not to kill, but to make alive ”²—words which are incorporated in the Canon Law ; and in the same eleventh century, neither in St. Peter Damian nor in St. Anselm do we find a single word to justify corporal inflictions on heretics.

² See Anselmi Gesta Episcoporum Leodiensium (Mon. Germ., Hist. Scriptorum, t. 7, c. 227).

In the twelfth century a celebrated Canonist, Ivo of Chartres, wrote : “ How can that Church which since her birth has never shed any blood but her own come to shed the blood of another?”³ The teaching of Abbot Rupert may be summed up in these few words : Heretics must be won by persuasion,⁴ and they must be put out of the Church like lepers.⁵ Hugo of St. Victor does not threaten, heretics with any temporal punishment, and he insists too strongly on the purely spiritual character of ecclesiastical power to think of giving supreme criminal jurisdiction to the Church.¹

³ Ep. 247 to John, Bishop of Orleans (M.P.L., t. 162, col. 364).

⁴ In Joannem, l. 8 (M.P.L., t. 169, col. 569).

⁵ De Trinitate, in Leviticum, l. 11, c. 36, 37 (M.P.L., t. 167, cols. 815, 816).

¹ De Sacramentis, l. 2, p. 2, c. 7 (M.P.L., t. 176, cols. 419, 420).

St. Bernard and Peter the Venerable, though not objecting to the repression of heresy by the secular power, were strongly opposed to extreme measures. St. Bernard allows the Church two weapons—viz., preaching and excommunication.² Peter Cantor more clearly declares against the sentence of death : “ The Apostle St. Paul tells us to avoid a man that is a heretic after the first and second admonition ; he nowhere tells us to kill him.”³

² Vacandard, St. Bernard, pp. 120, 121.

³ Verb. abbrev., c. 78 (M.P.L., t. 205, col. 231).

These quotations bring us down to the thirteenth century, and there is nothing of any authority on the other side. If there is anything remarkable in those who attribute to the Church the right of the sword, it is the extreme weakness of their argument from the Fathers, or rather the absence of any such argument. The ancient belief of the Church is, moreover, proved by the Canonical Code, the first book of which was written about 1150. Let us hear its author, Gratian. His collection, as is known, without being authoritatively promulgated, received, from its adoption by the universities and tribunals, a sort of official recognition, analogous to that which the teaching of the schools gave to the Summa Theologica of St. Thomas. “ Ecclesiastical discipline,” he says, “ commands that criminals shall be struck, not by the material sword, but by the spiritual sword,” and he corroborates this assertion by this passage, which he attributes to Pope Nicholas I.: " The Church possesses only the spiritual sword ; she does not kill, but she gives life.”¹

¹ Can. Inter hæc, 6, c. 33, Q. 2. The passage is taken from a letter said to have been addressed by Nicholas I. to the Bishops of Germany. Mansi fixes the date about the time of the Council of Mayence, 857.

This is the Canon Law of the twelfth century, and it is not altered by any subsequent legislation. Search the whole of the Corpus Juris, and in the whole of its provisions you will find nothing to legalize capital punishment; and Canonists fail so completely to find any such sanction in subsequent legislation that many, including Father Wernz, S.J., consider it unnecessary to discuss the question of law, because it never was a question of fact. Moreover, if capital punishment found a place in Canon Law, would the Church be acting logically in forbidding her clergy under such severe penalties to take any part in a sentence of death or mutilation ?² “ The sentence of death is on principle odious to the Church;³ she does not pronounce it herself,”⁴ recently wrote M. P. Viollet. Hinschius, so far as we know, is the only person to maintain that certain Popes have used their spiritual authority to pass a sentence of death or mutilation ; not for heresy, it is true, but for other offences. These last words refute the argument of Hinschius; the laws he quotes were enacted at a time when the Church was engaged in a fierce struggle with heresy, which she felt to be as dangerous to her as a revolution to an Empire. How could the Popes have shown, against crimes which concerned them far less, a severity which they spared to heresy ?¹

² C. Sed nec, 4 ; Clericis, 5 ; Sententiam sanguinis, 9 ; [That clerics or monks should not involve themselves in secular affairs] (iii. 50). The participation in a capital sentence is a cause of irregularity—that is, it puts an obstacle to the reception and lawful exercise of sacred orders. See Gas- parri, De Sacra Ordinatione, n. 451.

³ Hist. du Droit Civil Français, p. 373.

⁴ The Constitution of John XXII., Dierum, inserted in the Corpus Juris, Extrav. de Pœnis, t. 12, is specially significant in this matter. Directed against a populace which was in the habit of assassinating the authorities, it prescribes seventeen punishments for seventeen kinds of offences of which these wretched men were guilty ; and in this list of punishments there is no mention of either death or mutilation. John XXII. adds that he does not prevent the secular power from punishing the miscreants with all the rigour of their laws.

¹ We have taken the trouble to examine one by one the Pontifical letters to which Hinschius appeals, and find that not a single one of them gives him any ground for his argument. Of these letters—

(a) The Const. Cum primum, April 1, 1566 (B.R., t. 4, part 2, p. 284), of St. Pius V. is directed against blasphemers, who are threatened with various punishments, including piercing of the tongue ; and against sodomites, whom it is necessary to deliver to the secular arm. It is addressed to the feudatories of the Holy Roman Church and to secular princes.

(b) The Const. Cum sicut of Julius III., May 29, 1554 (B.R., t. 4, part 1, p. 309), against Jews who obstinately refused to give up their books containing blasphemies against Christ, could not make them amenable to spiritual jurisdiction, according to the well-known maxim, The Church does not judge those who are without.

(c) The Const. Effrenatum of Sixtus V., October 29, 1588 (B.R., t. 5, part 1, p. 25), modified by the Const. Sedes Apostolica of Gregory XIV., May 31, 1591 (B.R., ibid., p. 275), applies to abortion the ecclesiastical and civil laws against homicide. It cannot, therefore, emanate from the spiritual authority of the Sovereign Pontiff alone.

(d) The Const. Etsi alias of Clement VIII., December 1, 1601 (B.R., t. 5, part 2, p. 395), and the Const. Omnipo- tentis of Gregory XV., March 20, 1623 (B.R., t. 5, part 5, p. 97), punish the sacrilegious parody of the Mass, or Absolution by persons not in priests’ orders, and the practice of witchcraft, causing death. The guilty were to be made over to the secular arm, debitis pœnis plectendi, to be punished according to their deserts.

(e) The Const. Inscrutabilis of Urban VIII., April 1, 1631 (B.R., t. 6, part 1, p. 288), punishes as guilty of high treason persons who practised astrology on the subject of Christianity, the Holy See, the Sovereign Pontiff, and his relations to the third degree. (Secular princes protected themselves thus against the disturbing effects of astrological predictions.)

(f) The Const. Magnum of Urban VIII. (1631) directs that certain bigamists shall be punished by the secular arm.

(g) The Brief Cum Super of Urban VIII. (1643), addressed to the Auditor Cameræ (a judge of temporal matters), and directing him, in case of war, to judge the enemy and execute the sentences passed upon them, even capitalis- sima, concerns the Papal States only.

(h) Lastly, the Const. of Innocent XI., of March 12, 1677 (B.R., t. 8, p. 23), directs that persons who stole Hosts should, after the first offence, be delivered to the secular arm.

From this short summary it will be seen that these Constitutions apply to offences mentioned in all the criminal codes of the period. The Pope who issues them acts simply as temporal King and Head of Christendom, or, in virtue of his twofold authority (spiritual and temporal), which was recognized at that time in Catholic States, the spiritual and the temporal being often exercised in the same Act. Finally, the infliction of the punishments was not the concern of the ecclesiastical tribunal properly so called.

This, moreover, is the way in which the Constitutions were understood. If any other interpretation had prevailed, the authors who still attribute to the Church the right of the sword without any restriction would not have failed to use against their opponents this conclusive argument from the Canons. The Church is not deceived as to her own competence: what she has done, she has had the right to do.

♦

The ecclesiastical legislator has in later ages been true to his old tradition, and has never made capital punishment legal ; and those who attribute to the Church the right to pass such a sentence will find no corroboration of their opinion in the law. Taparelli, whose work suggested this examination of the facts, comes to the following conclusion : “ The Church has spoken strongly enough, forbidding her children to shed blood, and referring always to the secular arm for the inflicting of the more severe penalties. Thus she shows what is her spirit as a Christian Church.”¹ We are entirely of the same opinion as Taparelli. For twenty centuries the Church has had to deal with heretics and criminals, and never, even during the thousand years when she had every facility for doing so, has she passed an irreparable sentence. This forbearance, maintained in the most varied circumstances, which seemed sometimes to render the extreme severity necessary, raises a strong presumption against her power. Armed with formidable spiritual weapons to defend the faithful and preserve them from contagion, she has the power to punish her guilty children ; but it is the power of a mother, who never gives up the hope of a great joy, the joy of converting and saving them.

¹ Saggio teoretico di diritto naturale, n. 1485.

Such, in our opinion, is the conclusion to be drawn from the facts. If since the thirteenth century some great authors have thought otherwise, and if the language of the laws themselves (though containing no mention of capital punishment) is susceptible of a different interpretation,² we desire to express our opinion with due modesty, but we cannot change it without contradicting what seems to us the true tradition of the Church.¹

² Such, for instance, as the Bull of John XXII. against Marsilius of Padua, quoted above. Suarez (De Fide, d. 20, sec. 3, n. 22) appeals to the famous Constitution of Boniface VIII., Unam Sanctam. It is sufficient to remark that, although the question of the temporal power of the Pope is discussed in that Constitution, it does not even touch the special point of the power of sentencing to death.

¹ The direct power of the Pope over temporal affairs has also had its advocates, and more than one law has shown the influence of their opinion.

We now proceed to consider the argument from reason.

3. The Argument from Reason.

Summary : False arguments used for the Church’s right of the sword.—Conclusion too easily drawn from the State to the Church.—Too much stress on the Church as a society of natural law.—The concept of a perfect society proves nothing.—Why the State can punish with death.—Different position of the Church.—The mission of the Church, its moral apostolate, the blessings it is intended to procure, the spirit and name which are its glory, the very offences it is called upon to punish, disprove the power of punishing with death.—What is to be said in a case of exceptional necessity ?—Divine Providence allows us to put aside the supposition.

The advocates of the right of the sword frequently use an argument which they consider unanswerable. The Church, they say, as a supreme society, is, no less than the State, a perfect society ; the State possesses the right of the sword, therefore the Church also possesses it. The argument is fallacious, as Cardinal Cavagnis points out; for what is the major premiss of this ill-constructed syllogism ? Will they contend that the Church, because it is a perfect society, can do all that the State can do ? The assertion is false, unless we admit that the State is only a province of the Church. Will they argue that every perfect society has the right of the sword ? The assumption is gratuitous, unless from the single example of the State they draw an infer-ence which is evidently vicious.¹ Will they fall back on analogy ? But the point to be considered is not so much the analogy as the difference of two societies, which they compare, the one to the soul, and the other to the body. The only argument that remains for them is that the right of the sword is as necessary to the Church as it is to the State, and that therefore the Church may claim it, because a perfect society has a right to the means which are indispensable to its end. But those who share our opinion deny this necessity ; they see no reason why the Church should be bound to put on a sword which she has never drawn from its sheath ; and Father Biederlack attributes to Cardinal Cavagnis an argument based on the non-necessity of this right.² The Church, he says, possesses all the means necessary for her end ;³ but the penalty of death is not necessary for it : therefore—as his opponents reason a pari, and there is no parity— “ the argument is a sophism.” This is the just conclusion of Father Choupin.⁴

¹ They proceed as if arguing that whatever belongs to a genus belongs also to each subordinate species, whereas in reality there exist also only two species of perfect society— the Church and the State.

² Course of lectures delivered at Rome, and autographed under the title, Institutiones Juris Ecclesiastici (Rome, 1907). In the original French edition of this work the argument was attributed to Father Biederlack himself, and his own text gives occasion to the confusion ; but, as a matter of fact, he put aside the question as unimportant. We take this opportunity of correcting the mistake.

³ The Cardinal evidently takes it for granted that necessity is the only reason for attributing to a perfect society means of another order than the end of that society.

⁴ L’Inquisition : La Responsabilité de l’Église dans la Répression de l’Hérésie au Moyen Âge, p. 39.

This answer enables us to put our finger on the radical defect of so many arguments used in favour of a conclusion opposed to our own. Men reason about the Church too much as if it were a society of natural law ; and in this there is a misunderstanding or a misuse of language which it is necessary to point out.

In the case of an institution of the natural order, the argument which proves its existence proves also the existence of all its rights. The same necessary act of the will of the Author of Nature sanctions the institution for the good of mankind, and the rights of the institution which are required by that good ; and there is no need for any special economy. But for an institution which is of free Divine creation, the positive will of God decides in the beginning the rights that shall be conferred upon it. We must make a distinction between the powers which are ideally possible and the powers actually bestowed ; for Divine Providence, without failing in its wisdom, may well refrain from giving all the powers compatible with the abstract notion of such an institution. Being omnipotent, it has other means for the attainment of its end. Taparelli has well remarked that the repressive measures which are not repugnant to every spiritual society may be entirely repugnant to the Christian Church and the spirit of its Founder. But other contemporary writers have not followed Taparelli’s example ; their own concepts of perfect society and visible society form the basis of the arguments which they consider conclusive, and they only glance at the texts in order to bring them, at least verbally, into harmony with their own deductions. The reasoning appears to us faulty, for the Church does not become either invisible or imperfect merely because she does not possess all possible outward means of coercion. The character of Christ, His death on the Cross, the testimony given for twelve centuries to the essential clemency of the Church, the Canon Law of the Church, first by its omissions and secondly by its axioms, “ the Church does not kill,” “ the Church abhors bloodshed ”—all these things reveal to us the true spirit of the Church, and enable us to draw a correct conclusion as to her powers ; and these things we constantly keep in view in our argument, which is based on the fact of a Church and a religious society very different from the Synagogue and the theocratic organization of the Old Testament.

Our proposition appeals to a sort of moral sense of fitness and propriety ; it invites us to look at the whole subject as made up of a multitude of details whose very complexity excludes the possibility of strict mathematical demonstration. These remarks seem necessary to explain and strengthen the direct arguments which we propose to employ.

Let us go back first to the reason which places the lives and liberties of great criminals at the disposal of the State. This reason is not pure vengeance. Vengeance belongs only to God, who is offended by every transgression, who sees every crime that is committed, and whom no power or cunning can deceive. Man lacks the authority, the competence, and the power required to be a judge in the full sense of the word.

But the State possesses more than the right of self-defence, which is allowed to a private individual. If a private individual is forcibly attacked in his person or property, it is lawful for him to repel force by force. There his right ends, and as soon as the criminal desists from his aggression he recovers, so far as the private individual is concerned, the inviolability which protects him in the possession of his life, liberty, and property. If civil society had no other right than this, it would not be justified in punishing a repentant offender, and could not put a man to death except in order to prevent him from doing harm to others. Capital punishment, which would be legitimate, or at least conceivable, in a nomad population, would be inexplicable in a State provided with prisons protected against sudden attack. But we do, as a matter of fact, recognize in public authorities, even in those of the present day, the right to punish criminals, even when penitent and unarmed.

In the defence of society there are elements which do not exist in the legitimate self-defence of a private person. The punishment which the State inflicts is not only preventive and repressive, but exemplary and retributive. Why ? Because it is the duty of the human legislator to establish and sanction effectively a visible order, modelled on that supreme order which is established and sanctioned by God—modelled on it in this sense, that it is the complement of that order in its application to a specified sphere. This human order should give sufficient encouragement to law-abiding persons, and reasonable satisfaction to that sentiment of justice which is offended by the sight of vice trium-phant and virtue oppressed. Such is the social necessity which arms the legislator with power to take public vengeance ; and this vengeance may extend to the taking of life when the effective maintenance of order demands such severity.

The right of punishing with death seems to be necessarily attached to the maintenance of an order which the individual has not to dispute but to obey, whatever his personal opinion may be, and which his fear of consequences will compel him to respect.

Unless we identify the Church with the State, we must see that the Church, as such, is not generally concerned in the maintenance of order in any particular territory. She has no geographical limits ; but while it is her mission to penetrate into all countries, imperial or democratic—[teach all nations]—she will not interfere with their interior administration. The higher justice which she preaches does not profess to be imposed by force, but, on the contrary, asks for the free consent of all. The Church fulfils her normal mission by converting all nations, and inducing believers and unbelievers to live peacefully side by side, without disturbing the established order and tranquillity. She does not exist to spread terror, but to disseminate ideas of virtue ; not to satisfy avenging justice, but to develop the higher sentiments of clemency, mercy, and forgiveness. She is visible, no doubt, but for what purpose ? To reach men’s souls, and win them by instruction, by preaching, by administration of the sacraments, by gathering men together for mutual edification, by all the outward and visible means which help forward those who have voluntarily entered her communion.

The State has the effective right to take measures for the preservation of visible order, and to use constraint for the purpose, if necessary; and this right puts into the hand of the State a sword which may be used to take life. The Church has the effective right to save souls, and no force can prevent her from exercising that right. Can such a right as this carry with it that of inflicting a punishment which may risk the eternal loss of the soul ? We must not forget that the Church, brought into existence by the express will of God, is bound to the religious community by other relations than those which exist between the State and the civil community from which it emanates. It is true that both the Church and the State are concerned with men, whose physical existence is not collective, but individual; and the end and justification of both is the good of those persons who compose the society. But the difference of their objects, their missions, and their duration, involves a corresponding difference in their functions, their duties, and the matters which occupy their attention. Civil society regulates outward acts, as such, and not intentions ([The praetor does not judge internal matters]), and touches man in the least noble part of him, the body ; for not only is it by the body that all social intercourse is kept up, but, according to the Thomistic philosophy, the necessity for social relations arises from the fact that we have a body. It is by the body that we are many individuals in one species, and humanity finds its perfection and completion in association and union. The Church, on the other hand, regulates outward acts only because they help towards our inward personal sanctification. The State certainly cannot neglect the soul, because without the soul it cannot reach that compound being that we call man. But the Church seeks to make her way through the body or through the compound being to the soul. Moreover, the express will of her Divine Founder gives her, in her sacraments and sacrifices, a directly spiritual action. The attention of the Church, then, is principally directed to that part which in every man is the most worthy, but also the most autonomous and, as it were, the most isolated.¹

¹ Is not this, in substance, the argument of the illustrious Cardinal, Robert Pullen ? “ Let the State consider that it commands the body, and the Church the soul. Let the former punish the guilty person in his body, and let the latter visit the obstinate with spiritual punishment ” (Sententiarum Libri, viii., l. 6, c. 56 ; De duobus Ecclesiæ gladiis [M.P.L., t. 186, cols. 905, 906]).

The State, whose function is first of all to maintain that visible order which depends on respect for the rights of others, and then to secure general prosperity by making up for the insufficiency of private initiative, accomplishes its mission when it has sufficiently provided its members with the means of livelihood, and it is not concerned to see how each member makes use of those means. The Church, on the contrary, by preaching and instruction, endeavours to inform every intellect, while her prayers and her sacraments dispose and stimulate every will.

The State is formed for temporal happiness, and has no object beyond the present common good ; the Church, instituted for the eternal salvation of souls, makes use of the present common good in order to render easier of attainment the happiness which will follow this life, and which will not come to an end with earthly society.

The special value and independence of the soul, the mission of supernatural sanctification entrusted to the Church, its last end, which every member of the community is bound continually to keep in view, all combine to make the Church much more solicitous than the State for each individual member ; and hence arises the difference in the positions of the Church and the State with regard to capital punishment. The State considers this extreme penalty as a means proportioned to its end, which also is outward and visible—the maintenance of public order. Whether the sentence entails the eternal loss of a soul, or whether it is passed on a man who is penitent for his crimes and has once more become worthy to live, these special considerations do not affect the State, and the common good permits it to put them aside. But this severity, on the one hand, has only an accidental effect on the convictions of the intellect and the intentions of the will ; and, on the other hand, its consequences are inconsistent with the maternal affection which the Church professes for every one of her children. A mother cannot sacrifice a repentant son, or cause the eternal damnation of an obstinate one, by an act that precludes all possibility of return.¹ The Church, being created to give life, does not put to death ; that is the axiom of Canon Law.

¹ The advocates of the right of the sword see the force of this argument, and endeavour to escape from the difficulty by the plea that a longer life would only serve to make the eternal punishment of the obstinate person heavier (Bellarmine, Controv. de Laicis, l. 3, c. 11). But St. Leo the Great tells us that in this life we must never despair of anyone.

The Church has to act upon superior faculties rebelling against constraint; there is, therefore, nothing more just or reasonable than to attribute to her a coercive power, appealing, in the last resort, to faith and persuasion, because excommunication is the final sanction. But, if we consider her inherent power, it seems very unlikely that the Church should herself have the right to use violence for the execution of her decrees. “ Material violence,” writes Father (now Cardinal) Billot, “ is one of the means at the disposal of temporal society.”¹ This right of exterior constraint, which the Church cannot exercise without the assent of the secular power, she possesses only by her natural and legitimate alliance with that power. It is unnecessary to discuss this matter further, and we need only say that we have no desire to see gaolers and executioners included among the ministers of the Church.

¹ Tractatus de Ecclesia Christi, t. 2; De Habitudine Ecclesiæ ad Statum, Q. 19, Art. 1, l. 4, p. 125.

What shall we say of the harm that the exercise of the right of the sword would cause to the Church herself ? On the one hand, there is danger that the use of these violent and summary means would lead her ministers to neglect those means which are more adapted to the end of the Church, but which call for more labour and self-sacrifice—namely, personal edification and amendment of life, the zeal of enlightened and patient preaching, and long- suffering charity. On the other hand, such measures are repugnant to that name of Mother, of which the Church is justly proud, and to that clemency which she should always display, as continuing the work of Christ.

But this is not all. We should not think of denying the pernicious effects of the propagation of tenets that corrupt faith and morals, and the necessity of putting a stop to it by efficacious means ; but if we consent simply to exclude the irreparable sentence of capital punishment, can we not strengthen the preceding arguments by a secondary consideration drawn from the nature of the offences which the Church has the right to punish ?

Offences of the spiritual order are not attended by the inevitable and irreparable consequences of certain crimes, such as murder, which are amenable to the jurisdiction of the secular tribunals. Though voluntary in those who commit them, they hurt none but those who allow themselves to be led away.¹ I may be killed against my will, but I cannot sin against my will; and the will which has grown weak may always receive new strength, and expiate its fault by repentance.

¹ If a criminal attempt is accompanied by violence, there is always a right of self-defence, and it is the duty of the secular power to interfere when necessary for the maintenance of public order. St. Theodore the Studite explained in this manner the appeal which St. Simeon Stylites addressed to the Emperor against the infidels who were the scourge of some Christian countries (Letter 155, quoted in M.P.G., t. 99, col. 1485).

Thus it seems to us that everything points to the same conclusion. The mission of the Church, her moral apostolate, the blessings she is to procure for us, the faculties on which she acts, the spirit and the name in which she glories, the very crimes she is called upon to punish—all these things tell us to exclude from the coercive system of the Church the disastrous and unnecessary power to punish with death.

It will probably be admitted that the arguments we have adduced prove that the repressive system of the Church does not habitually extend to capital punishment. But it may be asked, Does it never extend so far ? May we not imagine extreme cases which would compel her to have recourse to it ? Some disturbers of the public peace might go to such lengths that their death would be the only means of preserving the rest of the flock from danger. If the Church has not in such a case the power to cut off a diseased member, would she still be a perfect society ? Would she have at her disposal means sufficient for her end ?

Such is the only specious objection¹ which remains to be examined fairly and without any prejudice. To answer it we appeal first to the testimony given to the contrary by the first twelve centuries without exception. The great and holy doctors of that long period not only never thought of the possibility of such an emergency, but even when they considered the hypothesis of a diseased member spreading corruption, they contemplated an amputation of the same order as the evil itself—namely, such as is effected by the spiritual sword of excommunication. We have given the texts above. And is it not evident that the excommunication of the guilty is a solemn warning to all the faithful, sufficient to preserve from contagion all men of good-will ?

¹ It is unnecessary to waste time over certain futile objections, invented without any examination of the merits of the question. Some persons, for example, suggest that the Church, as a perfect society, has a coercive power unlimited in principle, and that therefore she must be presumed to possess the right of the sword, unless the contrary is proved ; as if a perfect society could do all that is not proved to be forbidden, and as if the irreparable nature of the punishment and the forbearance of the Church for two thousand years did not at least raise a presumption that she has not the power. Others, who confuse two different orders of things, use this extraordinary argument : The Church has the power of excommunication ; a fortiori, she has the power of death, since excommunication is a heavier punishment than death. If this were so, it would be a mitigation of the Canon Law to substitute death wherever excommunication is mentioned, and who would dare to suggest this ?

This is Taparelli’s answer to the same objection : “ Can implacable severity, and especially capital punishment, ever be necessary to a spiritual society ? I have proved elsewhere that a spiritual government, because it penetrates into a man’s inmost thoughts, has less need of vigorous measures of coercion. In spite of that, I should not venture to say that the necessity could never present itself. ... It appears to me clear that recourse to extreme measures is not in its nature incompatible with the idea of a religious society, especially among rude and uncivilized people ; but what shall we say of a Christian society, governed by a God who died for His enemies, and who has given His almighty word as a pledge of the perpetual endurance of His Church ? Certainly this word does not exempt her from using all necessary means ; but it may, on the other hand, diminish the necessity for violent measures, and show that they are inconsistent with the mercy of the Cross.” This is an indirect answer ; but to refute the argument directly, let us observe that the Church is invested with a twofold mission. Unlike the State, she is a perfect society, created to conquer as well as to reign. No one ever thinks of giving her an army, for her conquests must be spiritual ones ; “ the right of making war does not belong to her.”¹ Why should we give her executioners ? Why set up a contrast between her kingdom and her conquests, instead of trusting to the harmonious designs of God, who can provide as well for the preservation as for the expansion of His Church ?

¹ Taparelli, Saggio, n. 1487.

God, in fact, can secure to His Church a full sufficiency of means in two ways : either by giving her the right and the power, or by preventing the emergency which would make that right and that power necessary.

Whether He confers the power or prevents the necessity for it, is the Church without resources ? The supposition of a problematical necessity need not trouble us, nor make us attribute to the Church a power which is inconsistent with her history and her spirit.

Is it even essential to a perfect society to have at its disposal means sufficient in every case to prevent it from being taken by surprise ? In that case, how many civil societies would lose their claim to be considered perfect societies! A perfect society may perish ; it is not from its nature as a perfect society, but from the promise of Christ, that the Church derives its assurance of indefectibility. How many perfect societies are unable to withstand the attacks of their more powerful neighbours ! How many empires have fallen in consequence of invasions from without or revolutions from within! How many crimes are there against which every State finds itself powerless ! The Church, therefore, would not cease to be a perfect and supreme society even in the possible, though extremely improbable, case that adequate means of coercion failed her.

This, however, is not our solution of the difficulty. But when our adversaries allege that the Church, in view of such an extreme case, ought to possess the right of the sword, we reply with confidence that God will take care that the Church is never compelled to act in a manner inconsistent with her spirit. Of these two propositions, which at once appears the more probable ?

But there is more to be said. Facts show the falsity of the objection. In a Christian political society true religion becomes a social good which the public authorities are empowered and bound to defend by means appropriate to the customs and circumstances of the time. It is therefore protected against every emergency. But if the political society is not Christian, how can the Church ever take upon herself effectively to order an irreparable punishment ? The power which it is sought to attribute to her would therefore be illusory in the only case in which it might appear to be necessary.

This is all that the Church receives from the theory we are refuting—a sword which she is powerless to wield. And what is the price she would pay for the gift ? The sword, which could never do her any good, would do her infinite harm by destroying her reputation for gentleness, by estranging men’s hearts from her, by creating prejudices against her far more injurious than the unpunished propagation of heretical opinions.

No necessity, then, confers upon the Church the right of the sword. Not the necessity of the whole : we may put aside the supposition, for the fate of the Church, which is destined to live and prosper in the midst of persecutions, can never depend on her power to punish. Not the necessity of a part, for the immediate and temporary good of a bloody repression which would be the work of the Church would be outweighed by the general and lasting, if not permanent, harm. A remedy which is worse than the disease is no remedy at all.

Shall we be called upon to explain certain facts— the facts of the Inquisition, to call it by its popular name ? We shall refer to them in the second section of this part. For the present it is enough to draw attention to the number of Catholic writers who, without ignoring these facts, share our way of looking at them. This number alone proves that the bloody repression of heresy does not necessarily imply the existence in the Church of the right to punish with death.

III. The Formula of the Church’s Right to Punish.

Summary : Originally the Church had at her disposal spiritual punishments, and afterwards reparable temporal punishments placed under the sanction of ex- communication.—She may accept, and in certain circumstances demand, the assistance of the State for the reparable temporal punishments inflicted by her.—She cannot, even by consent of the State, inflict irreparable punishments.

“ A perfect society,” says Cardinal Cavagnis, “ possesses in the order to which it belongs a plenitude of rights for all the means necessary to its end ; but different ends call for different means, and therefore different rights.”¹ That is an exact statement of the truth ; and if we apply this principle to the Church, it will seem natural that if her children are given to her by an inward and visible grace, they should be cast out of her pale by a spiritual sanction. Thus there is perfect symmetry and consistence between the beginning and the end, between birth and death. In the higher order in which the Church is supreme she possesses a sanction as efficacious as that possessed by the State in the temporal order. She preserves and dispenses spiritual blessings, and deprives the wicked of them, just as the State deprives those who are condemned to death of the exterior goods committed to its care. The State, nevertheless, though not ceasing to be a perfect society, has no power to employ a spiritual sanction. Similarly, without denying the Church’s character as a perfect society, tradition, Canon Law, and reason itself, declare that she has not the power to inflict irreparable punishments. We conclude, therefore, that Divine Providence has relieved the Church, which carries on the work of Christ, from the necessity of employing means which are repugnant to the spirit by which Christ desires that she should be animated.

¹ Op. cit., p. 196.

Though it is beyond the exact scope of this chapter, our arguments logically lead us to take this view of the coercive power of the Church—namely, that neither by her own powers nor by concession of the State can the Church, as such, inflict irreparable punishments. She has possessed the power of inflicting all other temporal punishments, and we recognize in her the right to claim the assistance of the State for the application of those temporal punishments which, in view of her spiritual end, she considers it proper in certain circumstances to prescribe or inflict. But if we confine our attention to the inherent power of the Church, that power which she possesses always and everywhere, we consider that her power is limited to those penalties, spiritual or temporal, which find their last sanction in the supreme penalty of excommunication.