The Coercive Power of the Church

The first opinion is that infidels can be compelled to embrace the faith when sufficiently propounded. So Maior, 2. dist. 4., and indeed Genesius Sepúlveda, as in the Cardinal de Lugo disp. 19. sect. 2. §. 2.

The second opinion asserts this of infidels who are subjects in temporal things of a Prince coercing them to the faith; yet they assert this speaking of Divine law; for by Human law this coercion is prohibited. This Scotus teaches, 4. dist. 4. quaest. 7. at the end, and some of his School; Lorca asserts it probable, 3. disp. 36.

Others limit it to indirect coercion; but they deny it of direct. So Gabriel, dicta dist. 4. quaest. 2.; Angelus, as in Suarez disp. 18. sect. 3.

The common and true opinion altogether denies that infidels, whether they are subjects or not subjects, can be compelled to embrace the faith. So St. Thomas, quaest. 10. art. 8. and 12., where Cajetan and the other Thomists, Paludanus, Durandus, Antonius, Richardus, Sotus, Abul., Sylvester, Castro, Victoria and others, whom Suarez cites and follows above; Bannes, Aragon, Turrianus, Valencia, Azorias and others, whom Hurtado cites, disp. 75. sect. 2.; Coninck, disp. 18. dub. 14. num. 125.; Castro Palao, Tom. 1. tract. 4. disp. 2. p. 6.; Lugo, disp 19. sect. 2. §. 2.; Tannerus, disp. 1. quaest. 9. dub. 1., who reviews others. Add Bass., verb. Fides, 2. num. 8. And it is the opinion of St. Bonaventure, in 4. dist. 4. p. 1. art. 2. quaest. 1. arg. 4. opp., which he admits also in other places, adduced quaest. 3.

I assert with this opinion that infidels, whether subjects or not subjects, cannot be compelled to embrace the faith.

St. Gregory the Great commands this, lib. 11. epist. 15., cited in cap. Qui sincera, dist. 45., and the Fourth Council of Toledo, cap. 56. relatum eadem dist. cit. de Iudaeis. And Innocent III decrees the same in cap. Maiores, de Baptismo, where the Pontiff gives the reason: because it is against the Christian religion, which is the reason of St. Bonaventure: because the Evangelical Law is free; and it does not judge those that are outward, as the Apostle teaches, prima Corinth. 5., as St. Bonaventure notes, in 4. dist. 39. art. 2. quaest. 1.; and therefore the Saintly Doctor observes, ad 10. Lucae, the Mission of Christ: Ecce ego mitto vos, sicut Agnos inter Lupos — Behold I send you as sheep among wolves, where he says that the arms with which He wills the world to be brought to the faith are meekness, and not arms after the ancient manner; and he notes that Paul himself was thus converted, of whom it had been said, Genesi. 49. Beniamin Lupus rapax — Benjamin a ravening wolf, who, having been thrown from his horse by Christ the Monarch, yet convicted by arguments and lights, came of his own accord to the faith. Hence the adversaries bring forward this example in vain, as Lugo notes, num. 85. In this sense he expounds also that word of Lucae 14. Compelle eos intrare — Compel them to come in; that is, not by arms, but by heavenly motives; not by temporal punishments, but at most by the terror of eternal punishments, as St. Bonaventure expounds on this place: Arma enim militiae Christianae non sunt carnalia — For the arms of Christian warfare are not carnal, as is said 2. Cor. 10. St. Ambrose notes this, lib. 7. in Lucam. And he observes that the Apostles are forbidden to take up rods, which are signs of power, as the Saintly Doctor describes ad Psal. 22.; and in the commentary, cap. 22. Lucae, St. Bonaventure observes with St. Ambrose lib. 10. in Lucam, that it is commanded that for the time of the Passion alone the Apostles take up two swords for mere defense, and the Gloss adds: Donec sopita persecutorum insania, tempus euangelizandi redeat — Until the madness of the persecutors having been lulled, the time of evangelizing return. But if this coercive force did not remain in the Church, it does not appear how it could remain in Princes in regard to infidels: for to judge of the things of faith belongs to the Church.

But the Saintly Doctor proves this admirably ad 9. Lucae, on that remarkable event, when Christ was going to Samaria, and because the Samaritans were unwilling to receive Him for preaching, James and John wished to punish them with fire from heaven; but Christ rebuked them. Nescitis cuius spiritus estis. Filius hominis non venit animas hominum perdere, sed salvare — You know not of what spirit you are. The Son of man came not to destroy the souls of men, but to save; which place I weighed in the preceding question with St. Bonaventure. If some had weighed this, they would not have raged with such slaughter and savagery against the wretched infidels in distant lands, under the pretext of winning them to the Christian religion; on this see the Archbishop of Valencia in the history of America,^{1 1} Editor's note: the print reads 'vide Archiepiscopum Valentiz in historia Americz'; terminal 'z' is the OCR's garbling of the 'æ' ligature; rendered as 'Valentiæ in historiâ Americæ'.

It is proved by the Saintly Doctor ad 9. Lucae with reasons, because the nations ought to be moved to the faith voluntarily, in the spirit of rectitude; otherwise contentions and scandals arise, so that the nations say: Haeccine hic Christus eorum praecepit, qui se Salvatorem mundi praedicandum mandavit? — Did this Christ of theirs command, who bade himself be preached as the Savior of the world? Tanner also uses these, num. 4.

You will object, that Sisebutus King of Spain once compelled the Jews to Baptism, and he is praised by the Fourth Council of Toledo, cap. 56.; but King Ferdinand expelled the Jews from the kingdom.

It is answered, that the zeal of Sisebutus is praised, not the deed. Ferdinand indeed expelled the Jews by right, not wishing them to dwell in his kingdoms, lest they harm his subjects. So would that the bloodsuckers be driven out on every side.

You will object second, that St. Gregory Magn. lib. 3. epist. 26., cited in cap. Iam vero, 23. quaest. 6., seems to wish infidels to be compelled by exactions.

It is answered, that they are compelled indirectly and by right, by not remitting to them the tributes due, unless they be converted.

You will object third, the Laws enacted against Pagans and their rites, ut Lex prima, Lex Ne quis. Lex Nemo ea. Lex Nemo venerandi, C. de Paganis, which laws are praised by the Councils and Fathers, as in Suarez sect. 4.

It is answered, that those laws prohibit the sacrilegious cults of Demons and other things against the natural law, to which Princes have right by nature.

You will object fourth. Those baptized unwillingly are compelled to obey the Church, as is clear from the Fourth Council of Toledo, cap. 56., cited in cap. de Iudaeis, dist 45.

Lugo answers, num. 91., from St. Bonaventure, in 4. dist. 3. p. 1. art. 2. quaest. 1., that not all who are baptized unwillingly are so esteemed; but those who, driven by fear, so that they may avoid inconveniences, approach baptism; and these are said to be unwilling only in a certain respect.

The first opinion is affirmative. So Maior, and Sepúlveda, as in Suarez disput. 18. sect. 4. They are cited by Coninck disput. 18. num. 184.; St. Antoninus 3. p. tit. 22. cap. 1. §. 6. et 8., but there he speaks according to the mind of Augustinus Anconitanus. Sylvester is also adduced, under the word Papa, quaestione 7., who speaks in the same way. Panormitanus is also cited, cap. Quod super his, de voto; and after Panormitanus, Hostiensis, and Innocent on cap. Quod super his, extra de voto.

The common opinion of Theologians grants this of subject infidels only. So Caietan. Victoria, Soto, Valentia, Aragon, and others, whom Suarez disp. 18. sect. 4. cites and follows; Turtianus disp. 52. dub. 2.; Coninck disp. 18. dub. 12. num. 187.; Hurtad. disp. 75. §. 23.; Lugo disp. 19. sect. 2.; Bassaeus v. Fides 2. 8., who cite others. Others hold the same with Tanneto disp. 1. quaest. 9. dub. 2., who also say it is lawful if they are burdensome and a scandal to Christians. The Saintly Doctor, de Eccl. Hierarch. p. 2. cap. 3. proves it from the deed of Iudae Machabaei lib. 1. cap. 3.

It is proved by Suarez from the example of God, who, when He wished to destroy or punish the nations dwelling in the land of promise, nevertheless willed them not to be warred down by the Israelites for the crime of Idolatry, but for the denial of peaceful passage through their lands; and it is gathered from 20. Numer., and St. August. signifies this, cited in cap. 3. d. 23. quaest. 2.

But Coninck num. 193. says this deed was done by a special concession of God, the supreme Lord.

Lugo num. 97. adds that the mere denial of passage did not bring those evils upon the Chanaanites, nor sufficiently justify all the wars of the Jews. Hence when they crossed the Jordan, they killed them, yet not on account of the denied passage. Moreover even little ones were killed, who were ignorant of that barbarity. You will find the better course with St. Bonaventure, ad 12. Sap., for the universal cause of the just war of the Israelites: because certainly those Pagans, corrupted, were unwilling to cease from works against the law of nature; and thus he speaks: O quam bonus, et suavis est Domine spiritus tuus in omnibus! Ideoque eos, qui exerrant, partibus corripis: et de quibus peccant, admones, et alloqueris: ut relicta malitia, credant in te Domine. Illos enim antiquos inhabitatores terrae sanctae tuae, quos exhorruisti, quoniam odibilia opera tibi faciebant per medicamina, et sacrificia iniusta; et filiorum suorum necatores sine misericordia, et comestores viscerum hominum, et devoratores sanguinis a medio Sacramento tuo, et auctores parentes animarum inauxiliatarum perdere voluisti per manus parentum nostrorum, ut dignam perciperent peregrinationem puerorum Dei, quae sibi omnium charior est terra — O how good and sweet is thy spirit, O Lord, in all things! And therefore thou correctest those that err by little and little: and admonishest and speakest to them of the things wherein they sin: that leaving wickedness they may believe in thee, O Lord. For those ancient inhabitants of thy holy land, whom thou didst abhor, because they did odious works to thee by potions and unjust sacrifices; and murderers of their own children without mercy, and eaters of the bowels of men, and devourers of blood from the midst of thy Sacrament, and authors and parents of souls without help, thou didst will to destroy by the hands of our parents, that they might receive a pilgrimage worthy of the children of God, the land most dear to them of all.

These are the causes, as the Saintly Doctor says there, for which He willed those peoples not to dwell with the faithful people, nor to make a covenant with them; nay rather to be expelled and killed, because incorrigible they accomplished enormous works against nature, to the ruin, scandal, and damnation of the faithful. But the little ones were killed in punishment of the scandals of the adults.

Pope NICOLAUS, answering the questions of the Bulgarians, speaking of Idolaters as such, says: De his, qui idolis immolant, nihil aliud dicere possumus, nisi quod ratione potius, quam vi, convincendi sunt — Of those who sacrifice to idols we can say nothing else, but that they are to be convinced rather by reason than by force.

And Paul III, as in Lugo n. 102. et Coninch. 160., declared that the Indians, as infidels, are the true lords of their goods, nor can they be despoiled of them;

But Bannes quaest. 10. art. 10. dub. 2.; Suarez, above, num. 8.; Coninck num. 188.; Lugo n. 116. note that the Prince must first enact a law, prohibiting; and afterwards punish the delinquents.

Lugo adds that they ought to be punished in the mildest way possible; nevertheless, the same says, the more atrocious crimes related above are to be punished most severely. It is a wonder, however, that in the Laws of Solon and Romulus no penalty for parricides is prescribed. Certainly I think with Tullius, oratione pro Rossio Amerino, and Plutarch in vita Romuli, that the cause was that they did not believe so great a crime would ever happen. But when the case should occur, the parricide ought to be chastised with the most atrocious death, as was Francis Ravaillac of Angoulême, who stabbed Henry IV, the Great, the legitimate King of the Gauls, as Lugo Hispanus observes. For this Monarch was great, not inferior to Alexander or Caesar, as his deeds show in Matthaeus and Davila. He had been made most sincerely Catholic, but he wished first to acquire the Kingdom by the sword, lest anyone should ever induce in his mind the hope of capturing the kingdom by the flood of the Sacraments of the reconciled Church; nor indeed had he relapsed by his own judgment, because as an adolescent, with the terror of death struck into him by Charles IX, he had received the Catholic faith. Truly, however, if he had abjured before a Judge, he was not excused, as P. Cyprianus fol. 748. P. Bonagratia v. Absolutio says, even though this doctrine was declared by the Most Eminent only in the year 1068.^{1 1} Editor's note: the print reads 'declarata solum an. 1068'; the year is chronologically impossible here (the volume was printed in 1655 and the authors discussed are 16th–17th century), and the djvu OCR layer could not be aligned to verify the figures; the true reading (perhaps 1568 or 1668 of the Congregation's decree) cannot be established, so the print's '1068' is kept.

ON this Bellarmine disputes at greater length Tom. 1. Lib. 3. de Laicis, cap. 21. et 22. Valencia disp. 1. q. 11. puncto 3. Suarez disp. 20. sect. 3.

HERETICS — certain very ancient lovers of liberty, and of a bad peace, cried out that all should be left in their own religion, and cherished and kept in fraternal peace. So a certain Apelles, in Eusebius lib. 5. hist. cap. 13. Nicephorus lib. 4. cap. 29. provided, however (they say), that they confess Christ the Redeemer. Much the same did George Cassander teach in our own time, in Bellarm. cap. 19. But let these men hear the Apostle Paul: What concord hath Christ with Belial?

HERETICS, sectarians, enemies of Catholics, and lovers of a most foul liberty, have said that such men are not to be punished in any way. So thought of old the Donatists, and recently John Hus, and Luther, in Bellarmine, cap. 21. and it is the universal complaint of heretics against us. It is truly marvelous that they, execrating the just punishments of the most holy Inquisition, found in England so many unusual kinds of torments for putting Catholics to death, that they far surpassed the tyrannies of the Barbarians.

The unshaken truth of the holy Church asserts that heretics are justly punished, and can be compelled to profess the faith.

THIS was defined in the Council of Constance sess. 15. and by Leo X. in the Bull against the articles of Luther, and in cap. ad abolendam, and cap. excommunicamus, and other de haeret. cap. super eo, of the same title, Lib. 6. from Leo Pope epist. 2. to the Bishops of Italy, and other letters, cited by Suarez num. 11. and by Lucius P. epist. to the Bishops of France. The Fourth Council of Toledo, cap. 57. and 59. from the Nicene, where it was requested of Constantine that he punish the Arian heretics.

The same is evident from the Laws of the best Princes, who established the gravest penalties against heretics: Leg. Manichaeos. Leg. Arrianis. Leg. quicunque Cod. de haeret. which laws St. Augustine praises, Lib. 1. contra epist. Parmen. c. 7. and epist. 166. ad Donatistas, where he adds that only the Emperor Julian the Apostate left heretics unpunished. Wherefore in Lib. 2. Retract. cap. 5. and epist. 48. and 50. he retracts what he had said before, that heretics were not to be punished with bodily punishment; and in Lib. 1. contra epist. Parmeniani, cap. 7. and tract. 11. in Ioan. and epist. 50. ad Bonifacium, he asserts that the punishment of death is owed to them. D. Gregory also may seem [to hold this], Lib. 1. epist. 72. Bernard serm. 66. in Cant. and Lib. 4. de consider. Leo epist. 91. et 923.

IT IS PROVED by D. Bonaventure on 2. Ioan. on these words: Having made a whip of cords, he cast out those selling doves, sheep, and oxen. Where he exercised the power of the forum, showing that sellers of doves, that is, of the gifts of the Holy Spirit, were to be punished for simony: the oxen, who undergo Ecclesiastical labors for merely temporal reward: and the sheep, who call away the sheep of Christ from his pastures, and sell the truths of the faith to the devil, perverting them and dragging them into heresies, as the Fathers expound.

The holy Doctor observes, moreover, that he had twice reproved their acts, saying: But you have made the house of my Father, a den of thieves.

IT IS PROVED secondly by the holy Doctor in 4. dist. 18. p. 2. quaest. 1. from 1 Corinthians 5. where he delivered the incestuous man to satan for the destruction of the flesh; and 1. ad Timot. 1. He delivered Hymenaeus and Alexander to satan, to torture even of the body, as he observes on the last.

IT IS PROVED thirdly by D. Bonaventure on 22. Lucas and 19. Ioannis, where Peter drawing a sword struck the servant of the Pontiff, whose name was Malchus. There he shows the Pontifical power of Peter, in that he struck the servant of the Pontiff, Malchus, which means King, understanding the people of the Jews, which was made a servant by its unbelief, whose right ear he cut off, that it might no longer hear error. And if he was corrected, it was not because he was to use the sword; but because not for the occasion, as D. Bernard notes, Lib. 4. de consideratione ad Eugenium. That the sword, even the temporal and material one, was understood to be given to the Church, Sanderus proves learnedly de clave David, lib. 2. cap. 11. from D. Augustine contra Faustum.

IT IS PROVED fourthly by D. Bonaventure in 4. dist. 18. p. 2. quaest. 1. for since the Church is a well-ordered Monarchy, it ought to have a power proportioned to amending the fallen and coercing rebels and the contumacious; for so it is done in every rightly ordered Republic; and no crime is more pernicious than heresy. As therefore the Physician, when a soothing remedy does not help, uses the knife and fire; so in our matter the Lord, the best founder and institutor of the Church, gave arms for governance, and remedies apt for preserving the body of the Church unharmed, that when soothing remedies do not avail, they may be cut with the sword of excommunication and burned with a punishment worthy of their most pestilent disease.

THIS power is FOUNDED on Matth. 16. where it is said to Peter: Whatsoever thou shalt bind upon earth, it shall be bound also in heaven, etc. And Matth. 18. If he will not hear the Church, let him be to thee as the heathen and publican, as D. Bonaventure teaches, eadem dist. p. 2. quaest. 5.

THAT THIS power was prefigured by Phinees, son of the Pontiff, Numer. 25. when he pierced the fornicating sacrilegious Idolaters, and that work was by God rewarded to him with the supreme priesthood, D. Bonaventure notes on the place secondly cited, Lucas 22. from the Interlinear Gloss. Nor can this power be denied without error, as Suarez admonishes num. 21. Cast. Lugo num. 10. disp. 21. sect. 1. and it is evident from the definition of Innocent IV. in the Council of Lyons, and cited in cap. Ad Apostolicae, de sentent. et re iudicata, in 6.

With these means of D. Bonaventure all the more recent authors make use.

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.

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.

II. The Penal Repression of Heresy.

Summary : The repression struck heretical bands and single heretics differently.—St. Thomas’s reason for this second repression.—Argument from the promise made to the Church.—Criticism of these arguments.—The crime and the interior belief of the delinquent.—What was necessary to constitute the crime.—Just measure of punishment.—Simple abstention may be punished, but the social offence is less grave.—Difference between the unbeliever and the heretic.—Good faith much less probable formerly than now.—Why unbaptized persons were not punishable.—What is to be said of those who were brought up in heresy ?

The theoretical problem of the penal repression of heresy presents itself in an entirely different aspect —at least, outwardly—according as we are dealing with heretical factions or single heretics. The heretical faction forms a turbulent band of agitators, aiming at nothing less than the overthrow of established institutions. It plots against the Church and the hierarchy. The Church defends herself against them as the Russian Empire defends itself against Nihilists ; and at the time when the Catholic religion was the very foundation of society, the heretical faction was simply revolutionary. Therefore, the leaders and their followers alike were punishable under the law, though not all equally guilty, and it was not necessary to inquire into their religious convictions. That is plain common sense. Political conspirators often commit their crimes to obtain relief from some grievance, or to take revenge for some wrong, but it has never been considered the duty of judges to pay any attention to these motives.

We know, moreover, as an historical fact, that the factious combination of heretics necessitated the severe measures which were employed against them, and at a certain period the text of the law included all heretics under the same condemnation.

The question is, What would justify us in considering even an isolated case of heresy punishable as an offence against the community ?

The edicts of Frederic II. contain on this subject an argument which has been developed by St. Thomas. The Emperor uses the same expressions to explain the rigorous sanctions he enacts as the prince of theologians employs to justify the severity of the punishments. A man who refuses to believe in God offers Him an insult, which is a graver offence than the crime of treason against a mere earthly Sovereign. If the crime is greater, the same punishment—namely, the penalty of death—is not too great. This appears plain, simple, and unanswerable, and this argument also satisfies many contemporary writers.

It must be admitted, however, that this reason, without some explanation, no longer appears conclusive. The argument presupposes completely formal heresy, a deliberate refusal to believe in God. But are there many men capable of committing so absurd an offence ? A man may lie in declaring that he does not believe ; but if he speaks the truth, he founds his unbelief on his ignorance of the word of God. If, in other words, he refuses to believe in the Blessed Trinity, it is because he contends that God has not revealed this mystery. This contradiction of the Catholic dogma may be accompanied by invincible ignorance, and still leave the virtue of faith intact at the bottom of his heart; and heresy, reduced thus to purely material error, instead of being a serious crime, is innocent in the sight of God. Certainly, every time the loss of faith is formal an offence has been committed. But what offence ? Some imprudence or some sin unconnected with faith may have led to the withdrawal of the graces necessary to keep a man faithful. In short, the loss of the gratuitous gift of faith is such a mysterious matter that it offers very slender reason for penal measures.

Are the promises made at baptism, which other persons so confidently appeal to, any more conclusive ? It is said that the heretic, being bound by these promises, is guilty of treason in abandoning the Church and her teaching. It is useless to object that the promise, which the child was incapable of making, was the act of those who represented him at his baptism ; for you will be told that the Christian subsequently ratified that promise, and that in any case it binds him, as the accident of birth in a particular country imposes upon a man the duties of a citizen.

We confess that we have never been able to see the force of this argument, which seems not to bear examination. Even if it did not depend on me whether I was born here or there, my country certainly exists as a legitimate society, and my obligations towards it are so evident that they cannot be the subject of discussion. On the other hand, no promise can bind me to a Church, unless I recognize that Church as truly Divine. Consequently, in proportion as my faith is shaken, so also is the foundation of my duty to the Church. It is undoubtedly true that the heretic is wrong in denying or doubting the Church, but we cannot refuse him the benefit of this universal rule—that duty in the concrete exists only for the man who has knowledge of it.

The promises made at baptism bind the man who believes. They form an additional reason for his obligations towards God and a necessary religion— that is understood—but they cannot be used as an argument against a man who denies the truth of that religion. In our opinion, the simple absence or loss of faith cannot be cognizable by human justice. Faith is a gift of God ; its birth and its loss are impenetrable to the eye of man. To command me to believe when I do not believe is to command the impossible. Now, the preceptive or prohibitive force of the law is limited to acts which it is in a man’s power to do or to omit. We cannot neglect these elementary considerations, of which the highest authorities in the Church have reminded us.¹

¹ See the authorities quoted on pp. 53, 54. Leo XIII. speaks in the same sense in his Encyclical Immortale Dei.

We must, then, try to find better reasons ; and, first, let us consider the more general and very important question of the interior conviction, which is necessary to justify punishment. Are public orders or prohibitions binding only on condition that they have the inward assent of every private individual ? Can a public authority punish only such persons as share its opinions on the act forbidden or commanded ? The answer is clear. If we insist on such a condition, we should put public authority at the mercy of every man’s individual conscience or opinion, whether truly or falsely alleged. Human authority, which cannot enter into the mind and conscience of man, cannot command or forbid whatever it pleases, and for the same reason it is not bound to inquire into the opinions of private persons on the subject of orders which are socially just ; but it has full right to call on its subjects to regulate their external conduct in conformity with its legitimate commands,² leaving their motives to God, “ who searcheth the reins and hearts.”

² Questions of excusable or culpable ignorance may no doubt bring about conflicts between the public authority and the private conscience. The one is as liable to error as the other. Sometimes the only practicable solution will be voluntary exile or submission to punishment. But this accidental and very rare inconvenience would be infinitely less than the harm that would be caused if the public authority were compelled to consult every private person’s conscience. That would be anarchy raised to a system.

Now, what orders are socially just ? Those which are based on a truth sufficiently recognized or admitted, and which tend to the common good. The support of truth secures the objective foundation ; the approval of the general conscience gives an assurance that the law is not impracticable or oppressive ; the good of the community gives to legislative measures that justification which is necessary for their validity. Such being the case, all the constituent elements of a crime will be found in an act which is objectively bad,¹ condemned as such, socially harmful, and voluntarily committed in spite of authoritative prohibition. We say objectively bad or reprehensible, because the social authority is not bound to submit to the subjective judgment of each individual; it is enough that the malice of the act should be generally recognized. Acts of violence, and even murder, may be committed from motives which make them meritorious acts in the opinion of the delinquent, but those opinions are of little importance. Divine grace and light, which are necessary for interior faith, are not at all required to show a man that he must not disobey lawful orders. When he has been warned that such an act or omission is illegal and punishable, he voluntarily assumes the responsibility of his act or omission, and has no right to complain if he is punished.

¹ Bad, that is to say, either before the prohibition or because of it.

The gravity of the offence is in like manner estimated socially ; that is to say, according to the objective malice of the act, the public scandal, and the harm done to the community.

In other words, the punishment should not be greater than the malice of the abstract immorality ; and in the second place, it should not be out of proportion to the social harm caused by the crime. When an act has been made penal by law, whoever knowingly and deliberately offends against the law becomes liable to punishment, without reference to his own personal opinion of the illegal act.

We can easily apply this reasoning to the case of heresy. In the Catholic country the true religion is normally accepted by everyone, and protected by authority as a social good of the first importance. Therefore, in accordance with the general sentiment, any contradiction of the dogmas of that religion is forbidden, as being harmful to the community. It constitutes the crime of heresy, whatever the private opinions and intentions of the offender may be. We need only add that a little good-will would be enough to show to a private individual the rashness, to say the least, of an affirmation categorically opposed to the teaching of a Church so wise and enlightened as the Catholic Church, and, in the case we are considering, generally obeyed.

It remains, then, to make the punishment proportionate to the offence. It must be regulated according to the general scale of punishments, the gravity of the offence considered objectively,¹ and the harm it is likely to cause ; and the argument of St. Thomas, which we had set aside as being of no use to help us to decide the guilt of each individual heretic, recovers its force in so far as it expresses the social judgment which Christendom passed on heresy in general. Thus, even the death penalty is explained. For the obstinate contradiction of the faith of the Church was considered socially as treason against the Majesty of God, without reference to the private opinions of the heretic, just as murder was looked upon as an atrocious violation of the sacredness of human life, and theft as an invasion of another person’s legal right of possession, without reference to the private opinions of the murderer and the thief. It is in accordance with these social judgments that the punishment is fixed, and the guilty person is made to understand the gravity of his offence.

¹ To repeat. As soon as the act fulfils all the conditions required to make it a free act for which the doer is responsible, its gravity as an offence is estimated socially, and not individually ; that is to say, in consideration of the order violated, and not according to the subjective culpability of the offender. It is impossible to admit that a personal opinion may justify a person who deliberately disturbs the public peace. Imagine him even bound in conscience to propagate his opinions. Moral impossibility would excuse him from this positive duty.

An additional explanation is supplied by the fact that every heresy was certainly, or most probably, connected with some seditious heretical body. At that time these factions endangered the unity of Christendom, and finally succeeded in rending it asunder. Yet simple abstention could not have the gravity or the scandalous effects of a categorical denial. Equity itself demands less severity, and so we find that much more tolerance was shown to simple sceptics or freethinkers. “ The preachers, and even Bossuet himself,” says M. Jules Lemaître, “ when they are fighting against freethinkers, do it certainly with sorrow and indignation, but without a word to suggest an appeal to the law. They pity the unbelievers, they pray for them, and hope for their return to God ; but they do not persecute them, provided that they keep within bounds. . . . But heretics—that is another thing. Heretics do not keep quiet. Unbelievers do not choose between dogmas, but heretics do. They set up one religion against another. A heretic is one who openly and arrogantly breaks religious unity, which is an indispensable good ; a freethinker is one who does not break that unity, but quietly withdraws from it for the time, and that is all. That is why the old system, which was merciful enough to freethinkers, was much less so to Protestants and even to Jansenists.”¹

¹ Rapports de Bossuet et de Fénelon avec les Protestants. Second Conference.

Let us not forget, finally, that the plea of good faith, which we so freely admit nowadays, had formerly much less justification. In the midst of controversies on the very foundations of Christianity; while so many religions and beliefs are publicly professed; while objections are made on all sides, and the most shameless lies are circulated everywhere as to the doctrines and acts of the Church; while infidelity insolently boasts that it is supported by science, and that it is therefore sure to gain the day, and puts its secular philanthropy in opposition to religious charity, we cannot wonder that the faith of many is disturbed, and that they are led astray by a multitude of specious arguments.

Formerly, when Europe was more isolated, there was but one form of Christianity, holding uncontested sway, to which the sciences paid homage, and which was honoured by public and private benevolence. What possible excuse was there, then, for the innovator who advanced revolutionary propositions on the sacraments, or marriage, or the hierarchy ? All social life was against him, and his arguments were refuted, as the clever sophisms of modern sceptics come into collision with palpable facts and the conclusions of common sense only to be shattered. No judge would then be moved by a plea of good faith resting on such weak foundations, or feel any scruples in convicting of heresy.

We have already said that the Church had no power to extend her jurisdiction over those who did not belong to her by baptism. The reason is clear : since, according to the designs of God, faith cannot be created by force, the essence of the offence is wanting. The Church treated Christians as the State treats its civil subjects, while with regard to non-Christians her right was limited to defending herself against their attacks ; and it must always be remembered that the wicked acts and words of Christians have a much more pernicious influence than any acts of those who are strangers to the Church. It is thus easy to explain why the Church treated infidels and Jews very differently from baptized heretics.

One doubt may arise here. As far as those heretics are concerned who personally abandon the faith, the distinction between them and infidels is clear ; but what is to be said of those who have been brought up in schism and heresy, and therefore have never felt that they belonged to the Church ? Are they her subjects because they have been baptized, or are they strangers because since the dawn of reason they have never been in communion with the Church ? We have already¹ expressed our opinion that though, as subjects of the Church, they are entitled to the advantage of certain rights and favours and to a special solicitude, they are, nevertheless, by reason of the error of their fathers, incapable of contumacy to the Church, and therefore cannot properly be punished or molested for their religious opinions ; and we have extended this rule to children whose parents have long been separated from the Church.

¹ Pp. 56, 57.

The conclusion we draw is that the penal laws against heretics do not prove an intolerance which, misunderstanding the gratuitous character of the gifts of God and the voluntary character of the act of faith, would attempt to obtain conversions by force.