Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Thursday, March 8, 2012

Capital Punishment and Gratian's Decretum

GRATIAN'S INFLUENCE IN THE LIFE of the Church cannot be underestimated. His Decretum or Concordia discordantium canonum, a massive personal effort which gathered together from about 3,800 texts the myriad laws of the Church, became the standard of canon law in Italy and indeed beyond the alps in all of Europe. It faithfully encapsulates the law and customs of the Church. It is one of the great works of the Middle Ages, but it had a life that extended way beyond that age even into modernity. It became incorporated into the Corpus Juris Canonici of the Catholic Church and so retained legal force in the Church until Pentecost Sunday of the year 1918, when the revised Codex Iuris Canonici which was promulgated on May 27, 1917, became effective.

The Decretum is composed of three parts. The second part of the Decretum is composed of sections which are called Causae, sections which are further subdivided into Questiones, and subdivided further into chapters. These deal with specific issues of law. Among the Causae is Causa XXIII, whose Questio V deals directly with the issue of killing.

In Questio V of Causa XXIII, Gratian explores the relationship between the commandment "Thou shalt not kill" (Non occides) and Christ's injunction to St. Peter that "He who lives by the sword will die by the sword." (Ex. 20:13, Deut. 5:17; Matt. 26:52). Gratian re-affirms the Judaeo-Christian teaching that killing is prohibited by divine and natural law.

However, during his discussion of the natural and divine prohibition of killing, Gratian recognizes that the prohibition is absolute as to private men, but is not similarly absolute when it comes to public authority. As Gratian summarizes it in chapter 48 of Questio V of Causa XXIII:

If therefore holy men and public powers [who were] waging war were not transgressors of that mandate "Thou shalt not kill,' although they killed some criminals who deserved to die; if a soldier obeying his superior is not accused of murder when at the superior's command he kills a criminal; if it is not the pouring out of blood to punish murderers and poisoners, but the ministry of the laws; if the peace of the Church is the consolation over the sadness of the lost; if those who, rising up in the zeal of their Catholic Mother, kill excommunicates are not judged murderers; it is evidence that it is not only licit to scourge evil-doers but also to kill them.

Si ergo uiri sancti et publicae potestates bella gerentes non fuerunt transgressores illius mandati: "Non occides," quamuis quosque flagitiosos digna morte perimerent; si
miles suae potestati obediens non est reus homicidii, si eius inperio quemlibet flagitiosum interfecerit; si homicidas, et uenenarios punire non est effusio sanguinis, sed legum ministerium; si pax ecclesiae mesticiam consolatur perditorum; si illi, qui zelo catholicae matris accensi excommunicatos interficiunt, homicidae non iudicantur: patet, quod malos non solum flagellari, sed etiam interfici licet.

C. 23, q. 5 (dict. post), c. 48. Throughout his treatment of this issue, Gratian clearly understands the divine and natural law prohibition against killing as excluding public authority punishment of malefactors. And this summation is not the entirety of it. Gratian provides some succinct statements of that doctrine:

Ex offitio non est peccatum hominem occidere. C.23, q. 5, (rubric) c. 8. "It is not sin to kill a man acting in an official capacity [of public authority]."

Non peccat qui ex offitio nocentem interfecit. C.23, q. 5 (rubric) c. 41. "He who kills a malefactor in an official capacity [of public authority] does not sin."

Homicidas, et sacrilegos, et venenarios punire non est effusio sanguinis, sed legum ministerium. C. 23, q. 5, c. 31. "To punish murderers, those who violate the divine law, and poisoners [by death] is not the effusion of blood, but is the ministry of law."

Gratian makes it clear (in the context of his discussion on adultery) that the death penalty is to be meted out by public authority only, and that this does not include ecclesiastical authority (which has not been given the power of the material sword), but only secular authority. The Church has only a "spiritual sword," a gladius spirituali, and not a "material sword," a gladius materiali. C. 33, q. 2 (dict. post) c. 5. The Church does not have the sword to put a man to death, since it has only a spiritual sword, one which does not kill, but rather vivifies or gives life to the sinner. C. 33, q. 2, c. 6 (Sed sancta Dei ecclesia numquam mundanis constringitur legibus; gladium non habet, nisi spiritualem; non occidit, sed vivificat.)

While the Church does not have the material sword, but only a spiritual sword, Gratian makes clear that the Church may summon the help of public secular authority to defend her and her faithful, either in a just war, or in the administering of punishments, even, in the extreme case, the punishment of death. The common good, the needs of good men who ought to be protected from evil, may call for the exercise of this power by the secular authority to the benefit of the Church.

As E. Christian Brugger summarizes it, the Church recognized in its canon law as contained in Gratian's Decretum that the "shedding of human blood, be it in war or by capital punishment, may hold a necessary through regrettable place in the maintenance of the peace of the earthly city."*

The Church, however, whose ministry is one of mercy and whose charge is not the earthly city, but rather the heavenly, must avoid wielding the sword herself. Moreover, it would be unseeming for the Church's public authority (i.e., the clerics) to usurp and exercise such authority since it goes against their ministry and contradicts the reason for the foundation of the Church.** They ought not be involved in war, in execution, or in the drawing of human blood.

It is clear that the Decretum recognizes that secular public authority may, in appropriate circumstances involving grave crimes, legitimately put a malefactor to death, and the judge, magistrate, and executioner who participate in that process, to the extent they are not clerics, incur no sin or legal sanction.

*E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notredame University Press, 2003), 102.
**Brugger suggests that this clerical exclusion from the material sword is a remnant of the earlier Church practice of excluding all the Christian faithful--both cleric and lay--from such a sword, implying that somehow the Church compromised that stance. "The early Church envisaged this 'consecration' as extending to all Christians, while the medieval Church extended it only to clerics." The conclusion, I think, is unwarranted. First, since only those in public authority would have any sword to wield, it could only be the clerical authority in the Church, and not the laymen in the Church, who could possibly wield it. And this would explain why they are excluded from it expressly. The layman could not use the material sword as a representative of the public authority of the Church. Second, the early Church faced an oppressive secular regime that was based upon the worship of pagan divinities or divinization of Caesar, and the prohibition of laity (as well as the clergy) from participation in that regime could have been based upon self-preservation and the rejection of idolatry, which bound both orders. When the regime no longer was hostile and no longer required participation in prohibited actions of idolatry or raised the danger of to self-preservation, the laity would no longer be prohibited from wielding the material sword if they assumed positions of public authority in the secular State.

1 comment:

  1. However in 1302, Pope Boniface VIII in dilemnas with England and France issued Unam Sanctam which put both swords effectively in the Vatican:
    " Both, therefore, the spiritual and material swords, are in the power of the Church, the latter indeed to be used for the Church, the former by the Church, the one by the priest, the other by the hand of kings and soldiers, but by the will and sufferance of the priest. It is fitting, moreover, that one sword should be under the other, and the temporal authority subject to the spiritual power."
    Innocent IV had already done this in 1253 when he bound secular rulers to burn heretics under pain of excommunication if they did not...hence "Inquisition" at new advent in the Old encyclopedia:
    " The aforesaid Bull "Ad exstirpanda" remained thenceforth a fundamental document of the Inquisition, renewed or reinforced by several popes, Alexander IV (1254-61), Clement IV (1265-68), Nicholas IV (1288-02), Boniface VIII (1294-1303), and others. The civil authorities, therefore, were enjoined by the popes, under pain of excommunication to execute the legal sentences that condemned impenitent heretics to the stake..."

    I am for the death penalty for criminals. The Church took a wrong turn when it mandated it for heretics even though in context, some heretics in previous centuries were also criminals in terms of lethal rebellion. The Church should have mandated it for those heretics who were simultaneously criminals. Christ spoke highly of Samaritans twice in the gospel and they in effect were heretics...rejecting any scriptures outside the Pentateuch.