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.

Monday, March 5, 2012

Church Fathers and Capital Punishment: St. Augustine--Mercy and the Death Penalty

SAINT AUGUSTINE UPHELD the common teaching of the Church that the death penalty could be, from the perspective of justice, a proper exercise of State authority. He understood it to be a component of a properly-ordered state. The use of that penalty by legitimate authority was, in his view, absolutely established as morally lawful, by both natural and divine law.

But this is only half the story. For St. Augustine, the death penalty had to be viewed from another angle. Since the coming of Christ, mercy and truth had met each other: justice and peace had kissed. (Cf. Psalm 85:10) Therefore, it was not enough to rest satisfied on the view that the death penalty complied with strict justice. It was necessary--as a matter of mercy, of love, and his priestly or episcopate ministry--to encourage, indeed insist, on clemency.*

St. Augustine's letters are full of his efforts at getting local magistrates to stay the hand of the State, and exercise clemency to malefactors, in particular when it came to punishment by death. We see that St. Augustine's concerns are driven by his Christian anthropology which is based upon the dignity of every man, even the sinner. It is also driven by the value he gives to the possibility of redemption and reformation, and his insistence of the principle salus anima suprema lex, the salvation of souls is the greatest law, superseding even the demands of just punishment.


St. Nicholas Stopping the Execution of Three Men

In his letter to the magistrate Macedonius, St. Augustine describes his general attitude:

In no way, then, do we approve of the sins that we want to be corrected, nor do we want the wrongdoing to go unpunished because we find it pleasing. Rather, having compassion for the person and detesting the sin or crime, the more we are displeased by the sin the less we want the sinful person to perish without having been corrected. For it is easy and natural to hate evil persons because they are evil, but it is rare and holy to love those same persons because they are human beings. Thus, in one person you at the same time both blame the sin and approve of the nature, and for this reason you must justly hate the sin because it defiles the nature that you love. He, therefore, who punishes the crime in order to set free the human being is bound to another person as a companion not in injustice but in humanity. There is no other place for correcting our conduct save in this life. For after this life each person will have what he earned for himself in this life. And so, out of love for the human race we are compelled to intercede on behalf of the guilty lest they end this life through punishment so that, when it is ended, they cannot have an end to their punishment.

Nullo modo ergo culpas quas corrigi volumus, approbamus, nec quod perperam committitur, ideo volumus impunitum esse, quia placet; sed hominem miserantes, facinus autem seu flagitium detestantes, quanto magis nobis displicet vitium, tanto minus volumus inemendatum interire vitiosum. Facile enim est atque proclive malos odisse, quia mali sunt: rarum autem et pium eosdem ipsos diligere, quia homines sunt; ut in uno simul et culpam improbes, et naturam approbes, ac propterea culpam iustius oderis, quod ea foedatur natura quam diligis. Non est igitur iniquitatis, sed potius humanitatis societate devinctus, qui propterea est criminis persecutor, ut sit hominis liberator. Morum porro corrigendorum nullus alius quam in hac vita locus est; nam post hanc, quisque id habebit quod in hac sibimet conquisierit. Ideo compellimur humani generis caritate intervenire pro reis, ne istam vitam sic finiant per supplicium, ut ea finita non possint finire supplicium.

Letter 153 to Macedonius, 1.3.

This same heartfelt urge is expressed in one of his sermons, no doubt preached in the presence of magistrates and judges:
So do not condemn people to death, or while you are attacking the sin you will destroy the man. Do not condemn to death, and there will be someone there who can repent. Do not have a person put to death and you will have someone who can be reformed. As a man having this kind of love for men in your heart, be a judge of the earth. Love terrifying them if you like, but still go on loving. I don't deny that penalties must be applied. I don't forbid it. But let it be done in a spirit of love a spirit of caring, a spirit of reforming.

Noli ergo usque ad mortem, ne cum persequeris peccatum, perdas hominem. Noli usque ad mortem, ut sit quem paeniteat, homo non necetur ut sit quem paeniteat; homo non necetur ut sit qui emendetur. Hanc in corde retinens homo in homines dilectionem, esto iudex terrae. Et ama terrere, sed dilige. Si superbis, superbi in peccata, non in hominem. In illud saevi quod tibi displicet et in te, non in eum qui factus est sicut tu. De una officina existis, unum artificem habuistis, unus limus est vestra materies. Quid perdis non amando quem iudicas? Quoniam iustitiam perdis, non amando quem iudicas. Sed adhibeantur poenae. Non recuso, non interdico, sed animo amantis, animo diligentis, animo corrigentis.

Sermon 13.8.

It was these sort of sentiments, this intensely Christian spirit of mercy, which drove St. Augustine habitually to intercede for clemency on the part of those accused of serious capital offenses. For example, in his letter to Marcellinus,** an imperial commissioner with authority over the case of some Donatist clerics and Circumcellions*** guilty of the murder of Restitutus, a Catholic priest, and the beating and torture of another, he pled for the exercise of clemency. Though guilty of heinous offenses that entitled them to the most severe punishments, they ought not be put to death or suffer mutilation; rather, their freedom ought to be restrained so that repentance may be hoped for:
I appeal through the mercy of Christ the Lord to the faith that you have in Christ that you not do this or allow it to happen at all. For, although we can deny any responsibility for the death of those who are seen to have been handed over for judgment, not due to the accusations of ours, but because of the indictment of those who have charge of the defense of the public peace, we still do not want the sufferings of the servants of God to be avenged by punishments equal to those sufferings, as by the law requiring an eye for an eye. It is not that we would prevent criminals from losing the freedom to commit crimes, but we want it rather to be sufficient either that, alive and with no part of the body mutilated, they be taken from their restlessness and steered to the peace of good health by the restraints of law or that they be assigned to some useful work away from their evil works. This is, of course, called condemnation, but who does not understand that it should be called a benefit rather than a punishment when their bold fierceness is restrained and the remedy of repentance is not withdrawn?

Ideoque his litteris obtestor fidem tuam quam habes in Christo, per ipsius Domini Christi misericordiam, ut hoc nec facias, nec fieri omnino permittas. Quamvis enim ab eorum interitu dissimulare possemus, qui non accusantibus nostris, sed illorum Notoria ad quos tuendae publicae pacis vigilantia pertinebat, praesentati videantur examini; nolumus tamen passiones servorum Dei, quasi vice talionis, paribus suppliciis vindicari. Non quo scelestis hominibus licentiam facinorum prohibeamus auferri; sed hoc magis sufficere volumus ut vivi et nulla corporis parte truncati, vel ab inquietudine insana ad sanitatis otium legum coercitione dirigantur, vel a malignis operibus alicui utili operi deputentur. Vocatur quidem et ista damnatio; sed quis non intellegat magis beneficium quam supplicium nuncupandum, ubi nec saeviendi relaxetur audacia, nec poenitendi subtrahatur medicina?
Letter 133 to Marcellinus, 1.1.

In another letter to the same Marcellinus, St. Augustine pleads again that the "punishment of those people, though they have confessed to such great crimes, may not involve the death penalty both on account of our conscience and for the sake of emphasizing Catholic gentleness." Letter 139 to Marcelinus, 1 (Poena sane illorum, quamvis de tantis sceleribus confessorum, rogo te ut praeter supplicium mortis sit, et propter conscientiam nostram, et propter catholicam mansuetudinem commendandam.)

We have similar attitude expressed in St. Augustine's letter to Donatus, the proconsul of Africa. As procounsul, Donatus had authority over those condemned to death, including the Donatist heretics, the adversaries against which St. Augustine so mightily strove in his capacity as bishop of Hippo. He fears that the procounsul may judge "in accord with the immensity of their crimes and not rather in accord with a consideration of Christian gentleness (lenitatis Christianae)." He insists that Christ's injunction that we ought to love our enemies should apply in this case.

We love our enemies and pray for them. Hence, we desire that, by making use of judges and laws that cause fear, they be corrected, not killed, so that they do not fall into the punishments of eternal condemnation. We do not want discipline to be neglected in their regard or the punishment they deserve to be applied. Repress their sins, therefore, in such a way that those who repent having sinned may still exist. . . . It is not, my honorable and most beloved son, something unworthy or contemptible when we ask you that they, whom we ask the Lord to correct, not be put to death.

[D]iligimus inimicos nostros et oramus pro eis. Unde ex occasione terribilium iudicum ac legum, ne in aeterni iudicii poenas incidant, corrigi eos cupimus, non necari; nec disciplinam circa eos neglegi volumus, nec suppliciis quibus digni sunt exerceri. Sic igitur eorum peccata compesce, ut sint quos poeniteat peccasse. . . . Non tibi vile sit, neque contemptibile, fili honorabiliter dilectissime, quod vos rogamus ne occidantur, pro quibus Dominum rogamus ut corrigantur.

Letter 100 to Donatus, 1-2.

St. Augustine realized that there are times where such clemency simply cannot be applied. We find him addressing such a situation in a letter to the proconsul Apringius, brother of Marcellinus. He urges Apringius not to apply the death penalty to the Donatist clerics who killed and maimed Catholic priests: "I as a Christian beg the judge and as a bishop warn a Christian." Letter 134 to Apringius, 2. (hoc ne fiat et christianus iudicem rogo, et christianum episcopus moneo.)

If, then, there were no other means established to curb the malice of the wicked, extreme necessity might perhaps urge that such men be put to death, though, in our iew, if no milder punishment could be imposed on them, we would prefer that they be released rather than the sufferings of our brothers be avenged by the shedding of their blood.

Si ergo nihil aliud constitueretur frenandae malitiae perditorum, extrema fortasse necessitas ut tales occiderentur urgeret; quamquam quod ad nos attinet, si nihil mitius eis fieri posset, mallemus eos liberos relaxari, quam passiones fratrum nostrorum fuso eorum sanguine vindicari.

Letter 134 to Apringius, 4. But this is if all else fails. Ordinarily, St. Augustine's view was "lengthen the span of years," and not to shorten it through the penalty of death, "for the living enemies of the Church that they may repent." Letter 134. And what is true for the enemies of the Church may equally have been extended to the enemies of the common good, such as the slave traders mentioned by St. Augustine in his letter to Alipius. See Letter 10* to Alipius.

Fully to understand St. Augustine's teachings on capital punishment, therefore, requires more than simple focus on whether the death penalty is lawfully applied by properly constituted authority. It also requires us to superimpose upon the justice associated with the death penalty, the mercy derived from the Lord's mercy to us, the humanity of the malefactor, the possibility of his repentance, and fear that putting a man to death may inadvertently rob him of his ultimate good: eternal life.

Clemency was therefore St. Augustine's primary policy, and, though he accepted the moral lawfulness of the death penalty justly applied, he worked assiduously at minimizing its application through the application of clemency. At the same time, St. Augustine did realize that in the case of extreme necessity, such clemency might have to give way, and the malefactor would have to be put to death. This sounds vaguely reminiscent of the notion that execution of a malefactor ought not to occur "except in cases of absolute necessity: in other words, when it would not be possible otherwise to defend society." Evangelium vitae, 56. For both St. Augustine and Pope John Paul II, this, it would appear, would be the limits of clemency, the limits of mercy.

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*There is no inconsistency in St. Augustine if the distinction between justice and mercy are kept in mind. Therefore, James Megivern is wrong in his tendentious book The Death Penalty: An Historical and Theological Survey (New York: Paulist, 2003), 35, when he accuses St. Augustine of leaving an "ambivalent legacy." What Megivern forgets is the two different orders. The malefactor justly condemned to death cannot plead injustice. What he can plead for is mercy. The magistrate who justly condemns a man to death cannot be accused of injustice; but he can be admonished to exercise mercy. The failure to exercise mercy may not necessarily be a mortal sin, as would be the failure to exercise justice, but it is certainly unseemly for a Christian not to show mercy when they are enjoined to be merciful as their heavenly Father is merciful. Luke 6:36.
**Interestingly, the first books of St. Augustine's City of God were dedicated to this same Marcellinus of Carthage. Ultimately, Marcellinus and his brother Apringius were martyred in 413. The feast day for St. Marcellinus is April 6.
***For a quick summary of this quirky group, see http://en.wikipedia.org/wiki/Circumcellions.


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