The Papacy and Capital Punishment: Innocent I and Innocent III

IT IS WELL-NIGH INDISPUTABLE that the Church Fathers, even those prior to the Edict of Milan who confronted an enemy State, held fast to the moral liciety of the death penalty justly applied. This was seen both as a principle of the natural law and of the Scriptures, in particular the clear indication in the Old Testament which allowed for putting malefactors to death despite the prescriptions of the Fifth Commandment which prohibited murder. It was also the unanimous understanding of those portions of St. Paul's Letter to the Romans which might be called the Staatstaffel or summary of principles as it related to the Christians relationship to the State, namely Romans 13:1-7. The sword of justice included the sword of execution. There was no per se injustice in it, though it might be unjust per quod. This was recognized by Pope Innocent I (r. 401-17) put it in his letter to Exsuperium, the Bishop of Tolouse in 405:

About these things we read nothing definitive from the forefathers. For they had remembered that these powers [of judging a man on capital offenses and in application of the death penalty] had been granted by God and that for the sake of punishing harm-doers the sword has been allowed; in this way a minister of God, an avenger, has been given. How therefore would they criticize something which they see to have been granted to the authority of God. About these matters therefore, we hold to what has been observed hitherto, lest we may seem either to overturn sound order or to go against the authority of the Lord.

Quaesitum etiam est, super his qui post baptismum administraverunt, et aut tormenta sola exercuerunt, aut etiam capitalem protulere sententiam, nihil de his legibus a maioribus definitum. Meminerant enim a deo potestates has fuisse concessas, et propter vindictam noxiorum gladium fuisse permissum, et dei ministrum esse datum in huiusmodi vindicem. Quomodo igitur reprehenderent factum, quod auctore domino viderent esse concessum? De his ergo ita ut actenus servatum est sic habeamus, ne aut disciplinam avertere, aut contra auctoritatem domini venire videamur. Ipsis autem in ratione reddenda, gesta sua omnia servabuntur.

Innocent I, Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum.* The baptized who were in positions of legitimate authority could participate in judging capital cases and in putting others to death under the Rule of Law. In doing so, they could not be accused of injustice or of mortal sin. It was the law which received its authority from God and expressed the good of the common good, and not the individual himself, who was the agent of the killing.

The traditional teaching is accepted by all medieval Churchmen. Accordingly, we find it as received teaching in St. Thomas Aquinas or in Pope Innocent III. The few dissenting voices we hear about are heretical splinter groups such as the Waldenses. In fact, it is the Waldenses to which we now turn, because the interesting conditions imposed upon them for re-entry into the communion of the Church is a fascinating chapter in the Church's traditional teaching on capital punishment. As Brugger properly characterizes it, "Pope Innocent III's famous statement in the Waldensian oath that it is possible for civil authority to administer the death penalty without mortal sin is unquestionably the most influential ecclesiastical statement on the morality of capital punishment in the Middle Ages (and arguably in Church history)."**

Pope Innocent III

The Waldenses were an enthusiastic heretical group, similar to the Cathari and Albigenses, founded by a wealth Lyonnais merchant called Waldes (or Waldo). After experiencing a conversion, Waldes sold all he had, made provisions for the maintenance of his wife and children, and went about the land wearing sandals, preaching a message of evangelical poverty. He soon gathered about him a band of followers, and they soon pitted themselves against established Church authority. In fact, they seem to have developed a sort of an independent hierarchy or constitution of their own. Unfortunately, regardless of their sincerity, they were ill-educated and in much of their preaching they fell into heresy, denying the existence of purgatory, making the efficacy of sacraments dependent upon the spiritual state of the minister, teaching the immorality of taking of oaths so central the feudal civil society, and so forth. They also allowed any convert to dissolve his marriage without consent of his partner. They also condemned all war and held that any infliction of the death penalty was immoral. Their attachment to heresy and their belief that they were a movement willed by God soon led into disobedience of any authority. Convinced of their cause, they ignored all sorts of ecclesiastical and civil proscriptions, including the canons of the Third General Lateran Council. Eventually, they were excommunicated by a bull issued by Pope Lucius III in 1184.

Pope Innocent III's oath arises from his efforts to reconcile a branch of these Waldenses headed by Durand of Huesca (Osca), the reconciliation of which led to what were called the "Poor Catholics." During the series of efforts to effect reconciliation, Pope Innocent III required the Waldenses to abjure their opposition to capital punishment. They were made to swear to the following:

We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately, but after mature deliberation.

Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.

De potestate saeculari asserimus quod sine peccato mortali potest judicium sanguinis exercere, dummodo ad inferendam vindictam, non odio, sed judicio, non incaute sed consulte procedat.

DS, 795 (425).***

Brugger attempts to circumvent this important Papal act by suggesting that this is a speculative (possibility only) proposition, without application in real or concrete reality. This, of course, is to explain away the entire oath and render it to something as inane saying "it is possible that a Tyrannosaur appear on my front lawn tomorrow morning."

Next, he tries to argue that the Waldenses did not in fact believe that a magistrate imposing the death penalty sinned mortally, but that this is essentially a gratuitous obiter dicta by the Pope having nothing to do with settling the controversy between the Church and the Waldenses.

Brugger is compelled to do engage in these somersaults because his burden is to explain away the entirety of Catholic tradition and Magisterial authority to try to come to the proposition that Pope John Paul II in his Evangelium vitae set the stage for an absolute prohibition of capital punishment on the grounds that it is intrinsically immoral. (He does this in Chapter 7, which is a tour de force that guts 2000 years of Tradition with unmatched sophistry. But here we might paraphrase St. Thomas More's discourse with his son in law William Roper as portrayed by Robert Bolt's A Man for All Seasons:

William Roper: So, now you give the Devil (i.e., capital punishment) the benefit of Tradition!
Sir Thomas More: Yes! What would you do? Cut a great road through the Tradition to get after the Devil?
William Roper: Yes, I'd cut down every Tradition to do that!
Sir Thomas More: Oh? And when the last Tradition was down, and the Devil turned 'round on you, where would you hide, Roper, the Traditions all being flat? This Church is planted thick with Traditions, from generation to generation. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of Tradition, for my own safety's sake)

I disagree with Brugger's position, and find it intellectually essential neither to minimize or deprecate traditional teaching on the liciety of capital punishment (which I think is irreformable), nor minimize Evangelium vitae (which I think is an exercise of the ordinary Papal magisterium), but to find a way to reconcile both or understand them together. I believe that the traditional teaching on the death penalty can remain entirely intact and Evangelium vitae given its full and plain construction by the simple expedient of recognizing that the traditional teaching relates to the order of justice, whereas Evangelium vitae relates to the order of mercy. What we will see is that Evangelium vitae, without deprecating the teaching of St. Thomas Aquinas, is very Ambrosian or Augustinian at heart.

Evangelium vitae's teaching on the death penalty is, in fact, highly traditional. It is the traditional teaching brought forth in the circumstances of the modern State built on a political philosophy that is contractarian, secular, and relativist, and which recognizes not its authority under God. It is how traditional Catholic teaching ought to be applied when the Church confronts a State which has largely lost the moral legitimacy to take the life of the guilty because of its wholesale failure to protect the life of the innocent. It is what ought to happen when the State is vastly more guilty and unjust with respect to the innocents than the guilty whom they purport, on the grounds of justice, to kill. For the modern State which subscribes not to the Gospel of Life, every execution meted out is a rank act of hypocrisy. It is the unjust slaying the unjust, and there's no Church that ought to bless that.

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*English translation from E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notredame Press 2003), 89.
**Brugger, 103.
***First English translation is from Brugger, 104. The second may be found here under the old number D 425. The Latin is found in DS 795. In an earlier correspondence between these groups, Pope Innocent III phrased it in a letter thus: "Let none of you presume to assert the following: that the secular power cannot carry out a judgment of blood without mortal sin. This is an error because the law, not the judge, puts to death so long as the punishment is imposed, not in hatred, but with deliberation." I think Brugger is correct when he states that the form of the oath contained in DS 795 is Innocent's authoritative teaching on the morality of capital punishment."

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.

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

ALTHOUGH HE NEVER EXPRESSLY wrote a treatise on the subject, St. Augustine of Hippo (354-430) has in his writings a well-developed understanding of capital punishment. In a nutshell, St. Augustine recognizes that civil authorities have the God-given power to put a man justly to death for grave crimes, and that a Christian as a judge or magistrate, may exercise without penalty of sin that power in proper circumstances. However, that is not where he leaves the matter. Capital punishment is, for St. Augustine, not only a matter that must be looked at in the light of justice. It must also be looked at in the light of mercy. The light of mercy tempers the steel of justice to the point where capital punishment ought rarely be applied. St. Augustine's letters are full of requests for magistrates or judges to exercise clemency in applying the death penalty.

The writings where St. Augustine recognizes the law of the sword to include the ultimate punishment are many. We see it in his early Christian works, e.g., On Order and On Freedom of the Will. We see it in his mature works, for example, his On the City of God.

For what is fouler than the executioner? What is his cruel and barbarous purpose? But he has a necessary place within the well-ordered laws themselves of an orderly city. And though in his own person he does evil, the punishment of evildoers is not ascribed to him.

Quid enim carnifice tetrius? quid illo animo truculentius atque dirius? At inter ipsas leges locum necessarium tenet et in bene moderatae civitatis ordinem inseritur estque suo animo nocens, ordine autem alieno poena nocentium.

De Ordine, II.4.12.

In his dialogue On Free Choice of the Will, St. Augustine introduces the subject of capital punishment through his interlocutory Evodius which elicits absolute agreement:

Ev. If murder means taking the life of a man, this can sometimes happen without any sin. When a soldier slays the enemy, when a judge, or his deputy, executes a criminal, when, by chance, a deadly weapon leaves someone's hand unintentionally or thoughtlessly, I do not think that these are guilty of sin in killing a man.
Aug. I agree, but such men are not usually called murderers. . . . .

Ev. - Si homicidium est hominem occidere, potest accidere aliquando sine peccato: nam et miles hostem, et iudex vel minister eius nocentem, et cui forte invito atque imprudenti telum manu fugit, non mihi videntur peccare, cum hominem occidunt.
Aug. - Assentior: sed homicidae isti appellari non solent.

De lib. arb., I.4.9.

St. Augustine of Hippo

In a letter to the magistrate Macedonius (Letter No. 153), who apparently complains about the episcopate penchant for urging clemency in punishment of crimes, St. Augustine clearly supports the power of punishment in the State, including the death penalty:

Nor does it follow that the power of the sovereign, the judge's right over life and death, the executioner's instruments of torture, the weapons of the solider, the discipline of the ruler, and the severity of a good father were instituted to no avail. All these have their limits, causes, reasons, and utility.

Nec ideo sane frustra instituta sunt potestas regis, ius gladii cognitoris, ungulae carnificis, arma militis, disciplina dominantis, severitas etiam boni patris. Habent ista omnia modos suos, causas, rationes, utilitates.

Letter to Macedonius, 153.6.16.

This view is carried over into St. Augustine's great work, The City of God.

However, there are some exceptions made by the divine authority to its own law, that men may not be put to death. These exceptions are of two kinds, being justified either by a general law, or by a special commission granted for a time to some individual. And in this latter case, he to whom authority is delegated, and who is but the sword in the hand of him who uses it, is not himself responsible for the death he deals. And, accordingly, they who have waged war in obedience to the divine command, or in conformity with His laws, have represented in their persons the public justice or the wisdom of government, and in this capacity have put to death wicked men; such persons have by no means violated the commandment, "You shall not kill."

Quasdam vero exceptiones eadem ipsa divina fecit auctoritas, ut non liceat hominem occidi. Sed his exceptis, quos Deus occidi iubet sive data lege sive ad personam pro tempore expressa iussione, (non autem ipse occidit, qui ministerium debet iubenti, sicut adminiculum gladius utenti; et ideo nequaquam contra hoc praeceptum fecerunt, quo dictum est: Non occides, qui Deo auctore bella gesserunt aut personam gerentes publicae potestatis secundum eius leges, hoc est iustissimae rationis imperium, sceleratos morte punierunt.

De civ. Dei, I.21.

It cannot be questioned that St. Augustine supported the doctrine that the legitimate authority had the power to put a malefactor to death for a serious crime. It was an exception to the Fifth Commandment, part of the natural law as revealed in the Old and New Testaments, and the magistrate or judge exercising that authority justly and in accordance with law was not in any way in mortal sin. St. Augustine was comfortably within the Christian tradition in handing this teaching down. If it is true, as Jaroslav Pelikan said, that Western theology is nothing but a "series of footnotes to Augustine," then we might expect the Roman Catholic Church to have carried this doctrine within its bosom. And she did.

That much is certain. But, as we shall see in the next post, that is not the whole story.

Church Fathers and Capital Punishment: Sts Chrysostom, Gregory Nazianzen, and Ambrose

WE HAVE VISITED THE PRINCIPAL texts of the pre-Constantinian Christians that speak of the death penalty. In his book Capital Punishment and Roman Catholic Moral Tradition, E. Christian Brugger* sums up the pre-Constantian consensus as one that assents, on natural law and Biblical grounds, that the civil rulers have authority, given to it by God, to put a malefactor to death, and, in proper cases, may exercise it without moral fault.

Unquestionably, with respect to their relationship to civil authority, Christians prior to Constantine's conversion and the Edict of Milan (313 A.D.) were in a position significantly different that Christians after. How, if it all, did the Christian teaching on the death penalty change after the Edict of Milan?

Much is made of the early Christian discipline, pre-Constantinian, that prohibited Christians from joining the military, sitting in judgment, or participating in the execution of capital sentences. There is, as we shall see, a real softening of these prohibitions after Christianity was tolerated by the State, and an even greater softening after Christianity became the established religion. Christian participation in the military, in the judiciary, in the exercise of capital punishment became acceptable. Many take the position, which I think is fundamentally false, that the Christian discipline prior to the Edict of Milan was "purist," and that the discipline after the Edict of Milan or after Christianity became the established religion was corrupt. I find that there is the same teaching before Constantine and after Constantine, the only difference being that it is being applied in different historical circumstances.

St. Ambrose confronts Theodosius by Rubens

An analogy may be useful. The Church is against abortion. Suppose Catholic physicians confront a health care system which forces them under the power of law to provide abortions under penalty of losing their license. It is plain that the Catholic could not in that event participate in health care. The Church would condemn the health care system and, as a matter of discipline, direct its faithful that they may not participate without getting blood on their hands and suffering excommunication. Suppose there to be a significant law change that made abortion illegal, fundamentally changing the system. Such a significant paradigm shift would allow physicians once again to participate in health care without moral fault. The Church's teaching on abortion has remained unchanged, though the discipline has changed. In my view, something similar occurred in terms of civil authority, the judiciary, and the exercise of capital punishment among Christians before Constantine and the Edict of Milan and after.

There is, without question, continued consensus among the Fathers of the Church after the Edict of Milan as there was before that the State has the authority given to it by God to put a malefactor to death. The exercise of that power against those guilty of serious offense is never challenged as something per se prohibited. There is, to be sure, justifiable railing against its unjust use. One need only recall here St. Ambrose's excommunication of Emperor Theodosius after the massacre at Thessalonica as a prime example challenging the immoral use of a moral power.

To be sure, while the right of the State to exercise capital punishment is not in itself challenged, the Church frequently, one may say even habitually, pled that such punishment not be meted out on the grounds of mercy. As St. John Chrysostom mentions in one of his Homilies on the Statues, the Emperor was challenged by Christian monks to refrain from exercising the power of the sword unduly: "if you put to death the image of God," the monks are to have told the emperor, "how will you again be able to revoke the deed!"**

Similarly, St. Gregory Nazianzus tells a Christian magistrate it is "with Christ that you bear your authority and with Christ that you administer your office of governance. From him you have received the sword, no so much that you may use it, as that you may threaten and deter." He further reminds this magistrate: "You are the image of God and you command God's truth also to those who are made in God's image."**

The common humanity, which is to say dignity, between magistrate and citizen is emphasized, the spirit of Christian mercy is invoked, the model of Christ's patience and forgiveness is placed before the powers of the earth. And so cries for clemency are so frequent as themselves to become part of the Church's practice and ministry and even doctrine. As St. Ambrose advised the Christian judge Studius: "Authority, you see, has its rights; but compassion has its policy."

In his letter to the magistrate Studius, St. Ambrose makes a clear distinction between the exercise of the power to put a man to death, which may be excused, and the withholding of that power, which may be praised. "Excusationem habebis, si feceris: laudem, si non feceris." Studius has an excuse if he puts a man to death justly, but he is to be praised if, in exercising mercy, he stays the hand of justice and lets a man live. With Christ, mercy has elbowed its way into the halls of justice in an institutional way. "See to it," Ambrose says elsewhere, "that Christ is infused into the act of slaying an impious man and that sanctification accompany and be part of your attempt to abolish what is abominable."††

In addition to the dignity with which the criminal is viewed and the example of Christ's mercy, another thing of great value interrupts the judge's equation, that being the good of conversion. Salus animarum suprema lex. The salvation of souls is the supreme law, and this law has great influence on the application of the death penalty. As St. Ambrose states in his Cain and Abel:

From the point of view of our faith, no one ought to slay a person who in the course of nature still would have time for repentance up to the very moment of his death. A guilty man provided a premature punishment had not deprived him of life could well procure forgiveness by redeeming himself by an act of repentance, however belated.†††

Another thing that is quite clear in all the Church Fathers post-Constantinian is that the power to put a malefactor to death is something seen as a lay, not clerical, power. Some have suggested that this clerical prohibition is a leftover from the prohibition that at one time included both clerics and laity. I am not convinced this is the case. I think what is the case is that the Church saw a clear distinction between Church and State, between the ministry of the secular judge or magistrate and the ministry of the bishop and priest.

The power to put a malefactor to death is given to the State by Christ, and is not resident in the Church. The Church sees herself as not having that power to put a malefactor to death, and her clergy (though not her laity who exercise power in the saeculum) are prohibited from taking up arms, sitting in judgment that will lead to the death penalty, or carrying out executions. St. Ambrose says it well:

There are, in fact, two main types of power in God. There is the power which forgives and the power which punishes. Sins are forgiven by the Word of God . . . . Sins are forgiven by the priest in his sacred office and ministry. They are punished, too, by men who exercise power temporarily, that is to say, by judges.††

When it comes to punishments involving the death penalty, it is unseemly for a priest of Christ to be involved. This understanding is formally and legally enshrined in the Church's discipline, as we see reflected in the canons of the seventh-century 11th provincial Council of Toledo (675 A.D.).

It is not licit for those by whom the sacraments of the Lord are to be performed to carry out a judgment of blood. Therefore such excesses are to be greatly prohibited, lest after being agitated by the impulses of irrational presumption, they either presume to judge by their own sentence that something is punishable, or they carry out themselves, or order the carrying out of mutilations on anyone. But if anyone, unmindful of these precepts, has done anything of the sort to members of his church or to any other persons, he is to be deprived of the honor and place of his granted order.‡

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*E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (University of Notredame Press, 2003). Brugger's book, though in my opinion better written and thought out than James J. Megivern's book The Death Penalty: An Historical and Theological Survey (New York: Paulist Press, 1997), is still a book with an agenda. His aim is to support his view that the Catholic Magisterium teaches the total abolition of capital punishment as unjust and immoral per se, a proposition that I find dubious given what I think is the irreformable Catholic Tradition that holds that the State has the power, under certain conditions, to put a man guilty of a serious crime to death without moral fault.
**St. John Chrysostom, Homilies on the Statues, XVII.3.
***St. Gregory Nazianzen, Oratio XVII.9 (quoted in Brugger, 87)
†St. Ambrose, Epistola L(XXV) to Studius (quoted in Brugger, 87) (Vides igitus quid auctoritats tribuat, quid suadeat misericordia). The Latin text may be found here. It is significant that Ambrose states that he will not refuse communion to a magistrate who justly has put a man to death (ut iis communionem non adueamus negare). Indeed, St. Ambrose mentions that there are "those outside the Church" (extra ecclesiam tamen) who would deny communion to a magistrate who puts another man to death, even, one might suppose, justly.
††St. Ambrose, Cain and Abel, II.4.15.
†††St. Ambrose, Cain and Abel, II.7.38
‡Quoted in Brugger, 97.

Church Fathers and Capital Punishment: Lactantius

LACTANTIUS, known as the Cicero of the Christians, never addresses capital punishment directly. Yet in two of his works there are mentions of the death penalty and these offer us an intriguing view into the early Christian mindset. On the one hand, we have the typically Christian horror sanguinis. On the other hand, we have such a recognition without any seeming rejection of the State's right to punish wrongdoers even with the ultimate penalty.

Turning to Lactantius's famed Divine Institutes we find the following:

For he who reckons it a pleasure, that a man, though justly condemned (ob merita damnatum), should be slain in his sight, pollutes his conscience as much as if he should become a spectator and a sharer of a homicide which is secretly committed. And yet they call these sports in which human blood is shed. So far has the feeling of humanity departed from the men, that when they destroy the lives of men, they think that they are amusing themselves with sport, being more guilty than all those whose blood-shedding they esteem a pleasure. I ask now whether they can be just and pious men, who, when they see men placed under the stroke of death, and entreating mercy, not only suffer them to be put to death, but also demand it, and give cruel and inhuman votes for their death, not being satiated with wounds nor contented with bloodshed. Moreover, they order them, even though wounded and prostrate, to be attacked again, and their caresses to he wasted with blows, that no one may delude them by a pretended death. They are even angry with the combatants, unless one of the two is quickly slain; and as though they thirsted for human blood, they hate delays. They demand that other and fresh combatants should be given to them, that they may satisfy their eyes as soon as possible. Being imbued with this practice, they have lost their humanity. Therefore they do not spare even the innocent, but practice upon all that which they have learned in the slaughter of the wicked. It is not therefore befitting that those who strive to keep to the path of justice should be companions and sharers in this public homicide. For when God forbids us to kill, He not only prohibits us from open violence, which is not even allowed by the public laws, but He warns us against the commission of those things which are esteemed lawful among men. Thus it will be neither lawful for a just man to engage in warfare, since his warfare is justice itself, nor to accuse any one of a capital charge, because it makes no difference whether you put a man to death by word, or rather by the sword, since it is the act of putting to death itself which is prohibited. Therefore, with regard to this precept of God, there ought to be no exception at all; but that it is always unlawful to put to death a man (quia occidere hominem sit semper nefas), whom God willed to be a sacred animal (Deus sanctum animal esse voluit with other versions sacrosanctum animal).

Div. inst., VI.20*

Two things should be mentioned. First, the context of Lactantius's treatment is the public executions and public games where victims were put to death in public exhibitions. Getting pleasure from, and indeed even witnessing, these spectacles is hardly conducive for virtue. Lactantius therefore is referring to the impropriety of the blutlust or the schadenfreude or epicaricacy so typical of Pagan times and so ill-befitting the dignity of a man redeemed in Christ. Second, he states during the course of his treatment that a man may be "justly condemned" to death and even then the public spectacles are not rendered more respectable.

Public Exhibitions of Death Against Which Lactantius Railed

Lactantius's belief that the death penalty was not something that was itself immoral, but was indeed something that ought to be incorporated into the very Providence of God, is further buttressed by his comments in the seventeenth chapter of his book De Ira Dei, On the Anger of God. The context of the excerpt below is as follows. Lactantius is arguing against the Epicurean view that God is not concerned with the affairs of men. On the contrary, Lactantius argues, God's Providence is active in men's affairs, and his justice will ultimately reign, and in fact, reigns even now through the just laws and just punishments of human judges.

But in what can the action of God consist, but in the administration of the world? But if God carries on the care of the world, it follows that He cares for the life of men, and takes notice of the acts of individuals, and He earnestly desires that they should be wise and good. This is the will of God, this the divine law; and he who follows and observes this is beloved by God. It is necessary that He should be moved with anger against the man who has broken or despised this eternal and divine law. If, he says, God does harm to any one, therefore He is not good. They are deceived by no slight error who defame all censure, whether human or divine, with the name of bitterness and malice, thinking that He ought to be called injurious who visits the injurious with punishment. But if this is so, it follows that we have injurious laws, which enact punishment for offenders, and injurious judges who inflict capital punishments on those convicted of crime. But if the law is just which awards to the transgressor his due, and if the judge is called upright and good when he punishes crimes—for he guards the safety of good men who punishes the evil—it follows that God, when He opposes the evil, is not injurious; but he himself is injurious who either injures an innocent man, or spares an injurious person that he may injure many.

De ira Dei, 17. What Lactantius condemns is not capital judgment and capital punishment, but capital judgment and capital punishment unjustly applied.

Megivern, in his The Death Penalty: An Historical and Theological Survey,*** suggests that Lactantius had a reversal, a "volte face" caused by the changes in the legal situation of the Church after Constantine's rise to power. But that view is based upon his seeing inconsistency between the Lactantius of the Divine Institutes and that of the On the Anger of God.

There is in fact no inconsistency if the following simple fact is kept in mind. The prohibition that man must not kill is absolute in regards to the power given man inasmuch as the power over life and death is God's alone. However, God, in His Providence, has granted to the State the power over life. However, that power is not to be used in unseemly ways (such as gladiator combats and public spectacles). Nor is that power to be used to enforce unjust laws, or to impose unjust sentences. This, in fact, is how the traditional doctrine of the Church regarding capital punishment saw it, and so Lactantius comfortably fits into the tradition without falling into any inconsistency.

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*Voluptas oculorum varia et multiplex est, quae capitur ex aspectu rerum quae sunt in usu hominum, vel natura, vel opere delectabiles. Hanc philosophi rectissime sustulerunt. Aiunt enim multo esse praeclarius et homine dignius, coelum potius, quam caelata intueri: et hoc pulcherrimum opus intermicantibus astrorum luminibus, tanquam floribus adornatum, quam picta, et ficta, et gemmis distincta mirari. Sed cum diserte ad contemptum terrestrium nos exhortati sunt, et ad coeli spectaculum excitaverunt, tamen spectacula haec publica non contemnunt. Itaque his et delectantur, et libenter intersunt. Quae, quoniam maxima sunt irritamenta vitiorum, et ad corrumpendos animos potentissime valent, tollenda sunt nobis, quia non modo ad beatam vitam nihil conferunt, sed etiam nocent plurimum. Nam qui hominem, quamvis ob merita damnatum, in conspectu suo iugulari pro voluptate computat, conscientiam suam polluit, tam scilicet, quam si homicidii, quod fit occulte, spectator et particeps fiat. Hos tamen ludos vocant, in quibus humanus sanguis effunditur. Adeo longe ab hominibus secessit hamanitas; ut cum animas hominum interficiant, ludere se opinentur, nocentiores iis omnibus, quorum sanguinem voluptati habent. Quaero nunc, an possint pii et iusti homines esse, qui constitutos sub ictu mortis, ac misericordiam deprecantes, non tantum patiuntur occidi, sed et flagitant, feruntque ad mortem crudelia et inhumana suffragia, nec vulneribus satiati, nec cruore contenti: quin etiam percussos iacentesque repeti iubent, et cadavera ictibus dissipari, ne quis illos simulata morte deludat. Irascuntur etiam pugnantibus, nisi celeriter e duobus alter occisus est; et tanquam humanum sanguinem sitiant, oderunt moras. Alios illis compares dari poscunt recentiores, ut quamprimum oculos suos satient. Hac consuetudine imbuti, humanitatem perdiderunt. Itaque non parcunt etiam innocentibus: sed exercent in omnes, quod in malorum trucidatione didicerunt. Huius igitur publici homicidii socios et participes esse non convenit eos, qui iustitiae viam tenere nituntur. Non enim cum occidere Deus vetat, latrocinari nos tantum prohibet; quod ne per leges quidem publicas licet: sed ea quoque ne fiant monet, quae apud homines pro licitis habentur. Ita neque militare iusto licebit, cuius militia est ipsa iustitia; neque vero accusare quemquam crimine capitali: quia nihil distat utrumne ferro, an verbo potius occidas; quoniam occisio ipsa prohibetur. Itaque in hoc Dei praecepto nullam prorsus exceptionem fieri oportet, quia occidere hominem sit semper nefas, quem Deus sanctum animal esse voluit.
**Dei vero actio quae potest esse, nisi mundi administratio? Si vero mundi curam gerit, curtat igitur hominum vitam Deus, ac singulorum actus animadvertit, eosque sapientes ac bonos esse desiderat. Haec est voluntas Dei, haec divina lex; quam qui sequitur, qui observat, Deo carus est. Necesse est igitur, ut ira moveatur adversus eum, qui hanc aeternam divinamque legem, aut violaverit, aut speverit. Si nocet, inquit, alicui Deus, jam bonus non est. No exiguo errore, qui censuram sive humanam, sive divinam, acerbitatis et malitiae nomine infamant, putantes nocentem dici oportere, qui nocentes afficit poena. Quod si est, nocentes igitur leges habemus, quae peccantibus supplicia sanxerunt; nocentes judices, qui scelere convictos poena capitis afficiunt. Quod si et lex justa est, quae et nocentitribuit quod meretur, et judex integer ac bonas dicitur, cum male facta vindicat (bonorum enim salutem custodit, qui malos punit), ergo et Deus cum malis obest, nocens non est; ipse autem est noceas qui aut innocenti nocet, aut nocenti parcit, ut pluribus noceat.
***James J. Megivern, The Death Penalty: An Historical and Theological Survey (New York: Paulist, 1997), 26.