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 12, 2012

Capital Punishment and the Tradition of Mercy

IN LOOKING AT THE ISSUE OF THE DEATH PENALTY, we typically focus on the justice or injustice of it. As we have reviewed in our prior postings on this subject, there is a monolithic and indeed irreformable Tradition--from Scripture, to the Church Fathers, to early and medieval and modern Popes, to canonists, theologians, and Doctors of the Church, and indeed, the Church's own practice--that the death penalty can be justly meted out to punish a malefactor, and that it is justified primarily as vindicative of the moral order that has been trespassed by the wrongdoer. In the order of justice, the death penalty is right and just.

But the death penalty may be viewed on more than one plane. "Authority, you see, has its rights," says St. Ambrose in his letter to the Christian judge Studius, "but mercy has its policy."*

St. Ambrose reminds us that there is an order of mercy under which the order of justice operates. With respect to the death penalty, there is also a tradition of mercy or a tradition of clemency that is equally as prevalent as the tradition that holds that the death penalty may, under proper circumstances, be justly executed by public authority. In other words, though the Church Fathers, Catholic bishops, and, indeed the Popes themselves recognize the justice of the death penalty, they habitually, persistently, fittingly throughout history have cried for clemency, for mercy, that a man justly condemned to die might live.

Philippe de Champaigne, The Good Shepherd

In doing so, the principal focuses in this Tradition of Mercy have been three. First, the condemned man is viewed as a soul that is still subject to forgiveness, to repentance. Taking his life away--which might be justly done--yet takes away from him that precious time within which only conversion may occur. After death comes judgment. (Hebrews 9:27) While one is alive, there is hope that God's grace will change the man. The worth of the conversion of one soul--especially of one that has sinned against God and man so grievously as to merit the punishment of physical death--was seen as something more valuable than the creation of the whole universe.* The parable of the lost sheep was appropriate. If a man had one hundred sheep, and one of them went astray, the Good Shepherd would leave the ninety-nine in the mountains, and go seek for the one who has gone astray. (Matt. 18:12-14; Luke 15:3-7). This was the impetus of the so-called "gallows ministry." We find this sentiment well-expressed by St. Jerome in his Commentary on Joel:
For the Lord is gracious and merciful and prefers the conversion of a sinner rather than his death. Patient and generous in his mercy, he does not give in to human impatience but is willing to wait a long time for our repentance. So extraordinary is the Lord’s mercy in the face of evil, that if we do penance for our sins, he regrets his own threat and does not carry out against us the sanctions he had threatened. So by the changing of our attitude, he himself is changed.

There is nothing which exhibits this felt sentiment than St. Ambrose, who, in his work Cain and Abel, clearly states the preference of letting a man justly condemned to die to live through the exercise of clemency:
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.

Cain & Abel, II.7.38. St. Augustine is equally insistent on this, and we have treated it in other posting, St. Augustine--Mercy and the Death Penalty--to which the reader is referred.

Second, there was something unseemly in putting a man to death--though God gave public authority the power to do so--because it was recognized that, despite the marring of that dignity through a capital offense, the condemned man still had reason, still had a spiritual soul, and, to that degree, had the same elementary dignity as those who were putting him to death. In his famous Homilies on the Statues (XVII.3), St. John Chrysostom describes the death penalty as putting to death the image of God, and something that is irrevocable. St. Gregory Nazianzus also shares in this them when he tells the Christian magistrate in his Oratio XVII.9 that the Christian magistrate has the "sword, not so much that you may use it, as that you may threaten and deter." "You are the image of God," he tells the Christian magistrate, and he has jurisdiction over "those who are made in God's image."

Third, granting clemency or mercy was seen as something commanded by the Gospel. "Be merciful, just as your Father is merciful." (Luke 6:36) "Be kind one to another, merciful, forgiving one another, even as God has forgiven you in Christ." (Eph. 4:32) "Put on then, as God's chosen ones, holy and beloved, heartfelt compassion, kindness, humility, gentleness, and patience, bearing with one another and forgiving one another, if one has a grievance against another; as the Lord has forgiven you, so must you also do." (Col. 3:12-13) And, of course, which Christian did not pray: forgive us our trespasses as we forgive those who trespass against us?

This Gospel emphasis is perhaps most beautifully stated by the great Pope St. Nicholas I (r. 858-67) in his letter to the Bulgars, only recently converted.
You must give up your former habits and not merely avoid every occasion of taking life, but also, without hesitation and in every possible circumstance, save the life of body and of soul of each individual. You should save from death not only the innocent, but also criminals, because Christ has saved you from the death of the soul. This is in accordance with the most wise Solomon: "Rescue those who are being dragged to death, and from those tottering to execution withdraw not." (Prov. 24:11)

Ita et vos postquam electione Dei vocati, et lumine ipsius illuminati estis, non jam sicut prius mortibus inhiare, sed omnes ad vitam tam corporis, quam animae debetis omni occasione inventa procul dubio recovare, et sicut vos Christus de morte perenni, qua detinebamini, ad vitam aeternam reduxit, it ipsi non solum innoxios quosque, verum etiam et noxios a mortis exitio satagite cunctos eruere, secundum illud sapientissimi Salamonis: Erue eos qui ducuntur ad mortem; et qui trahuntur ad interitum, liberare ne cesses (Prov. xxiv)
Epistula 97.25***119 PL 991-92.

In the context of capital punishment, the Tradition of Mercy has as much authority as the Tradition of Justice. In viewing capital punishment in the modern context, therefore, we must remember always to incorporate both traditions. We must not forget that there is an order of justice, an ordo iustitiae. But--in particular as Christians whose quality should be always to have mercy, and who ought never to forget the mercy that their heavenly Father has shown them in Christ--we must also not forget that there is an order of mercy, an ordo misericordiae.

To the cry of "injustice!" from a man justly condemned to die, Christians will turn a deaf ear. But to the cry of "mercy!" from a man justly condemned to die, Christians will not. It is in the forum--not of justice, but of mercy--where the sinner, the malefactor will always have an audience.
*St. Ambrose, Epistola L(XXV) to Studius (Vides igitur quid auctoritats tribuat, quid suadeat misericordia).
**This sentiment is well-expressed by John Henry Cardinal Newman in his
Lectures on Certain Difficulties Felt by Anglicans in Submitting to the Catholic Church: "This, then, is the point I insist upon, in answer to the objection which you have today urged against me. The Church aims, not at making a show, but at doing a work. She regards this world, and all that is in it, as a mere shadow, as dust and ashes, compared with the value of one single soul. She holds that, unless she can, in her own way, do good to souls, it is no use her doing anything; she holds that it were better for sun and moon to drop from heaven, for the earth to fail, and for all the many millions who are upon it to die of starvation in extremest agony, so far as temporal affliction goes, than that one soul, I will not say, should be lost, but should commit one single venial sin, should tell one wilful untruth, though it harmed no one, or steal one poor farthing without excuse. She considers the action of this world and the action of the soul simply incommensurate, viewed in their respective spheres; she would rather save the soul of one single wild bandit of Calabria, or whining beggar of Palermo, than draw a hundred lines of railroad through the length and breadth of Italy, or carry out a sanitary reform, in its fullest details, in every city of Sicily, except so far as these great national works tended to some spiritual good beyond them." Its classic expression is found in St. Thomas Aquinas: "The good of the grace of one soul" St. Thomas states in his Summa Theologiae, "is greater than the good of the nature of the whole universe." IaIIae, q.24, a. 3, ad 2.
***Quoted in Megivern, The Death Penalty: An Historical and Theological Survey (Paulist Press, 1997), 47-48. Again, Megivern's bias causes him to overinterpret the Pope's statement. He interprets as a recommendation to do away with the death penalty, which it is not. In fact, he supposes that there may be circumstances where it cannot be helped ("in every
possible circumstance"). To be sure, it is a recommendation that the death penalty be, in the words of John Paul II who draws from this tradition in his Evangelium vitae, be imposed only in cases of "absolute necessity: in other words, when it would not be possible otherwise to defend society." (No. 56) Again, whether we draw from Pope St. Nicholas or Blessed John Paul II, the recommendation that the death penalty be minimally applied is not because the death penalty is unjust, but rather because it lacks mercy.

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