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.

Saturday, March 3, 2012

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.‡

*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.

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