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.

Tuesday, March 6, 2012

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.

*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."

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