« PreviousContinue »
gladiatorial games, was carried by some of them to an extent altogether irreconcilable with national independence, and with the prevailing penal system. Many of them taught that no Christian might lawfully take away life, either as a soldier, or by bringing a capital charge, or by acting as an executioner. The first of these questions it will be convenient to reserve for a later period of this chapter, when I propose to examine the relations of Christianity to the military spirit, and a very few words will be sufficient to dispose of the others. The notion that there is something impure and defiling, even in a just execution, is one which may be traced through many ages; and executioners, as the ministers of the law, have been from very ancient times regarded as unholy. In both Greece and Rome the law compelled them to live outside the walls, and at Rhodes they were never permitted even to enter the city. Notions of this kind were very strongly held in the early Church ; and a decree of the penitential discipline which was enforced, even against emperors and generals, forbade any one whose hands had been imbrued in blood, even when that blood was shed in a righteous war, approaching the altar without a preparatory period of penance. The opinions of the Christians of the first three centuries were usually formed without any regard to the necessities of civil or political life; but when the Church obtained an ascendancy, it was found necessary speedily to modify them; and although Lactantius, in the fourth century, maintained the unlawfulness of all bloodshed, as strongly as Origen in the third, and Tertullian in the second, the common doctrine was simply that no priest or bishop must take any part in a capital charge. From this exceptional position of the clergy they speedily acquired the position of official intercessors for
Nieupoort, De Ritibus Ro- earlier testimonies on the subject manorum, p. 169.
are given by Barbeyrac, Morale des 2 See a very unequivocal pas- Pères, and in many other books. sage, Inst. Div. vi. 20. Several
criminals, ambassadors of mercy, when, from some act of sedition or other cause, their city or neighbourhood was menaced with a bloody invasion. The right of sanctuary, which was before possessed by the Imperial statues and by the Pagan temples, was accorded to the churches. During the holy seasons of Lent and Easter, no criminal trials could be held, and no criminal could be tortured or executed. Miracles, it was said, were sometimes wrought to attest the innocence of accused or condemned men, but were never wrought to consign criminals to execution by the civil power.2
All this had an importance much beyond its immediate effect in tempering the administration of the law. It contributed largely to associate in the popular imagination the ideas of sanctity and of mercy, and to increase the reverence for human life. It had also another remarkable effect, to which I have adverted in another work. The belief that it was wrong for a priest to bring any charge that could give rise to a capital sentence caused the leading clergy to shrink from persecuting heresy to death, at a time when in all other respects the theory of persecution had been fully matured. When it was readily admitted that heresy was in the highest degree criminal, and ought to be made penal, when laws banishing, fining, or imprisoning heretics filled the statute-book, and when every vestige of religious liberty was suppressed at
See two laws enacted in A.D. St. Macarius. An innocent man, 380 (Cod. Theod. ix. tit. 35, 1. 4) accused a murder, fled to him. and A.D. 389 (Cod. Theod. ix. tit. He brought both the accused and 35, 1. 5). Theodosius the Younger accusers to the tomb of the murmade a law (ix. tit. 35, 1. 7) except- dered man, and asked him whether ing the Isaurian robbers from the the prisoner was the murderer. The privileges of these laws.
corpse answered in the negative ; ? There are, of course, innu- the bystanders implored St. Macamerable miracles punishing guilty rius to ask it to reveal the real mnen, but I know none assisting the culprit; but St. Macarius refused civil power in doing so. to do so. (Vite Patrum, lib. ii. example of the miracles in defence cap. xxviii.) of the innocent, I may cite one by
the instigation of the clergy, these still shrank from the last and inevitable step, not because it was an atrocious violation of the rights of conscience, but because it was contrary to the ecclesiastical discipline for a bishop, under any circumstances, to countenance bloodshed. It was on this ground that St. Augustine, while eagerly advocating the persecution of the Donatists, more than once expressed a wish that they should not be punished with death, and that St. Ambrose, and St. Martin of Tours, who were both energetic persecutors, expressed their abhorrence of the Spanish bishops, who had caused some Priscillianists to be executed. I have elsewhere noticed the odious hypocrisy of the later inquisitors, who relegated the execution of the sentence to the civil power, with a prayer that the heretics should be punished “as mildly as possible and without the effusion of blood,'' which came at last to be interpreted, by the death of fire; but I may here add, that this hideous mockery is not unique in the history of religion. Plutarch suggests that one of the reasons for burying unchaste vestals alive was that they were so sacred that it was unlawful to lay violent hands upon them, and among the Donatists the Circumcelliones were for a time accustomed to abstain, in obedience to the evangelical command, from the use of the sword, while they beat to death those who differed from their theological opinions with massive clubs, to which they gave the very significant name of Israelites.3
The time came when the Christian priests shed blood enough. The extreme scrupulosity, however, which they at first displayed, is not only exceedingly curious when contrasted with their later history; it was also, by the association of ideas which it promoted, very favourable to humanity.
1. Ut quam clementissime et ultra sanguinis effusionem punire tur.'
Quæst. Romane, xcvi. * Tillemont, Mém. d'Hist. ecclés.
tome vi. pp. 88–98. The Donatists after a
me, however, are said to have overcome their scruples, and used swords.
It is remarkable, however, that while some of the early Fathers were the undoubted precursors of Beccaria, their teaching, unlike that of the philosophers in the eighteenth century, had little or no appreciable influence in mitigating the severity of the penal code. Indeed, the more carefully the Christian legislation of the Empire is examined, and the more fully it is compared with what had been done under the influence of Stoicism by the Pagan legislators, the more evident, I think, it will appear that the golden age of Roman law was not Christian, but Pagan. Great works of codification were accomplished under the younger Theodosius, and under Justinian; but it was in the reign of Pagan emperore, and especially of Hadrian and Alexander Severus, that nearly all the most important measures were taken, redressing injustices, elevating oppressed classes, and making the doctrine of the natural equality and fraternity of mankind the basis of legal enactments. Receiving the heritage of these laws, the Christians, no doubt, added something; but a careful examination will show that it was surprisingly little. In no respect is the greatness of the Stoic philosophers more conspicuous than in the contrast between the gigantic steps of legal reform made in a few years under their influence, and the almost insignificant steps taken when Christianity had obtained an ascendancy in the Empire, not to speak of the long period of decrepitude that followed. In the way of mitigating the severity of punishments, Constantine made, it is true, three important laws prohibiting the custom of branding criminals upon the face, the condemnation of criminals as gladiators, and the continuance of the once degrading but now sacred punishment of crucifixion, which had been very commonly employed; but these measures were more than counterbalanced by the extreme severity with which the Christian emperors punished infanticide, adultery, seduction, rape, and several other crimes, and the number of capital offences became considerably greater
The civic argu
than before. The most prominent evidence, indeed, of ecclesiastical influence in the Theodosian code is that which must be most lamented. It is the immense mass of legislation, intended on the one hand to elevate the clergy into a separate and sacred caste, and on the other to persecute in every form, and with every degree of violence, all who deviated from the fine line of Catholic orthodoxy.?
The last consequence of the Christian estimate of human life was a very emphatic condemnation of suicide. We have already seen that the arguments of the Pagan moralists, who were opposed to this act, were of four kinds. The religious argument of Pythagoras and Plato was, that we are all soldiers of God, placed in an appointed post of duty, which it is a rebellion against our Maker to desert. ment of Aristotle and the Greek legislators was that we owe our services to the State, and that therefore voluntarily to abandon life is to abandon our duty to our country. The argument which Plutarch and other writers derived from human dignity was that true courage is shown in the manful endurance of suffering, while suicide, being an act of flight, is an act of cowardice, and therefore unworthy of man. The mystical or Quietist argument of the Neoplatonists was that all perturbation is a pollution of the soul; that the act of suicide is accompanied by, and springs from, perturbation,
1 Under the Christian kings, the le vol et le meurtre qui jusques-là barbarians multiplied the number n'avoient été punis que par l'exil, of capital offences, but this has ou dont on se rachetoit par une usually been regarded as an im- composition. Les François, en réprovement. The Abbė Mably says: formant quelques-unes de leurs lois
Quoiqu'il nous reste peu d'ordon- civiles, portèrent la sévérité aussi nances faites sous les premiers loin que leurs pères avoient poussé Mérovingiens, nous voyons qu'avant l'indulgence.'-Mably, Observ. sur la fin du sixième siècle, les Fran- l'Hist. des François, liv. i. ch. iii. çois avoient déjá adopté la doctrine See, too, Gibbon’s Decline and Fall, salutaire des Romains au sujet ch. xxxviii. de la prescription ; et que renon.
2 The whole of the sixth volume çant à cette humanité cruelle qui of Godefroy's edition (folio) of the les enhardissoit au mal, ils infli. Theodosian code is taken up with gèrent peine de mortcontre l'inceste, laws of these kinds.