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 TOLERATION

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TOLERATION

formal heresy still remains one of the most grievous sins. Material heresy on the other hand, i. e. an error in faith entertained undesignedly and unconsciously, is in itself neither sinful nor punishable, except where the error is itself inexcusable. In excusable error are all who possess subjectively the firm and honest con- viction that they have the true faith of Christ, thus including the vast majority of non-CathoUcs, who were born and educated in their particular form of belief. Even in the Middle Ages, while using her punitive power only against formal heretics who through baptism had belonged to her body from bii-tli, the Church openly proclaimed her incompetency to take action in the case of Jews and pagans, since over these she possessed no jurisdiction. The Church has been always averse to forcible conversions, as was emphasized in modern times by Leo XIII in his Encyclical "Immortale Dei" of 1 November, 1885: "Atque illud quoque magnopere cavere Ecclesia so- let, ut ad amplexandam fidem cathohcam nemo in- vitus eogatur, quia quod sapienter Augustinus monet: 'Credere non potest (homo) nisi volens'" (The Church has always taken great care that no one should be compelled against his will to embrace the Catholic Faith, because, as Augustine wisely declares: except he be wilUng, man cannot beheve) (cf. Den- zinger, op. cit., n. 1875). Hence the tolerance always displayed by the Church, especially towards the Jews, and also the prohibition in canon law to make war on pagan nations merely on account of their unbehef, except when they put to death Christian missionaries or attacked Christian States, as the Saracens formerly did (cf. Schmalzgruber, "Jus can. de Juda?is", n. 53). A decision of Gregory the Great given in the Decree of Gratian (c. 4 jam vero C. 213, qu. 6) contains no war- rant for rehgious coercion, since the pope simply grants to the Catholic colonists on his domains certain favours which he withholds from settlers obstinately adhering to their paganism.

(.3) If in medieval times the Church adopted sterner measures against formal heretics, apostates, and schismatics than she adopts to-day, she did this not as a private individual, who must show only considera- tion and love, but as the legitimate governing au- thority within whose sphere also fell the administra- tion of penal justice. The State must also inflict on the thief and revolutionary the legal punishment for theft and revolution, which are not punishable in the abstract. However repulsive, wlien judged from the more refined standpoint of modern civihzation, the barbarous cruelty of medieval penal ordinances may be, as ex-pressed even in the "Cautio criminalis" of the German Emperor, Charles V, against traitors, highway robbers, and notorious debauchees (impaling, breaking on the wheel), we may not for this rea- son condemn the whole penal system of that age as judicial murder; for the legal punishments, while in- deed inhuman, were not unjust. Now, formal heresy was likewise strongly condemned by the Catholic Middle Ages: and so the argument ran: Apostasy and heresy are, as criminal rebellions against God, far more serious crimes than high treason, murder, or adultery. But, according to Rom., xiii, 11 sqq., the secular authorities have the right to punish, especially grave crimes, with death; consequently, "heretics may be not only excommunicated, but also justly (juste) put to death" (St. Thomas, II-II, Q. xi, a. 3). But there is no need to go back to the Middle Ages, since the present age likewise furnishes us with ex- amples of extreme severity in the chastisement of certain crimes. With whatever disappro\'al I lie i)lii- lanthropist may \'iew the terrible punishments in- flicted on Iho.se guilty of rape in parts of the United States, adjudging such penalties as excessive in llicir severity, the jurist will on the other h.and seek their explanation in the special circumstances of time and place. American lynch law will not be unreservedly

excused or justified, but, in judging it, allowance wiU be made for the imperfections of the existing penal procedure. The frequent inefficacy of the ordinary procedure is only too liliely to excite the enraged pop- ulace to deeds of violence. Keeping these occur- rences of modern times before our eyes, we wiU pass a nmch juster verdict on the Middle Ages. Cathohcs have, of course, no desire for the retmn of an age whose Uberal, and in many respects admirable, state institutions were greatly marred by sinister penal ordinances.

(4) A distinction must be drawn between the penal system as such and its external forms. The barba- rous penal forms of the Middle Ages are to be credited, not to the Church, but to the State. After the Christianized Roman Empire had developed into a theocratic (rehgious) State, it was compelled to stamp crimes against faith (apostasy, heresy, schism) as offences against the State (cf. Cod. Justin., I, 5, de liKr.: "Quod in religionem divinam committitur, in omnium fertiu' injuriam"). CathoMc and citizen of the State became identical terms. Consequently, crimes against faith were high treason, and as such were punishable with death. This was the universal opinion in the Middle Ages. This idea of the execu- tion of heretics had not the shghtest connexion with the essence of the Church or her constitution, and to the primitive Church such a penalty was unknown. St. Cyprian (d. 258) disapproved of all external means of coercion, such as were customary in the Old Testa- ment, and claimed for the New Test ament as ' 'spirit ual weapon" {sjnrilualis gladius) excommunication, which was worse than death. The earliest example of the execution of a heretic was the beheading of the ring- leader of the Priscilhanists by the usurper Maximus at Trier (385) ; this called forth a protest from St. Mar- tin of Tours, St. Ambrose, and Pope Siricius (cf. Histor. polit. Blatter, XC, 1890, pp. 330 sqq.). Even St. Augustine, who towards the end of his fife fa- voured state reprisals against the Donatists, always opposed the execution of heretics (cf. Ep. c [alias cxxvii]: "Corrigi eos cupimus, non necari"). During the long dominion of the Merovingians and Carlovin- gians, heresy was never regarded as a civil crime, and was chastised with no civil penalty. A change came only in the eleventh century, when Manicha;ism, which had earlier experienced bloody persecution at. the hands of the Eastern emperors Theodosius (d. 395) and Justinian (d. 565), revived in the orgies of the Catharists and Albigenses. These disruptive sects attacked marriage, the family, and property, where- fore even Lea has to admit: "Had Catharism become predominant, its influence would infaUibly have proved fatal" (History of the Inquisition, I, 117). Influenced by the Roman code, which was rescued from oblivion, the Hohenstaufen emperor, Frederick II, who was anything but a warm supporter of the papacy, introduced the penalty of burning for he- retics by imperial law of 1224 (cf. Mommi. Germ., IV Leg.", II, 326 sqq.). The popes, especially Greg- ory IX (d. 1241), favoured the execution of this im- perial law, in which they saw an effective means not alone for the protection of the State, but also for the preservation of the Faith. And indeed the danger to the common weal seen in Catharism inclined neither the State nor the Churcli to mildness, just as in the time of St. Augustine the ill-famed Circumcilliones of the Donatists bore every sign of a iiublic rebelhon. Would not even a modern state have to proceed against these murderers and inrciidiaries with weapon in hand? Unfortunately, neither the secular nor the ecclesiastical authorities drew the shghtest distinction between dangerous and harmless heretics, seeing forthwith in every (formal) heresy a "eontumelia Creatoris", which the theocratie State was called upon to avenge with the pyre. This inability to dis- tinguish may be easily traced even in the writings of