Chapter 28

Pecuniary composition for blood belongs to an advanced period of defined and regular criminal jurisprudence. In the lowest form of civil society, when the State is not yet distinct from the family, the family is compelled to defend itself; and the only protection of society is the vendetta. It is the private right of self-defence combined with the public office of punishment, and therefore not only a privilege but an obligation. The whole family is bound to avenge the injury; but the duty rests first of all with the heir. Precedency in the office of avenger is naturally connected with a first claim in inheritance; and the succession to property is determined by the law of revenge. This leads both to primogeniture, because the eldest son is most likely to be capable of punishing the culprit; and, for the same reason, to modifications of primogeniture, by the preference of the brother before the grandson, and of the male line before the female. A practice which appears barbarous is, therefore, one of the foundations of civilisation, and the origin of some of the refinements of law. In this state of society there is no distinction between civil and criminal law; an injury is looked upon as a private wrong, not, as religion considers it, a sin, or, as the State considers it, a crime.

Something very similar occurs in feudal society. Here all the barons were virtually equal to each other, and without any superior to punish their crimes or to avenge their wrongs. They were, therefore, compelled to obtain safety or reparation, like sovereigns, by force of arms. What war is among States, the feud is in feudal society, and the vengeance of blood in societies not yet matured into States--a substitute for the fixed administration of justice.

The assumption of this duty by the State begins with the recognisance of acts done against the State itself. At first, political crimes alone are visited with a public penalty; private injuries demand no public expiation, but only satisfaction of the injured party. This appears in its most rudimentary form in the _lex talionis_. Society requires that punishment should be inflicted by the State, in order to prevent continual disorders. If the injured party could be satisfied, and his duty fulfilled without inflicting on the criminal an injury corresponding to that which he had done, society was obviously the gainer. At first it was optional to accept or to refuse satisfaction; afterwards it was made obligatory.

Where property was so valuable that its loss was visited on the life or limb of the robber, and injuries against property were made a question of life and death, it soon followed that injury to life could be made a question of payment. To expiate robbery by death, and to expiate murder by the payment of a fine, are correlative ideas. Practically this custom often told with a barbarous inequality against those who were too poor to purchase forgiveness; but it was otherwise both just and humane in principle, and it was generally encouraged by the Church. For in her eyes the criminal was guilty of an act of which it was necessary that he should repent; this made her desire, not his destruction, but his conversion. She tried, therefore, to save his life, and to put an end to revenge, mutilation, and servitude; and for all this the alternative was compensation. This purpose was served by the right of asylum. The Church surrendered the fugitive only on condition that his life and person should be spared in consideration of a lawful fine, which she often paid for him herself. "Concedatur ei vita et omnia membra. Emendat autem causam in quantum potuerit," says a law of Charlemagne, given in the year 785, when the influence of religion on legislation was most powerful in Europe.

No idea occurs more frequently in the work we are reviewing than that of the persecuting character of the Catholic Church; it is used as a perpetual apology for the penal laws in Ireland:--

"When the Catholics writhe under this wrong, let them turn their eyes to the history of Catholic countries, and remember that, while the Catholic Church was stripped of her endowments and doomed to political degradation by Protestant persecutors in Ireland, the Protestant churches were exterminated with fire and sword by Catholic persecutors in France, Austria, Flanders, Italy, and Spain" (p. 92). He speaks of Catholicism as "a religion which all Protestants believed to be idolatrous, and knew by fearful experience to be persecuting" (p. 113). "It would not be difficult to point to persecuting laws more sanguinary than these. Spain, France, and Austria will at once supply signal examples.... That persecution was the vice of an age and not only of a particular religion, that it disgraced Protestantism as well as Catholicism, is true. But no one who reads the religious history of Europe with an open mind can fail to perceive that the persecutions carried on by Protestants were far less bloody and less extensive than those carried on by Catholics; that they were more frequently excusable as acts of retaliation; that they arose more from political alarm, and less from the spirit of the religion; and that the temper of their authors yielded more rapidly to the advancing influence of humanity and civilisation" (pp. 127. 129).

All these arguments are fallacies; but as the statements at the same time are full of error, we believe that the author is wrong because he has not studied the question, not because he has designed to misrepresent it. The fact that he does not distinguish from each other the various kinds and occasions of persecution, proves that he is wholly ignorant of the things with which it is connected.

Persecution is the vice of particular religions, and the misfortune of particular stages of political society. It is the resource by which States that would be subverted by religious liberty escape the more dangerous alternative of imposing religious disabilities. The exclusion of a part of the community by reason of its faith from the full benefit of the law is a danger and disadvantage to every State, however highly organised its constitution may otherwise be. But the actual existence of a religious party differing in faith from the majority is dangerous only to a State very imperfectly organised. Disabilities are always a danger. Multiplicity of religions is only dangerous to States of an inferior type. By persecution they rid themselves of the peculiar danger which threatens them, without involving themselves in a system universally bad. Persecution comes naturally in a certain period of the progress of society, before a more flexible and comprehensive system has been introduced by that advance of religion and civilisation whereby Catholicism gradually penetrates into hostile countries, and Christian powers acquire dominion over infidel populations. Thus it is the token of an epoch in the political, religious, and intellectual life of mankind, and it disappears with its epoch, and with the advance of the Church militant in her Catholic vocation. Intolerance of dissent and impatience of contradiction are a characteristic of youth. Those that have no knowledge of the truth that underlies opposite opinions, and no experience of their consequent force, cannot believe that men are sincere in holding them. At a certain point of mental growth, tolerance implies indifference, and intolerance is inseparable from sincerity. Thus intolerance, in itself a defect, becomes in this case a merit. Again, although the political conditions of intolerance belong to the youth and immaturity of nations, the motives of intolerance may at any time be just and the principle high. For the theory of religious unity is founded on the most elevated and truest view of the character and function of the State, on the perception that its ultimate purpose is not distinct from that of the Church. In the pagan State they were identified; in the Christian world the end remains the same, but the means are different.

The State aims at the things of another life but indirectly. Its course runs parallel to that of the Church; they do not converge. The direct subservience of the State to religious ends would imply despotism and persecution just as much as the pagan supremacy of civil over religious authority. The similarity of the end demands harmony in the principles, and creates a decided antagonism between the State and a religious community whose character is in total contradiction with it. With such religions there is no possibility of reconciliation. A State must be at open war with any system which it sees would prevent it from fulfilling its legitimate duties. The danger, therefore, lies not in the doctrine, but in the practice. But to the pagan and to the mediæval State, the danger was in the doctrine. The Christians were the best subjects of the emperor, but Christianity was really subversive of the fundamental institutions of the Roman Empire. In the infancy of the modern States, the civil power required all the help that religion could give in order to establish itself against the lawlessness of barbarism and feudal dissolution. The existence of the State at that time depended on the power of the Church. When, in the thirteenth century, the Empire renounced this support, and made war on the Church, it fell at once into a number of small sovereignties. In those cases persecution was self-defence. It was wrongly defended as an absolute, not as a conditional principle; but such a principle was false only as the modern theory of religious liberty is false. One was a wrong generalisation from the true character of the State; the other is a true conclusion from a false notion of the State. To say that because of the union between Church and State it is right to persecute would condemn all toleration; and to say that the objects of the State have nothing to do with religion, would condemn all persecution. But persecution and toleration are equally true in principle, considered politically; only one belongs to a more highly developed civilisation than the other. At one period toleration would destroy society; at another, persecution is fatal to liberty. The theory of intolerance is wrong only if founded absolutely upon religious motives; but even then the practice of it is not necessarily censurable. It is opposed to the Christian spirit, in the same manner as slavery is opposed to it. The Church prohibits neither intolerance nor slavery, though in proportion as her influence extends, and civilisation advances, both gradually disappear.

Unity and liberty are the only legitimate principles on which the position of a Church in a State can be regulated, but the distance between them is immeasurable, and the transition extremely difficult. To pass from religious unity to religious liberty is to effect a complete inversion in the character of the State, a change in the whole spirit of legislation, and a still greater revolution in the minds and habits of men. So great a change seldom happens all at once. The law naturally follows the condition of society, which does not suddenly change. An intervening stage from unity to liberty, a compromise between toleration and persecution, is a common but irrational, tyrannical, and impolitic arrangement. It is idle to talk of the guilt of persecution, if we do not distinguish the various principles on which religious dissent can be treated by the State. The exclusion of other religions--- the system of Spain, of Sweden, of Mecklenburg, Holstein, and Tyrol--is reasonable in principle, though practically untenable in the present state of European society. The system of expulsion or compulsory conformity, adopted by Lewis XIV. and the Emperor Nicholas, is defensible neither on religious nor political grounds. But the system applied to Ireland, which uses religious disabilities for the purpose of political oppression,[325] stands alone in solitary infamy among the crimes and follies of the rulers of men.

The acquisition of real definite freedom is a very slow and tardy process. The great social independence enjoyed in the early periods of national history is not yet political freedom. The State has not yet developed its authority, or assumed the functions of government. A period follows when all the action of society is absorbed by the ruling power, when the license of early times is gone, and the liberties of a riper age are not yet acquired. These liberties are the product of a long conflict with absolutism, and of a gradual development, which, by establishing definite rights revives in positive form the negative liberty of an unformed society. The object and the result of this process is the organisation of self-government, the substitution of right for force, of authority for power, of duty for necessity, and of a moral for a physical relation between government and people. Until this point is reached, religious liberty is an anomaly. In a State which possesses all power and all authority there is no room for the autonomy of religious communities. Those States, therefore, not only refuse liberty of conscience, but deprive the favoured Church of ecclesiastical freedom. The principles of religious unity and liberty are so opposed that no modern State has at once denied toleration and allowed freedom to its established Church. Both of these are unnatural in a State which rejects self-government, the only secure basis of all freedom, whether religious or political. For religious freedom is based on political liberty; intolerance, therefore, is a political necessity against all religions which threaten the unity of faith in a State that is not free, and in every State against those religions which threaten its existence. Absolute intolerance belongs to the absolute State; special persecution may be justified by special causes in any State. All mediæval persecution is of the latter kind, for the sects against which it was directed were revolutionary parties. The State really defended, not its religious unity, but its political existence.

If the Catholic Church was naturally inclined to persecute, she would persecute in all cases alike, when there was no interest to serve but her own. Instead of adapting her conduct to circumstances, and accepting theories according to the character of the time, she would have developed a consistent theory out of her own system, and would have been most severe when she was most free from external influences, from political objects, or from temporary or national prejudices. She would have imposed a common rule of conduct in different countries in different ages, instead of submitting to the exigencies of each time and place. Her own rule of conduct never changed. She treats it as a crime to abandon her, not to be outside her. An apostate who returns to her has a penance for his apostasy; a heretic who is converted has no penance for his heresy. Severity against those who are outside her fold is against her principles. Persecution is contrary to the nature of a universal Church; it is peculiar to the national Churches.

While the Catholic Church by her progress in freedom naturally tends to push the development of States beyond the sphere where they are still obliged to preserve the unity of religion, and whilst she extends over States in all degrees of advancement, Protestantism, which belongs to a particular age and state of society, which makes no claim to universality, and which is dependent on political connection, regards persecution, not as an accident, but as a duty.

Wherever Protestantism prevailed, intolerance became a principle of State, and was proclaimed in theory even where the Protestants were in a minority, and where the theory supplied a weapon against themselves. The Reformation made it a general law, not only against Catholics by way of self-defence or retaliation, but against all who dissented from the reformed doctrines, whom it treated, not as enemies, but as criminals,--against the Protestant sects, against Socinians, and against atheists. It was not a right, but a duty; its object was to avenge God, not to preserve order. There is no analogy between the persecution which preserves and the persecution which attacks; or between intolerance as a religious duty, and intolerance as a necessity of State. The Reformers unanimously declared persecution to be incumbent on the civil power; and the Protestant Governments universally acted upon their injunctions, until scepticism escaped the infliction of penal laws and condemned their spirit.

Doubtless, in the interest of their religion, they acted wisely. Freedom is not more decidedly the natural condition of Catholicism than intolerance is of Protestantism; which by the help of persecution succeeded in establishing itself in countries where it had no root in the affections of the people, and in preserving itself from the internal divisions which follow free inquiry. Toleration has been at once a cause and an effect of its decline. The Catholic Church, on the other hand, supported the mediæval State by religious unity, and has saved herself in the modern State by religious freedom. No longer compelled to devise theories in justification of a system imposed on her by the exigencies of half-organised societies, she is enabled to revert to a policy more suited to her nature and to her most venerable traditions; and the principle of liberty has already restored to her much of that which the principle of unity took away. It was not, as our author imagines (p. 119), by the protection of Lewis XIV. that she was formidable; nor is it true that in consequence of the loss of temporalities, "the chill of death is gathering round the heart of the great theocracy" (p. 94); nor that "the visible decline of the papacy" is at hand because it no longer wields "the more efficacious arms of the great Catholic monarchies" (p. 190).

The same appeal to force, the same principles of intolerance which expelled Catholicism from Protestant countries, gave rise in Catholic countries to the growth of infidelity. The Revolutions of 1789 in France, and of 1859 in Italy, attest the danger of a practice which requires for its support the doctrines of another religion, or the circumstances of a different age. Not till the Church had lost those props in which Mr. Goldwin Smith sees the secret of her power, did she recover her elasticity and her expansive vigour. Catholics may have learnt this truth late, but Protestants, it appears, have yet to learn it.

In one point Mr. Goldwin Smith is not so very far from the views of the Orange party. He thinks, indeed, that the Church is no longer dangerous, and would not therefore have Catholics maltreated; but this is due, not to her merits, but to her weakness.

Popes might now be as willing as ever, if they had the power, to step between a Protestant State and the allegiance of its subjects (p. 190).

Mr. Smith seems to think that the Popes claim the same authority over the rulers of a Protestant State that they formerly possessed over the princes of Catholic countries. Yet this political power of the Holy See was never a universal right of jurisdiction over States, but a special and positive right, which it is as absurd to censure as to fear or to regret at the present time. Directly, it extended only over territories which were held by feudal tenure of the Pope, like the Sicilian monarchy. Elsewhere the authority was indirect, not political but religious, and its political consequences were due to the laws of the land. The Catholic countries would no more submit to a king not of their communion than Protestant countries, England for instance, or Denmark. This is as natural and inevitable in a country where the whole population is of one religion, as it is artificial and unjust in a country where no sort of religious unity prevails, and where such a law might compel the sovereign to be of the religion of the minority.

At any rate, nobody who thinks it reasonable that any prince abandoning the Established Church should forfeit the English throne, can complain of a law which compelled the sovereign to be of the religion, not of a majority, but of the whole of his subjects. The idea of the Pope stepping between a State and the allegiance of its subjects is a mere misapprehension. The instrument of his authority is the law, and the law resides in the State. The Pope could intervene, therefore, only between the State and the occupant of the throne; and his intervention suspended, not the duty of obeying, but the right of governing. The line on which his sentence ran separated, not the subjects from the State, but the sovereign from the other authorities. It was addressed to the nation politically organised against the head of the organism, not to the mass of individual subjects against the constituted authorities. That such a power was inconsistent with the modern notion of sovereignty is true; but it is also true that this notion is as much at variance with the nature of ecclesiastical authority as with civil liberty. The Roman maxim, _princeps legibus solutus_, could not be admitted by the Church; and an absolute prince could not properly be invested in her eyes with the sanctity of authority, or protected by the duty of submission. A moral, and _à fortiori_ a spiritual, authority moves and lives only in an atmosphere of freedom.