the good grain. God, therefore, does not prohibit us to repress heretics, to close their mouths, to deprive them of liberty of speech, to dissolve their assemblies, to break off all communication with them; he only prohibits us to shed their blood." It is true that, in certain cases, the imperial edicts decreed that penalty against heretics, pagans, and Jews; but they do not inflict it for the errors alone; it is always for some other crime opposed to public tranquillity and ordinarily punished with death by the Roman laws; for example, the obstinacy of heretics in remaining in a place which had been forbidden to them or in preaching their doctrine notwithstanding repeated orders to the contrary.

55. Rule 4.-To oppose vigorously Heresy at its birth.

In general, the prince was to use greater rigour against a rising heresy, than against one which he finds already established in his states, because it is both more easy and more safe to crush the evil in its birth, than to repress it when it has already made great progress. St. Jerome establishes the truth of this maxim in a few decisive words in his commentary on the epistle of St. Paul to the Galatians. "The spark,” he says, "must be extinguished as soon as it is perceived, the leaven must be separated from the mass, the rotten flesh must be cut

' Idem. Homil. 46 in Mattheum, n. 1, 2. (Oper. vol. vii. p. 482.)

2 Cardinal Bellarmin (Controvers. de Laicis, cap. xxi. prob. 2, 4, Operum, vol. ii.) supposes "that the emperors Valentinian III. and Marcian enacted the penalty of death generally against all heretics who endeavoured to propagate their errors. This assertion is in many points incorrect. First, the law cited by Bellarmin was enacted, not by Marcian, but by the emperors Valentinian II. and Theodosius the Great (Cod. Theodos. lib. xvi. tit. v. n. 18). Secondly, that law does not order all heretics indiscriminately to be put to death, but the Manicheans only, who should refuse, notwithstanding express orders, to depart from Rome. Another law of Marcian against the Eutycheans, which we shall cite in another place (n. 64), does not enact the penalty of death against all heretics, but only against those who, notwithstanding repeated prohibitions, should persist in preaching their heresy, and in sowing in the state the seeds of revolt and insubordination. Hence Jacques Godefroy, in his valuable commentary on the Theodosian Code, carefully observes, that the Christian emperors never enacted the penalty of death against heretics "on account of their religion alone." Jac. Godefroy, Comment. in Cod. Theodos. lib. xvi. tit. v. n. 9, 34, et alibi passim. See also Bingham, Origines sive Antiq. Eccles. tom. vii. lib. xvi. cap. ii. § 4.

away, the diseased sheep cast out of the fold, lest the whole house be burned, the entire mass be corrupted, the whole body be putrified, and all the flock be destroyed. Arius was only a feeble spark at Alexandria; but because he was not promptly extinguished, his flame spread desolation through the whole earth." It was on this principle that St. Leo the Great, who was raised to the popedom some years before the death of St. Jerome, was not content with using exhortations and ecclesiastical penalties, to bring back to the Church the Manicheans, who were discovered in Rome in his time, but moreover delivered up the most obstinate to the secular judges, lest, to use his own words, "the contagion of heresy should insensibly contaminate the rest of the flock."

56. The severe Provisions of the Roman Law on this point not approved by the Church.

However valuable these observations may be to justify, in the opinion of impartial men, the moderate application of the temporal power in matters of religion, we are far from approving indiscriminately all the provisions of the Roman law on this point: we even acknowledge that it seems difficult to defend some of them. But to answer the objections which may be grounded on them, it must be observed, in the first place, that the Church has never approved them. She approved, it is true, in a general way, the zeal of the Christian emperors for the preservation of the faith, and the repression of heresy; but there is no evidence that she ever approved the severe provisions in

"Scintilla, statim ut apparuerit, extinguenda est; et fermentum à massæ viciniâ semovendum; secandæ putridæ carnes; et scabiosum animal à caulis ovium repellendum; ne tota domus, massa, corpus et pecora, ardeat, corrumpatur, putrescat, intereat. Arius una scintilla fuit; sed quia non statim oppressa est, totum orbem ejus flammâ populata est."-Sancti Hieron. Comment. in Epist. ad Gal., cap. v. (Oper. tom. iv. parte i. p. 291.)

2 "Aliquanti verò (Manichæi) qui ita se demerserunt (in impietatis voraginem), ut nullo his auxilii possit remedio subveniri, subditi legibus, secundum Christianorum principum constituta, ne sanctum gregem suâ contagione polluerent, per publicos judices perpetuo sunt exilio relegati."--S. Leonis, Epist. 8 (alias 2). Fleury, Hist. Eccles. vol. vi. book xxvi. n. 57.

some of their constitutions, and especially the penalty of death, enacted by them in certain cases, against the public acts of impiety. On the contrary, it is certain that in the person of her bishops and holy doctors, she invariably advised princes and magistrates to use great moderation in enforcing the laws enacted against heretics, and that she strongly denounced the conduct of her ministers whenever they rigorously pressed the execution of those laws.1

57. Penal Laws generally severe in those Ages.

In the second place, it must be observed that, in order to appreciate justly some provisions of the Roman law, which appear too severe to persons living in our days, we must go back in spirit to the times when they were established; that is, to an epoch when penal laws were generally much more severe than they became after the mild spirit of Christianity had exercised its influence on public and private morals. Is it then surprising that the Roman law should infuse into its provisions against heresy and against other impious crimes, some of that rigour which in those days characterized its whole penal system? Was it not even natural that the Christian emperors should apply to crimes against the Christian religion, the penalties which had hitherto been invariably awarded against public acts of impiety? "In all ages," observes Comte de Maistre, on this subject, "there are some general ideas predominant among men, and which are never called into question. They must be laid to the charge of all mankind, or of none." 3

58. The Severity of those Laws modified in their execution. Moreover the severity of the imperial constitutions on this

Thomassin, Traité des Edits, vol. i. ch. xxx. &c. Observe in particular the details relating to the conduct of the holy doctors with regard to the heretics of their time; for example, of St. Augustine to the Donatists, of St. Ambrose and St. Martin to the Priscillianists, &c.

2 Ryan's Benefits of Christianity, ch. v. § 5. De Vouglans, Lois Crimin. de France, book ii. tit. iii. iv. et alibi passim.

3 Lettres sur l'Inquisition Espagnole, Letter ii. p. 53.

matter was very much alleviated in practice, by the spirit of moderation and mildness in which they were generally enforced. We have already seen with what prudent circumspection Constantine and his successors had slowly progressed in their edicts against idolatry; at first, allowing to the pagans the free exercise of their worship, then restricting it by degrees, according as circumstances permitted, and not striking the final blow until it could be given without shocking public opinion, or causing any disorder in the state. The same prudence is generally observable in the conduct of the Christian emperors against the heretics.' Even a passing inspection of the succession and objects of the imperial edicts on this point proves that they varied in severity according to the different circumstances of time and place and the moderation generally observed in the execution proves clearly that the object of the prince was much less to punish the heretics than to prevent the propagation of their doctrine, and to compel them, by salutary measures, to enter into themselves, and to confess their errors. This is the reflection of Sozomen, when speaking of the laws published against the heretics by Theodosius the Great. "This prince," he says, "promulgated severe laws against them, but he did not enforce them. His object was not to punish the heretics, but to bring them back to the true faith, by fear of chastisements; and he gave great praise to those who were converted of their own accord." This moderation, recommended by the bishops themselves 3 to the emperors, deserves more especial notice, from the fact that the heretics were emboldened by it to commit more excesses against the Catholics. St. Augustine clearly supposes this fact in one of his letters ;*

3

2

Traité des Edits, vol. i. ch. xxxii. et seq. Bossuet, Politique Sacrée, book vii. art. iii. prop. 10.

? Sozomen, Hist. Eccles. lib. vii. cap. xii. Tillemont, Hist. des Empereurs, vol. v. p. 399.

3 Note 1, art. 56.

St. Augustin, Epist. 100, ad Donatum, n. 2. Epist. 133, ad Marcellinum, n. 1. (Oper. vol. ii.) The first of these letters is quoted by Fleury, Hist. Eccles. vol. v. book xxii. n. 18.

and it was frequently the cause why the emperors were obliged to revive the former laws which their leniency had allowed to remain a dead letter. It was in particular the motive which obliged Honorius to revive the laws enacted by his predecessors against the different sects hostile to the Catholic Church. "Lest," he says, "the Donatists and the other heretical sects, as well as Jews and Pagans, should imagine that the former laws against them are abrogated, we order all our judges to enforce them rigorously, and to execute, without hesitation, whatever has been enacted against these different sects." 2

After these observations, which we have deemed necessary to answer some objections on this delicate subject, we shall now state briefly the principal provisions of the Roman law on Jews, heretics, apostates, and persons guilty of sacrilege; provisions entitled to more attention as being on this, not less than on many other points, the model of the laws of all Christian states during the middle ages.3

I. Laws against the Jews.

59. Severity of those Laws.

The first law of Constantine against the Jews was caused by the violence and public excesses of which many of them had been guilty. About ten years after his conversion, a certain number of Jews having presumed to insult the Christians publicly, so far as to cast stones at them, the emperor enacted, by public edict, that if any Jews should in future be guilty of a similar excess, he should be burned to death with all his accomplices. By the same law, he prohibits all persons from embracing Ju

1 Thomassin, Traité des Edits, vol. i. ch. xxxiii. n. 1, et alibi passim.

2 "Ne Donatistæ, vel cæterorum vanitas hæreticorum, aliorumque error quibus catholicæ communionis cultus non potest persuaderi, Judæi atque Gentiles (quos vulgo Paganos appellant), arbitrentur legum antè adversùm se datarum constituta tepuisse; noverint judices universi præceptis eorum fideli devotione parendum, et inter præcipua, quidquid adversùs eos decrevimus, non ambigant exequendum."-Cod. Theod. lib. xvi. tit. v. n. 46.

3 See the authors cited above, note 1, p. 48. Also Thomassin, Traité des Edits. vol. i. ch. xxx. &c.; vol. ii. ch. ix.