Christianity a Doctrine of the Cross, Doctrine · Chapter 3
CHAP. III. Of Invasion of Legal Rights, under the persecuting Emperors.
HAving said thus much in the foregoing Chapter, to prove the Subjects of the Empire had legal Rights; I now proceed in this to shew what Invasions were made upon them, to try their Passive Obedience under these Emperors.
Now the foremention'd Rights and Immunities of the Christians, as they were Roman Subjects, and the common benefit and favour of the standing Roman Laws, were invaded in the primitive Persecutions. I do not mean, Laws for Christianity; our holy Religion not being like to have any establishment of Laws, whilst the Emperors were Heathens. But Laws for Liberty, and Property, and common Justice, as Roman Subjects. Admit it was criminal by the Constitutions of the Empire, and that the Christians, did not only want Laws for Religion, but had Laws against it: yet had they just ground for this Complaint, because, when indicted as Criminals, they were not permitted, as ‖Cum accusati ut nocentes, à vobis aliter tractamur, quam pares nostri, id est, caeteri nocentes. Tert. Apol. c. 2.Tertullian says, to suffer only according to Law, as other Criminals, or vouchsafed the Justice of legal Tryals. For the cruel Emperors, and their Presidents, in persecuting the Martyrs and Confessors, infringed their civil Rights, denying them the Justice of Laws, and Legal Claims, and treating them contrary to all Forms of Justice, which were as much their Birth-right, as any of their Fellow-subjects.
1. To be tortured for Christianity, when they confess'd it, was absolutely against Law. For the legal use of Torture, was only as a means of Inquisition, to force Confession. It was not the legal Punishment of the Fact, but only the legal means of Discovery, and bringing it to light. By your Law, Torments are not used for Punishment, but only for Inquisition, says *Tormenta non pro poena adhibentur, soli quaestioni temperantur. Apol. c. 2.Tertullian. Their intent, was only to extort the Truth, and the Ministers of Law, who made use thereof, were only †Ib. & ad Nationes lib. 1. cap. 2.Veritatis extorquendae Praesides, or Presidents that sate thereby to force out the Truth. So that by Law, they were never to torture Confessors, but Denyers. ‖Vestram illis servate Legem, usque ad Confessionem. Hoc leges jubeni, hoc Senatils Consulta, hoc Principum m…ndata definiunt. Apol. c. 2.If you would keep to your own Laws, saith he, to the Orders of Senate, or Constitutions of Princes, you should torture no man longer, than till you have made him confess. And therefore when the Christians confessed their Accusation, as they frankly did when brought in question for the Faith of Christ, to torment them on still, was most illegal. It was an utter perverting of Law. And accordingly *In Octav. p. 31.Minutius, who was himself an Advocate and Pleader in their Courts, calls it exercising perversam Quaestionem, a perverting the real design, and legal use of Inquisition. And before him Tertullian, expert also in the Roman Laws, †Ad Nationes l. 1. c. 2.tells them this course was, tormentorum officia mutare, to change the Office and use of Tortures. It is such a perverseness, ‖Ista Perversitas — quae vos adversus Formam, adversus Naturam judicandi, contra ipsas quoque Leges ministret. Apol. cap. 2.says he, as makes the very Ministers of Law and Justice, to minister against both, to overthrow Laws, and the true nature and common form of Judicature.
But this most tyrannical and illegal Method, was the way they took with the Primitive Confessors. When they professed themselves Christians, upon Judicial Accusations, their Persecutors tortured them to make them deny it: and still, the more bravely and resolutely they Confessed, the more barbarously were they tortured. When, in the Case of all other Criminals, †Ad Nationes l. 1. c. 2.says Tertullian, you urge the Deniers by Torture to Confession: the Christians, when they Confess of themselves, you press by Torture to deny their Accusation. Crudelius soeviebamus, ‖In Octavio, p. 31.says Minutius, ut torqueremus Confitentes ad Negandum. Quite contrary to what they did with others when accused, they put them to the Question for Confessing: and the more they Confessed, the more barbarously the others raged, and the more cruelly they Tortured them. Here then, the Praetors, and the Presidents, in all the Cities and Provinces, who in the Persecutions sate to Judge the Christians by Law, Tortured them against Law. And this breach of Law and Privilege, was in a Point the most dear and tender, of all others. For Life, and Member, are by far the most valuable Rights and Freeholds. And under these illegal Tortures, many expired, being Murdered by these wrongful and illegal Executioners. And if they survived the Torture, to Dye by a more formal stroke, the illegal Torture was much worse, and more terrible to bear, than the Death it self was. The Pains of Torture, were not less exquisite than the Pains of Death, but much longer. And it was a greater, and more tedious tryal of Patience, the bear the Rackings, and Tearings, and Burnings of the Flesh, and other most exquisite and studied Pains of the Tormentors: than, in the last and Capital Punishment, to endure the sudden Stroke of the Sword, or the Teeth of the Bears and Lions.
2. Again, in Judicial Tryals, Not to be heard in their own Defence, and permitted to speak for themselves, was absolutely against Law. Inauditos, & indefensos, as Tertullian †Apol. c. 2.tells them, non licet omnino damnari. It is not the manner of the Romans, said Festus to the Jews, to deliver any Man to die, before he which is accused, have the Accusers Face to Face, and have Licence to answer for himself, concerning the crime laid against him. Act. xxv.16. Nay, to deny them, not only the liberty of speaking for themselves, but the benefit of Advocates to speak and plead for them, was an illegal thing. This was a Provision and Allowance, which Law, and the Custom of the Courts, had made for the greatest Criminals. We were used to undertake the Patronage and Defence, of the Incestuoas, yea, of the Sacrilegious, of Murderers and Parricides themselves, says ‖Quodcunque Dicimur, cum alii Dicuntur, & proprio ore, & mercenaria advocatione utuntur, ad innocentiae suae commendationem respondendi, altercandi facultas patet; quando nec licet indefensos & inauditos omnino Damnari. Tert. Apol. c. 2.Minutius the Lawyer. †In Octav. pag. 31.Whatever ill is charged on us, (as the Heathens presumed the Christians Guilty, of Impiety, Sacrilege, Treason, and incestuous mixtures, &c.) when the same is judicially charged on others, they have liberty both to speak for themselves, and to Fee Advocates to make out their Innocence: there is freedom to answer, to plead and debate the matter: and all this, because it is by no means lawful to condemn any, till he has been heard, and made his Defence, says Tertullian. And such was the care of Law, and the course of Judicature, for all accused persons; that the Cognizance, and Disquisition of Court, rested not in the confession, or manifestation of General Names: but, before Sentence, proceded further, to discuss the Quality and Circumstance… of Actions. †Si de aliquo nocente Cognoscitis, non statim confesso eo, nomen homicidae, vel Sacrilegi vel incesti, vel publici hostis (ut de nostris elogiis loquar) contenti sitis ad pronunciandum, nisi & consequentia exigatis, qualitatem facti, locum, modum, tempus, conscios, Socios. Apol. cap. 2. & … Nationes, l. 1. c. 2. &c. 6.When you take Cognizanc… of any Criminals Case, says Tertullian you d… not think it enough to proceed to Sentence on a bare confession of the name of Homicide, Sacrilegious, Incestuous, Publick Enemy, (to instance in the Titles you give us:) but stay till you have discussed the Consequences, the quality of the Fact, the place where, the time when, the manner how, the instruments wherewith it was committed, who were Parties, and who were Privy to it.
But now, all these were carried contrary, in their Proceedings with the Christians. They were used to condemn them, without giving them the justice of a Hearing: not permitting them to plead their own Cause, nor admitting Advocates to plead it for them. When all this liberty of Pleading, either for themselves, or by their Council, is allowed by you to other Criminals: yet, says Tertullian, ‖Sed Christianis solis nihil permittitur loqui, quod causam purget, quod veritatem defendat, quod judicem non faciat injustum. Apol. c. 2.to the Christians alone there is no permission to say any thing, that may purge the Crimes they are presumed Guilty of, or defend the Truth, or prevent the Judges passing an unjust Sentence. You do not allow them time, says †Neque accusationi, neque recusationi, spacium commodetis. Ad Nation, l. 1. c. 2.he again, to hear their Accusations, and to refute them. Tho we were ready to be Advocates, for Sacrilegious, and Paricides; yet, as for these, ‖Hos nec audiendos in totum putabamus, p. 31.says Minutius, we did not think fit to afford them any Hearing.
Or, if they did hear them at all, it was not Discutere de qualitate, circumstantiis, & ordine admissi; i.e. to discuss and take cognizance, of the quality, circumstances, and order wherein they perpetrated the Crimes alledged, as was always done with other Criminals: but that only you look after, †Apol. c. 2. & ad Nation. l. 1. c. 2. 6.says Tertullian, which is necessary to expose us to the Publick Hatred, the confession of the Name [of Christian] not the examination of any of those Crimes, which you groundlesly presume to be practised by those, who profess that Name. They presumed the Name, to carry with it a sufficient Conviction of the most horrid Crimes. As of ‖Tertull… Apol. c. 7. Minut. Fol. p. 9.Slaying of an Infant, and a Thyaestean Banquet, or Feasting upon it: of all sorts of Lasciviousness, and Incestuous Mixtures at their Meetings, after the Dogs tied to the Candlesticks, by leaping at a Crust cast before them for that purpose, had thrown down, and put out the Lights: Of Traiterous Conspiracies against the Emperor; and the like. But the Accusers never offered, nor did the Judges stay, for any other Evidence of all this, than their mere owning themselves Christians. They were always Praesumta, never Probata Crimina; mere Presumptions without Proofs, as †Apol. c. 2.Tertullian says. Cum praesumatis de sceleribus nostris, ex nominis confessione, says ‖Ib.he again: and †Id. ad Nation. l. 1. c. 3.ut inimicum nomen, sub praesumptione Criminum Puniatur. That is, your way is to presume the Crimes, from the denomination of Christians; and to punish an hated name, under a presumption of Crimes, which it knows nothing of. The utmost, that ever was alleged in proof of these Crimes, was only uncertain hear-say, as ‖Apol. c. 7.Tertullian notes, or common, but ungrounded Fame; which Judge, that pretends to Justice, will ever Condemn a Man, or take away his Life upon. All which, was most contrary to the Regular Course of Roman Justice, which went not by uncertain hear-says, that can make no Evidence; but by Proofs, which could aver the Crime to the Persons Face: Condemning no Man, as Festus said, till he had confronted the Evidence, there to make his exceptions, and had his Accusers Face to Face. †Et ideo Praeses Provinciae id sequatur, quod convenit cum ex fide eorum, quae probabuntur. Digest. lib. 1. tit. 17. l. 6. §. veritas.The President of the Province is to follow what is fit, proceeding by the Faith of what is proved, says the Law.
Such, in these Points, was the illegal usage, of the Martyrs and Confessors: and that, when they came upon their Tryal, not only for their Estates; but also for what is more to be valued, and what, when once injuriously taken away, is never to be restored or compensated, their Lives too.
3. Moreover, in Judicature, not to have any regard to Law, but all to his own will and pleasure, is not only illegal, but an utter overthrow of Laws. Making them of no use to the Subject, which is the same for the time, as if there were no such things; and, instead of publick Laws, subjecting them to private Discretion, Inclination, and Affections. Now, this was sometimes the Case, both of the Christians, and other Subjects of the Empire, under some of the persecuting Emperors. Galerius, one of the bloodiest of them, Dissolving all the Laws, ‖Licentia rerum omni…an solutis Legibus, assumpta, & judicibus data. De Mort. Persec. c. 22.says Lactantius, assumed and gave a Licence of all things to his Judges. Here was a turning Laws out of Doors, and Acting all by Discretion. And lest the Law, should make any part of those Judges Discretion; he sent out such into the Judgment-Halls, as did not know Law, and removed thence such as were capable to Plead, and lay it before them. †Judices militares humanitatis Literarum rudes, sine assessoribus in Provincias immissi. Causidici sublati, JureConsulti aut relegati, aut necati. Ib.He sent out Military Judges, adds he, that were ignorant of the Laws and learned Studies, and that too without Assessors, whose part it would have been to have given them direction therein, into the Provinces. He took away all Pleaders or Advocates; and either killed, or banished the learned Lawyers.
4. Further yet, to be thrown off as Out-Laws, and denied all benefit of Law and Justice, is to suffer the highest Invasion of Claims and Properties, and to be deprived of all Rights, and Laws which are the Guard thereof, at once. To invade even one Law, that is of main importance, and a chief Security to the Subjects, is thought by the Advocates for Liberty, a sufficient ground for Resistance against a Prince. This invading of a Law, amounts to no more, than denying us the benefit of that Law. And if it give such warranty, to be thus unjustly denied the benefit of one Law, in some concerning Case: how much stronger is the Argument, and greater the warranty for Arming themselves, when they are unjustly denied the benefit of all Laws, and not allowed the Protection or Claim of Law, in any Case? But under Dioclesian, this was the miserable, the unrighted, and exposed State of the Christians. The Emperor ordered, as ‖Edictu… quo cavebatur, ut adversus cos omnes actio caleret; ipsi non de injuria, non de Adulterio, non de rebus ablatis agere possent. De Mort. Persec. c. 13.Lactantius relates, by an Edict, that against them all, any Man might bring an Action: but as for them, they should be capable to bring none, neither on the score of any injury, nor of Adultery, nor for any thing, that had been taken from them.
5. Lastly, when a People suffer invasion of Rights, and groan under heavy Oppressions and Persecutions: to be denied the Liberty of Petitioning their Prince, or of Modestly setting out to him their sufferings, and humbly and dutifully praying Redress; is against the Common Liberties of Humanity and Nature, and the allowance of all just and equal Governments. Especially, to make such Petitions Capitally Criminal, and animadvert upon the Petitioners, by extreme barbarity, and unheard of ways; is monstrous illegality and injustice. But in the Arian Persecution under Valens, when the Christians knew of no other weapons against Persecutors, but Prayers and Tears, to use the Speech of †1. Invect. p. 91.Gregory a stout Assertor of the Orthodox Faith in that Persecution, this was their Case. For no fewer, th…n eighty Clergy-men, whereof Urban, Theodorus, and Menedemus were the chief, being sent by their suffering Brethren, to Petition the Emperor Valens … Nicomedia, and humbly to represent the Violences and Miseries they suffered, from the Persecuting Arians. To prevent Tumult and Sedition, as the Story is related by ‖Hist. Eccl. l. 4. c. 16.Socrates, and †Hist. Eccl. l. 6. c. 14.Sozomen, by openly murdering, against all Right and Reason, so many Pious Men, who had done nothing am…ss; under pretence of Banishment, he ordered them all to be put on Board a Ship, as if they were to be Transported. And then, commanded the Mariners, when they had got them into the midst of the Sea, to set the Ship on Fire, (making their own escape by their Boat;) that this way, they might not only all die a miserable death, but when dead, be deprived of Sepulture.