O ye kings: be instructed, ye judges of the earth”;102 Isaiah 33, “For the Lord is our judge, the Lord is our lawgiver, the Lord is our king”;103 Jeremiah 23, “A King shall reign and prosper, and shall execute judgment and justice in the earth.”104 If, therefore, it is lawful for Christians to have a prince, why not a judge also?
Second, because the laws would have no benefit if there were no judgment, but laws must not be abolished, as we showed above, nor therefore judgments.
Third, Scripture in both Testaments admits judgments, for we read this in Deuteronomy 16: “Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment”;105 1 Corinthians 6: “If then ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church. I speak to your shame. Is it so, that there is not a wise man among you? no, not one that shall be able to judge between his brethren?”106 There the apostle admonishes the Corinthians to appoint judges among themselves in those cases where they did not necessarily have to go to the tribunals of the pagans.
The arguments that were posed in the beginning are not difficult to disprove. To those words of Matthew 5, “And if any man will sue thee at the law, and take away thy coat, let him have thy cloak also,”107 I reply with St. Augustine in his epistle 5 [138] to Marcellinus that this phrase must be understood to concern only the readiness of the spirit, for in the same place our Lord says: “Whosoever shall smite thee on thy right cheek, turn to him the other also.”108 Nevertheless our Lord Himself when smitten on the cheek did not turn the other, but said in John 18, “Why smitest thou me?”109 by which example He taught how His precepts should be understood.
To the words of the apostle in 1 Corinthians 6, “There is utterly a fault among you, etc.”110 I say, first, that the word fault [delictum] in Greek is ἥττημα, which does not mean “sin” but “imperfection,” and Theodoretus interprets it in this way. Second, if fault means “sin,” as Chrysostom and Ambrose interpret this passage, and Augustine in Enchiridion, chapter 78, and book 2 of De sermone Domini in monte, chapter 15 [11] and conclusion 24 on Psalm 118, then it is called fault not because it is a sin in itself, but because in general it does not lack sin—either because of the end, as when a lawsuit stems from greed; or because of the means, as when a lawsuit is discussed with hatred, ill will, and quarrels; or because of injustice, as when deceits and treacheries are involved; or because of scandal, as happened to the Corinthians, whose litigations scandalized the pagans. Third, judgments are not blamed on the judge, but on those who take another man to court. Therefore, even if taking another man to court were a sin, judging would not be a sin, as judgments impose an end to quarrels, which is good.
The fourth proposition
It is lawful for the Christian magistrate to apply capital punishment to those who disturb the public peace. This is proved, first, by Scripture, for in the law of nature, the law of Moses, and the law of the Gospel we have precepts and examples regarding this. In fact, in Genesis 9 God says: “Whoso sheddeth man’s blood, by man shall his blood be shed,”111 which words cannot be taken as a prediction, for it would often be false, but must be taken as an order and a precept. Hence in the Chaldaic paraphrase it is rendered: “Whoever sheds men’s blood before witnesses, by sentence of a judge his blood should be shed.”112 In Genesis 38 Judah said: “Bring her forth, and let her be burnt,”113 whereby the Patriarch Judah as lord of the household sentenced the adulteress to death by fire.
In the law of Moses there are many precepts and examples, as Exodus 21: “He that smiteth a man, so that he die, shall be surely put to death,”114 and Moses himself and Joshua, Samuel, David, Elias, and other most holy men killed many people. In Matthew 26: “All they that take the sword shall perish with the sword,”115 which can be understood correctly only as: anybody who commits a murder must in turn be executed by the magistrate. Our Lord, in fact, reproached Peter not because just defense is unlawful, but because he did not so much want to defend himself or our Lord as to revenge a wrong done to our Lord, although he had no official authority, as Augustine rightly explains in his treatise 112 on John, and Cyril in his commentary on John, book 11, chapter 35. Moreover, in Romans 13 the apostle says: “But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil,”116 meaning that the sword is given by God to the princes against the evildoers. Therefore if such evildoers are found in the Church, why may they not be punished with the sword?
Second, it is proved from the testimonies of the Fathers. In epistle 3 to Exuperius, chapter 3, Innocent I is asked whether it is lawful for the magistrate to use capital punishment for criminals after they have been baptized, and he replies that it is absolutely lawful. Hilary, in canon 32 to chapter 26 of Matthew, says that it is lawful to kill in two cases, if a man is fulfilling the duty of judge or if he kills in self-defense. Jerome in the commentary on chapter 22 of Jeremiah says: “To punish murderers and impious men is not shedding blood, but applying the laws.” Augustine, in De civitate Dei, book 1, chapter 21, says: “Those who, holding a public authority, punished criminals with death did not violate that precept which says ‘thou shalt not kill.’”
Last, it is proved by reason, for it pertains to the good prince, who is charged with the protection of the common good, to prevent the parts from corrupting the whole upon which they depend. Therefore if he cannot keep all parts sound, he should rather amputate a part than allow the common good to be destroyed, just as the farmers cut offbushes and twigs that block the path to the vine and the tree, and the doctor amputates the limbs that could infect the whole body.
To the argument of the Anabaptists from Matthew 5, “An eye for an eye, etc.,”117 there are two replies. One is that since the old law was given to imperfect men, it permitted us to seek revenge, and commanded us only not to seek a greater injury than that which had been done. The reason is not that it is lawful to seek revenge, but that it is a lesser evil to seek a moderate revenge than an extreme one. Afterward Christ, Who was teaching to more-perfect men, removed such permission. Augustine interpreted the matter in this way in book 1 of De sermone Domini in monte, chapter 35 [19], and Contra Adimantum, chapter 8, and likewise Chrysostom and Hilary, but since revenge was prohibited in Leviticus 19 (“Thou shalt not avenge”),118 and since we read in Ecclesiasticus 28 “Who wants to revenge himself will find revenge from the Lord,” we might reply, more correctly, with St. Thomas, St. Bonaventure, and some others commenting on Peter Lombard’s Sententiae, book 3, distinction 30, that when the Lord says “An eye for an eye” He does not condemn that law and neither does He prohibit the magistrate from inflicting retaliatory punishment, but He condemns the perverse interpretation of the Pharisees and prohibits the desire and seeking of revenge on the part of private citizens. In fact, in Exodus 21 and Leviticus 24 God established a holy law by which the magistrate might use retaliatory punishment on criminals, and from this the Pharisees deduced that private citizens were permitted to seek revenge; in the same manner the Pharisees deduced that it was permitted to hate one’s enemies from “Thou shalt love thy friend.” But Christ teaches that these are distortions of the law and that we must love also our enemies and not resist evil, but be ready if need be to turn the other cheek to the person who smites us on one side. That our Lord was speaking to private citizens is clear from the words that follow, for the Lord speaks thus: “But I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.”119
It is to be observed that when Christ said, “Resist not evil,” He did not prohibit just defense but retaliation, for He commands us not to hit him who hits us, as Theophylactus rightly teaches.
