John Donne - Delphi Poets Series (46 page)

2. Because heresy, which is treason against divine majesty, is of all crimes the principal object of that court, I say there is nothing at all heretical about self-homicide, according to anything extant in the canon law. This is true, even allowing the widest definition of heresy, which (according to Simancas) is, “Anything against catholic faith; that is, scriptures rightly understood, or the traditions and definitions of the church or general councils lawfully gathered, or definition of the apostolic see, or the common opinion of the Fathers, in a matter of faith.”

Self-homicide may perhaps to some seem possessed of bad qualities. It may be ill-sounding, audacious, or perhaps discreet heresy. But all of these proceed from the indisposition and distempered taste of the accuser, who must not always be idly flattered and pampered but invited to the search and discovery of truth; otherwise, the accuser, even if he is the greatest prince in the world, would have no access to his realm but be cramped in a wretched corner.

We may cast a glance upon each part of the definition of heresy. The question whether or not self-homicide is against the scriptures rightly understood will be more properly and naturally examined when we come to the last part of this essay, concerning divine law. Next, there is no tradition or definition at all by the church on self-homicide, much less as a matter of faith, which is the second limb of the definition. There is no decree by any general council. There is no rescript or bull by any pope.

What about the common opinion of the Fathers? We lay aside the fact that this cannot be a safe rule because, as Azorius notes, “Controverters on both sides often say that theirs is the common opinion, and certainly what is the common opinion in one age is not that in another. Indeed, what is common opinion in one kingdom at the same time is not that in another kingdom, although both are Catholic. In Germany and France by common opinion adoration is not due to the cross but in Spain by common opinion it is.” It cannot appear from the canon law that there is a common opinion of the Fathers against self-homicide. Gratian, who alone of the compilers of canon law, as far as either my reading or search has discovered, touches the point, cites only two Fathers, Augustine and Jerome, and the latter is of the opinion that there may be some cause to do it. But in the canon law I find no words either to lay upon it the infamous name of heresy, or to label it with the mark or style of sin, or to condemn the deed by inflicting any punishment on the offender!

I speak here of that canon law with which the canonists deal, the decretal letters and all the extravagants [i e., the originally uncodified decretals]. That learned and ingenious bishop of Tarragon, Antonio Agustin, has taught us what we should think of Gratian’s
Decretal.
He says, “He is hardly worth much reprehension who, having nothing that is profitable or of use unless he borrows it, is admired by the ignorant and laughed at by the learned, who never saw the books of the council, nor the works of the Fathers, nor the registers of the pope’s letters, and whose compilation lacked the confirmation by Eugenius III that is falsely attributed to it.” At any rate, Gratian does not have so much authority that by his inserting an imperial law or fragment of a Father it should therefore be canonized and grafted into the body and force of canon law. For then, even if that law was abrogated by the emperor, it would still be alive and bind by a stronger obligation in the canon, which Alberigo Gentili proves to be against the common opinion! Still, by consent this much is afforded Gratian, that texts cited by him have as much authority in him as they had in the author from whom he took them. Therefore, when we come to handle in their proper place the reasons of particular authors, we omit none whom Gratian has cited.

3. In this distinction we handle the opinion of the canon law on self- homicide, not because Gratian cites it but because the canons of all councils are now appropriated as canon law. So we shall consider a canon he cites from the Councils of Braga.

First, although he does not cite it, we shall not conceal the Council of Auxerre, which was held (before the other) under Gregory the Great in the year 590. The civil laws, by limitation of persons and causes, gave some restraint and correction to this natural desire to die when we wish. They did so out of a need to sinew and strengthen as far as they were able the doctrine of our blessed savior, who, having ended all bloody sacrifices, enlightens us with another doctrine, that to endure the miseries and afflictions of this life is wholesome and advantageous to us. The Councils, also perceiving that this first engrafted and inborn desire needed all possible restraints, contributed their help.

This canon, then, has these words, “If any kill themselves, oblations in that instance shall not be received.” It seems that preaching and catechizing had wrestled and fought with the Christian’s natural appetite and tamed them to perplexity as to whether or not it might be done. Thinking to make sure work in an indiscreet devotion, they gave oblations to the church to expiate the fault—if there were any. The Council forbids receiving these oblations. However, it decrees nothing on the point as a matter of faith, only providing against an inconvenient practice. What it decreed was not very obligatory or considerable, since it was only a diocesan council of one bishop and his abbots, one whose canons Binius presents because, he says, although some of them are out of use (of which this may be one), they tell us something about antiquity.

The other council that Gratian cites—and besides these two I find none—has these words, “For those who kill themselves there shall be no commemoration at the oblation, nor shall they be brought to burial with psalms.” This intimates, as the language of the canon law has it, a dog’s burial.

But the gloss on this borrows from another canon, that if the person was not under excommunication, it is of no effect, “For we may communicate with him dead with whom we may communicate living.” This shows that his act of dying in this way put him into no worse state in this respect. This answers the first punishment inflicted by that canon.

As for the second, which is denial of Christian burial, it is very severe to conclude from that the heinousness of the act, since the true canon law denies Christian burial to men slain at a tilting, even though it affords them, if they are not already dead, all the sacraments applicable in that extremity—penance, eucharist, and unction. Although this gloss denies burial to men whom they deem in a state and way of salvation, it gathers reasonably that “This punishment does not reach to the dead but works only to deter the living,” referring to this purpose an epistle of Gregory the Great that says, “So much as a sumptuous funeral profits a wicked man, just so much a base funeral or none at all harms a godly man.”

Last, there is the Clementine canon that lists many causes for which Christian burial is denied. One of them is a local interdict concerning the time when the holiest man who dies in some place cannot be buried, and the rule sometimes extends to whole kingdoms! This canon instructs us sufficiently that one may be subject to such punishment (if it is in any law) and still not be guilty of such a crime as this one is reputed to be.

The Romans in their religious discipline refused solemn burial to any who perished by lightnings. However, they buried offenders in the town, as they did vestals and emperors, since their dedication to God had delivered the nuns and their sovereignty had delivered the emperors from the bondage of law. So did justice, to which they had made full satisfaction, deliver punished offenders. Since both Saint Jerome and the Councils of Braga inflict upon those catechumens who, although they had all other preparations and degrees of maturity in the Christian faith, departed this world without baptism, the same punishments as they do upon self- murderers, making them equal in punishment and consequently in guiltiness, I think it ill becomes the doctrines of our times and the analogy to pronounce so desperately the damnation either of the unbaptized or of self- homicides.

Here we end our second distinction of this second part, which was allotted to the examination of the canon law.

Distinction III

1. Among arguments that are conclusions deduced out of reason and discourse, after these general laws of the empire and of the church I may justly rank the laws of particular states. (Those of the church might seem to merit first consideration by virtue of their generality; we handled them second because their power has always been litigious and questionable).

According to our English law, therefore, he who kills himself is reckoned as one who commits a felony against himself. This law has not been long in practice, for Bracton seems not to know it; in an entire chapter on the title he only repeats the words in the imperial law that I cited before and so acknowledges that if he admitted that law he would admit the exception, without just cause. Whether or not this felon against himself is chargeable with any offense, he forfeits his goods. These goods, devolving to the king’s almoner, are to be employed on the king’s behalf in pious and charitable uses. According to this law, the deed is not only homicide but also murder. But the reasons alleged are only that the king has lost a subject, that his peace is broken, and that it is an evil example.

In my understanding, this law has no foundation in natural or imperial law, nor does it receive much force from those three reasons, having by custom alone put on the nature of law, as most of our law has. I believe it was first introduced among us because we were excessive in the natural desire of dying in this way. What has led us back from it is not a better understanding of nature but the wisdom of lawmakers and observers of things fit for the institution and conservation of states.

In ancient commonwealths the numbers of slaves were infinite. Both in Rome and in Athens there were always ten slaves for every citizen. Pliny says that in Augustus’s time Isidorus had more than 4,000 and Vedius Pollio so many that he always fed his fish in ponds with their blood. Since such servitude has eroded, the number of wretched men still exceeds the happy, for every laborer is miserable and beastlike compared to the idle, abounding men. It was therefore thought necessary by laws and by the opinions of religion—as Scaevola is alleged to have said, “One expects states to be deceived about religion”—to take from these weary and mascerated wretches their ordinary and open escape and ease, voluntary death.

Therefore, self-homicide, like hunting and usury, seems to be prohibited, as a lawyer says, “Lest men be enticed.” Thus, to withdraw his nation from wine Muhammad brought them to a religious belief that in every grape there was a devil.

What among us is a natural disease, stealing—for like all others this vice may abound in a nation as well as in a particular man, and Doro- theus relates at length the sickness of one of his friars who could not abstain from stealing, although he had no use for what he stole—has drawn from a Council held at London under Henry III a canon that excommunicates the harborers of thieves, “Who thereby abound in the kingdom of England.” The canon mentions no fault except this one. And from custom, princes, and parliaments come severer laws against theft than are justifiable by nature or by the Jews’ judicial law (Exod. 22:1). For our law hangs a man for stealing in extreme necessity, even though such necessity brings him to consider all things as originally belonging to the community, and even though he is bound in conscience to steal and, according to some opinions, would be a self-murderer if he did not steal.

Duns Scotus, disputing against the laws of those nations that allow the death of a thief who robs by day, because whoever kills such a thief is expressly by God’s law a murderer, asks, Where have you read of excepting such a thief from the law, “You shall not kill” (Exod. 20:13)? Or where have you seen a [papal] bull fallen from heaven to justify such executions? It may be that a natural leaning in our people to such a manner of death weakened the state and might have occasioned severer laws than the common ground of all laws seems to support.

Therefore, when the emperor made a law to stop a common abuse of impious men, decreeing that no man might give anything to the clergy, not even by bequest, Saint Jerome said, “I lament and grieve, not that such a law is made, but that our manners have deserved such a law.” Just so, in contemplating these laws, I mourn that the infirmity and sickness of our nation needs such medicines.

The same must be said of a similar law in the earldom of Flanders. If it is true that they allow the confiscation of goods in only five cases, of which self-homicide is one, thus ranking it with treason, heresy, sedition, and deserting the army against the Turk, then these are strong and urgent circumstances to reduce this desire in men.

2.—Where you find many severe laws against an offense, you do not safely conclude an extreme enormity or heinousness in the fault. You safely infer a propensity of that people at that time to that fault. For this reason, Ignatius and many others—even entire councils—were forced to pronounce that those who fasted on Sundays were murderers of Christ. So in France the laws abound against duels, to which they are head- longly apt. So the resolutions of the Spanish casuists and the bulls of the popes are repeated and exaggerated in that nation against bull-fighting, to which they are so enormously addicted. Still, of itself bull-fighting is no sin, as Navarrus, retracting his opinion after seventy years, at last holds.

These severe laws no more increase a fault than mild punishments diminish it. No man thinks rape a small fault, although Solon punishes it, if the victim is a virgin and free-born, with money that would amount to our five shillings. The Salic Law punishes pecuniarily and at no high price a witch convicted of having eaten a man. Therefore, Bartolus allows that, in cases of public profit or detriment, the judges may extend an odious and burdensome law beyond the letter and restrain a favorable and beneficial law within it, even though this is against the nature and common practice of both these laws.