Death Penalty: Miscontextualizing Pope Nicholas in Fratelli Tutti

In this essay, I will demonstrate that Pope Francis's 2020 encyclical Fratelli Tutti miscontextualizes a quote from Pope Nicholas I (858-867) on the subject of capital punishment, making it look as if Pope Nicholas affirmed something beyond what he actually did. Our study will take us through a fair amount of history and textual analysis, but it will all serve to make the point clear in the end.Fratelli Tutti 265 on Pope Nicholas

In sections 263-270 of Pope Francis's encyclical Fratelli Tutti ("On Fraternity and Social Friendship"), Francis explains his case against the death penalty. After introducing the subject in first two paragraphs, in section 265 Francis attempts to construct a patristic pedigree to lend weight to his argument. The section quotes three authorities: Lactantius, Pope Nicholas I, and St. Augustine. Of the three figures, Nicholas is the most obscure, but also the only pope cited, so his teaching should be of especial interest to students of papal approaches to capital punishment. The quotation from Pope Nicholas is as follows:

From the earliest centuries of the Church, some were clearly opposed to capital punishment. Lactantius, for example, held that “there ought to be no exception at all; that it is always unlawful to put a man to death”. Pope Nicholas I urged that efforts be made “to free from the punishment of death not only each of the innocent, but all the guilty as well." During the trial of the murderers of two priests, Saint Augustine asked the judge not to take the life of the assassins with this argument, etc...(FT, 265)

This constitutes the sole patristic evidence Francis marshals to support his position (the remainder of the paragraph after the ellipses is an extended quotation from St. Augustine).

Inasmuch as the citation from Nicholas is a single, isolated fragment of a sentence, it is important to understand the context of Nicholas's comment in order to discern whether Nicholas meant what Pope Francis asserts him to be saying. We shall accordingly devote this essay to studying the context of Pope Nicholas's statement; the citations from Lactantius and Augustine will be left off for another time (although there is much that could be said about these quotes as well).

First, why is Francis citing Nicholas? Pope Francis's purpose in section 265 is to demonstrate that opposition to the death penalty in principle is not a modern novelty but has precedent in the patristic era. It is important to note that Francis is trying to establish principled opposition to captial punishment (as opposed to merely circumstantial opposition). He introduces the paragraph by saying, "From the earliest centuries of the Church, some were clearly opposed to capital punishment." We may therefore assume that the following citations are meant to demonstrate such instances of Christians "clearly opposed to captial punishment"—i.e., opposed to it on principle. This follows logically from Francis's introduction of the topic in section 263, where he says:

There is yet another way to eliminate others, one aimed not at countries but at individuals. It is the death penalty. Saint John Paul II stated clearly and firmly that the death penalty is inadequate from a moral standpoint and no longer necessary from that of penal justice. There can be no stepping back from this position. Today we state clearly that “the death penalty is inadmissible” and the Church is firmly committed to calling for its abolition worldwide. (FT, 263)

While I assume most readers are familiar with Francis's opposition to the death penalty in principle, it is important to establish this point, lest anyone try to walk back the pope's opposition by suggesting he is affirming a hypothetical right to exercise capital punishment while merely denying its application (as John Paul II did). Francis's teaching is that the death penalty is immoral simpliciter. This also explains why he opens paragraph 263 with the powerful quote from Lactantius that "there ought to be no exception at all." 

The Source: Responsa ad consulta Bulgarorum

Having established what Pope Franics thinks Nicholas's quote demonstrates, let us consider the source of the quote itself.

The source of Pope Nicholas's quote is a letter to the Khan Boris of Bulgaria written in 866. Boris, a recent convert, had written to Pope Nicholas with several questions about Christian faith and culture. Nicholas's lengthy response is known as the Responsa ad consulta Bulgarorum ("Answers to the Consultation of the Bulgarians"). The Responsa of Pope Nicholas can be found as Letter 97 in Migne's Patrologiae Latinae, Vol. 119. It is also found in the Monumenta Germaniae Historica, Epistolae VI, where it is listed as Letter 99.

The quote is taken from Chapter XXV of the Responsa. The Latin text as found in Migne says:

Et sicut vos Christus de morie perenni, qua detinehamini ad vitam aeternam reduxit, ita ipsi non solum innoxios quosque, verum etiam et noxios a mortis exitio satagite cunctos eruere...

Fratelli Tutti cites only the latter part of the quote (from "ita ipsa"); the Vatican's English translation has it as “to free from the punishment of death not only each of the innocent, but all the guilty as well." Another English translation (which we shall use in our subsequent quotes from the Responsa) is that prepared by W.L. North in 1925 and published in the Ernest Perels edition of the Monumenta Germaniae Historica. North's translation of Chapter 25 is essentially the same, saying, "And just as Christ led you back from the eternal death in which you were gripped, to eternal life, so you yourself should attempt to save not only the innocent, but also the guilty from the end of death."

Historical Context: The Conversion of Khan Boris and Bulgar Law

Fratelli Tutti claims that this passage demonstrates Pope Nicholas's opposition to the death penalty. Is that the case?

Let us take some time to understand the historical context that prompted the Responsa. Khan Boris had toyed with the idea of adopting Christianity for some time. His motivations are debated, but by the 860s he was in contact with emissaries from both the East Francian kingdom of Louis the German as well as the Byzantine Empire under Michael III ("the Drunkard"). Boris wished to convert to Latin Christianity to forge an alliance with Louis against Michael, but Michael defeated Boris in 863 and forced a treaty upon him that compelled his conversion to the Greek rites. Boris immediately began agitating for the Bulgarian church to be granted autocephalous status, but was refused by Patriarch Photius. This prompted Boris to reconsider Latin Christianity. In 866 he dispatched emissaries to Rome with a long list of questions for Pope Nicholas. Nicholas answered Boris's queries in great detail in the document that became the Responsa. The Responsa consists of 106 answers covering matters of religion, law, custom, politics, and spirituality. The questions posed by Boris demonstrate that, whatever his practical reasons for converting, he sincerely wanted to understand the new faith and embrace it wholeheartedly. Nicholas's thorough responses provide a window into the mind of papacy on subject of evangelization during the Carolingian era.

Many of the questions concern Bulgarian customs and whether they were compatible with Christianity. Is it acceptable to hunt during Lent? Is there any limit to how often a person can bathe? Is it permissible to receive Holy Communion without wearing a belt? Can women wear pants? Nicholas's responses demonstrate a masterful degree of prudence, generally affirming existing Bulgarian customs so long as they do not contradict the Gospel. He clearly intends the Bulgars' experience of the faith to be no more burdensome than necessary.

Several questions concern applications of Bulgar law. Boris was worried about the cohesiveness of Bulgarian society and hoped a Christian law code would bring unity to the fractious Bulgar people. Prior to Boris's conversion, the Bulgars lived under the law code given them by Khan Krum (r. 803-814) at the beginning of the century. No copy of Krum's lawcode survives, save for fragments mentioned in the Suda, a 10th century Byzantine encyclopedia of the Mediterranean world. The Suda paints a picture of a lawcode characterized by brutality. A man who falsely accuses another is to be executed; a thief is to have his legs cut off (or shins broken in some translations). From the Responsa, we gather that recourse was made to torture and mutilation, as well as execution for other offenses (e.g., a man mustering for battle whose horse or arms are in disarray is executed on the spot, Chap. XL).

Khan Krum's laws were in force at the time Nicholas wrote his Responsa. This is important to keep in mind that Krum's lawcode is what Nicholas is referring to whenever he speaks of "the customs of your country" or the "laws of your fathers" (XXIV, XL, XLVI). We will see that Nicholas finds many of the Bulgarian customs needlessly cruel (he states disapprovingly "you put men to death with ease" [XXV]) and encourages Boris to mitigate the severity of Bulgarian law in favor of a more humane approach. 

Many of Khan Boris's questions were of a merely civil nature, as Boris was interested not only in the religion of the Romans but their laws as well. In matters that were purely civil, Nicholas seems to have sent the Bulgars copies of the Corpus Iuris Civilis of Justinian for consulatation, for he states that he will send them "not only the books of divine law," but also papal emissaries to whom "we have committed books which we thought they would need" (Prologue); Nicholas goes on to cite the law code of Justinian throughout the Responsa (e.g., II, XXXVIX), calling them the "venerable Roman laws" and referring to Justinian's Institutes by name; sometimes he refers to them merely as "the laws" (e.g., XXXVIX). Since these references are so frequent—and since Nicholas seems to assume Boris will recognize the references—we may safely assume that the texts of the Corpus Iuris Civilis were among the books sent to the Bulgars.

Chapter 25 on the Death Penalty

Chapter 25 of the Responsa deals with a certain custom of the Bulgars concerning guards charged with securing the borders, wherein guards who let persons slip through their watch are immediately executed: 

You claim that it is part of the custom of your country that guards always stand on the alert between your country and the boundaries of others; and if a slave or freeman [manages to] flee somehow through this watch, the guards are killed without hesitation because of this. Now then, you are asking us, what we think about this practice.

Nicholas's response to this query contains the passage cited in Fratelli Tutti, which I have bolded for your convenience:

One should look through the laws concerning this matter. Nevertheless, far be it from your minds that you, who have acknowledged so pious a God and Lord, now judge so harshly, especially since it is more fitting that, just as hitherto you put people to death with ease, so from now on you should lead those whom you can not to death but to life. For the blessed apostle Paul, who was initially an abusive persecutor and breathed threats and slaughter against the disciples of the Lord, later sought mercy and, converted by a divine revelation, not only did not impose the death penalty on anyone but also wished to be anathema for the brethren and was prepared to spend and be spent most willingly for the souls of the faithful. In the same way, after you have been called by the election of God and illuminated by his light, you should no longer desire deaths but should without hesitation recall everyone to the life of the body as well as the soul, when any opportunity is found. And just as Christ led you back from the eternal death in which you were gripped, to eternal life, so you yourself should attempt to save not only the innocent, but also the guilty from the end of death, according to the saying of the most wise Solomon: Save those, who are led to death; and do not cease freeing those who are brought to their destruction.

Nicholas opens his response with "one should look through the laws concerning this matter"; in other words, Nicholas considers this question pertaining to merely civil law and encourages Boris to consult the Corpus Iuris Civilis to see what the Justinian code says about such things. But then he goes on to say that "nevertheless" he finds the Bulgar custom needlessly cruel and encourages him, in the spirit of the Gospel, to leave off this practice. 

We should notice that Nicholas, in effect, gives two answers, corresponding to what is merely permissible as well as what is more perfect. When he tells Boris to search the law code on the matter, he is telling him that, in terms of strict permissibility, he should follow what ever civil law prescribes. What follows after is a counsel on what Boris should do if he sought not just what is permissible but what is most comformable with the Gospel, like Christ to the rich young man, giving him advice on how to behave "if you would be perfect" (Matt. 19:21). We see Pope Nicholas take this approach elsewhere in the Responsa, for example, in Chap. XXXI, when asked what punishment cattle theft merits, he said, "Concerning animal thieves, let the provisions of the laws, if not mercy, be preserved."

Thus, at most we can say of Chapter 25 is that Pope Nicholas disappoves of the custom and encourages Boris to abolish it, but grants him permission to impose the penalties prescribed by the law. Given that the Corpus Iuris Civilis allowed guards to be executed under certain conditions if persons entrusted to their keeping escaped (Book IX, Tit. 24:1, 4:4), Nicholas must have been aware that telling Boris to "look through the laws concerning this matter" could certainly have resulted in executions. Chapter 25 of the Respona thus cannot be invoked as an example of Pope Nicholas's opposition to capital punishment in principle.

Executions During Holy Times

That Pope Nicholas did not oppose the death penalty simplicter is further proven by many other statements in the Responsa. A notable example is Boris's inquiry on whether he should avoid executing prisoners during certain holy times, specifically, feasts of the saints and Lent. Nicholas addresses these inquiries in Chapter XII and Chapter XLV. Let us consider Chapter XII first, as it is the lengthier of his two responses:

Because you ask, whether it is permitted to carry out judgment on the feasts of the saints and whether the person, if he deserves it, should be sentenced to death on this same day, you should know that on those feasts on which, as we have shown, one should cease from all worldly labor, we think that one should abstain all the more from secular offices and especially from death. For although both can perhaps be exercised without fault, it is nevertheless fitting that since a person should cling more tightly to the things which are of God, he completely cut from himself the things which are of the world, especially since a person who comes to divine military service (militia) should not be implicated in secular business. Furthermore, because of the reverence of so great a festival, it is appropriate that nothing be introduced, unless it is something which bring forth joy, peace and happiness for all. But with this said, the law will teach you sufficiently on which days besides these no secular judgments should be exercised.

The question is limited in scope—should executions be carried out on specific days? Nicholas opines that an execution, being an administration of secular law, ought not be carried out on saints' feast days, especially given that death is the supreme civil punishment; it is, in a sense, the most "secular thing" one can do. The reader will observe that Nicholas offers no objection to the death penalty per se, but only its implementation on a day when "one should cease from all worldly labor." Even then, he admits that it could hypothetically be permissible, saying it can "perhaps be exercised without fault," but that it is nevertheless "fitting" that secular business be put off on Holy Days. 

Pope Nicholas says something similar in Chapter XLV, when the question is repeated pertaining to Lent:

You wish to know from us whether or not judgments should be carried out or anyone sentenced to death during Lent. In this matter, know that we say the same thing to this question about Lent as we are known to have already responded concerning feast days in a chapter of these responses of ours.

Nicholas simply refers Boris back to his response in Chapter XII, arguing that an execution is not suitable for a day (or liturgical season) set apart for the things of God.

Pope Nicholas's answers clearly suggest he does not oppose the death penalty. His argument that executions are not suitable for specific days implies that they are suitable for other days. Furthermore, his statement that death can be inflicted on a feast day "perhaps without fault" makes it implausible that he opposes the death penalty simplicter, otherwise it could never be administerd "without fault." And the "fault" Nicholas speculates about concerns not the death penalty itself, but the day upon which it is administered. The common sense reading of these passages is that Nicholas objects to executions on saints days and during Lent because an execution is secular business, which is not generally suitable for such holy times, but that executions are permitted outside of the times specified.

This interpretation is given further credence by Nicholas's silence otherwise: if the pope was opposed to the death penalty simplicter, we would assume that he would have used the opportunity to say so. Instead of insisting that men not be killed on certain days, he presumably would have insisted they not be executed at all. Nicholas, in fact, does say just this in the question about war. Boris asks if wars should be avoided during Lent. Nicholas, after distinguisging between wars that are necessary and unnecessary, says, "Therefore, if no necessity compels you, you should abstain from battles not only during Lent, but at all times" (Chap. XLVI). He wishes thereby to teach Boris that war with "no necessity" should not only be avoided during holy times, but "at all times." Since no such statement is made on the question of executions during holy times, we must infer that Nicholas did not object to executions outside of holy times.

Appeals to the Corpus Iuris Civilis

There are several passages in the Responsa where Pope Nicholas refers Khan Boris to the Corpus Iuris Civilis (CIC), which in turn prescribes death, thereby suggesting that Nicholas is indirectly affirming a death sentence.

In Chapter XXIV on parricide, Pope Nicholas says the following:

What a parricide, i.e. someone who kills his mother or father or even kills his brother or sister, should suffer, the laws indicate.

What do "the laws indicate" about parricide? Parricide is treated in Book IX, Title 17 of the CIC. In Section 1, we read the following:

If anyone should hasten the end of either of his parents, his son, his daughter, or any of those relatives whose murder is designated by the term parricide, whether he committed the act secretly or openly, he shall suffer the penalty of parricide, and shall neither be put to death by the sword, nor by fire, nor by any other ordinary method, but shall be sewed up in a sack with a dog, a cock, a viper, and a monkey, and, enclosed with these wild animals and associated with serpents, he shall be either thrown into the sea, or into a river, according to the nature of the locality; so that, while living, he may be deprived of all use of the elements, and during the remainder of his existence, he may be deprived of air, and, at his death, of the earth.

When Pope Nicholas tells Boris to impose a penalty as "the laws indicate," he is, in fact, recommending Boris to sentence the parricide to the horrific death described above, known as the poena cullei ("punishment of the sack"), a penalty reserved only for the most heinous crimes, but especially parricide or the killing of a sibling. By referring Boris to the CIC, Nicholas is endorsing the application of this fearsome punishment. 

In Chapter XXVI, Nicholas addressed the related question of one who has slaughtered a kinsman within the first three degrees of consanguinity:

Concerning those who have slaughtered their kinsman, i.e. someone related by blood such as a brother, cousin or grandson, let the venerable laws keep their force. But if they have fled to a church, let them in fact be saved from the laws of death and let them submit without hesitation to the penance that the bishop or priest of the place has decided: "I do not want the death of the sinner, sayeth the Lord, but rather wish that he be converted and live."

"Let the venerable laws keep their force" is again an appeal to the CIC, which allows death for kinslaying (traditionally, kinslayers were subject to the poena cullei as well, though it was not applied universally). Nicholas says that those who have taken the right of sanctuary (i.e., taken refuge inside a church where the shedding of blood was prohibited) should be considered under ecclesiastical protection and punished with a penance. If they do so, they will be "saved from the laws of death." This implies that those who have not fled to a church will be subject to "the laws of death"; i.e., capital punishment, as proscribed by the CIC. In other words, the death penalty proscribed by the CIC is to be inflicted unless the kinslayer manages to flee to a church, in which case he places himself under ecclesiastical jurisdiction.

In the following Chapter (XXVII), Nicholas deals with a similar situation:

Concerning those, who hand their companion over to death, we think the same thing as above.

The Latin for companion here is socius, which is a broad term that can mean "comrade," "friend," or "ally." Without the context of Boris's original question, it is uncertain to what crime Nicholas is referring here. Nevertheless, in saying "we think the same thing as above," Nicholas is again appealing to the CIC. Since the crime (whatever its nature) involves handing a socius over to death—and since Nicholas directly refers to a previous chapter dealing with a capital crime—we may presume that this crime, as well, was punished with death unless the malefactor fled to a church.

An interesting section of the Responsa concerns persons caught in the act of adultery and what punishments are allowed to be inflicted. In Chapter XXVIII, Nicholas writes:

Concerning a man, who has been apprehended with another man's wife, you will find out what should be judged when you have read the laws. But if the adulterer should flee to a church, we think that the bishop should decide whatever it is clear the sacred canons have defined or the holy bishops of the apostolic see have established.

Again, we see an appeal to the CIC ("you will find out what should be judged when you read the laws"). The laws pertaining to adultery can be found in two places: Title 9, which concerns consentual adultery, and Title 13, which concerns rape, which, when a married woman was the victim, was considered a double-crime of rape plus adultery. Since Nicholas does not specify which type of case he is referring to, we may presume he is speaking of adultery between two consenting parties.

Title 9 of the Corpus Iuris Civilis judges cases of adultery according to a body of legislation called the Lex Julia, dating from the time of Augustus. In fact, the CIC invokes the Lex Julia twenty-two times in its adultery provisions. The case Nicholas responds to concerns an adulterer who has been caught in the act; for such, the Lex Julia says, "A father who catches someone in flagrant delinquency (in flagrante delicto) with his daughter may kill the man on the spot, as well as his daughter. A husband may do the same, but with greater restrictions" (Lex Julia, Cap. 2).

Further interpretations of this law can be found in Book XLVIII of Justinian's Digest, a collection of the opinions of Roman jurists on these laws. We find this principle affirmed throughout the Digest; for example, "A husband is also permitted to kill a man who commits adultery with his wife,"; "it is provided by this law that the husband can kill the adulterer if he surprises him in his own house," and "if a husband, impelled by the violence of his grief, kills his wife surprised in adultery, he will not be liable to the penalty imposed [upon him]" (Title 5:24, 38:8).

Given all this, we may take Nicholas's meaning to be that a man who catches his wife in the act of adultery has the right under the law to kill the adulterer, except in cases when the adulterer has fled to a church, in which case he translates himself to ecclesiastical jurisdiction and is thus preserved from being killed by the custom of sanctuary.

Though it does not seem that Nicholas was envisioning cases of rape, it is worth mentioning that the CIC also allows the killing of the rapist by the father for such cases (see Book IX, Title 13:1).

In summary, Pope Nicholas clearly understands that the death penalty may be applied in certain cases according to the Corpus Iuris Civilis and encourages Boris to enact these laws in his own kingdom, with no qualifier save that the right of sanctuary be respected.

Chapter 40 on Killing Soldiers Unprepared for War

In Chapter 40 Nicholas responds to a question about a Bulgarian custom whereby soldiers found unprepared to muster for war can be executed on the spot:

You say that it is a custom of your country that, before you set out for battle, a most faithful and prudent man is sent by your lordship, who inspects all the arms, horses, and things which are necessary for battle; and if, at someone's home, they are found to have been readied in a useless fashion, that person receives capital punishment: now you wish to know what we think should be done in this case. Truly we encourage you to turn all this [attention] to the arming of your spiritual weaponry and we advise you to incline the rigor of such great severity to the exercise of piety...And so, what you have hitherto observed carnally and the arms which you have cruelly exacted from poor men who perhaps were not able to prepare them, now venerate spiritually and exhort great and small to prepare them piously and spiritually.

The "custom of your country" refers to what was permissible under the laws promulgated by Khan Krum, as explained above. Nicholas finds the punishment unncessarily severe and expresses concern that it could be applied unfairly, especially upon those of the lower classes. He therefore suggests that Boris renounce this custom and instead focus on ensuring his men are spiritually prepared for battle (the ellipses contain a lengthy exposition on the allegorical meaning of horses and weapons). 

This passage should be read as a circumstantial opposition to this application of capital punishment, not opposition simplicter. Nicholas uses words of counsel, such as "encourage" (suademus) and "advise" (monemus). As we saw in the case outined in Chapter 25, Pope Nicholas recommended Boris adopt a more lenient approach, but did not suggest the death penalty itself is inadmissible. This should be evident from the many passages already quoted, but it should also be noted that if Nicholas wished to prohibit a practice absolutely, he certainly could have said so. Elsewhere in the Respona, he says that eating meat on fast days is to be "forbidden" (interdictum) and that the use of a magic healing stones is "completely forbidden" (penitus prohibiteatur) [Chap. V, LXII]. The pope evidently had no reservations about prohibiting practices he considered inimical to the spirit of the Gospel, yet no such strong language is used referent to capital punishment. Chapter 40 thus should be interpreted in a very limited sense: Nicholas recommends Boris cease this particular custom, but neither commands it nor intends to speak on capital punishment in general.

Conclusion

Fratelli Tutti cites a statement from Pope Nicholas' Respona, Chap. 25 so as to suggest that Pope Nicholas I opposed capital punishment on principle. A straightforward reading of the Responsa demonstrates that this is not the case. This is evident from several facts:

• In capital cases where Roman law applied, Nicholas recommended Boris to apply the Corpus Iuris Civilis, which frequently imposed the death penalty for the specific crimes in question.


• In cases deemed capital under Bulgar custom, Nicholas encouraged Boris to mitigate his people's severe penal code in the spirit of the Gospel, but as a counsel, not a precept.


• In stressing that no executions should be carried out during holy times and that malefactors who sought sanctuary could be saved from the death penalty, Nicholas affirms that executions outside holy times were permitted and that those who failed to seek sancuary could be executed in capital cases. He even admits that such executions could be carried out "without fault" depending on circumstance.

That Pope Nicholas frequently exhorts Boris to mercy is no argument against the death penalty simplicter, for such admonitions are frequent throughout Christian history. They do not constitute a denial of the right of the state to execute, nor a condemnation of capital punishment in principle. Rather, they are circumstantial applications of the principal enshrined in James 2:13, that "mercy triumphs over justice," and that therefore execution should be resorted to only in grave cases. The legitimate authorities always have licit recourse to execution when necessary, but mercy is superior.

What are we to make of the miscontextualization of Pope Nicholas in Fratelli Tutti? Those who have studied the history of papal documents will not be surprised; papal misquotation is as old as the Church itself. Likely, one of Pope Francis's ghost writers had the quote in his pocket without knowledge of the broader context and inserted it into the encyclical in ignorance, mistakenly thinking it proved something it did not. Such would be a charitable reading of the situation at least.

+Ad Majoram Dei Gloriam+