The assumption of this duty by the State begins with the recognisance of acts done against the State itself. At first, political crimes alone are visited with a public penalty; private injuries demand no public expiation, but only satisfaction of the injured party. This appears in its most rudimentary form in the lex talionis. Society requires that punishment should be inflicted by the State, in order to prevent continual disorders. If the injured party could be satisfied, and his duty fulfilled without inflicting on the criminal an injury corresponding to that which he had done, society was obviously the gainer. At first it was optional to accept or to refuse satisfaction; afterwards it was made obligatory.
Where property was so valuable that its loss was visited on the life or limb of the robber, and injuries against property were made a question of life and death, it soon followed that injury to life could be made a question of payment. To expiate robbery by death, and to expiate murder by the payment of a fine, are correlative ideas. Practically this custom often told with a barbarous inequality against those who were too poor to purchase forgiveness; but it was otherwise both just and humane in principle, and it was generally encouraged by the Church. For in her eyes the criminal was guilty of an act of which it was necessary that he should repent; this made her desire, not his destruction, but his conversion. She tried, therefore, to save his life, and to put an end to revenge, mutilation, and servitude; and for all this the alternative was compensation. This purpose was served by the right of asylum. The Church surrendered the fugitive only on condition that his life and person should be spared in consideration of a lawful fine, which she often paid for him herself. "Concedatur ei vita et omnia membra. Emendat autem causam in quantum potuerit," says a law of Charlemagne, given in the year 785, when the influence of religion on legislation was most powerful in Europe.
No idea occurs more frequently in the work we are reviewing than that of the persecuting character of the Catholic Church; it is used as a perpetual apology for the penal laws in Ireland:—
"When the Catholics writhe under this wrong, let them turn their eyes to the history of Catholic countries, and remember that, while the Catholic Church was stripped of her endowments and doomed to political degradation by Protestant persecutors in Ireland, the Protestant churches were exterminated with fire and sword by Catholic persecutors in France, Austria, Flanders, Italy, and Spain" (p. 92). He speaks of Catholicism as "a religion which all Protestants believed to be idolatrous, and knew by fearful experience to be persecuting" (p. 113). "It would not be difficult to point to persecuting laws more sanguinary than these. Spain, France, and Austria will at once supply signal examples.... That persecution was the vice of an age and not only of a particular religion, that it disgraced Protestantism as well as Catholicism, is true. But no one who reads the religious history of Europe with an open mind can fail to perceive that the persecutions carried on by Protestants were far less bloody and less extensive than those carried on by Catholics; that they were more frequently excusable as acts of retaliation; that they arose more from political alarm, and less from the spirit of the religion; and that the temper of their authors yielded more rapidly to the advancing influence of humanity and civilisation" (pp. 127. 129).
All these arguments are fallacies; but as the statements at the same time are full of error, we believe that the author is wrong because he has not studied the question, not because he has designed to misrepresent it. The fact that he does not distinguish from each other the various kinds and occasions of persecution, proves that he is wholly ignorant of the things with which it is connected.
Persecution is the vice of particular religions, and the misfortune of particular stages of political society. It is the resource by which States that would be subverted by religious liberty escape the more dangerous alternative of imposing religious disabilities. The exclusion of a part of the community by reason of its faith from the full benefit of the law is a danger and disadvantage to every State, however highly organised its constitution may otherwise be. But the actual existence of a religious party differing in faith from the majority is dangerous only to a State very imperfectly organised. Disabilities are always a danger. Multiplicity of religions is only dangerous to States of an inferior type. By persecution they rid themselves of the peculiar danger which threatens them, without involving themselves in a system universally bad. Persecution comes naturally in a certain period of the progress of society, before a more flexible and comprehensive system has been introduced by that advance of religion and civilisation whereby Catholicism gradually penetrates into hostile countries, and Christian powers acquire dominion over infidel populations. Thus it is the token of an epoch in the political, religious, and intellectual life of mankind, and it disappears with its epoch, and with the advance of the Church militant in her Catholic vocation. Intolerance of dissent and impatience of contradiction are a characteristic of youth. Those that have no knowledge of the truth that underlies opposite opinions, and no experience of their consequent force, cannot believe that men are sincere in holding them. At a certain point of mental growth, tolerance implies indifference, and intolerance is inseparable from sincerity. Thus intolerance, in itself a defect, becomes in this case a merit. Again, although the political conditions of intolerance belong to the youth and immaturity of nations, the motives of intolerance may at any time be just and the principle high. For the theory of religious unity is founded on the most elevated and truest view of the character and function of the State, on the perception that its ultimate purpose is not distinct from that of the Church. In the pagan State they were identified; in the Christian world the end remains the same, but the means are different.
The State aims at the things of another life but indirectly. Its course runs parallel to that of the Church; they do not converge. The direct subservience of the State to religious ends would imply despotism and persecution just as much as the pagan supremacy of civil over religious authority. The similarity of the end demands harmony in the principles, and creates a decided antagonism between the State and a religious community whose character is in total contradiction with it. With such religions there is no possibility of reconciliation. A State must be at open war with any system which it sees would prevent it from fulfilling its legitimate duties. The danger, therefore, lies not in the doctrine, but in the practice. But to the pagan and to the mediæval State, the danger was in the doctrine. The Christians were the best subjects of the emperor, but Christianity was really subversive of the fundamental institutions of the Roman Empire. In the infancy of the modern States, the civil power required all the help that religion could give in order to establish itself against the lawlessness of barbarism and feudal dissolution. The existence of the State at that time depended on the power of the Church. When, in the thirteenth century, the Empire renounced this support, and made war on the Church, it fell at once into a number of small sovereignties. In those cases persecution was self-defence. It was wrongly defended as an absolute, not as a conditional principle; but such a principle was false only as the modern theory of religious liberty is false. One was a wrong generalisation from the true character of the State; the other is a true conclusion from a false notion of the State. To say that because of the union between Church and State it is right to persecute would condemn all toleration; and to say that the objects of the State have nothing to do with religion, would condemn all persecution. But persecution and toleration are equally true in principle, considered politically; only one belongs to a more highly developed civilisation than the other. At one period toleration would destroy society; at another, persecution is fatal to liberty. The theory of intolerance is wrong only if founded absolutely upon religious motives; but even then the practice of it is not necessarily censurable. It is opposed to the Christian spirit, in the same manner as slavery is opposed to it. The Church prohibits neither intolerance nor slavery, though in proportion as her influence extends, and civilisation advances, both gradually disappear.
Unity and liberty are the only legitimate principles on which the position of a Church in a State can be regulated, but the distance between them is immeasurable, and the transition extremely difficult. To pass from religious unity to religious liberty is to effect a complete inversion in the character of the State, a change in the whole spirit of legislation, and a still greater revolution in the minds and habits of men. So great a change seldom happens all at once. The law naturally follows the condition of society, which does not suddenly change. An intervening stage from unity to liberty, a compromise between toleration and persecution, is a common but irrational, tyrannical, and impolitic arrangement. It is idle to talk of the guilt of persecution, if we do not distinguish the various principles on which religious dissent can be treated by the State. The exclusion of other religions—- the system of Spain, of Sweden, of Mecklenburg, Holstein, and Tyrol—is reasonable in principle, though practically untenable in the present state of European society. The system of expulsion or compulsory conformity, adopted by Lewis XIV. and the Emperor Nicholas, is defensible neither on religious nor political grounds. But the system applied to Ireland, which uses religious disabilities for the purpose of political oppression,[325] stands alone in solitary infamy among the crimes and follies of the rulers of men.
The acquisition of real definite freedom is a very slow and tardy process. The great social independence enjoyed in the early periods of national history is not yet political freedom. The State has not yet developed its authority, or assumed the functions of government. A period follows when all the action of society is absorbed by the ruling power, when the license of early times is gone, and the liberties of a riper age are not yet acquired. These liberties are the product of a long conflict with absolutism, and of a gradual development, which, by establishing definite rights revives in positive form the negative liberty of an unformed society. The object and the result of this process is the organisation of self-government, the substitution of right for force, of authority for power, of duty for necessity, and of a moral for a physical relation between government and people. Until this point is reached, religious liberty is an anomaly. In a State which possesses all power and all authority there is no room for the autonomy of religious communities. Those States, therefore, not only refuse liberty of conscience, but deprive the favoured Church of ecclesiastical freedom. The principles of religious unity and liberty are so opposed that no modern State has at once denied toleration and allowed freedom to its established Church. Both of these are unnatural in a State which rejects self-government, the only secure basis of all freedom, whether religious or political. For religious freedom is based on political liberty; intolerance, therefore, is a political necessity against all religions which threaten the unity of faith in a State that is not free, and in every State against those religions which threaten its existence. Absolute intolerance belongs to the absolute State; special persecution may be justified by special causes in any State. All mediæval persecution is of the latter kind, for the sects against which it was directed were revolutionary parties. The State really defended, not its religious unity, but its political existence.