by John Donne
This primary reason, against which nobody can plead license, law, custom, or pardon, has in us a sovereign and masculine force. It begets conclusions and resolutions through our discourse, which does the motherly office of shaping, delivering, and rearing them.
2.—In earthly kingdoms the king’s children and their posterity, as far as we may reasonably presume any tincture of blood, have many privileges and respects due them, which would be forfeited if there appeared any bastardy or interruption of lawful descent from that root. Although the respect and obsequiousness belong to them so far as they are propagated from that root and so far as some sparks of that sovereignty glimmer in them, their servants and officers take them where they find them and consider them only as dukes or lords and possessors of patrimonial estates. Meanwhile, every man’s heart is directed and fastened upon the prince, and perhaps a step or two lower with a ready and immediate relation to the father and what they have from him.
Just so! When, from those true propositions that are the eldest children and the issue of our light of nature and of our discourse, conclusions are produced, those conclusions also have the nature of propositions and beget more conclusions. To all these there belongs an assent and submission on our part, if none by the way has been corrupted and bastarded by fallacy. Although, as in the other case, men who are of a weak, lazy, or flattering disposition look no farther into any of these propositions than from whose mouth it proceeds or what authority it now has (not from whence it was produced), still, every man’s resolution is fixed upon, arrested by, and submitted to the heir apparent—which is to say, every necessary deduction by natural light. Now human laws, by which kingdoms are policed, are not so very near to this crown of certain truth and first light. If they were necessary consequences from that law of nature, they would not be contrary in various places and times, as we see laws to be. Nevertheless, I justly esteem them nearer and to have more of that royal blood in them than the resolutions of individual men or schools of men.
The first reason is: It is of the essence of all human law that it agrees with nature—I mean obligation in the inner court of conscience. Without this, a law has no more strength than a usurper whom those who obey watch for an opportunity to dispossess.
The second reason is: Assemblies of parliaments, councils, and courts are to be presumed more diligent for delivering and giving birth to those children of natural law. They also give better testimonies than any one man can that no false or suppositious issue is admitted. The law is well called the marriage-contract between the citizens and the republic. That term signifies also that to which they have all betrothed themselves, such as the security and stipulation that the state gives for every man’s direction and assurance in all his civil actions. Since in the first part we thoroughly examined whether self-homicide is always of necessity against the law of nature, it is worthy for the first consideration in this second part to inquire how far human laws have determined against it, before we descend to the arguments of particular authors, of whatever reverence or authority.
3. The third reason is: In this disquisition the most general law has the most force and value, and there is no law so general that it deserves the name of the law of nations, or, if there is, it will be the same (as we said before) as rectified reason and thus not differ from the law of nature.
In my understanding, the civil or imperial law once had the greatest extent. Even now it is not being abandoned in its reason, essence, and nature but only lest accepting it should testify some dependence upon the [Holy Roman] Empire. Thus we owe the first place in this consideration to that law.
What do we call the civil law? Properly speaking, the municipal law of every nation is civil law. However, because Rome’s emperors deemed the whole world to be one city, as Rome’s bishops deem it to be one diocese, the Roman law has won the name of civil law. It is a digest and ordering of all the regal laws, decrees of the senate, plebescites, opinions of experts, and edicts of emperors from 1,400 years before Justinian to as long a time after him as the eastern emperors made them authentic. The civil law is of such largeness that Justinian’s part of it consists of 150,000 distinctions (he calls them verses) and is the sum and marrow of many millions, extracted from 2,000 volumes.
This law is so abundant that almost all the points controverted between the Roman and the Reformed Churches may be decided and resolved by it. This law, I say, which has worked upon individuals, fortunes, and consciences both by penalties and anathemas, has pronounced nothing against the self-homicide that we now have under consideration.
It is true that we find one rescript of Hadrian the emperor, who was about 120 years after Christ, in the body of the law: “If a soldier attempts to kill himself and does not accomplish it, unless he tried it under unbearable grief, sickness, sorrow, or some other cause, he shall be capitally punished.” This rescript is repeated in another title, and there—although the first general clause or some other cause might seem to have gone far enough—are added especially the excusing causes of “weariness of life, madness, or shame.” You see with what moderate gradations this law proceeded. Contending and wrestling (as it seems) with a customary and naturally accomplished act, it does not extend at all to punish self-homicide when it has been done, as the law does in many other crimes by confiscation, by condemning the memory of the delinquent, and by degrading his posterity.
Nor does the rescript embrace all ways of doing it—indeed, hardly any of them, considering how benignly and favorably penal laws are to be interpreted. Nor does it encompass all men, but only those currently in the army, since much disadvantage might befall the army if numbers of them should suddenly be allowed to take this natural, easy way of delivering themselves from painful danger. Just as much damage might befall the state if the enlisted soldiers—to whom there belonged by the laws as many privileges and immunities under the Roman emperors as ever did to the clergy under their Roman bishops—after they had thus maimed themselves and defrauded the state of their service, should by this inherent character of soldiership enjoy all the advantages that the laws afforded them.
One more law in the body of civil law seems to reach farther, because it does not bind itself to any one condition of men; that is, “If a man who, already accused or caught in the act of any crime for which his goods would be forfeited upon conviction, should kill himself before judgment, his goods shall be forfeited.” Or it may not reach farther, for the law adds this opinion of the act: “It is not the deed’s evil that is liable to punishment but the guilt of conscience.” It goes on, “He who has reason to die may have an heir.” Thus the law presumes that there are just causes to work this effect.
Upon the consideration of this civil law I determined to bestow this first distinction.
Distinction II
1. What they call the canon law is of even larger extent than the civil, for it reaches to bind the princes themselves, at least by their acceptance of and submission to it. As its subject is greater, being people and princes, so is its object, being the next or eternal life. Indeed, it is so vast and unbounded that we do not know in what books to seek its limits nor by what rules to set the landmarks of its jurisdiction.
As for the book, it is evident that the primitive church had canonical codes, which were inserted into the body of the Roman law and had no other existence except as it was incorporated there. Thus Gelasius wrote to Theodoric the Gothic king of Italy, pleading that, just as by his authority the Roman law was observed in civil matters, so it might be the same in ecclesiastical matters. After the expulsion of the Goths, Leo IV pleaded for and obtained the same from Lothair I. From this canonical code the emperors decided and decreed in many ecclesiastical causes. From this code the subsequent councils were governed in making their canons; we may see particular canons of this book cited—the book often called for in councils and commonly named, the Body of the Canon Law. This body consisted of the canons of nine councils authorized by the emperors.
There have been imm
ense additions to it since that time—bulls and decretal letters of popes; decrees of suspicious, partial, and schismatic councils (for nothing is more properly schism and a breach of succession than a rent between the civil and ecclesiastical state, which occasioned many of the later councils); the rags of Fathers excerpted and digested by Gratian plus the glosses on these that became as authentic as the text. I do not see what all these additions have to do with the Body of Canon Law, except where princes have incorporated and naturalized them.
However, since for us to quarrel now with their authority may seem a subterfuge and a shift to turn away from them as though they were heavily against us in the matter at hand, we shall accept them as they are set forth and disguise nothing in them that seems to resist our opinion. In the common usage this law is likely to be severe against self- homicide. The civil laws always content themselves with any excuse or color in favor of the delinquents, because when a fault is proved it is punished severely. But canon laws, which punish only medicinally and for the soul’s health, are apt to presume or believe guiltiness on light evidence, because their punishments always work good effects, whether or not they are just.
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.