I was preparing to put up this third installment when the news about Pope John Paul I broke, so this is coming later than I had planned.
The point of the objection raised by Edward Feser and others is that the Church has always and everywhere taught the legitimacy of capital punishment. Many people now think that the death penalty has always been widely accepted in the Church as it has been in our time. Yet history does show that there was a time when it was in question, and we can see this in the life and writings of St. Ambrose, the bishop of Milan from 374 to 397, who, along with Augustine and Jerome, was one of the three great early Fathers of the Western Church.
St. Ambrose’s Dilemma
A little background on Ambrose will help us understand his ideas on the death penalty. He was brought up in a very devout Christian family of Roman background. His father was a civic official and Ambrose followed his path, becoming a lawyer and then judge in the court of the praetorian prefect, and later consul and civil governor of Emilia-Liguria. His was universally admired for his virtue and integrity, as well as his devout faith, though at the age of 35 he still remained a catechumen.
Then, when the see of Milan, which had been occupied by an Arian bishop, fell vacant, a riot threatened to break out between Catholics and Arians over who would fill the see. Ambrose the governor came to where the people were gathered, and began speaking to calm the tumult. Suddenly a child in the crowd shouted, “Ambrose bishop!” and everyone took up the cry. Ambrose found himself suddenly elected bishop by acclamation. It is at this point that Ambrose’s biographer, Paulinus, brings in a bizarre anecdote – one that is not usually told in modern accounts of the election. Ambrose was a conscientious governor, and he did not put people to torture under his regime. But when he heard himself acclaimed bishop, he was determined to avoid the office, feeling himself unprepared and unworthy. He went into the tribunal, and ordered (in pretense, I hope) for people to be tortured, evidently hoping that this would put people off accepting him as bishop. But the people assured him that baptism would forgive this sin. The strict historicity of this account might be questioned, but it is a good indication of the attitude of people at the time.
It was common in the fourth century for officials like Ambrose to put off baptism, because public office often led to bloodshed, including torture, political assassinations and the execution of criminals. The most famous example of this is the emperor Constantine, who, although he was converted to Christianity soon after winning control of the Empire, was only baptized on his deathbed. Waiting until retirement to accept baptism to wash away those sins – and some did see executions as a sin, as we will see — was thought preferable to doing severe penance for them if they were committed after you were baptized. This gives us a likely interpretation of why Ambrose had remained a catechumen during his time in office. All of his protests about his unsuitability were unavailing, however, and within a short time he was baptized, ordained a priest, then consecrated bishop of Milan.
It is clear then, that Ambrose had considerable first-hand experience with civil law and government, more so, perhaps, than any of the Fathers of the Church. Respect for human life was very important to him. He was later very severe with the Christian emperor Theodosius for staining his hands with civil blood in the massacre of 7,000 people in Thessalonica, and would not admit the emperor to Communion again until he had done many months of penance.
A Question and Answer
This attitude of Ambrose is also clear in the letters I am going to discuss. These are two letters written sometime between 385 and 387 to a man named Studius, prompted by a letter from him that has not survived, but the contents of which can be surmised. Studius has evidently become a judge, and is worried about whether a Christian in this office can order an execution, and still remain in communion with the Church. In fact, this seems to have been a very controversial question at the time. We can trace it in the followers of the rigorist heretic Novatian, who condemned the bishops of the 250′s who were willing to admit to penance those who had committed apostasy during the Decian persecution. Even in the late fourth century, many of Novatian’s followers were still around; they would not admit to Communion any judge or official who had ordered someone put to death, even justly. Even some who were not heretics agreed with them on this point.
Now to the point I have been building up to for so long. In the second of his letters, Ambrose speaks of the passage on the adulteress in John as arousing a great deal of controversy, not only historical and theological, but very concrete and practical, about the question of capital punishment itself:
Indeed there has always been repeated discussion of the question of the famous acquittal of that woman in the Gospel according to John who was brought to Christ accused of adultery. . . And the question has become more heated since the time that bishops have begun to accuse those guilty of the most heinous crimes before the public tribunals, and some even to urge them to use the sword and capital punishment, while others have begun to approve of these kinds of accusations and of the blood-stained triumphs of the priesthood. For those men say just the same as did the Jews, that the guilty ought to be punished by the public laws, and therefore that it is also fitting for priests to accuse before the public tribunals those who, they assert, ought to be punished according to the laws. The case is the same, though the number is less, that is to say, the question as to judgment is similar, the odious nature of the punishment is dissimilar. Christ would not permit one woman to be punished according to the Law; they assert that too small a number has been punished.
Ambrose even said elsewhere that he did not hold communion with those bishops who sought for the death penalty to be applied to heretics, such as Bishops Idacius and Ithacius, who had induced the tyrant Maximus to put the heretic Priscillian and his followers to death. So Ambrose did not come to the question with any love for the death penalty, and spurned its most fervent supporters in the Church. But he gives Studius’ question a finely nuanced answer.
I recognize [in your question] a pure intention of mind, zeal for the faith, and fear of our Lord Jesus Christ. And I too should fear to reply to it: [You would be] constrained on one side by the commission you have been given to keep the laws, and on the other by the claims of mercy and clemency, if you did not have in this matter the Apostle’s authority that “the one who judges does not bear the sword in vain, for he is the avenger of God upon evildoers” (Rom. 13:4).
Although this is already known to you, you did not think it useless to ask the question. For there are those, though outside the Church, who do not call into communion of the heavenly mysteries those who consider it right to carry out capital sentence on some people. A great many [judges] voluntarily abstain [from the sacrament] and are lauded indeed, nor can we fail to praise them: for them we observe the authority of the Apostle [i.e. Paul above] to the extent that we do not dare refuse them communion.
You see, therefore what power authority confers on you, what mercy persuades you to. You will have excuse if you do it [impose death], praise if you do not do it. But if you are not able to do it, or to afflict someone by causing him to waste away in the squalor of prison, but set him free, as a priest I will commend you. For it may be when the case is heard, a criminal is received for sentencing who afterwards either asks for indulgence, or certainly without grave severity, as some say, is confined in prison. I know, however, a number of pagans who are accustomed to boast that they have brought the executioner’s ax back from their provincial administration unstained with blood. If the pagans do this, what should Christians do?
This was an actual practice of the time; even an emperor, though he might have killed many in war in the provinces, would be proud of the Greek title of anaimaktos, or “unstained by blood,” meaning that he had not shed the blood of civilians. Ambrose continues:
But in all these matters let our Savior’s answer suffice for you. The Jews apprehended an adulteress and brought her to the Savior, with the insidious intent that if He were to acquit her He might seem to destroy the law, though He had said, “I have not come to destroy, but to fulfil the law” (Mt 5:17), and on the other hand, were He to condemn her, He might seem to be acting against the purpose of His coming.
So the Lord Jesus, foreseeing this, stooped down and wrote upon the earth . . . He raises [his head] again, as though about to give sentence, and says, “Let him that is without sin cast the first stone at her.” And again, he stooped down and wrote on the ground. When they heard this, they began to go out one by one beginning at the eldest, and this either because they who had lived longest had committed most sins, or because, as being most sagacious, they were the first to comprehend the force of His sentence, and though they had come as the accusers of another’s sins, began rather to lament their own.
When they had departed, then, Jesus was left alone, and lifting up his head to the woman, he said, “Where are those who were accusing you? Has no one stoned you?” She answered, “No one, Lord.” Jesus said to her, “Neither do I condemn you; go, and sin no more.” Being the Redemption, He refuses to condemn her, being the Life He restores her, being the Fountain He washes her. And since Jesus, when He stoops down stoops that He may raise up the fallen, He says, as the absolver of sins, “Neither do I condemn you.”
Here is an example for you to follow, for it may be that there is hope of amendment for this guilty person; if he is still unbaptized, that he may receive remission, if baptized that he may do penance, and offer up his body for Christ. See how many roads there are to salvation!
This is why our ancestors thought it better to be more indulgent towards judges, so that while their sword was feared, the madness of crime would be repressed, and no encouragement given to it. For if Communion were denied to judges, it would seem like a retribution for their punishment of the wicked. Our ancestors preferred then that those who abstain [from Communion] should do it out of free will, rather than because the law requires it.
So unlike Edward Feser and associates, the death penalty has not exactly had complete approval at all times in the history of the Church. I think that Ambrose would have been very happy with the position of Pope St. John Paul II and the Catechism: that the death penalty might not be an intrinsic evil but it should be avoided whenever possible. At the same time, he saw, along with many of his time, the fuller implications of the death penalty as a violation of the sacredness of human life, a question that is still with us.
Our Choice Today
In the end, what can we make of the question of “intrinsic evil” vs. “contrary to the Gospel”? If we begin with Old Testament Law, we can see its clearly articulated dividing lines between what is permissible and what is not. Sometimes there is a spectrum: The death penalty was on the permissible side of the line, but killing of the innocent is always wrong (“You shall not kill” is actually translated more correctly, “You shall not commit murder”). Using this spectrum, we can separate out the intrinsically evil acts.
I think what Pope Francis recognizes is that the Jesus in the Gospel calls us to something higher, just as he tells us “Be perfect as your heavenly Father is perfect” (Mt 5:48). This doesn’t suggest being on one side or another of allowability, but choosing what is best. Jesus didn’t suggest that Moses was wrong when he allowed divorce, but that with him, there began a new and more perfect conception of marriage. The Gospel is not simply about avoiding intrinsic evils, but achieving a more perfect justice. And, as Pope Francis said, it is about respecting the inviolable dignity of human life.
Update, Nov 20: Since writing this I came across this excellent article by David Bentley Hart, with more detail of the controversy over the death penalty in the early Church.
Update, Nov. 20: Yet another excellent response to Feser by Robert Fastiggi, with many quotes from the Fathers and Councils, which show clearly that the definitely not universally accepted in the early Church.
 Paulinus of Milan, “Life of St. Ambrose,” 3:7, from Early Christian Biographies, trans. John A. Lacy (Washington, D.C., Catholic University of American Press, 1952), pp. 36-37.
 It is uncertain what his name actually was, since in the earliest texts of Ambrose’s works, the first letter is headed “To Studius” and the second “To Ireneaus,” though both are obviously to the same person. (Ireneaus should not be confused with the famous second-century Father of that name). I’ll call him Studius, just because I really love the name. For more on this question, see The Letters of S. Ambrose, Bishop of Milan (Oxford: James Parker, 1881), p 182.
 Cf. Migne, PL 16, col. 1040, note g.
 Ambrose, Letter 68, 2-3. (This is the modern numbering. In the Oxford and other earlier editions it was Letter 26). I have translated from the Latin edition in Migne, Patrologia Latina, vol. 16, cols. 1042-43, with some help from the Oxford translation.
 Letter 24, 12, Oxford ed., p. 181.
 The words “the one who judges” don’t appear in the Latin or even the Greek text. They were evidently inserted because this is the actual office Studius holds.
 Letter 25 (50 in later editions), nos. 1-3. Oxford, ed., pp. 182-83.
 Migne, PL 16, col 1041, note a
 Letter 25 (50), nos. 4-9, Oxford ed., p. 183-85.