Ante-Nicene Fathers, Vol III:
Tertullian: Part I: Chapter IV.

Chapter IV.

And so, having made these remarks as it were by way of preface, that I might show in its true colours the injustice of the public hatred against us, I shall now take my stand on the plea of our blamelessness; and I shall not only refute the things which are objected p. 21 to us, but I shall also retort them on the objectors, that in this way all may know that Christians are free from the very crimes they are so well aware prevail among themselves, that they may at the same time be put to the blush for their accusations against us,—accusations I shall not say of the worst of men against the best, but now, as they will have it, against those who are only their fellows in sin. We shall reply to the accusation of all the various crimes we are said to be guilty of in secret, such as we find them committing in the light of day, and as being guilty of which we are held to be wicked, senseless, worthy of punishment, deserving of ridicule. But since, when our truth meets you successfully at all points, the authority of the laws as a last resort is set up against it, so that it is either said that their determinations are absolutely conclusive, or the necessity of obedience is, however unwillingly, preferred to the truth, I shall first, in this matter of the laws grapple with you as with their chosen protectors. Now first, when you sternly lay it down in your sentences, “It is not lawful for you to exist,” and with unhesitating rigour you enjoin this to be carried out, you exhibit the violence and unjust domination of mere tyranny, if you deny the thing to be lawful, simply on the ground that you wish it to be unlawful, not because it ought to be. But if you would have it unlawful because it ought not to be lawful, without doubt that should have no permission of law which does harm; and on this ground, in fact, it is already determined that whatever is beneficial is legitimate. Well, if I have found what your law prohibits to be good, as one who has arrived at such a previous opinion, has it not lost its power to debar me from it, though that very thing, if it were evil, it would justly forbid to me? If your law has gone wrong, it is of human origin, I think; it has not fallen from heaven. Is it wonderful that man should err in making a law, or come to his senses in rejecting it? Did not the Lacedæmonians amend the laws of Lycurgus himself, thereby inflicting such pain on their author that he shut himself up, and doomed himself to death by starvation? Are you not yourselves every day, in your efforts to illumine the darkness of antiquity, cutting and hewing with the new axes of imperial rescripts and edicts, that whole ancient and rugged forest of your laws? Has not Severus, that most resolute of rulers, but yesterday repealed the ridiculous Papian laws 81 which compelled people to have children before the Julian laws allow matrimony to be contracted, and that though they have the authority of age upon their side? There were laws, too, in old times, that parties against whom a decision had been given might be cut in pieces by their creditors; however, by common consent that cruelty was afterwards erased from the statutes, and the capital penalty turned into a brand of shame. By adopting the plan of confiscating a debtor’s goods, it was sought rather to pour the blood in blushes over his face than to pour it out.  How many laws lie hidden out of sight which still require to be reformed! For it is neither the number of their years nor the dignity of their maker that commends them, but simply that they are just; and therefore, when their injustice is recognized, they are deservedly condemned, even though they condemn.  Why speak we of them as unjust? nay, if they punish mere names, we may well call them irrational. But if they punish acts, why in our case do they punish acts solely on the ground of a name, while in others they must have them proved not from the name, but from the wrong done? I am a practiser of incest (so they say); why do they not inquire into it? I am an infant-killer; why do they not apply the torture to get from me the truth? I am guilty of crimes against the gods, against the Cæsars; why am I, who am able to clear myself, not allowed to be heard on my own behalf? No law forbids the sifting of the crimes which it prohibits, for a judge never inflicts a righteous vengeance if he is not well assured that a crime has been committed; nor does a citizen render a true subjection to the law, if he does not know the nature of the thing on which the punishment is inflicted. It is not enough that a law is just, nor that the judge should be convinced of its justice; those from whom obedience is expected should have that conviction too. Nay, a law lies under strong suspicions which does not care to have itself tried and approved: it is a positively wicked law, if, unproved, it tyrannizes over men.

Footnotes

[A reference in which Kaye sees no reason to doubt that the Apology was written during the reign under the emperor. See Kaye’s Tertullian, p. 49.]