II. On the Killing of the Guilty

Is it lawful by public authority to kill the guilty? - It is lawful by public authority either to imprison, or to beat, or to mutilate in some member, or even to kill malefactors, according to the various gravity of offenses. The reason is that this is a necessary means for procuring the common good of the whole society. Indeed, for preserving society itself; which indeed cannot be obtained except by these penalties, and often not except by the death of wicked men. Therefore God must be said to have conferred the power without which society could not stand. "Every singular person is compared to the whole community as a part to the whole. And therefore, if some man is dangerous to the community and corruptive of it because of some sin, he is laudably and wholesomely killed, so that the common good may be preserved... he is deprived of a member because of some lesser faults." S. Th. 2. 2, q. 64, a. 2; q. 65, a. 1. And by the same reason it is lawful to beat him and imprison him because of the abuse of the free use of his members to the harm of the community. S. Th. 2, q. 65, aa. 2, 3. This is also clear from the practice of every legislation, from Sacred Scripture, and from the universal consent of all. Lugo d. 10, n. 64; Struggl 34; Ithur. Cas. 40, nn. 11-12; S. Th. 2. 2, q. 64, aa. 2, 3; q. 65, aa. 1, 3; q. 66, a. 6 ad 2, a. 8; q. 67, a. 3; q. 108, aa. 3, 4; L. 375; E. M.

In what manner are the guilty to be punished with death by public authority? - "To kill a malefactor is lawful insofar as it is ordered to the safety of the whole community, and therefore it belongs only to him to whom care of preserving the community is committed... But care of the common good has been committed to Princes having public authority; and therefore it is lawful for them alone to kill malefactors, but not for private persons." S. Th. 2. 2, q. 64, a. 3. But the Prince or magistrate sins, regularly speaking, who orders the guilty to be killed without public judgment, not cited, or not heard, or not condemned, even if by private knowledge it is evident that they are guilty. Without judgment; for judgment is necessary so that the malefactor may be discerned from the innocent, and what must be subtracted from the part for the safety of the whole. Public; for public judgment is necessary so that it may be discerned whether the malefactor is to be killed because of common safety. Besides, from the law of nature, a public act ought to be done from public knowledge and authority. Make exception: 1. If the crime is altogether certain and notorious. 2. If there would be danger of sedition in the delay, if one were to proceed juridically. L. 377; S. Th. 2. 2, q. 64, a. 3 ad 2, ad 3; Struggl 35, 36.

Note: The judge is bound under grave obligation to grant to the guilty man sufficient time for Confession. He is also bound to grant time for the reception of Communion, since the guilty man is then in the article of death, in which the precept of Communion obliges by divine law, and then also the guilty man, even not fasting, can communicate on the same day of death, provided that Communion precede the execution by an hour. If the guilty man is unwilling to confess sins, after exhortation he can lawfully be killed by the executioner, because then his damnation is attributed to his own fault. L. 379; l. 6, nn. 233-285, par. Hic autem, 247.

Is it lawful to kill the guilty even by private authority? - It is not lawful to kill malefactors by private authority. Proof: because it is not lawful to kill malefactors except for the common good, just as it is not lawful to amputate a member except for the safety of the whole body. But the administration of the common good pertains to public power, which is in the Prince or in the commonwealth, not to private persons. Therefore. Besides, if it were lawful for anyone by private authority to kill malefactors, and anyone in his own cause could be judge, all things would be full of unjust homicides. Therefore God, as author and conserver of nature, did not give private men the power of killing malefactors. C. 7, c. 33, q. 2; Pr. 19 condemned by Alex. VII; S. Aug. de Civ. Dei l. 1, c. 26; S. Th. 4, d. 37, q. 2, a. 1; 2. 2, q. 64, a. 3; q. 66, a. 8; L. 376; E. M.

Note: Any secular person, speaking per se, can lawfully kill within the territory of the proscriber a highwayman and malefactor publicly proscribed. The reason is that through the proscribing sentence by public authority anyone is constituted minister of justice. Any secular person, for in C. Sententiam Ne cler. vel mon. it is gravely prohibited to a cleric that he involve himself in causes of blood, even just ones. Speaking per se; for a son cannot lawfully kill a father banned or proscribed, nor a parent a son, or a wife a husband, because this is gravely contrary to charity and natural piety. Nevertheless make exception unless the common good demands it. Within the territory of the proscriber; for one banned cannot justly be killed in another's territory, unless with the tacit, or reasonably presumed, consent of the other Prince. Struggl 36, 37; L. 376, 378, 380; S. Th. 2. 2, q. 64, a. 4.

You will resolve: A guilty man condemned to death cannot by himself execute the sentence of death, by inflicting death on himself. Whether, however, he can do this at least in the case in which he is constituted by the judge a public minister of justice in order to his own killing, many affirm. Struggl 8; but many also deny, and St. Alphonsus calls this opinion the more common, 369. Yet the Holy Doctor calls both probable, l. 4, n. 284; Cf. ib. n. 281.

Soldiers ordered to seize and guard a malefactor cannot kill him when he flees, even if he has already been condemned to death, because by force of their office and, a special mandate of the Prince being excluded, attendants can only restrain the guilty man. L. 380; H. A. 9; Cf. Struggl 36.

It is not lawful for a father to mutilate or kill his own children, nor for a master his own servants, for the sake of correction. The reason is that to punish by mutilation and killing, which bring irreparable damage, certainly requires a perfect power, which neither father nor master has. S. Th. 2. 2, q. 65, aa. 1, 2.

Is it lawful at least, by private authority, to beat or imprison someone? - It is lawful for no one to beat someone not subject to his power, unless there be added at least the tacit consent of him who has power, for example of a father over a son, of a husband over a wife, of a master over a servant; for beating is punishment, and this supposes governing power. Since, however, this beating is done for the sake of discipline, it must be moderated. Hence per se teachers can moderately beat pupils, because they hold the place of parents. On the contrary, an elder brother cannot per se beat younger brothers, unless this has been commanded him by the father, or unless, the father being dead or absent, he himself governs the family, because primogeniture does not confer such a right upon him. S. Th. 2. 2, q. 65, a. 2.

Likewise "to imprison someone, or in any way to detain him, is unlawful unless it is done according to the order of justice, either as punishment, or as a precaution for avoiding some evil," S. Th. 2. 2, q. 65, a. 3. Cf. here 422.