Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article I. On the Killing of a Guilty Person or Malefactor
- Principles. - I. It is lawful to kill malefactors by public authority. The reason is that this is a necessary means for procuring the common good of the whole society, indeed for preserving society itself; and this, for the most part, can be obtained only by the death of criminal men. But God must be said to have conferred the power without which society could not stand. It is also clear from the practice of every legislation, from sacred Scripture, and from the universal consent of all.
II. But it is not lawful to kill malefactors by private authority. Because no one can kill another without power; but private persons have received no power of this sort from God, for, lest all things be filled with slaughters, this power has been given only to the Superior of the whole civil society. Therefore 1.
1 It is in no way opposed to this doctrine that civil laws have sometimes, with certain conditions observed, given faculty of killing now one adulterer, now both, which laws Cardinal de Lugo mentions (De Iust. et Iur., disp. 10, n. 84). For, as St. Thomas has (In 4, dist. 37, q. 2, art. 1): "The civil law reckons as quasi-lawful that he" (the husband) "kill her in the very act, not as prescribing, but as not inflicting the penalty of homicide on account of the very great incitement which the man has in such a deed to the killing of the wife. But the Church is not bound to human laws, so that it should judge him to be without guilt of eternal punishment or of punishment to be inflicted by ecclesiastical judgment from the fact that he is without guilt of punishment to be inflicted by secular judgment."
Moreover the holy Doctor himself meets the difficulty which could be sought from c. Si vero 3, De Sent. excomm., namely that he is immune from the excommunication of the Canon who lays violent hands on a cleric shamefully found with his wife, mother, sister, or own daughter. For St. Thomas responds (ibid., ad 5): "From this it is not proved that" (wife-killing) "is simply lawful, but as regards immunity from some penalty: because excommunication is also a certain penalty."
To these add proposition XIX, condemned under Alexander VII, which reads thus: A husband does not sin by killing on his own authority his wife detected in adultery.
- Resolves. - 1. It is lawful for no one to beat someone not subject to his power, unless there is added at least the tacit consent of him who has power, for example of a father over a son, of a teacher over a disciple; for beating is a punishment, but this supposes governing power. Except unless this is necessary for averting a present injury, as will be said below. - Reuter, n. 369.
- 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 inflict irreparable damage, surely requires perfect power, which neither father nor master has. - Billuart.
- An elder brother by birth cannot beat younger brothers unless this has been commanded him by the father, or unless, the father being dead or absent, he himself rules the family; because primogeniture does not confer such a right on him. - Billuart and others.
- Questions. - Q. 1. Whether soldiers ordered to seize and guard a malefactor can kill him while fleeing?
Resp. No, even if he has already been condemned to death; because by force of their office, and with a special mandate of the Prince excluded, guards can only restrain the guilty man. - St. Alphonsus, Hom. apost., n. 9.
Q. 2. Whether it is lawful to kill a tyrant?
Resp. 1. It is certain that it is not lawful to kill a tyrant of governance, or a legitimate Prince tyrannically ruling and even oppressing the people; for it is necessary to obey masters even when froward. 1 Pet. 2. 18. - Thus commonly with St. Alphonsus, Hom. apost., n. 13.
Resp. 2. Nor is it lawful to kill a tyrant of usurpation if he has already come into possession of the kingdom. But the opposite opinion must be called improbable and false, because according to St. Thomas a usurper must be held as legitimate, at least in practice, if afterward the subjects acknowledge him as such. Besides, the public good requires that obedience be furnished to him 2 for forestalling disturbances and overthrows of the commonwealth. - St. Alphonsus, ibid. Resp. 3. Nor is it lawful to kill a tyrant or unjust usurper, even if he is not yet in possession of the kingdom, except from the authority of the legitimate Prince, or from just defense, or in an act of war of the Republic against him; for it is never lawful to kill a man by private authority. - Thus commonly, and it is to be held certainly. - St. Alphonsus, ibid. - Recall what was said at the end of the fourth precept, n. 387.
2 A tyrant surely sins by usurpation of authority, whether while he makes laws, or while he renders judgment, or imposes tributes, etc. For he usurps for himself the authority of a prince, although he is not a prince.
Nor does he sin only by invading the commonwealth or provinces, but afterward both he himself and his heir sin continually by preserving them oppressed and subject to themselves; since they continually oppress and inflict injury, just as one unjustly casting someone into prison not only sins at the beginning, but continually also afterward, as long as he continues this calamity of another.
There is also added this, that while a tyrant sins by retaining usurped power, he has at the same time another obligation, namely of providing for the common good of the usurped province; and therefore he sins still more if, when there is need, he either does not render law, or does not restrain the guilty, etc. The reason is that he harms the citizens still more gravely and inflicts a greater injury; just as someone who retains another's thing and uses it sins by using, and at the same time sins by not using, if the use of the thing is necessary lest it perish or become worse.
And plainly singular is this condition of the unjust usurper of public authority, that on the one hand he is guilty by retaining usurped power, but on the other he binds himself by a new crime if in the meantime he does not sufficiently consult for the society which he holds oppressed.
Yet this necessity of consulting for order or the common good does not excuse the usurper from guilt both of usurpation and of the use of power unjustly obtained; for this necessity is consequent upon the crime of retaining usurped power, by which he prevents order in the society from being provided for through the legitimate prince.
Nevertheless it is lawful for the inhabitants of the usurped province to furnish those things which are necessary for preserving order, without which the society itself could not be preserved. Nor can they only lawfully furnish this, but they are also bound. For the necessity of preserving the community or society itself requires this. And to this pertains what the Doctors commonly have, that laws and sentences issued by a tyrant are to be observed if they are just and honorable per se, although they are not just insofar as they are issued by an illegitimate power. The reason is that society cannot stand unless it is ruled by some power, laws, and judgments. But laws, sentences, etc. of this sort then cannot be had except those which are issued by the tyrant. Therefore these are to be observed.
Nor indeed does this introduce any approval of tyranny. For subjects do not observe those laws as if they had or professed the legitimate power of the usurper, but because the natural law commands that some order be observed; and since that order alone is then possible, the law of nature orders this to be observed. And this plainly has the sense of what the Doctors say, that society to this end confers on the usurper the power of making laws, governing, instituting judgments, etc.; but by no means that any legitimate right is thereby acquired for the usurper.