Section — Koch–Preuss
Section 4: Capital Punishment
- DEFINITION.—Capital punishment (poena mortis, occisio malefactoris) is the violent destruction of a human life by legitimate authority as an atonement for a grievous crime and a means for the preservation of the public order and security. The right to inflict this penalty is known as “the right of the sword” (cfr. Rom. XIII, 4). We call it the power of life and death.
- MORAL ASPECTS OF CAPITAL PUNISHMENT.—Capital punishment can be justified from reason, Sacred Scripture, tradition, and from the common conviction and practice of men in all ages.1
1 J. P. Gury, Comp. Theol. Mor., Vol. I, n. 404: “It is permissible to kill malefactors by public authority. The reason is that God necessarily gave this power to public authority as a means necessary for defending and procuring the existence and common good of civil society, which generally cannot be obtained except by the death of wicked men. This is also established by the practice of every system of legislation, by Sacred Scripture, and by the universal consent of all nations.”
a) The Old Testament not only carried capital punishment in its penal code, but expressly prescribed it for certain crimes, according to the divine command to Noë: “Whosoever shall shed man's blood, his blood shall be shed.”2
2 Gen. IX, 6; cfr. Ex. XXI, 12, 14, 23; Lev. XX, 1 sqq.; XXIV, 17, 21; Deut. XVII, 6; XIX, 11.
Although the judiciary laws of the Old Testament are abolished under the New, capital punishment has not been done away with. On the contrary, Christ Himself expressly admits the right of public authority to put criminals to death3 and St. Paul not only declared that he would not refuse to die if he had “committed anything worthy of death,”4 but that the evil-doer has every reason to fear public authority, because it is “God's minister, an avenger to execute wrath upon him that doth evil.”5 The public authority, therefore, has power over life and death, i. e., the right to inflict the death penalty (gladii ius et potestas). This right, of course, entails a corresponding duty. The context of Rom. XIII, 4, which we have just quoted, shows that the Apostle not merely had in view some definite or concrete State or political system, but that he wished to describe the ideal Christian regimen. Consequently, the power of life and death flows from the very nature of public authority. Had Christ wished to forbid capital punishment in opposition to the Mosaic law, He would no doubt have formulated this prohibition in express terms. In reality the New Testament presupposes the death penalty as an integral constituent of the penal law.6
3 John XIX, 10 sq.
4 Acts XXV, 11.
5 Rom. XIII, 4.
6 Matt. XXVII, 22 sq., 26, 35; Luke XIX, 27.
From the undeniable fact that Divine Revelation teaches the lawfulness of capital punishment, it does not, however, follow, as the Calvinists and Puritans contend, that the public authority is strictly bound to inflict this penalty as the morally necessary and solely admissible atonement for certain heinous crimes, e. g., murder. For, in the first place, the Old Testament palliated the severity of the law by admitting the right of asylum, and substituted exile for death in the case of the first murderer (Cain), merely demanding that he be expelled from the society of men.7 Secondly, the idea that an angry God is pacified by the execution of a criminal is not Biblical, but pagan, and incompatible with the Christian dogma that through the blood of “the one mediator of God and men, the man Christ Jesus, who gave himself a redemption for all,”8 the sins of the whole human race have been wiped out and all men have been redeemed. Divine Revelation, therefore, and in particular the religion of Jesus, while it acknowledges the right of the State to inflict capital punishment, does not demand its infliction. For this reason the Church used to recommend condemned criminals to the mercy of the king; for the same reason she inflicts canonical irregularity upon those who co-operate in the infliction of the death sentence. As the old saying is: “Ecclesia non sitit sanguinem,” that is, the Church does not represent the principle of strict justice, but rather of charity and mercy.
7 Gen. IV, 16 sqq.
8 1 Tim. II, 2, 5 sq.; cfr. Rom. III, 24 sq.; Eph. I, 7.
b) Ecclesiastical tradition definitely teaches that neither the infliction nor the execution of the death penalty violates the fifth commandment of the Decalogue. The contrary view of the Waldensians and the Anabaptists, that capital punishment is forbidden by divine law, is rejected by Catholic theologians as contrary to the spirit of the Church.9
9 Professio Fidei praescripta Waldensibus ab Innocentio III: “Of the secular power we assert that it can exercise the judgment of blood without mortal sin, provided that in inflicting punishment it proceeds not from hatred but from judgment, not rashly but advisedly.” (Denzinger-Bannwart, n. 425).—Cfr. St. Augustine, Serm., 13 (al. 94, De Temp.), n. 8: “If you hear your neighbor in the same way as you hear yourself, you persecute sins, not the sinner; and if perhaps anyone, turned away from the fear of God, is hardened against the correction of his sins, you persecute this very thing in him, this very thing you will try to correct, this you will labor to destroy and remove, so that the man may be preserved when the sin has been condemned. For there are two names, man and sinner: God made the man; the man made himself a sinner. Let what man made perish; let what God made be set free. Do not, therefore, go as far as death, lest, while you persecute the sin, you destroy the man. Do not go as far as death, so that there may be someone to repent: let the man not be killed, so that there may be someone who can be amended. Keeping this love of man for men in your heart, be a judge of the earth, and love to terrify, but cherish. If you are proud, be proud against sins, not against the man. Rage against that which displeases you in yourself, not against him who was made as you were. You came from one workshop, you had one craftsman, one clay is your material. What do you destroy by not loving the one whom you judge? Because you destroy justice, [you destroy it] by not loving the one whom you judge. Let punishments be applied—I do not refuse, I do not forbid—but with the mind of one who loves, the mind of one who cherishes, the mind of one who corrects.” (Migne, Patr. Lat., XXXVIII, 110).
The strict canonical precept forbidding clerics to co-operate in the application of the death penalty and inflicting irregularity upon all who co-operate in the administration of capital punishment, does not prove that the Church denies the right of the State to inflict this punishment, but is merely a logical deduction from her exalted conception of the clerical profession.10
10 C. I. C., Can. 138; P. Augustine, O. S. B., Commentary on the New Code, Vol. II, p. 87.
c) The teaching of the Church on this head is confirmed by the consensus gentium. Surely men would not have so willingly admitted the right of their rulers to deprive them of their most precious possession, i. e., life, for certain grievous crimes committed against the public order, had not this right been universally regarded as a corollary of the natural law and a postulate of right reason. In matter of fact all nations have always admitted the right of the State to inflict capital punishment, and wherever rulers or public opinion were by specious arguments induced to restrict it, the people soon demanded its restoration. The fact that certain classes of persons (e. g., soldiers) and certain conditions (for instance, a state of war) have always been excepted when laws were passed to abolish capital punishment, proves that the public authorities wished to reserve to themselves the right of inflicting the death penalty in circumstances under which it appeared to them necessary.
d) Philosophically, the right of the State to inflict capital punishment can be demonstrated by both juridical and sociological arguments. Not everything, however, that has been brought forward by writers on the subject is entirely convincing. To prove the intrinsic justifiability or the necessity of capital punishment from the notion and purpose of punishment in general, or to base it upon reasons of social utility, is beside the point. For, in the first place, all the essential objects of punishment can be attained just as well by other methods; nay, the infliction of the death penalty may frustrate the true purpose of punishment without in the least repairing the injury done. The arguments taken from sociology, namely, that, on the one hand, a murderer has forfeited his human dignity and rights by his crime and must consequently be cast out as a worthless member of society, and that, on the other hand, society must be protected against dangerous or injurious members, really presuppose capital punishment as the sole means for obtaining the ends in question, and therefore involve a petitio principii.
The right of the State to inflict capital punishment can be convincingly proved only from its right of self-defense. As a State or community may be threatened in its material and ideal existence by enemies from without, so also by enemies from within,—those who attack discipline or, worse still, commit violence or crime and thereby undermine the very foundations of the social order. Against these,—radical Socialists, anarchists, Bolsheviki, or whatever else they may be called,—the authorities frequently have no other effective means of preserving or restoring law and order and securing peace, than capital punishment.
“Another kind of slaying,” says the Catechism of the Council of Trent, “is permitted, which belongs to those magistrates to whom is given the power of condemning to death, by the legal and judicial use of which they punish guilty and protect innocent men [Rom. xiii, 4]; in which function, provided they act justly, they are not only not guilty of murder, but eminently obey this law which prohibits murder; for as the proposed end of this law is to provide for the life and safety of men, to the same end also tend the punishments inflicted by magistrates, who are the legitimate avengers of crimes, giving security to life by punishing and thus repressing audacity and outrage. Wherefore David says: ‘In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.’”11
“Every part [of an organism],” says St. Thomas, “is directed to the whole, as imperfect to perfect, and therefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, on account of its being decayed or infectious to the other members, it is both praiseworthy and advantageous to have it cut away. Now every individual person is to the whole community as a part to the whole. Therefore, if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed, in order to safeguard the common good. . . .”12
12 St. Thomas, Summa Theol., 2a 2ae, qu. 64, art. 2: “Every part is ordered to the whole as the imperfect to the perfect, and therefore every part is naturally for the sake of the whole. And for this reason we see that if the health of the whole human body requires the cutting off of some member, for example when it is putrid or corruptive of the other members, it is praiseworthily and beneficially cut off. But each individual person is related to the whole community as a part to the whole. And therefore, if any man is dangerous to the community and corruptive of it because of some sin, he is praiseworthily and beneficially killed, so that the common good may be preserved.”—Ibid., ad 1: “When no danger threatens the good from the killing of the wicked, but rather protection and safety result, then the wicked may lawfully be killed.”
Capital punishment, therefore, like war, is the exercise of a nation's right of self-defense against the danger arising to its very life from putrid or infectious members, which threaten to infect and corrupt others and thereby imperil the very existence of the State.13 Whenever there is need of exercising this right of self-defense, when capital punishment has been established by law for certain grievous crimes, the magistrates exercising the proper authority are permitted, nay, obliged to put malefactors to death.14 If society is not in a state of necessary self-defense against internal enemies and the dangerous elements can be rendered innocuous by other means, such as incarceration, banishment, or deportation, or if certain crimes do not imperil law and order and public peace, the death penalty should not be inflicted. A temporary abolition of capital punishment may be morally justified. Even where capital punishment is legal, it need not be inflicted in every case; for it is but a relative law, and as such involves no absolute obligation. In matter of fact the supreme representative or bearer of civil authority has at all times in the world's history exercised the right to pardon condemned criminals. It goes without saying that this prerogative must be exercised prudently, lest the non-infliction of capital punishment in flagrant cases create contempt for authority.15
13 Ibid., art. 3: “It is lawful to kill a malefactor insofar as this is ordered to the welfare of the whole community.”
14 Ibid., art. 7: “It is not lawful to kill a man except by public authority for the common good.” Cfr. Contra Gent., l. III, c. 146, n. 3–5.
15 Cfr. F. X. Linsenmann, Moraltheol., p. 473; V. Cathrein, Moralphilosophie, Vol. II, 5th ed., pp. 675 sq.
Some hold that capital punishment is a violation of the Fifth Commandment,16 contradicts a certain dictum of the prophet Ezechiel,17 and is incompatible with Our Lord's teaching in the parable of the wheat and the cockle.18 But, as St. Thomas explains, “the slaying of a man is forbidden in the Decalogue [only] in so far as it bears the character of something undue, for in this sense the precept contains the very essence of justice. Human law cannot make it lawful for a man to be slain unduly. But it is not undue for evil-doers or foes of the common weal to be slain, and hence this is not contrary to the precept of the Decalogue, and such killing is no murder as forbidden by that precept.”19
16 See Ex. XX, 13.
17 Ez. XXXIII, 11.
19 St. Thomas, Summa Theol., 1a 2ae, qu. 100, art. 8, ad 3: “Killing a man is forbidden in the Decalogue insofar as it has the character of what is undue, for thus the precept contains the very principle of justice. But human law cannot grant that a man may lawfully be killed unduly. But for malefactors or enemies of the commonwealth to be killed is not undue. Hence this is not contrary to the precept of the Decalogue, nor is such a killing homicide, which is forbidden by the precept of the Decalogue.”
It is correct, however, to say that Christianity aims at establishing an ideal condition of society in which capital punishment could be safely dispensed with.
From the juridical standpoint the chief argument advanced against capital punishment is the possibility of its infliction upon innocent persons,—an injustice which can never be repaired. It is vain to deny that cases of “judicial murder,” as the execution of an innocent man is called, have occurred and still occur, and that the injustice thus inflicted is in a sense irreparable.20 But this does not disprove the lawfulness of capital punishment. For in a certain sense every punishment is “irreparable.” If a man is innocently condemned to a term in the penitentiary, and later found to be innocent, the wrong cannot be undone. The argument, therefore, proves too much, because if it were valid, all punishment would have to be abolished, which is absurd. Secondly, it should be considered that if, in spite of all the safeguards with which capital punishment is surrounded by an orderly and conscientious jurisprudence, it does occasionally happen that an innocent man is put to death, there is a higher justice in the next world, and the victim of earthly injustice may, by the exercise of patience and resignation, convert the evil into good, nay, make it the means of meriting an imperishable crown.
20 John XIX, 6. Cfr. J. Schaber, Mord oder Justizmord? Zurich 1896; N. Paulus, Ein Justizmord an vier Dominikanern, Frankfort 1897; R. Steck, Der Berner Jetzerprozess (1507–1509), Bern 1902; Id., Die Akten des Jetzerprozesses nebst dem Defensorium, Basle 1904.
- The following conditions are essential for the lawful infliction of capital punishment:
a) Capital punishment may be inflicted only upon those who are a peril and a detriment to the community in which they live, and who have actually committed a grave crime with complete freedom and deliberation.
Hence society is not allowed to kill an innocent member to preserve its own existence, for ex- ample, to placate a tyrant threatening city or country with destruction unless an innocent person is put to death.21
21 Ex. XXIII, 7.—Saint Thomas, Summa Theol., 2a 2ae, qu. 64, art. 6; St. Alphonsus de' Liguori, Theologia Moralis, l. III, n. 393, 398 (ed. Gaudé, I, 643, 654); J. P. Gury, Comp. Theol. Mor., Vol. I, n. 412: “Never is it lawful directly to kill an innocent person, whether by private or public authority, even to procure the public good; for it is an action intrinsically evil and forbidden by divine law. It is lawful for a grave cause to posit an action good in itself, from which the death of an innocent person follows apart from the intention.”—Ibid., n. 413: “It is not lawful to kill an innocent person to satisfy a tyrant demanding his head, even under penalty of the city's overthrow—indeed, even if he consented to his own death, since he has no dominion over his own life. More probably, however, he could be compelled to hand himself over to the tyrant for the public good.”
b) The accused must, in accordance with the axiom, “Audiatur et altera pars,” be given an opportunity to defend himself in court, and the judge, “with an upright heart,”22 free alike from sympathy and antipathy, should pronounce sentence in conformity with the facts of the case and the law. The Lord is no respecter of persons, neither should earthly judges allow themselves to be unduly influenced.23
22 Wisd. IX, 3.
23 Prov. XVIII, 5; Ecclus. XX, 24; John VII, 50 sq.; Rom. II, 11; Eph. VI, 9; Col. III, 25; Jas. II, 1; 1 Pet. I, 17.
“Judgment,” says St. Thomas, “is an act of justice, in as much as the judge restores to the equality of justice those things which may cause an opposite inequality. Now respect of persons involves a certain inequality, in so far as something is allotted to a person out of that proportion to him in which the equality of justice consists. Therefore, it is evident that judgment is rendered corrupt by respect of persons.”24
24 St. Thomas, Summa Theol., 2a 2ae, qu. 63, art. 4: “Judgment is an act of justice, insofar as the judge reduces to the equality of justice those things which can produce the opposite inequality. But respect of persons has a certain inequality, insofar as something is attributed to some person beyond his proportion, in which the equality of justice consists. And therefore it is manifest that judgment is corrupted by respect of persons.”
An important legal maxim says that the escape of a guilty criminal is preferable to the unjust execution of an innocent man.25
25 “Maius malum est, quod innocens pereat, quam quod reus impunitus evadat.”
c) A criminal condemned to death should be given ample time to make a sincere act of contrition and to employ the means of grace held out to him by the Church, particularly the sacraments of Penance and the Holy Eucharist, and this respite should be granted even when there is danger that he may be freed by force. If he obstinately refuses to receive the Sacraments within a reasonable period, this is no reason for not inflicting the punishment at the appointed time.26
26 St. Thomas, Summa contra Gentiles, l. III, c. 146, n. 5: “The fact that the wicked can be amended as long as they live does not prevent their being justly put to death, because the danger that threatens from their life is greater and more certain than the good that is expected from their amendment. They also have, at the very moment of death, the opportunity to be converted to God through repentance. But if they are so obstinate that even at the moment of death their heart does not withdraw from malice, it can be judged with sufficient probability that they will never recover from malice.”
d) The legitimate authority,—in our country the legislature,—may and shall determine which crimes are punishable by death. Positive laws on this subject, should be kept within the bounds set by the moral law for the infliction of this supreme penalty. No government can renounce the right of inflicting capital punishment. Its abolition by law only makes the power of inflicting it latent in the State, but does not and cannot wholly eradicate it.27
Some have held that only such crimes are subject to capital punishment as were expressly punishable by death under the Mosaic law.28 But this is a mistake. Christ completely abolished the Old Law. The view just stated is opposed to the common teaching of Catholic theologians.
28 D. Scotus, Comment. in Sent., IV, dist. 15, qu. 3, a. 2.
The question is sometimes asked: Is there no hope that, if humanity goes on improving as it has done, capital punishment will become wholly unnecessary? Fr. Rickaby answers that, “waiving the question of the prospect of improvement,—in a State mainly consisting of God-fearing, conscientious men, the infliction of capital punishment would rarely be necessary, but the power to inflict it could never be dispensed with. If men ever become so ideally virtuous, the right of the State to visit gross crimes with death cannot hurt them, and it will strengthen their virtue, as all human social virtue will ever need strengthening. The abiding necessity of this right of the sword is argued from the strength and frequency of the provocations to deeds of bloodshed and violence that must ever be encountered in human society. What these provocations are, how many and how strong, may be left to the reflection of the student who reads his newspaper, or even his novel. Not the least appalling thing about crime, atrocious crime especially, is the example that it gives and the imitators whom it begets. It is not merely that it sets the perpetrator himself on the downward path, so that, unless detected and punished, a man's first deed of blood is rarely his last: it draws others after him by a fatal fascination. Like the images which the Epicureans supposed all visible objects to slough off and shed into the air around them, such phantoms and images of guilt float about a great crime, enter into the mind of the spectator and of the hearer, and there, upon slight occasion, turn to actual repetitions of the original deed. The one preventive is to append to that deed a punishment, the image of which shall also enter into the mind, strike horror, and disenchant the recipient. This is not to be done by mere banishment of the criminal, nor by his perpetual incarceration. Exile and prison—particularly in view of the humanity of a modern penitentiary—do not sufficiently strike the imagination. One sweet hour of re- venge will often appear cheap at the price of ten years' penal servitude. There is nothing goes to the heart like death. Death is the most striking of terrors; it is also the penalty that most exactly counterpoises in the scales of justice the commission of a murderous crime. All States need this dread figure of the sword-bearer standing at the elbow of the sovereign.”29
29 Rickaby, Moral Philosophy, pp. 347 sqq.
e) A criminal condemned to death should not be compelled to execute himself. No one is allowed to commit suicide, and no one should be compelled to do so, though, according to a more common opinion, if a criminal were by law condemned to execute capital punishment on himself, he would be allowed to do so.30 Although the dignity of manhood is inviolable only as long as the individual respects it in himself and does not, in the words of St. Thomas, “fall, as it were, into the slavish state of beasts,”31 it nevertheless remains true that human nature must be respected even in the worst criminal, because by and through it he is still superior to the brute.32
30 See Vol. III of this Handbook, p. 99.
31 Summa Theol., 2a 2ae, qu. 64, art. 2, ad 3: “By sinning, man withdraws from the order of reason and therefore falls from human dignity, insofar as man is naturally free and existing for his own sake, and falls, as it were, into the servitude of beasts. . . . And therefore, although to kill a man remaining in his dignity is evil in itself, nevertheless to kill a sinful man can be good, just as to kill a beast. For a bad man is worse than a beast and does more harm.”
32 St. Augustine, Tract. in Ioa., I, 8, n. 8: “God gave you to be above the beasts, that is, to be better than the beasts. This you have by nature; you will always be better than a beast.” (Migne, P. L., XXXV, 2040).—IDEM, Serm., 255 (al. 1 De Diversis), n. 3: “Both [good and evil] are men. Even a bad man is better than every beast.” (P. L., XXXVIII, 1187).
Here it may not be amiss to add a few words about lynching. Fr. Rickaby, in the work from which we have so copiously quoted in this Section, says: “There is in every human breast a strong sense of what the learned call lex talionis, and children tit for tat. ‘If a man has done to him what he has done to others, that is the straight course of justice’; so says the canon of Rhadamanthus, quoted by Aristotle.33 We have argued the fundamental correctness of this rule.34 It appears in the divine direction given to Noë: ‘Whoso sheddeth a man’s blood, his blood shall be shed.’35 It appears in that popular sentiment, which in some parts of America displays itself in the lynching of murderers, who have unduly escaped the hands of the law; and which, under a similar paralysis of law in Corsica, broke out in blood-feuds, whereby the nearest relative of the deceased went about to slay the murderer. Such taking of justice into private hands is morally unlawful. . . . It is a violent outburst of natural and reasonable sentiment deprived of its legitimate vent.”36
33 Eth., V, v, 3.
34 Rickaby, Moral Phil., p. 169.
35 Gen. IX, 6.
36 Rickaby, Moral Philosophy, pp. 346 sq.
Fr. Ross, who lives and teaches in the South, thinks that if the regular procedure of the law is so slow that its deterrent effect is lost, and the whole community, including the sober-minded and conservative, feel that swift punishment is necessary to protect society against indefinite repetition of such acts, then the community may act directly, for the reason that the law derives its authority from the community. But he admits that this theory “is open to such grave abuses, there is so much danger of acting through passion without sufficient evidence, and the multiplication of lynching in itself constitutes such a serious menace to the peace of the community, that it should be used only as a last resort.” Hence “whatever may be the theory by which it can be allowed abstractly, the moralist will be very slow to sanction lynching in the concrete.”37
37 Christian Ethics, pp. 409 sq.
READINGS.—St. Thomas, Summa Theologica, 2a 2ae, qu. 64, art. 2.—Sporer-Bierbaum, Theologia Moralis, Vol. II, 2nd ed., pp. 243–255.—V. Cathrein, S.J., Moralphilosophie, Vol. II, 5th ed., pp. 677 sqq.—H. Noldin, S.J., Summa Theol. Mor., Vol. II, pp. 353 sqq.—J. Rickaby, S.J., Moral Philosophy, pp. 343–350.—J. W. Willis, art. “Punishment, Capital” in the Catholic Encyclopedia, Vol. XII, pp. 365–369 (with bibliography).—E. Bowen-Rowlands, Judgment of Death, London 1924 (traces the history of capital punishment from 2000 B. C. until the present time and affords reliable premises on which to base arguments either for its retention or its abolition).