Article — Marc, Institutiones Morales
ARTICLE I: On the Killing of a Malefactor
A malefactor is called one who commits a crime very harmful to society. That it is not licit for princes to punish malefactors with death is affirmed, besides the Waldenses, by Anabaptists and not a few pseudo-politicians, who under the pretext of philanthropy loudly declare that the death penalty is by no means necessary to the good of society, indeed very iniquitous and therefore to be abrogated. Materialists, under the leadership of Lombroso, consider malefactors as sick persons, to whom remedies and mercy are owed.
- Principles. I. It is licit to kill or mutilate malefactors. This is proved: 1. From divine right (Exod., 22, 18): Thou shalt not suffer malefactors to live; cf. Rom., 13, 4. - 2. From the right of nature: for every part which is harmful to the whole is licitly cut off. Therefore, if a man, who is a part of the community, is found harmful or dangerous to it, he will be able salutarily to be killed, so that the whole may be preserved. Add that criminals are turned away from crimes by no thing more efficaciously than by fear of death (St. Thomas, 2.2, q. 64, a. 2).
- II. To public authority alone belongs the power of killing malefactors. For it is not licit to kill a malefactor except insofar as the killing is ordered to the safety of the whole community. But care of the community does not pertain to a private person. - Note that by the name public authority that only is understood which presides over a perfect society, such as that of a king in a kingdom; for the supreme right belongs only to supreme authority.
Hence: 1. It is not licit for a father to wound or mutilate his own children, nor for a master his own servants, for the cause of correction. This is drawn from the 19th proposition condemned by Alexander VII: "A husband does not sin who kills by his own authority his wife detected in adultery." A fortiori, it is not licit for the people, by themselves, to exercise vengeance upon malefactors, lyncher, Lynchjustiz.
But sometimes it is permitted to private persons to kill those enemies of the republic whom they call proscribed or banished: for these are killed not by private authority, but by public, that is, by the authority of the prince, who can concede it from a most grave cause, and only in his own territory.
It is not licit for guards to kill a guilty person fleeing or resisting, although he has already been condemned to death, unless they have a special mandate concerning this (III, 376, 380; H. Ap., VIII, 9).
For soldiers placed on station, for guards of borders in relation to defrauders of merchandise, let the following norms have force: a) they must warn those who advance farther or flee concerning the danger which threatens them, and concerning the penalty which public authority has established, namely the discharge of a gun; b) as much as can be done, if the warning is given in vain, let them only wound those resisting.
- III. Public authority regularly cannot kill malefactors unless the order of law has been observed. The reason is both because it is a question of a most grave matter committed by God to the prince because of necessity alone; and because the nature of the act demands that it be done from public power and public knowledge; and finally because occasion of abuse of power must be closed off. See n. 2295, where the order of law is treated.
We have said regularly; for sometimes an exception is given, if the crime is notorious, or there would be danger of sedition, or disgrace of the prince, if one proceeded juridically (III, 377; IV, 193).
- Questions. QUES. 1. Whether it is licit to kill a tyrant?
Resp. Negatively, whether there is question of a tyrant of regime, that is, of a legitimate prince who governs tyrannically; or of a tyrant of usurpation, that is, of an illegitimate prince who has already come into peaceful possession of the kingdom; or finally of a tyrant invader, who has not yet come into such possession; unless, in this last case, from the authority of the legitimate prince, or from just defense to protect one's own life, or in the act of war of the republic against him (cf. n. 150, q. 2). Read St. Thomas, 2.2, q. 64, a. 7; de Regim. princ., l. 1, c. 6.
QUES. 2. Whether it is ever licit to beat one's neighbor?
Resp. Beating is punishment; but this supposes coercive power. Therefore, the case of legitimate defense excepted, it is licit for no one to beat someone not subject to his power, unless there accedes at least the tacit consent of him who has the power.
Therefore they can beat: a father, his children; a teacher, his disciples. But they cannot beat: a husband, his wife, otherwise, if in a special case charity demands it, since she is a companion, not a slave; nor an elder brother, younger brothers, unless this has been commanded by the father; or unless, the father being dead or absent, he himself rules the family; because primogeniture alone does not confer such power (Reuter, P. 3, n. 369).