§ 4. Homicide or Mutilation

135. Voluntary homicide. Unjust homicide directly, or at least indirectly, voluntary and gravely sinful, once the effect has followed, induces irregularity.¹

1. Homicide is the killing of a human being done by a human being.

For homicide in this question it makes no difference whether he whose life is taken away has been born or has not yet been born; therefore also the procuring of abortion of an animated fetus is homicide.² Likewise it makes no difference by what means life is taken away: by fire, iron, poison, hunger, etc. He also contracts irregularity on account of homicide who is only the cause because of which death follows or is inflicted more quickly.

a. Homicide is voluntary when homicide itself is intended, and it is casual when it happens beyond the intention.

b. Casual homicide is either entirely involuntary and inculpable, or it is indirectly voluntary and culpable, namely if due diligence is not employed to guard against foreseen homicide.

2. Real homicide. a. To contract irregularity from homicide it is required that death in fact follow: for where there is question of a penalty to be incurred, the words of law are to be taken strictly and properly.

C. Pro humani 1. De homicidio in 6. (V. 4), where one mandating killing through assassins is declared irregular even if perchance death does not follow, seems opposed to this doctrine. But it is a special case in which the supreme pontiff on account of an enormous crime established that irregularity be incurred even if death has not followed. But an exception does not weaken, but confirms, the rule.

b. Not only he who is the physical cause of homicide, but also he who is its moral cause, by mandate, counsel, or consent, provided he is an efficacious cause, incurs irregularity.³

a. Those who excite themselves to homicide are all irregular, even if only one is killed, because they are to be regarded after the manner of those counseling. Therefore if in an unjust war even one of the adversaries is killed, supposing grave sin, all become irregular who cooperated proximately in the killing by mutually exciting themselves; those nearer to the one killing are judged such. A soldier who is certain that he killed no one, because he either did not discharge or discharged into the air, is not irregular.

b. There are those who say that he also becomes irregular who does not impede a homicide which from justice he is bound to impede, even if he does not positively influence the homicide. Therefore they judge irregular a hired physician, a guard of roads, an advocate, who does not impede the death of a sick person, a traveler, or a client, which he could impede and from justice ought to impede. But since irregularity which is contracted from negative cooperation is nowhere read as expressed in law, it is rather to be denied.

c. Homicide induces irregularity even if it remains occult. Likewise, from a special disposition of law, doubtful homicide also constitutes a priest irregular, as was explained above (127); but irregularity is not incurred where it is doubtful whether the moral cause, mandate or counsel, was the efficacious cause of the homicide.

3. Unjust, i.e. joined with sin against justice: for homicide which is not against justice is not strictly and rigorously homicide.

Therefore he who kills another in defense of himself and with the moderation of blameless defense having been observed, or he who kills another from legitimate power, as soldiers in a just war or executioners, do not become irregular from this title, because they do not commit the sin of homicide.

¹ C. Si quis 1 De homicidio (V. 12).

² Constitution Effraenatam of Sixtus V, October 29, 1588.

³ C. Is qui 3 De homicidio in 6. (V. 4).

136. Casual homicide. Not only voluntary homicide, but also casual homicide, provided it is gravely culpable, induces irregularity.

1. If casual homicide is entirely involuntary, no irregularity is incurred: for there is no irregularity from delict where no fault intervenes.

2. If the omission of diligence in guarding against homicide is gravely culpable, irregularity is contracted, whether someone applies his work to a licit or illicit thing, provided he foresaw the homicide: for the omission of diligence, not the prohibition of the action which someone exercises, effects that homicide is indirectly voluntary and therefore culpable and inducing irregularity. The case is to be excepted in which the thing is illicit on account of the danger of homicide.

a. He who discharges a gun where the people are customarily numerous; he who throws a tile from a roof and does not warn passersby by voice or sign, becomes irregular if a human being is killed for that reason.

b. Therefore he does not become irregular who in good faith gives food or drink to a sick person, or moves him, or transfers him to another place, or does something else about him, from which death follows beyond intention, because there is no irregularity from delict where there is no fault; but in the case supposed, due diligence is not omitted.

c. An unskilled physician or surgeon who exercises the medical or surgical art becomes irregular if the death of the sick person follows, even if he employed every diligence to guard against it; but a skilled physician or surgeon does not, even if, with necessary diligence supposed, the death of the sick person follows from the remedy which he employs. Benedict XIV reports that physicians wishing to be promoted to orders are customarily granted dispensation for caution, because perhaps in the exercise of their art they did not always employ due diligence concerning those who died during their care.¹

d. A cleric constituted in major orders and a religious who exercises the medical or surgical art joined with cutting or cauterizing becomes irregular, even if without his fault the death of the sick person follows. The reason for this irregularity is that he applies his work to an action prohibited to clerics for this reason, that it easily induces homicide or mutilation.² But he does not become irregular if he exercises, short of cutting or cauterizing, an art which he knows well, although the sick person whose care he conducts dies.

¹ De synodo l. 13. c. 10. n. 4.

² C. Dilectus 13 De homicidio (V. 12).

137. Procuring abortion. Those procuring abortion, and those cooperating for it, once the effect has followed, also contract irregularity.

a. Those procuring abortion do not contract irregularity unless the fetus is animated. Since there is question of an odious thing, concerning the animation of the fetus judgment can be made from the ancient and thus far unchanged canonical laws, which establish that the male fetus is informed by a rational soul after 40 days from conception, but the female fetus after 80 days. In doubt whether the fetus was animated or not, and in doubt whether the fetus was male or female, one must stand for the minimum; therefore that it was not animated, or was female.

b. In antiquity those procuring abortion and those cooperating in it incurred excommunication and irregularity; excommunication through the constitution Apostolicae sedis was restricted to those alone procuring abortion. But because concerning irregularity the ancient law was not changed through the said constitution, those cooperating also contract this irregularity.

138. Notion of mutilation. Mutilation is the cutting off of a member. By the name of member is understood a part of the body having a proper and distinct office, such as eye, arm, foot, hand, tongue, ear, etc.

In applying this definition, difficulty arises where it must be determined what part of the body has its own function and therefore is signified by the name of member. For since almost all members of the body are duplicated, it is asked whether one part, such as an eye, ear, leg, can be judged a member having its own office. But now, with common estimation considered, it seems to be said that those parts which are distinct and separate from each other, such as the eyes, have their own function; but those which are not distinct and separate from each other, such as nostrils, do not have their own function and therefore are not members. And indeed, where an eye is torn out, we say a member is cut off; where a nostril is cut off, we say part of a member, the nose, is cut off.¹

a. Therefore he who injures some member or renders it useless, e.g. does not dig out the eye but blinds it, does not become irregular, because he does not cut off the member: for mutilation is cutting off or separation from the body.

b. He who knocks out a tooth, cuts off the outer ear, the cartilage of the ear, or a finger, and a fortiori he who tears out nails, beard, or hair, does not become irregular, because he does not cut off a member: for these do not have their own function in the human body. According to the mind of St. Alphonsus (n. 379), not even the knocking out of all the teeth is judged mutilation; but the cutting off of fingers certainly is mutilation.

¹ Ballerini-Palmieri VII. n. 444 ss.

139. Unjust mutilation induces irregularity. He who unjustly mutilates himself or another by a physical or moral action, or cooperates in it, becomes irregular.

1. What has been said above concerning homicide holds also concerning mutilation, with this case excepted: in doubt of fact whether a priest was the efficacious cause of mutilation or not, he does not become irregular; on the contrary, if the same doubt concerns homicide, irregularity is contracted.

2. He who freely mutilates or castrates himself, from a special disposition of law, becomes irregular,¹ even if he has not cut off for himself a member having its own office, but only a finger or joint of a finger.²

¹ C. Ex parte 3 De corpore vitiatis (I. 20).

² C. Qui partem 6. dist. 55.

140. Note. To these must be added the irregularity which is established by the decree Vigilanti of S. C. C., May 25, 1893, and renewed by the decree Ut debita of the same sacred congregation, May 11, 1904. Besides the penalty of suspension (n. 113), clerics not yet initiated to the priesthood contract it who exercise shameful commerce concerning Mass stipends, so that they are incapable of receiving higher orders unless they have received dispensation from the Roman pontiff or from S. C. C.

The actions by which shameful commerce concerning Mass stipends is exercised are these:

a. Knowingly handing over the intention of Masses received from the faithful or from pious places to those who request them not in order that they may satisfy them, but for any other end whatever; likewise knowingly accepting them.

b. Separating stipends of manual Masses from their celebration, commuting them into other things, or diminishing them, namely by not handing them over wholly and in their own kind.

c. Selling or buying books or other things and entering into associations with newspapers and periodicals by means of Masses to be celebrated or celebrated, if this latter thing is done habitually and turns into the support of some commerce.

d. Subtracting something from the stipends of Masses which the faithful are accustomed to hand over to more celebrated sanctuaries, so that provision may be made for their dignity and ornament.