Article First. On Homicide

336. Definition. Homicide taken broadly or etymologically, insofar as it prescinds from whether it is licit or illicit, is defined as the violent taking of life of a man done by a man. But if there is speech simply of homicide, illicit homicide is understood, or the killing of an innocent person, who has committed no crime and is not going to commit one on account of which he would be worthy of death.

a. Of a man: by this name taken broadly is understood also a human fetus not yet brought forth into light, provided it is animated. Therefore those procuring abortion are of themselves guilty of homicide. Yet where homicide is a reserved case, this name is taken more strictly, namely for the killing of a man already born. By a man: for if a brute kills a man, the killing is not called homicide, but pauperies.

b. Since homicide is properly against justice, strictly speaking he does not commit homicide who does not free from death one whom he could free and from charity ought to free. But he who does not free from death one whom he could free and from justice ought to free, as if a physician does not assist a sick person whose care he has undertaken, commits homicide.

337. Division. a. Homicide is distinguished as voluntary and involuntary: the former is intended; the latter follows from some action or omission beyond every intention.

b. Homicide, namely voluntary homicide, is one thing direct and another indirect, according as it is intended in itself or only in the cause from which it is foreseen that it will at least probably follow.

Casual homicide is taken in a twofold sense: more strictly, if it is wholly involuntary, and more broadly, if it is voluntary indirectly or in the cause. The former is called merely casual; the latter, mixed casual. Therefore casual homicide can sometimes also be imputed as fault, just as everything indirectly voluntary is imputed as fault under certain conditions.¹

One who without just cause posits an action, even an illicit one, from which the death of another rarely follows, is not guilty of homicide, provided he has employed due diligence; as if someone, even a cleric, devoting himself to hunting and employing due diligence kills a man. For it is merely casual homicide. But one who without just cause posits an action from which the death of another frequently follows is guilty of homicide, even if he employs due diligence, as if a mother suffocates an infant in bed, or if someone throws tiles from a roof into a public road without due precautions. For this is homicide voluntary in the cause. Therefore the former action is not prohibited on account of the danger of homicide, but the latter is prohibited on account of this very danger.

c. Homicide is simple, which besides homicide contains no other species of sin from circumstances, and qualified, which moreover contains another species of sin from circumstances. Of this sort are: alpha. sacrilege by reason of the person killed or by reason of the place in which the killing happens; beta. parricide, which is the killing of father or mother, likewise the killing of an ascendant or descendant, fratricide or the killing of brother or sister, uxoricide likewise and the killing of a husband; gamma. regicide or the killing of a ruler; delta. robbery, which is killing perpetrated from the will of plundering.

alpha. To the question whether parricide, uxoricide, and fratricide differ in species, likewise whether parricide in the first degree and in other degrees differ, it must be said consistently with the doctrine set forth concerning incest: it is probable that injuries inflicted on parents or wife or brothers, and injuries inflicted in the first and in other degrees, do not morally differ from one another in species, because all are opposed in morally the same mode to the same virtue of piety. Therefore it suffices if the penitent in confession says that he killed someone closely joined to himself, without declaring whether it was father, son, brother, wife, etc.² The new species of sin which is contained in regicide or in the crime of injured majesty, as if someone killed the pope, or a king, or ruler, is the injury of observance which is owed to those persons in a special way. To robbery there accedes a new species of sin from the end, namely from the will of plundering, just as a new malice of sin accedes to the homicide of him who kills another from the will of fornicating.

beta. What is said about killing is also valid, proportion being preserved, concerning mutilation, wounding, beating, or violent striking, which sins can induce a specifically distinct malice if moreover they are opposed to religion or piety. Besides, these same sins can be light from smallness of matter, except mutilation, in which smallness of matter is scarcely to be admitted if it is taken for the amputation of a member. Thus quarrels of boys on account of smallness of matter are for the most part light sins.

¹ Cf. De principiis^9, n. 82 s.

² Ballerini-Palmieri, II, n. 850 ss.

338. General principles. 1. It is never licit directly to kill an innocent person, not even by public authority; for this action is evil in itself. And indeed no one has from God power to kill an innocent person, not even public authority. Moreover, charity owed to the neighbor and the rights both of the one killed himself and of his own and of society are irreparably injured. For this reason it is expressly prohibited by divine law: "The innocent and just thou shalt not kill."¹

a. Sacred Scripture depicts homicide as a nefarious crime, both because the homicide impiously invades the supreme right of God, who is the only Lord of life and death,² and because he kills man made to the image of God.³ Therefore, just as in the Old Testament, so also by most modern penal codes, homicide is punished with the harshest penalty of death.

b. Therefore it is not licit to kill those lethally wounded or any other dying persons so that they may not suffer longer; nor the furious, so that they may not harm others, provided they can be restrained from killing in another way; nor a woman placed in extremity so that her infant can be baptized; nor is it licit in shipwreck to throw anyone into the sea so that the others may be saved. For evils are not to be done that good may come.

c. It is not licit to kill hostages, even if the enemies who sent them had not observed the pledged faith and had themselves unjustly killed the hostages sent to them. Nor is it licit to kill some sons as hostages so that the parents may more easily give themselves up to free the remaining sons; for they are innocent.

d. It is not licit to kill an innocent person to satisfy a tyrant demanding his death, even if he threatens the destruction of the city. Nevertheless, an innocent person could be handed over to the tyrant to save the country,⁴ although his death is certainly foreseen; and if he himself were unwilling, he could be compelled to hand himself over to the tyrant, because for the public good he is bound to expose his life to danger.⁵

2. From a proportionately grave cause it is licit indirectly to kill an innocent person, that is, it is licit to do or omit something in itself indifferent whence, beyond the intention, the death of an innocent person follows, because from the principles concerning the voluntary in the cause, the death of the innocent person in this case cannot be imputed to the agent.

a. Therefore in a just war it is licit to direct artillery against a besieged city, although many innocent persons are foreseen to perish.

b. If someone, with an enemy pursuing, cannot be freed from death unless by trampling a child by chance sitting in a narrow road, it is licit to flee and, if there is need, to trample the child; for he is killed indirectly, because from the same action each effect proceeds equally immediately, the good effect or flight from the enemy, and the evil effect or death of the infant.

c. It is licit to baptize a little one soon to die with cold water, if no other could be had, even if from this the death of the infant is feared to be hastened.⁶

¹ Ex. 23:7.

² Deut. 32:39.

³ Gen. 9:6.

⁴ 1 Macc. 13:16 ss.

⁵ Cf. Lugo, De iustitia, disp. 10, n. 113.

⁶ St. Alphonsus, l. 6, n. 106.

339. On puncture of the heart (Herzstich). It happens that physicians in a corpse, before it is placed in the tomb, perform puncture of the heart or open an artery, either because the deceased himself demanded this by testament, or because surviving relatives demand it.

a. Puncture of the heart or artery which, whether by testament or by relatives of the deceased, is demanded with the intention that one who is only apparently dead not be buried alive, is certainly illicit on account of this very intention, even if in reality he is dead, because it is not licit directly to intend the killing of someone, even if this is done for the best end. But if it is demanded to be performed when certain signs of death are already present, to calm a mind disturbed by fear of apparent death, it is not illicit.

b. It is certainly not licit for a physician or surgeon to cut the heart or vein unless from undoubted signs he has a certain persuasion that death has already followed. But if from undoubted signs of death he has procured this certain persuasion for himself, it is licit for him to puncture the heart or vein to free from fear and anxiety those who seek the puncture. For if it is licit to place a man in the tomb, it is also licit to wound his heart by a blow, since each action of itself is apt to inflict death upon a man who in reality is only apparently dead.

340. On craniotomy.¹ 1. Craniotomy, which is also called perforation or cephalotripsy, is a surgical operation by which the infant in the mother's uterus is cut apart and, having been cut apart, is extracted through the birth canal. Physicians now use this operation when a mature infant, on account of the narrowness of the mother, cannot be brought forth into light in another way, and therefore if this operation is omitted, the mother with the offspring is going to perish.

2. Craniotomy is illicit, that is, it is not licit to kill an infant in the mother's uterus, even if no other means of preserving the mother is available, so that if the operation is omitted the mother and infant are going to perish. For it is the direct killing of an innocent person, since the death of the infant is intended as a means for preserving the mother. Therefore the Holy Office responded that "it cannot safely, that is, without danger of error, be taught that the surgical operation which they call craniotomy is licit."²

a. To some theologians³ craniotomy did not seem illicit if no other means of preserving the mother is available, and the infant has been baptized in the mother's uterus. By this reasoning the infant indeed perishes, but the mother is saved; but craniotomy not employed, mother and offspring perish together, while the eternal salvation of the infant is equally provided for in either case. They chiefly confirm their opinion by a fourfold reason: alpha. By this operation the death of the infant, otherwise certainly going to die, is hastened, and this to preserve the mother, otherwise likewise certainly going to die; but so slight a shortening of life for obtaining so great an end must be accounted as nothing. beta. It is licit to kill an unjust aggressor who is the cause of death for another; but the infant is indeed innocent, but objectively an unjust aggressor, because he is the cause of death for the mother. gamma. If two rights conflict with each other, the stronger right must prevail; but in this conflict of rights between mother and fetus, the right of the mother is stronger. delta. He who has a right to life can yield it to another if he wishes; and the fetus is judged to yield his right to the mother.

But although by the responses of the Holy Office the opposite doctrine is not declared simply false, nevertheless it is no longer licit to use it either theoretically or practically. The reason for the decision seems to be this. alpha. It cannot be affirmed that through craniotomy an action is exercised from which a twofold effect proceeds equally immediately, one good, the other evil. Rather it is an action which directly kills the offspring to preserve the mother; but the direct killing of an innocent person is always illicit, even if it is only the hastening of a death certainly to follow. beta. The infant cannot be considered as an objectively unjust aggressor; for he himself does not posit an objectively unjust action, since using his own right and from the natural course of things he is the cause of death for the mother. Therefore he must rather be compared to a man infected with plague and infecting others than to an unjust aggressor. gamma. But if the fetus cannot be considered as an unjust aggressor, neither can the right of the mother be called stronger in the conflict of rights between the mother and the fetus. It must be conceded that two rights collide in this case, namely the right of the mother and of the offspring to preserving life; but it must be denied that the right of the mother prevails. For no one's right to any good whatever, even a public good, can ever so prevail that the killing of an innocent person becomes licit for obtaining that good. For the dignity of the human person, who has God as the only end, prevents that person from being employed as a means for obtaining another good. delta. No one can yield to another the right over his own life in such a way that he could ever licitly permit the direct killing of himself.

b. In those circumstances in which the infant, on account of the narrowness of the mother, cannot be brought forth into light by the natural way, there exist surgical operations by which the living infant can be extracted: Caesarean section and symphysiotomy. But even if neither of these operations can be performed, nevertheless it is not licit to crush the head of the infant to preserve the mother. Rather, both are to be permitted to the natural course of things, even if death follows from it. For the author of nature is not offended by death which follows by force of the laws of nature, but He is offended by the direct killing of an innocent person. Yet since the demonstration by which from natural principles craniotomy is shown to be illicit is not so plain and evident, it can easily happen that physicians in good faith exercise it. Therefore let the confessor beware, unless he is expressly questioned about this matter, lest he disturb their good faith.

¹ Cf. A. Eschbach, Disputationes physiologico-theologicae^2 (Romae: Desclee, 1901), disp. 4; I. Pennacchi, De abortu et embryotomia (Romae: Typogr. S. C. de Prop. Fide, 1884); Bergervoort, Directer Abortus und Kraniotomie (Munchen: Abt, 1896); Capellmann, De occisione foetus (Aquisgrani: Barth, 1875); Fr. Sippel, Uber die Berechtigung der Vernichtung des kindlichen Lebens zur Rettung der Mutter (Tubing.: Pietzcker, 1902).

² Holy Office, 28 May 1884; this resolution the same Holy Office extended on 19 Aug. 1889 to any surgical operation directly killing the fetus or the pregnant mother.

³ Ballerini, Avanzini, Apicella, Viscosi, Pennacchi, Constantini.