Question — Noldin, Summa of Moral Theology
Question Third. On the Killing of a Criminal
330. By the name of criminal here is understood one who has perpetrated a crime worthy of the penalty of death.
On the right over criminals. 1. Public authority, and it alone, has the right of killing criminals insofar as this is necessary for the common good. This is proved from sacred Scripture, from the universal consensus of all peoples, and from the nature of the matter.1
a. There are those who altogether deny to civil authority the very right of inflicting the penalty of death; others do not deny the right itself, but grant it only in certain extreme cases of necessity; others indeed grant the right without limitation, yet say that its exercise in our times of civilization and humanity must be abrogated. From this it has happened that the penalty of death has been abolished in several kingdoms. But after a short time, when crimes grew strong, the subjects themselves asked that it be restored.
b. Although some testimonies of the old covenant pertain to judicial laws that were to have force only for the Israelites,2 nevertheless others have universal value, as this: "Whosoever shall shed human blood, his blood shall be shed; for man was made to the image of God."3 St. Paul also attributes to civil authority as such the right of inflicting punishments in general, and specifically the right of inflicting the penalty of death: "He is God's minister to thee for good. But if thou do evil, fear; for he does not bear the sword without cause. For he is God's minister, an avenger unto wrath to him who does evil."4
c. Legislators of all times decree that the penalty of death is to be inflicted; even those who, imbued with perverse principles of right, thought that it should be abolished, nevertheless decreed that it must be retained for certain cases. All nations have recognized this penalty as licit and just, which they would never have done unless by the light of reason they had known it to be necessary to supreme power.
d. The right of decreeing and inflicting the penalty of death is necessary to supreme authority. And indeed, from the right and office of efficaciously defending social order and of providing stable security of rights for subjects, it can decree and inflict those penalties by which men are efficaciously deterred from even more atrocious crimes. But, as experience witnesses, many are not sufficiently deterred from the most atrocious crimes except by fear of capital punishment. Criminals of this sort, who become harmful to the community, are like a rotten member in an organism, which has lost the right to life and must be separated from the body of society for the common good.
e. But the reason for the second is that criminals can be licitly killed only on account of the common good. Therefore it belongs to him to whom the administration of the community is committed, namely to the supreme ruler, to punish criminals. Far greater evils would come upon the republic if anyone by private authority could kill criminals. Wherefore it is licit neither for a father nor for a master to kill or mutilate a son or servant for the sake of correction, or universally to inflict an irreparable damage upon him; this is licit only to supreme power on account of the common good.
- In order that one guilty of crime can be justly killed, three things are required: a. that he has committed a truly grave crime; for the penalty of death is the gravest penalty which civil society can inflict; b. that he has certainly committed the crime; for he cannot be certainly despoiled of the right over his own life except on account of a certain crime; therefore if the crime is only probably established, the guilty person must be favored by law; c. that the crime committed be judicially established; for the law of nature demands that the guilty person be able to defend himself and that he be condemned only if juridically convicted, unless public authority in a particular case, for a reason of the common good, has given power of killing a man caught in the crime itself.
To one condemned to death there must be granted time to receive the last sacraments. Yet if he were unwilling to confess his sins, after admonition had first been given, he could nevertheless be killed; for he ought to attribute eternal damnation to himself.
1 Cf. Vict. Cathrein, Moralphilosophie^4 (Freiburg: Herder, 1899), II, p. 634 ff.; Theod. Meyer, Institutiones iuris natur. (Friburgi: Herder, 1900), II, 593 ss.
2 Lev. 24:17.
3 Gen. 9:6.
4 Rom. 13:4.
331. Resolutions. a. It is not licit for guardians of public order to kill fleeing criminals, even if they have already been condemned to death; for public authority's power is required for killing anyone. Hence if sometimes the same guardians discharge weapons against criminals either resisting or fleeing, they can do this either by right of defense or from a special power given to them against guilty persons already condemned to death. For anyone can of himself be constituted by the judge as executor of the penalty. But once the permission of public authority has been removed, it is licit for no one to kill even public robbers.
An outlaw, that is, one declared guilty of death by public authority, is licitly killed by anyone; for in this case anyone is constituted by public authority executor of the just sentence against the outlawed criminal. Wherefore the outlaw himself cannot defend himself and kill the aggressor; for it is licit to defend oneself only against an unjust aggressor.
b. A soldier placed on guard can licitly fire upon one approaching whom he had vainly warned not to advance, under these conditions: alpha. that the instruction of supreme power command it; beta. that the one ordered to stop be warned of the penalty, namely the discharge of a gun; gamma. that, once wounding is admitted, killing be avoided. For although the disobedience by which he resists the just order of the soldier, by reason of the common good, can in certain circumstances be gravely punished, nevertheless it is not a crime worthy of death. Something similar must be said of guards of borders who fire upon smugglers of merchandise.
c. Nor is it licit for citizens to exercise the vengeance which they call popular justice, that is, Lynchjustiz, because public order in civil society once constituted demands that the power of punishing guilty persons be reserved wholly to public authority; otherwise all things would be filled with slaughter.