1. On The Killing Of An Evildoer Or On Bloody Punishment

118. Principle. Public authority, and it alone, has the right of killing those who have committed most grave crimes.

Proof. The reason is that the death penalty is a necessary means for preserving the common good. For unless great evildoers could be killed by public authority, they would always become more arrogant and would greatly diminish public peace and security. Therefore in Sacred Scripture also we read that this power was conferred upon public authority,¹⁰⁴ and we find its use among all peoples. Thus, e.g., among the Israelites it was established: "He who strikes a man, wishing to kill, let him die by death." "He who has cursed his father or his mother, let him die by death."¹⁰⁵ But no one except public authority can inflict the death penalty, because evildoers can be licitly killed only on account of the common good. Therefore he alone who by office ought to procure the common good, i.e., the superior of the community, can punish someone by death. The Angelic Doctor writes to the point: "To kill an evildoer is lawful insofar as it is ordered to the safety of the whole community, and therefore it belongs only to him to whom the care of preserving the community is committed; just as it belongs to a physician to cut off a putrid member when the care of the whole body has been committed to him. But the care of the common good is committed to princes having public authority; and therefore it is lawful for them alone to kill evildoers, not for private persons."¹⁰⁶

Those private men act illicitly who kill certain evildoers immediately after the crime committed by their own authority, which practice is commonly called Lynch justice, lynching. Thus at least objectively speaking, because perhaps several so acting are in good faith.

Soldiers and guards appointed for capturing or guarding an accused man cannot indeed kill him when he is taking flight, but they can fire a gun at the legs of the one fleeing, so that he can be captured. But if in this way the fleeing man is accidentally killed, the guards have not sinned. For the rest, guards, watchmen, and soldiers are accustomed to have special instructions how in individual cases they ought to act. They are not to be disturbed in conscience if they act according to these instructions.

Things To Be Provided Before A Sentence Of Death. No one can licitly be condemned to death by supreme authority unless, after judgment, moral certitude has been had concerning the most grave crime committed.

Therefore in order that the death penalty can be licitly inflicted, there is required a) a most grave crime; b) moral certitude that this crime has been perpetrated. The crimes which are punished by the death penalty by modern criminal codes are few, e.g., voluntary homicide, treason, certain crimes during war. It is not indeed required for the liceity of the death sentence that the accused have confessed his crime in court, but it is altogether necessary that moral certitude concerning the crime perpetrated be had, because otherwise an injury could be done which afterward would be irreparable.

Before execution of the sentence of death, time must be conceded to the accused for reconciling himself with God according to the prescriptions of religion.

Several criminal codes rightly establish that no pregnant woman can be punished by death, but that birth must first be awaited.

In ancient times civil law permitted that a husband could kill an adulterer caught in the very act. But since certain theologians extended this permission of civil law even to the killing of the wife, proposition 19 was condemned by Alexander VII: "A husband does not sin when he kills by his own authority a wife detected in adultery."¹⁰⁷ St. Thomas had already solved this question: "Civil law reckons as licit, as it were, that he kills her [namely, the wife] in the act itself [of adultery], not as commanding, but as not inflicting the penalty of homicide, on account of the greatest incitement which a man has in such a deed to the killing of his wife. But the Church in this is not bound by human laws.... And therefore in no case is it lawful for a man to kill his wife by his own authority."¹⁰⁸

¹⁰⁴ Cf. Ex. 22, 18 and Rom. 13, 4.

¹⁰⁵ Ex. 21, 12 sqq.

¹⁰⁶ S. theol. 2, 2, q. 64, a. 3. Similar things are had there a. 2 and 7; q. 65, a. 1 and ad 2; q. 108, a. 3 ad 1; De malo q. 1, a. 5 ad 12; Contra gent. 3, 146. But always the same reason is brought forward by the Angelic Doctor for the liceity of the death penalty, namely, the necessity of the common good.

¹⁰⁷ Denz. n. 1119.

¹⁰⁸ 4 dist. 37, Q. 2, a. 1.

119. Punitive Beating. The things just said concerning the death penalty to be inflicted upon evildoers hold also, with due proportion observed, concerning mutilation and beating. In ancient times, and also in the Old Testament, certain crimes were punished by mutilation of members, e.g., by cutting off the hand, gouging out the eyes, etc.¹⁰⁹ Although these penalties were very harsh and today are no longer in use, nevertheless they could be licit and just. For he who has the power of killing has, a fortiori, the power of mutilating. It is never lawful for a private man to mutilate another without his legitimate consent. Hence not even physicians can perform a surgical operation without the explicit and licit consent of the sick person; this consent, in persons lacking the use of reason and in persons bound by a religious vow, can be supplied by legitimate superiors.

Not only supreme power, but also another legitimate superior can moderately beat delinquent subjects. For to whomever the right of punishing belongs, to him is also conceded the power of moderately beating the delinquent. Hence nothing prevents parents and teachers from punishing disobedient children moderately and discreetly with blows. Nevertheless, that in these things action must be taken with great justice, prudence, and moderation is plain of itself. But it is lawful for no private man to beat another private man not subject to him, unless nevertheless it is a question of just defense. The reason is that it does not belong to a private man to punish another equal to himself. Yet often it is lawful for a private man moderately to beat unruly and damaging children, both because the permission of the parents can deservedly be supposed, and because otherwise there is almost no other remedy at hand for restraining them from damaging.

Scholion. On Adversaries Of The Death Penalty. The Waldenses, Anabaptists, Jeremy Bentham, Cesare Beccaria, Chr. Lucas, Spedalieri, and others denied the power of punishing evildoers by death, and in fact in certain regions the death penalty was abolished, but after a few years often was restored (e.g., in several districts of Switzerland and of the United States of North America). For sad experience has proved that evildoers cannot be sufficiently restrained by fear of prison. Hence the death penalty must be held as a salutary and efficacious remedy for preventing enormous crimes and for preserving peace in the republic. There is no leisure to solve the objections which are usually brought forward by adversaries of the death penalty.¹¹⁰

¹⁰⁹ Cf. Ex. 21, 24; Lev. 24, 20; Deut. 19, 21.

¹¹⁰ See Cathrein, Moralphil. II, 677 sqq.