Article I. On the Killing of a Guilty Person or Malefactor

I say. Sometimes it is licit to kill malefactors by public authority, but never by private authority. The reason for the first is taken not only from the practice of any legislation and from the universal consent of all, but also from the fact that God, the author of society, must be said to have conferred upon that same society the means absolutely necessary for conserving itself and for procuring the common good. But among these means the death of certain malefactors must often be numbered. Therefore. But the reason for the second is that, if it were licit to slay malefactors by private authority, all things would be filled with slaughters, and society itself would be wholly disturbed; therefore God cannot confer such authority, and accordingly the whole malice of homicide remains if ever any malefactor is killed by private authority.

You Will Resolve. - 1st. It is licit for no one to punish, by striking, someone not subject to his power, unless there is added at least the tacit consent of him who has the power, e.g., of a father over a son, of a teacher over a pupil; and the reason is that the act of punishing supposes the power of governing.

2nd. It is not licit for a father to mutilate or kill his own children for the sake of correction, nor for a master his own servants; the reason is that to punish by mutilation and killing, which inflict irreparable harm, certainly requires perfect power, which neither father nor master has.

3rd. It is not licit for guardians of public order to kill malefactors who are fleeing, even if they have already been condemned to death, because right order demands that for killing them there be had a special mandate from public authority. But if among us guardians of public order seem more easily excused if sometimes, yet not rashly, they discharge weapons against malefactors either resisting or fleeing, this must be ascribed either to the right of defending themselves or to the special mandate which they implicitly had.

Question 1. What is to be said of that manner of acting toward malefactors which among us is called "Lynch law"?

Response. It is altogether illicit; for the power of punishing malefactors belongs only to legitimate authority, and not to private citizens. That manner of acting is also contrary to the Constitution by which we are governed; for - Amendments, Art. 5 - it is said: "Nor (shall any person) be deprived of life, liberty or property without due process of law." Wherefore Kenrick says very well: "The power, which in some places has sometimes been assumed by citizens, of judging and punishing accused persons at will and immediately, even by capital punishment, is abhorrent from all justice and public order, and is an enormous crime." - And elsewhere: "They are to be judged to sin most gravely who, the authority of the laws having been despised, usurp to themselves the supreme right of life and death, with no form of judgment having preceded, or with an empty one." - Cf. Kenrick, tract. 3, n. 142; and tract. 8, n. 165.

Question 2. Is it licit for the state to render criminals sterile by performing vasectomy upon them, if they are men, or ovariotomy or oophorectomy, if they are women, precisely so that offspring may not be born?

Response. Vasectomy is an operation by which the vas deferens is cut; it is perfect when both vasa are cut. Of this we speak. This operation having been done, sexual desire remains and carnal copulation is completed as before, except that male semen cannot be ejaculated.

Those who enact this law desire solely to impede defective offspring, namely offspring which is not desirable to the state. When an examination of the matter itself has been made, and a judgment has been delivered by a legal commission that there is no probability that this guilty person will reform himself, and that procreation on his part is desirable, it will be legal to perform that operation which impedes procreation. The other conditions having been posited, the operation is performed. We say that this law is unjust:

because 1st. it supposes that the offspring will most probably be defective. But this is not established. Rather let the state take care to exercise its own office and provide the aids of Christian education, and let it not claim for itself the right to render such criminals sterile, who in no few cases are defective because the state has neglected its own most sacred duties toward God, religion, and citizens.

2nd. In order that it be just for the state to defend itself, it ought to be immune from the guilt which is found in these persons, and the danger ought to be imminent. But today the state is often not immune; nor is the danger imminent, because the offspring does not even exist, and if it is educated Christianly the danger will very often be removed.

3rd. In this matter of avoiding inconveniences from defective offspring, that is licit to the state which is necessary for its conservation. But it is not necessary for the conservation of the state that this operation be done.

4th. If the guilty person is treated in a Christian manner, there seems always to be not only probability, but a great hope that he will reform himself. For how many exist who in this way have been brought back to better conduct.

5th. If vasectomy is considered as a punishment, it is in no way to be admitted. For the defensive reason of the death penalty and of every punishment is the same as that which the sanction of law essentially contains, namely a psychologically efficacious bond by which the free wills of subjects may restrain themselves voluntarily from transgression of the law; and this reason is altogether lacking in the case; indeed this operation gives occasion to these criminals for indulging in lust more licentiously, with every burden of offspring removed.

6th. It is altogether cruel and certainly unusual to leave to a man the organ itself, the same sexual desire, indeed the power of elaborating prolific semen and of exercising the same act, with only the end and completion of the act taken away, viz. ejaculation and the possibility of procreation on account of which the act was instituted by God. Now from the Constitution of the United States a cruel and unusual punishment is to be inflicted on no one. - American Eccles. Rev. vol. 42, 43, 44. - Razon y Fe, 27, 28, 31. - Nouvelle Rev. Theol. vol. 42, 43. - Collationes Brugenses, Vol. 17. Thus DeBecker, Ferreres, Lehmkuhl, Vermeersch, Wouters, Schmitt, and others commonly against some whose affirmative opinion, that it is licit for the state to prescribe that this operation be performed in men, whether guilty or innocent, we judge to enjoy no probability. Concerning the right of the state you should by all means see Lugo, De just. et jur., disp. 10, nn. 78, 104 and passim. - Molina, De just. et jur., v. 4, tr. 3, dis. 5, n. 3 and passim. The conclusion is the same concerning ovariotomy.