Section II. On the Killing of a Criminal

I. Public authority has the power of killing criminals. This is clear first from Sacred Scripture,¹ likewise from the doctrine² and practice of the Church;³ then from reason. For public power has a power which is very useful, and sometimes necessary, for the common good, for example for the security of citizens. But such is the power of imposing the penalty of death (St. Thomas, II-II, q. 64, a. 2).

With the primary natural end of punishment considered, which is the reparation of a violated order or retribution, it seems one must say that all grave transgressions of the public order can be punished with the penalty of death without injustice. Yet such a use of power would have to be disapproved, both because it would tend toward the harm of the community, and because "the punishments of the present life are more medicinal than retributive; for retribution is reserved to divine judgment, which is according to truth upon sinners; and therefore, according to the judgment of the present life, the punishment of death is not inflicted for any mortal sin whatever, but only for those which bring irreparable harm, or also for those which have some horrible deformity" (II-II, q. 64, a. 2, ad 2). Note, however, that sometimes deservedly, especially by military law, capital punishment is established for faults light in themselves but, with the circumstances considered, grave.

II. Only the supreme authority in the commonwealth has the power of killing criminals. This is drawn both from the fact that it belongs to the governor alone of the commonwealth to establish those things which are ordered to the safety of the whole community (St. Thomas, II-II, q. 64, a. 3; St. Alphonsus, III, 379), and from the fact that it belongs to the governor alone of the community to subtract from the community what pertains to the community. But "man himself and all his parts" belong to the community (St. Thomas, II-II, q. 65, a. 1). For the rest, observe:

1. It is another question to what extent public authority is bound to use the aforesaid power; the solution of this question depends on whether, with the circumstances of things and also the condition and character of subjects considered, certain very grave crimes, such as homicides and seditions, can be sufficiently forestalled in another way. Yet the safety of the commonwealth seems to require that in time of war and sedition the penalty of death be decreed against certain persons.

2. Authority, where the penalty of death is concerned, is per se bound to observe the order of law; namely, per se it is not lawful to kill criminals unless they have first been both cited and heard, and, with the crime legally proved, have been condemned, "because by the law of nature a public act must be done from public knowledge and authority" (St. Alphonsus, III, 377). I said per se, because on account of an extraordinary necessity of the commonwealth it is lawful to depart from the order of law, provided, however, that the crime is established. Moreover, an extraordinary necessity can occur especially in time of sedition or war.

Corollary I. Killing which in English is called lynching is altogether to be rejected, although perhaps good faith can excuse by reason of custom; likewise killing of traitors in time of war carried out by one's own authority. Officers cannot kill a criminal, even if he flees or wrests himself from their hands, unless they have a special mandate (St. Alphonsus, III, 380).

Corollary II. It is not lawful to kill either a tyrant of government, as it is called, that is, a tyrant who possesses rule by a just title but greatly abuses it (n. 727), or a tyrant of title who possesses the kingdom peacefully.⁴ But a tyrant of title who does not yet possess the kingdom peacefully can be killed by the authority of the legitimate Prince (St. Alphonsus, Homo Apostolicus, tract 8, n. 13).

¹ John 19:11; Rom. 13:4.

² The doctrine of the Church is known, for example, from the profession of faith proposed by Innocent III to the Waldensians, where it was read thus: "Concerning secular power we assert that without mortal sin it can exercise judgments of blood, provided that in inflicting vindication it proceeds not from hatred but from judgment, not incautiously but advisedly." Then among the errors of Luther proscribed by Leo X in the bull Exurge Domine, this proposition 33 is read: "That heretics be burned is against the will of the Spirit" (Sweens, Theologia moralis fundamentalis, 2nd ed., n. 524).

³ As regards the practice of the Church, history teaches that formerly Superiors of the Church often handed over heretics or other criminals to the secular judge to be punished with death; something the Church certainly would not have done unless the State had the right of punishing evildoers with death (Sweens, Theologia moralis fundamentalis, 2nd ed., n. 524).

⁴ These things in practice also have force in the case in which the one who peacefully possesses the kingdom is not yet judged a legitimate prince (n. 727).