Defect of lenity

489. From Defect of Lenity these are irregular: a. a judge who has pronounced a sentence of death; b. one who has undertaken the office of executioner and their voluntary and immediate ministers in executing a capital sentence.¹

From the mind of the Church it is plainly unfitting that one who has been the cause of another's death, even justly, should represent the person of Christ the most meek, who never injured anyone. Therefore this irregularity is established as coming from a twofold head: from a sentence of death and from the execution of a capital sentence. These are usually called irregularities from defect of lenity or meekness; but this defect is contracted only after baptism.

1. A judge bearing a sentence of death is irregular: a. if the judgment is just, for if the judgment is unjust, irregularity is contracted not from defect of lenity but from the delict of homicide; b. if death has really followed, even without shedding of blood; c. in a case in which several, a college of judges, concur in bringing the sentence of death, if they have efficaciously influenced it; d. if he is baptized.

2. The executioner who executes a pronounced sentence of death, and his immediate and voluntary ministers, are irregular: a. if they act by force of office; b. if they in reality execute the capital sentence; c. as to ministers, if they act voluntarily; d. if they are baptized.

Soldiers who are led to kill by arms a soldier punished with death by legitimate authority after sentence of execution are not irregular. Not the leaders, who condemn to death, but soldiers, because they do not act voluntarily, since they have been ordered, are immune from irregularity.²

¹ Cn. 984, 6, 7.

² Leitner, l. c., p. 161.

Defect of lenity may cause irregularity in two ways: (1) In the case of a judge who has passed sentence of death.

(2) In those who have undertaken the office of executioners of a death sentence and their voluntary and immediate assistants.

1. Eulogius, a minorist, in good faith gave medicine to a sick man for his remedy and relief, who nevertheless died from it. Does Eulogius incur irregularity?

R. Negatively. For in the Case none incur irregularity except 1.º clerics constituted in sacred orders and monks; 2.º except by cutting or burning; and 3.º if the sick person dies from the incision or burning. But Eulogius is a minorist and applied no incision or burning in the Case. Therefore he incurs no irregularity, although he is beneficed. St. Alph., l. 7, n. 384, 385; I. M. 1345.

2. Clemens, a soldier, in a defensive war indeed discharged his weapon several times against enemies, of whom many were killed and mutilated. But since he always had to discharge it together with many other fellow soldiers of his, he doubts whether he himself truly killed or mutilated anyone. But now wishing to ascend to sacred orders, he asks whether he himself is irregular.

R. Negatively. "If someone fought in a just war in which some were killed, and doubts whether he himself by himself killed someone, Bon., Leand., and others think that he can judge himself not to be irregular, because when the law says that one doubting about homicide ought to be judged irregular, it speaks of unjust homicide. Therefore in doubt concerning just homicide the condition of the possessor is better." La Croix, l. 7, n. 453. Nevertheless a dispensation can be sought as a precaution.

1028. • All who voluntarily, actively, efficaciously, and proximately concur in the death or mutilation of someone, even justly, by an action of its nature ordered to that end, contract irregularity from defect of lenity. See St. Alphonsus, no. 457 and following.

Resolutions. 1. Executioners, judges, and all who cooperate in a judgment of this kind are irregular. Except: 1. compelled witnesses; 2. accusers seeking compensation for their damages.

2. Nevertheless, physicians and surgeons are not irregular, although they amputate limbs or hasten death by remedies given in good faith, unless grave negligence intervenes. St. Alphonsus, no. 385.

3. Nor are Clerics who practice medicine or surgery without incision and cauterization. Indeed, neither are they irregular if they employ incision or cauterization in a case of necessity, for necessity is governed by no law. Indeed, even outside necessity, if the Clerics are not constituted in sacred Orders, provided death or mutilation does not follow. St. Alphonsus, nos. 384, 385.

4. Those who kill an aggressor in just defense are not irregular, because it is not considered a defect of lenity to defend one's own life with due moderation of blameless defense, even with the death of an unjust aggressor.

5. Soldiers do not become irregular in a just defensive war, nor in a just offensive war unless they killed with their own hand; but in an unjust war the whole army becomes irregular even if only one man perishes. St. Alphonsus, no. 474.

619. 6. and 7. Defect of lenity is twofold, namely: a) in a judge who has pronounced a sentence of death.¹³⁶ Jurors also appear to come under the name of judge.¹³⁷ b) in those who have undertaken the office of executioner and their voluntary and immediate assistants in the execution of a capital sentence.

¹³⁶ St. Thomas, S. theol. 2, 2, q. 64, a. 7, ad 3.

¹³⁷ In German: Geschworener [juror]; in French: le juré [the juror].