Homicide

¹ "Thou shalt not kill." Ex. 20:13.

This precept is formally negative, prohibiting homicide; but because death can be inflicted both on oneself and on others also by omission of necessary care, the same is virtually also positive. Insofar as it is positive, it commands the preservation of life; but insofar as it is negative, it prohibits primarily indeed the unjust killing both of oneself and of others, but secondarily every unjust injury, whether wounding or mutilation, of one's own or another's life. All these injuries are reduced to homicide, the chief injury of human life. Wherefore there must be treated: a. the preservation of life; b. the killing and mutilation of oneself; c. the killing of a criminal; d. the killing of an unjust aggressor; e. the killing of an innocent person; f. killing in a duel; g. killing in war.

¹ St. Thomas, II-II, q. 64, 65. St. Alphonsus, l. 3, n. 363-411. Lugo, De iustitia et iure, disp. 10. Lessius, De iustitia et iure, l. 2, c. 9. Reuter, Theologia moralis, III, n. 366-386. Sporer-Bierbaum, Theologia moralis decalog., II, tract. 5, n. 150-549. Ballerini-Palmieri, Opus theolog. morale^3, II, n. 848-958. Lehmkuhl, Theologia moralis^10, I, n. 831-859.

336. Definition. Homicide taken broadly or etymologically, insofar as it prescinds from whether it is licit or illicit, is defined as the violent taking of life of a man done by a man. But if there is speech simply of homicide, illicit homicide is understood, or the killing of an innocent person, who has committed no crime and is not going to commit one on account of which he would be worthy of death.

a. Of a man: by this name taken broadly is understood also a human fetus not yet brought forth into light, provided it is animated. Therefore those procuring abortion are of themselves guilty of homicide. Yet where homicide is a reserved case, this name is taken more strictly, namely for the killing of a man already born. By a man: for if a brute kills a man, the killing is not called homicide, but pauperies.

b. Since homicide is properly against justice, strictly speaking he does not commit homicide who does not free from death one whom he could free and from charity ought to free. But he who does not free from death one whom he could free and from justice ought to free, as if a physician does not assist a sick person whose care he has undertaken, commits homicide.

337. Division. a. Homicide is distinguished as voluntary and involuntary: the former is intended; the latter follows from some action or omission beyond every intention.

b. Homicide, namely voluntary homicide, is one thing direct and another indirect, according as it is intended in itself or only in the cause from which it is foreseen that it will at least probably follow.

Casual homicide is taken in a twofold sense: more strictly, if it is wholly involuntary, and more broadly, if it is voluntary indirectly or in the cause. The former is called merely casual; the latter, mixed casual. Therefore casual homicide can sometimes also be imputed as fault, just as everything indirectly voluntary is imputed as fault under certain conditions.¹

One who without just cause posits an action, even an illicit one, from which the death of another rarely follows, is not guilty of homicide, provided he has employed due diligence; as if someone, even a cleric, devoting himself to hunting and employing due diligence kills a man. For it is merely casual homicide. But one who without just cause posits an action from which the death of another frequently follows is guilty of homicide, even if he employs due diligence, as if a mother suffocates an infant in bed, or if someone throws tiles from a roof into a public road without due precautions. For this is homicide voluntary in the cause. Therefore the former action is not prohibited on account of the danger of homicide, but the latter is prohibited on account of this very danger.

c. Homicide is simple, which besides homicide contains no other species of sin from circumstances, and qualified, which moreover contains another species of sin from circumstances. Of this sort are: alpha. sacrilege by reason of the person killed or by reason of the place in which the killing happens; beta. parricide, which is the killing of father or mother, likewise the killing of an ascendant or descendant, fratricide or the killing of brother or sister, uxoricide likewise and the killing of a husband; gamma. regicide or the killing of a ruler; delta. robbery, which is killing perpetrated from the will of plundering.

alpha. To the question whether parricide, uxoricide, and fratricide differ in species, likewise whether parricide in the first degree and in other degrees differ, it must be said consistently with the doctrine set forth concerning incest: it is probable that injuries inflicted on parents or wife or brothers, and injuries inflicted in the first and in other degrees, do not morally differ from one another in species, because all are opposed in morally the same mode to the same virtue of piety. Therefore it suffices if the penitent in confession says that he killed someone closely joined to himself, without declaring whether it was father, son, brother, wife, etc.² The new species of sin which is contained in regicide or in the crime of injured majesty, as if someone killed the pope, or a king, or ruler, is the injury of observance which is owed to those persons in a special way. To robbery there accedes a new species of sin from the end, namely from the will of plundering, just as a new malice of sin accedes to the homicide of him who kills another from the will of fornicating.

beta. What is said about killing is also valid, proportion being preserved, concerning mutilation, wounding, beating, or violent striking, which sins can induce a specifically distinct malice if moreover they are opposed to religion or piety. Besides, these same sins can be light from smallness of matter, except mutilation, in which smallness of matter is scarcely to be admitted if it is taken for the amputation of a member. Thus quarrels of boys on account of smallness of matter are for the most part light sins.

¹ Cf. De principiis^9, n. 82 s.

² Ballerini-Palmieri, II, n. 850 ss.

338. General principles. 1. It is never licit directly to kill an innocent person, not even by public authority; for this action is evil in itself. And indeed no one has from God power to kill an innocent person, not even public authority. Moreover, charity owed to the neighbor and the rights both of the one killed himself and of his own and of society are irreparably injured. For this reason it is expressly prohibited by divine law: "The innocent and just thou shalt not kill."¹

a. Sacred Scripture depicts homicide as a nefarious crime, both because the homicide impiously invades the supreme right of God, who is the only Lord of life and death,² and because he kills man made to the image of God.³ Therefore, just as in the Old Testament, so also by most modern penal codes, homicide is punished with the harshest penalty of death.

b. Therefore it is not licit to kill those lethally wounded or any other dying persons so that they may not suffer longer; nor the furious, so that they may not harm others, provided they can be restrained from killing in another way; nor a woman placed in extremity so that her infant can be baptized; nor is it licit in shipwreck to throw anyone into the sea so that the others may be saved. For evils are not to be done that good may come.

c. It is not licit to kill hostages, even if the enemies who sent them had not observed the pledged faith and had themselves unjustly killed the hostages sent to them. Nor is it licit to kill some sons as hostages so that the parents may more easily give themselves up to free the remaining sons; for they are innocent.

d. It is not licit to kill an innocent person to satisfy a tyrant demanding his death, even if he threatens the destruction of the city. Nevertheless, an innocent person could be handed over to the tyrant to save the country,⁴ although his death is certainly foreseen; and if he himself were unwilling, he could be compelled to hand himself over to the tyrant, because for the public good he is bound to expose his life to danger.⁵

2. From a proportionately grave cause it is licit indirectly to kill an innocent person, that is, it is licit to do or omit something in itself indifferent whence, beyond the intention, the death of an innocent person follows, because from the principles concerning the voluntary in the cause, the death of the innocent person in this case cannot be imputed to the agent.

a. Therefore in a just war it is licit to direct artillery against a besieged city, although many innocent persons are foreseen to perish.

b. If someone, with an enemy pursuing, cannot be freed from death unless by trampling a child by chance sitting in a narrow road, it is licit to flee and, if there is need, to trample the child; for he is killed indirectly, because from the same action each effect proceeds equally immediately, the good effect or flight from the enemy, and the evil effect or death of the infant.

c. It is licit to baptize a little one soon to die with cold water, if no other could be had, even if from this the death of the infant is feared to be hastened.⁶

¹ Ex. 23:7.

² Deut. 32:39.

³ Gen. 9:6.

⁴ 1 Macc. 13:16 ss.

⁵ Cf. Lugo, De iustitia, disp. 10, n. 113.

⁶ St. Alphonsus, l. 6, n. 106.

339. On puncture of the heart (Herzstich). It happens that physicians in a corpse, before it is placed in the tomb, perform puncture of the heart or open an artery, either because the deceased himself demanded this by testament, or because surviving relatives demand it.

a. Puncture of the heart or artery which, whether by testament or by relatives of the deceased, is demanded with the intention that one who is only apparently dead not be buried alive, is certainly illicit on account of this very intention, even if in reality he is dead, because it is not licit directly to intend the killing of someone, even if this is done for the best end. But if it is demanded to be performed when certain signs of death are already present, to calm a mind disturbed by fear of apparent death, it is not illicit.

b. It is certainly not licit for a physician or surgeon to cut the heart or vein unless from undoubted signs he has a certain persuasion that death has already followed. But if from undoubted signs of death he has procured this certain persuasion for himself, it is licit for him to puncture the heart or vein to free from fear and anxiety those who seek the puncture. For if it is licit to place a man in the tomb, it is also licit to wound his heart by a blow, since each action of itself is apt to inflict death upon a man who in reality is only apparently dead.

340. On craniotomy.¹ 1. Craniotomy, which is also called perforation or cephalotripsy, is a surgical operation by which the infant in the mother's uterus is cut apart and, having been cut apart, is extracted through the birth canal. Physicians now use this operation when a mature infant, on account of the narrowness of the mother, cannot be brought forth into light in another way, and therefore if this operation is omitted, the mother with the offspring is going to perish.

2. Craniotomy is illicit, that is, it is not licit to kill an infant in the mother's uterus, even if no other means of preserving the mother is available, so that if the operation is omitted the mother and infant are going to perish. For it is the direct killing of an innocent person, since the death of the infant is intended as a means for preserving the mother. Therefore the Holy Office responded that "it cannot safely, that is, without danger of error, be taught that the surgical operation which they call craniotomy is licit."²

a. To some theologians³ craniotomy did not seem illicit if no other means of preserving the mother is available, and the infant has been baptized in the mother's uterus. By this reasoning the infant indeed perishes, but the mother is saved; but craniotomy not employed, mother and offspring perish together, while the eternal salvation of the infant is equally provided for in either case. They chiefly confirm their opinion by a fourfold reason: alpha. By this operation the death of the infant, otherwise certainly going to die, is hastened, and this to preserve the mother, otherwise likewise certainly going to die; but so slight a shortening of life for obtaining so great an end must be accounted as nothing. beta. It is licit to kill an unjust aggressor who is the cause of death for another; but the infant is indeed innocent, but objectively an unjust aggressor, because he is the cause of death for the mother. gamma. If two rights conflict with each other, the stronger right must prevail; but in this conflict of rights between mother and fetus, the right of the mother is stronger. delta. He who has a right to life can yield it to another if he wishes; and the fetus is judged to yield his right to the mother.

But although by the responses of the Holy Office the opposite doctrine is not declared simply false, nevertheless it is no longer licit to use it either theoretically or practically. The reason for the decision seems to be this. alpha. It cannot be affirmed that through craniotomy an action is exercised from which a twofold effect proceeds equally immediately, one good, the other evil. Rather it is an action which directly kills the offspring to preserve the mother; but the direct killing of an innocent person is always illicit, even if it is only the hastening of a death certainly to follow. beta. The infant cannot be considered as an objectively unjust aggressor; for he himself does not posit an objectively unjust action, since using his own right and from the natural course of things he is the cause of death for the mother. Therefore he must rather be compared to a man infected with plague and infecting others than to an unjust aggressor. gamma. But if the fetus cannot be considered as an unjust aggressor, neither can the right of the mother be called stronger in the conflict of rights between the mother and the fetus. It must be conceded that two rights collide in this case, namely the right of the mother and of the offspring to preserving life; but it must be denied that the right of the mother prevails. For no one's right to any good whatever, even a public good, can ever so prevail that the killing of an innocent person becomes licit for obtaining that good. For the dignity of the human person, who has God as the only end, prevents that person from being employed as a means for obtaining another good. delta. No one can yield to another the right over his own life in such a way that he could ever licitly permit the direct killing of himself.

b. In those circumstances in which the infant, on account of the narrowness of the mother, cannot be brought forth into light by the natural way, there exist surgical operations by which the living infant can be extracted: Caesarean section and symphysiotomy. But even if neither of these operations can be performed, nevertheless it is not licit to crush the head of the infant to preserve the mother. Rather, both are to be permitted to the natural course of things, even if death follows from it. For the author of nature is not offended by death which follows by force of the laws of nature, but He is offended by the direct killing of an innocent person. Yet since the demonstration by which from natural principles craniotomy is shown to be illicit is not so plain and evident, it can easily happen that physicians in good faith exercise it. Therefore let the confessor beware, unless he is expressly questioned about this matter, lest he disturb their good faith.

¹ Cf. A. Eschbach, Disputationes physiologico-theologicae^2 (Romae: Desclee, 1901), disp. 4; I. Pennacchi, De abortu et embryotomia (Romae: Typogr. S. C. de Prop. Fide, 1884); Bergervoort, Directer Abortus und Kraniotomie (Munchen: Abt, 1896); Capellmann, De occisione foetus (Aquisgrani: Barth, 1875); Fr. Sippel, Uber die Berechtigung der Vernichtung des kindlichen Lebens zur Rettung der Mutter (Tubing.: Pietzcker, 1902).

² Holy Office, 28 May 1884; this resolution the same Holy Office extended on 19 Aug. 1889 to any surgical operation directly killing the fetus or the pregnant mother.

³ Ballerini, Avanzini, Apicella, Viscosi, Pennacchi, Constantini.

IN defence of my own life from unjust attack I may use whatever violence is necessary and even go to the length of killing the aggressor, if I cannot otherwise save my life. This right of self-defence all laws, human and divine, concede, as Innocent III declared. Nature herself teaches us that an act which is necessary for self-defence is lawful, and even if it lead to the taking of the life of the unjust aggressor it does not cease to be lawful. A higher value must be set on the life of the innocent than on that of the guilty, especially when the guilty one is the cause of his life being put in jeopardy. No one is justified in using greater violence than is necessary for the purpose of self-defence,so that if by striking or wounding an assailant of my life I can effectually defend myself, I am not justified in killing him. On the same principle no private person can take vengeance for violence which has already been done, by offering violence in return; vindictive justice is reserved for public authority, at any rate in more serious matters. Nor may one whose life is threatened anticipate the attack; defence is only lawful when the attack is practically being made or is at any rate imminent. Unless the attack is practically imminent it is always possible to resort to other means than homicide for the defence of one’s own life; one may invoke the protection of the law or at least fly the intending assailant.

What one may lawfully do, that, as a rule, another may help him to do; and so I may kill or maim an unjust assailant not only of my own life, limb, chastity, or property, but when any innocent person is similarly threatened I may also do the same in his defence. Although I may lawfully do this, yet there is seldom an obligation of doing it, for the obligation would only arise from charity, and as we saw above, this virtue does not usually bind with such serious inconvenience as would always be involved in taking life in defence of another. Those who have charge of the public peace and security are more strictly bound to perform their duty of protecting life and property even at the sacrifice of the lives of wrongdoers.

ACCORDING to Canon 985, the following are irregular from crime. These crimes, however, do not cause irregularity unless they were grave, external sins, whether public or occult, and committed after Baptism, except in the case of receiving Baptism from non-Catholics (Can. 986).

I. Spiritual damages consist in this: that the one killed is deprived of the last sacraments, of time for meriting, etc. Moreover, they must be restored only if both the damage that followed is certain and the damage can truly be compensated; for example, if the killer prevented Masses from being celebrated which the one killed certainly would have taken care to have celebrated for his soul.

Homicide.—Life destroyed is either that of an irrational being (i.e., of a plant or beast) or of a rational being. In the latter case we have homicide, which is defined as follows: “an act or omission of a human being that is the efficacious cause (see 1763) of the death of a human being.” A parent who denies his child the food, remedies or climate which it needs and which he can afford commits homicide by omission; a physician who practises abortion commits homicide by act. The following distinctions of homicide have a bearing on its substantial morality (i.e., its lawfulness or unlawfulness):

(a) in reference to the intention, homicide is either voluntary or involuntary, and voluntary homicide is intended either as a punishment or as a defense;

(b) in reference to the slayer, homicide is either the act of a public or of a private person, of a cleric or of a layman;

(c) in reference to the person slain, homicide is either the killing of one who is guilty or of one who is innocent, either the killing of a neighbor or of self (suicide);

(d) in reference to the manner, homicide is either direct or indirect, according as the action from which death results is from its nature (finis operis) productive of death or of some other effect. Thus, it is directly homicidal to practise embryotomy (i.e., the destruction of the vital organs of a fetus) or abortion (i.e., the ejection of a fetus at a stage of development when it is unable to live outside the mother), but it is not directly homicidal to give a pregnant woman remedies necessary for her life, although harmful to the fetus; for the object or purpose of the former is to kill, of the latter to cure.

Other distinctions of homicide have a bearing on its added or accidental malice.

(a) A new species of sin is added to that of injustice when other virtues are offended against. Thus, the virtue of piety is violated when the victim is a person to whom the slayer owed special respect and devotedness, as in parricide, regicide, fratricide, uxoricide; the virtue of religion is offended when murder is committed in a church.

(b) An aggravating circumstance is added by the greater deliberation with which the homicide is planned, or the greater treachery or cruelty with which it is executed (e.g., assassination, death by starvation). Some circumstances, however, may be morally indifferent, such as the fact that the victim is killed by one kind of poison rather than another.

The Killing of Animals (or Vegetation).—(a) In itself, the killing of animals is not sinful; for animals are made for the use of man. Hence, it is lawful to kill, not only harmful animals, such as those that prey on human beings or breed pestilence or destroy property, etc., but also other animals, when their death is necessary for some good purpose, such as the provision of food, clothing or medicine for man.

(b) In its circumstances, the killing of animals may be sinful, and even gravely sinful, as when one kills the animals of one’s neighbor (Exod, xxii. 10, 11), or hunts against the law, or injures society by prodigal destruction of animal or plant life, or kills animals in cruel ways. The skinning of animals alive, in order to secure finer-looking furs to satisfy the vanity of women, is an inhuman barbarism of the worst type that should be reprobated by everybody.

When Homicide Is Lawful.—Killing of human beings is lawful in two cases. (a) It is lawful when the common safety requires that the State inflict death for a crime (capital punishment); for just as it is lawful to amputate a gangrenous member which threatens to destroy the body, so is it lawful to remove from human society by death an individual who menaces the safety of the community. (b) It is lawful when the safety of an individual demands that he kill an unjust aggressor (self-defense); for a man owes his first duty to his own life in such a case, and the aggressor in making a deadly attack voluntarily assumes the risk of being killed. It is more correct, however, to say here that it is lawful to defend one’s life with resultant death to the offender (as will be explained below, in 1826, 1828, 1834).

Arguments for the Lawfulness of Capital Punishment.—(a) Scripture.—In the Old Testament the death sentence was prescribed for certain more serious crimes, such as murder (“whosoever shall shed man’s blood, his blood shall be shed,” Gen., ix. 6); in the New Testament Our Lord recognizes that the power of a judge to sentence to death comes from above (John, xix. 10), and St. Paul declares that princes do not wield the sword without reason, but act as ministers of God when they punish evil-doers (Rom., xiii. 4).

(b) Tradition.—The Church has always taught the lawfulness of capital punishment and rejected contrary errors, as in the case of the Waldensians condemned by Innocent III.

(c) Reason.—The State has both the duty and the right to promote the common good and to defend it against its enemies, whether by war against external foes or by coercive measures against internal disturbers of the peace. Now, the experience of all the centuries and of all countries has shown that, generally speaking, the lives of law-abiding persons and the general peace are not sufficiently protected unless the supreme penalty be appointed for certain crimes.

Though lawful, capital punishment is not always necessary; for it is a means to an end, and it may be omitted, therefore, when the end can be obtained by the use of other and less severe means.

(a) Thus, a general suspension of the capital punishment is lawful in a community whose members are peaceful and not inclined to violence or other crimes subversive of law and order. Whether such ideal conditions exist today may be doubted, and indeed some countries that abolished the death penalty have found that this proved an incentive to crime and they were forced to restore the former laws.

(b) A particular exemption from capital punishment is lawful, when there are good reasons recognized by law for commutation or clemency. This has been the practice of governments throughout history, and is justified when it furthers the common welfare, or at least shows mercy to a deserving individual without harm to society. But a judge has to condemn when the law and the facts call for condemnation, and the authority in whom the pardoning power is vested has to use his power prudently, lest he encourage lawlessness.

It is not morally lawful to put criminals to death unless the following conditions are present:

(a) the crime must be external and of such a character that the public welfare requires the supreme punishment, either on account of the enormity of the act (e.g., murder), or on account of its danger (e.g., sleeping at one’s post in time of war). Further, the crime must be certain and sufficiently established, for, since the punishment should fit the offense and the law presumes innocence until guilt is proved, no one should be sentenced to death except for a serious and certain crime. The Fifth Amendment to the American Constitution declares that no person shall be deprived of life, liberty or property without due process of law;

(b) the sentence of death and its execution should be performed by those who have public authority for these acts and in the manner required by law. For capital punishment is a means of self-defense used by society, and its use pertains there fore to the representatives of society. Moreover, if private individuals exercised this function, accused persons would not receive the consideration of their rights or the opportunity of defense due them, and the public peace would be overthrown by murders of revenge committed in the name of justice.

(c) the penalty should be carried out in a humane and Christian manner, as is manifest. The convicted man should be allowed time and opportunity to make his peace with God and, if possible, to say farewell to relatives. Slow and agonizing forms of killing are of course entirely wrong, no matter how wicked the criminal who is being executed. The American law and other laws do not permit a pregnant woman to be executed until she has delivered her child.

Unlawful Killing of Offenders.—The killing of offenders is, therefore, unlawful in the following cases:

(a) when the offense is not serious or fully deliberate (e.g., involuntary manslaughter), or when it has not been sufficiently established (e.g., if it is not certain that the supposed victim of murder is dead or that he died from a homicidal act). In civilized countries today the law inflicts capital punishment only for the most serious crimes, and the State has to prove its case beyond reasonable doubt before the punishment can be decreed. But in the past death was often the penalty for horse- or sheep-stealing, or even smaller offenses, and in times of excitement men have sometimes been sentenced to death without a fair trial;

(b) when the sentence of death is not pronounced or executed legally. Those who lynch the perpetrators of heinous crimes are often in good faith, especially if the processes of the law are too slow or uncertain, but since they act without authority, their deed is really murder. The same is true of a husband who kills his wife taken in adultery, of the relative of a seduced girl who kills the seducer, of an officer of the law who unnecessarily or without authorization kills a man sentenced to death when the latter is trying to escape. The State has the right, though, to declare a notorious malefactor outlawed, and thus to give to private citizens the right to take him dead or alive, or to kill him on sight; but it is clear that the exercise of this right is a dangerous remedy and one to be used sparingly;

(c) when the mode of killing or the circumstances are repugnant to Christian feeling. Today capital punishment is generally inflicted in a humane manner, but history records many cruel forms of execution, as when men were hanged, drawn and quartered, or burned at the stake, or put to death amid the jeers and curses of the populace.

Is Tyrannicide Lawful?—(a) If the ruler is a tyrant in act (that is, one who has a lawful title to rule but who abuses his authority), it is not lawful to kill him on account of his misdeeds or crimes, since the subject has not the authority to act in the name of the nation (Rom., xiii. 1 sqq.; I Peter, ii. 18). In case of self-defense, however, as when the tyrant unjustly makes a personal attempt on the life of a citizen, the latter has the right to kill. The Council of Constance condemned the doctrine of Wycliff that every subject has the right to assassinate a tyrannical prince, a doctrine that would make the position of every ruler unsafe, since there are always persons who think they are victims of persecution. The nation, however, has the right to depose or even to execute a wicked ruler, for government is given to rulers for the benefit, not for the destruction, of the common good.

(b) If the ruler is a tyrant in title (that is, a usurper), it is not lawful to kill him, when he has already obtained peaceful possession; for here again it cannot be said that the killer would have the authorization of the nation. If, however, the tyrant has not obtained possession but is struggling for it, his status will not be that of ruler but of public enemy, and it will be lawful to kill him as an act of war, provided the conditions of a just war are present (see 1384).

Judges and Executioners in Canon Law.—According to the law of the Church (Canon 984, nn. 6, 7), those who pass the death sentence as judges and the executioners and their immediate and voluntary helpers become irregular (i.e., incapable of lawfully receiving Orders or of exercising their powers). The reasons for this ancient discipline are chiefly two:

(a) clerics are the ministers of Christ, and therefore they should be like their High Priest, whose sacrifice they offer at the altar. Now Christ “when He was reviled, did not revile, when He suffered, He threatened not, but delivered Himself to him that judged Him unjustly” (I Peter, ii. 23). Hence, it is unbecoming that clerics should condemn to death or kill their fellow-men, even criminals;

(b) clerics are the ministers of the New Testament, and therefore they should conform themselves to its spirit of mildness. The divine law itself declares that a bishop should not have private quarrels or inflict blows (I Tim., iii. 3), but the church law goes further and declares that a cleric should not even act as public judge or executioner in capital cases. The Old Testament inflicted corporal punishments and death, and hence we read that its priests and levites put sinners to death with their own hands (Exod., xxxii. 28; Num., xxv. 7, 8; I Kings, xv. 33; III Kings, xviii. 40; I Mach., ii. 24), but the law of Christ contains no sentences of death or of bodily chastisement.

The Right of Self-Defense.—The second case of lawful homicide mentioned above (1819) is the killing of an unjust aggressor, not intended by the slayer, but consequent on his defense of his life against the aggressor. This right of self-defense is granted by natural law itself, and has been denied by but few moralists.

(a) Thus, nature inclines man to prefer his own life to that of another, other things being equal, and therefore it authorizes him to defend his life even at the cost of an aggressor’s life. Even the brute animals are armed by nature to defend themselves against attack.

(b) The natural law also permits one to perform an act from which two effects will follow, one good and the other bad, provided the good effect alone is intended and there is a sufficient reason for permitting the evil effect (see 104). In the present case the killing of the aggressor is an evil, while the protection of the innocent party is a good; but it is only the protection that is intended, and the killing is not an extreme measure in view of the greatness of the good that is at stake.

The right of self-defense is also sanctioned by human laws. (a) Thus, church law recognizes this right in the words of Innocent III: “All laws permit one to repel force by force, but the defense must not be immoderate, nor exercised from desire of revenge.” According to the Code (Canon 985, n. 4) irregularity arises from voluntary homicide, but this does not include the case of lawful self-defense, although a provisional dispensation must be asked for. A cleric has the right of self-defense, as well as a layman. (b) Civil law also has always admitted the right of a person assailed by another to defend himself, even by killing the assailant, if there is no other alternative.

Conditions for the Exercise of This Right.—(a) The assault must be a true aggression (i.e., an act of violence threatening the life of the person assaulted) and unjust (i.e., an attack made without public authority); (b) the resistance must be true self-defense (i.e., an act used to ward off attack or to make the assailant powerless) and moderate (i.e., the person attacked must not use more force than necessary and he must not intend to kill the assailant).

The person who is killed must be a true aggressor, for otherwise the slayer is himself the aggressor and guilty of unjustifiable homicide. Killing is therefore unjust in the following cases:

(a) when the opponent is not using true violence, as when he merely prays and hopes that you may die or be killed;

(b) when he is not using actual violence, as when he is disarmed or helpless, or when he has only threatened to kill you in the future, or to bring you to the gallows by his testimony or vote.

Must one wait, then, until the aggressor has actually attacked, before using self-defense? (a) One need not wait until physical aggression has started (e.g., until the adversary has fired a shot or struck a blow); otherwise self-defense would very often be futile. (b) One should wait until moral aggression has been shown before proceeding to defense; that is, the other party must perform some external act which according to the judgment of a prudent person at the time and place is one with the act of physical aggression, as when an angry man reaches for a gun or knife, or a desperado advances in a threatening manner.

The aggression must also be unjust or contrary to the right of the person attacked. (a) Thus, if the aggression is just, it is not lawful to kill the aggressor. Hence, it is not lawful to kill an officer of the law who is making an arrest, or guarding a prisoner, or leading him to execution. (b) If the aggression is not just, self-defense is lawful. It makes no difference whether the aggression is formally unjust (e.g., when the aggressor attacks you because he wishes to wreak revenge, or because he fears you), or only materially unjust (e.g., when you are a stranger to the aggressor, but he is drunk, or a dope fiend, or a maniac). Similarly, a son may defend himself against his parent, a subject against his superior, a layman against a cleric, an adulterer against the injured husband, a calumniator against the person calumniated; for authority or personal injury suffered does not give these persons the right to inflict by private authority the punishment of death.

Self-defense must be merely a protection of self against future evil and not a punishment of the aggressor for past attacks, for capital punishment belongs to society, not to private persons. Hence, if an aggressor has taken to flight, or has been disarmed, or knocked senseless, or has begged for mercy, it is not permissible to kill him.

Self-defense must be moderate, for injury or the death of a human being is a thing that should be avoided when possible. (a) Thus, the person attacked must not reply with force at all, if this is possible. He should escape, or call a policeman, or throw the weapon out of the window, etc., if these means will suffice. Some authors excuse from flight those who would suffer disgrace if they ran away from danger, such as those who are pugilists or professional fighting men. (b) The person attacked should use only such force as is necessary, if force must be employed. Thus, if the aggressor can be made helpless by the use of gas, permanent bodily harm should not be done him; if he can be subdued with the fists, knife or pistol wounds should not be resorted to; if wounds will suffice to hold him at bay (e.g., by blackjacking), killing should not be resorted to. In the heat of a fight, however, the person assailed sometimes unintentionally goes beyond what moderation requires.

The intention of the person who uses force to repel an unjust aggressor must be good. (a) Thus, as his end he must intend only the preservation of his own life and look upon the death of his neighbor as a misfortune. (b) As the means to this end he must intend only to stop the attack that is being made, not to bring on the death of the aggrcssor. Those who are commissioned by public authority to put a human being to death (e.g., the public executioner or soldiers in time of war) may intend these homicides, since they are means to the common good; but the death of one private person is not a means to the good of another private person, and hence it should not be directly aimed at.

The mind of the person who defends himself against the unjust aggressor must also be free from sinful dispositions, such as hatred and revenge; otherwise he sins against charity. Our Lord reprobated the teaching of the Scribes that it is lawful to return injury for injury in a revengeful spirit, and declared that one should prefer to receive a second blow rather than return a blow for the sake of revenge (Matt., v. 38 sqq.; cfr. also Rom., xii. 19).

When Self-Defense Is Obligatory.—Self-defense is sometimes an obligation. (a) Thus, it is an obligation, if the only factors considered are the life of the guilty aggressor and the life of the innocent person who is assailed; for the life of the innocent should not be sacrificed for the guilty, and charity indicates that the first duty of the person attacked is to himself. (b) It is an obligation, if, on account of circumstances, the person attacked owes it to others to preserve his life—for example, if he is the father of a dependent family, or a public official whose life is very necessary for the welfare of the community, or whose office it is to resist those who menace public security. This is true from the viewpoint of society also, for the world needs the good men it has, while there are too many wicked men already.

Sometimes self-defense is not obligatory. (a) Thus, it is merely optional, when no duty to others commands self-defense and a divine counsel invites one to omit it (see 1169). Hence, if the assailant is certainly in mortal sin, while the person assailed is certainly in the state of grace, it would be very commendable to die rather than kill the assailant, in order to grant him time for repentance. But a case of this kind is rather theoretical than practical, for how could one be sure that the assailant would profit by the opportunity allowed him of doing penance? At any rate, the sacrifice is optional, for the aggressor is either formally unjust, and hence not in extreme spiritual need, or only materially unjust, and it will be uncertain whether he is in spiritual need or whether, if he is in such need, the respite will be used by him (see 1165 sqq.). (b) Self-defense is unlawful according to some, if the life of the assailant is necessary for the common good, and the life of the person assailed is not necessary. But this would be a very rare case.

Defense of Neighbor’s Life.—The principles on defense of one’s own life against an unjust aggressor, even at cost of the latter’s life, may be applied to the life of an innocent third party.

(a) Thus, it is necessary to defend the innocent person, even if the aggressor has to be killed, when one is bound to give this protection by natural duty (e.g., because the innocent person is one’s child or father and the aggressor is not a relative), or by contract (e.g., because one is a hired bodyguard or policeman).

(b) It is lawful to defend the innocent person, even if the aggressor has to be killed, and even though there is no duty of nature or contract to give this protection (Exod., ii, 12). But it is disputed whether it is also necessary to do this. The affirmative opinion calls attention to the extreme bodily need of the innocent party, the negative to the extreme spiritual need of the aggressor. It is not necessary to risk one’s life in order to protect the life of the innocent party, unless the public safety is in peril, or one has undertaken this obligation (see 1169).

A private individual may defend life at the cost of the life of an unjust aggressor, because he is obliged or permitted to protect the life that has more of a claim on him. He may also defend certain other most important goods that belong to him or to his neighbor, even if need be at the cost of the unjust aggressor’s life, because the common good is more valuable than the life of the aggressor, and the defense of those goods is bound up with the common good. Thus, if it were not permissible to defend valuable property even to the extent of killing a burglar, criminals would be encouraged, peaceful citizens would be at a disadvantage, and the public security would greatly suffer. Among the goods now spoken of are goods of fortune and goods of body. It is not always obligatory, however, to exercise the right of extreme self-defense (e.g., in case of violation, provided no consent is given the deed).

Defense of Goods of Fortune Against an Unjust Aggressor.—(a) If the attack is equivalent to an attack on life (e.g., the aggressor wishes to take the last loaf from a starving man or the plank from a drowning man), or if it seems to be an attack on life (e.g., the burglar enters a room as if he meant to kill), the killing of the unjust aggressor is not unlawful, as is clear from the previous paragraphs.

(b) If the attack is made on goods of fortune only, but they are of great value and actually possessed, the question is disputed. According to some, killing in this case is unlawful, because life is more valuable than property; but the common opinion is that killing is lawful, both because Scripture excuses the person who kills the nocturnal robber (Exod., xxii. 2), and because the public safety is at stake and therefore justifies extreme measures.

(c) If the attack is made only on goods of fortune, and they are not yet possessed (e.g., a legacy one hopes to obtain) or have only a small value (e.g., one gold piece), killing is unlawful; for there is no proportion between external goods that are only hoped for or that are of minor importance and the life of a human being. Pope Innocent XI condemned the teaching that one may use homicidal defense to protect a coin or the prospect of receiving an office.

Defense of Bodily Purity Against an Unjust Aggressor.—(a) If the attack is equivalent to an attack on life, or seems to be an attack on life, self-defense even by killing is lawful, and hence it may be permissible to kill one who is attempting rape.

(b) If the attack is on bodily purity only, but per actum consummatum luxuriae, the question is controverted. One opinion is that killing may not be resorted to, for the aggressor cannot take away purity of soul, and the purity of body that he violates is less good than life. The opposite opinion holds that killing may be employed in self-defense, since bodily purity has a higher value than even notable goods of fortune, especially as violation is usually accompanied by spiritual damage or disgrace of family, etc.; and the public interest demands that such outrages be sternly suppressed on account of the strong inclination of many persons to commit them.

(c) If the attack is on bodily purity only, and per actum non-consummatum luxuriae (e.g., per osculum vel amplexum), killing is not justified, but other means of defense, such as blows or wounds, may be used.

Defense of Bodily Integrity Against an Unjust Aggressor.—(a) If the attack is equivalent to an attack on life (e.g., if the aggressor intends to mutilate or wound, but there is danger that he will kill), defense even with resultant killing is lawful.

(b) If the attack is not equivalent to an attack on life, but is very notable (as when a principal member will be lost or the person horribly disfigured), some authorities claim that defense which would cause the aggressor’s death is unlawful, because death is too heavy a price to pay for wounds. But against this it may be argued that the loss of limbs or organs is more serious than the loss of money, and, in some respects, is more damaging than violation. The civil law gives a person the right to protect himself in body and limbs, even by killing the assailant when absolutely necessary.

(c) If the attack menaces only a minor detriment (e.g., a black eye or bloody nose), certainly killing is unjustified. But the person attacked may hit harder and oftener than the assailant, if he is able, so that the latter may beware of him another time.

Defense of Honor or Reputation.—When honor or reputation is unjustly attacked, the more perfect course is to bear the injury patiently and to pardon the offense, according to the teaching of Christ. But it is not sinful to defend honor and reputation, just as it is not sinful to defend life, limbs and property. How far may one go in defense of honor or reputation against an unjust aggressor?

(a) If the aggression is merely in words (as when the offender calls the other party a liar, or says that he is illegitimate), it is not lawful to use violence, at least such as would cause death; for there are other and less drastic means of defense that suffice (e.g., to answer the allegations, or even to retort the same epithets against the aggressor), and, unless the violence of even justifiable resentment were restrained, the world would be filled with disorder and homicidal violence. Innocent XI and Alexander VII condemned the doctrine that one may kill in order to prevent the spread of calumny.

(b) If the aggression is in deeds (as when the offender slaps the other person or throws mud or rotten eggs at him), it is not lawful to kill; for here also defense can be made in other ways (e.g., by bringing the aggressor before the court for punishment, or, if this cannot be done, by returning slap for slap, etc.). Innocent XI rejected the proposition that it is lawful to kill the aggressor who gave one a blow and then fled. It is only when the aggressor is continuing his attack, and imperilling the innocent party in life or limb, that the latter may repel the extreme force by extreme force.

Killing of the Innocent.—So far we have spoken of the killing of malefactors and unjust aggressors, which under certain conditions is not sinful. The next subject is the killing of the innocent, that is, of those who are neither malefactors nor unjust aggressors worthy of death.

(a) The killing of the innocent by human authority, if it is done directly and intentionally, is always sinful, whether the cause be a private individual or society. But since God is the Master of life and death, He could command the death of an innocent person, as was done when he bade Abraham to sacrifice his son (Gen., xxii. 12).

(b) The killing of the innocent, if it is indirect and unintentional, is not sinful when there is a serious reason for performing an act from which the killing results; for it is lawful to perform an act from which two effects follow, if the good is intended but the evil only permitted, and there is a sufficient justifying reason (see 103 sqq.).

Unlawful killing of the innocent is a most heinous crime.

(a) It is an injury to the rights of God over human life, and is forbidden in the Fifth Commandment of the Decalogue: “Thou shalt not kill” (Exod., xx. 13). To judges the special command was given: “The innocent and just person thou shalt not put to death” (Exod., xxiii. 7). The man-slayer destroys the image of God, a crime so detestable that in Scripture God declares that He will revenge the blood of man, even though shed by a beast (Gen., ix. 5; Exod., xxi. 28).

(b) It is a most grave sin against the individual, for it deprives him of his chief natural good and the means of securing and enjoying many great spiritual goods. If the person killed desired or asked for death, no injustice is done to him, since he waived his right, but uncharitableness is committed, since the neighbor’s life should be loved, and the uncharitableness is greater according as the person is more worthy of love. Scripture numbers murder among the sins that cry to heaven for vengeance (Gen., iv. 10, ix. 5).

(c) It is an outrage against society, for such killing unduly deprives the community of one of its members, causes scandal and disturbs the peace. Hence, the law has always inflicted the severest punishment on slayers of the innocent.

Since the end does not justify the means, the following ends do not justify the direct and intentional killing of innocent persons:

(a) the public good does not excuse, for example, if an enemy were to threaten destruction against a city unless it put to death an innocent person who dwelt in its borders. The criminal on account of his lawlessness is an obstacle to the common good, but the law-abiding citizen promotes the common good and it would be harmful to the public peace if he could be put to death without any fault of his own. The State is for the citizen, not the citizen for the State. But if the common safety depended on the sacrifice of one man’s life, charity and patriotism would require this man to make the sacrifice spontaneously (see 1169); that is, he should deliver himself to the enemy, and were he to refuse, it seems the community would have the right to deliver him. Similarly, it is not lawful to kill hostages, even though the enemy has broken faith, or killed one’s subjects;

(b) the private good of other individuals does not excuse; for example, it is not lawful to kill a maniac lest he do harm to those around him, at least unless the conditions of unjust aggression are fulfilled. Similarly, it is not lawful to kill a woman with child, in order to baptize the child;

(c) the private good of the individual himself does not excuse; for example, it is not lawful to shoot or poison those who are mortally wounded or suffering from an incurable disease, or who are old and helpless, in order to spare them suffering. But one may give a person at the point of death a medicine that may hasten the end, if there is good hope that it will cure him and other remedies are futile, for the purpose is not to kill but to cure (see 2485). It is lawful also for embalmers to puncture the heart or sever an artery of a person who seems to be dead, if there are certain signs of his death, for the purpose is not to kill this person, but to free his friends from fear that he is buried alive.

Indirect or Unintentional Killing of the Innocent.—Indirect and unintentional killing of the innocent is lawful (1872) only when there is a reason of sufficient gravity (i.e., one of a value proportionate to the life of the innocent person).

(a) The public safety is such a sufficient reason. Thus, in time of war it is lawful to attack a city, even though the death of many non-combatants will result, or to charge the enemy, even though innocent persons have been placed by the latter as a shield to his front ranks.

(b) Private safety from death is not a sufficient reason, if it does not compensate for the loss, or if it is secured unlawfully (see 104). Thus, if Balbus cannot escape from an unjust aggressor without running down and killing an unbaptized infant or a man whose life is very necessary for the community, the temporal life of Balbus does not compensate for eternal life lost by the infant in the first instance, and the mere private good of Balbus does not compensate for the public good sacrificed in the second instance. Again, if Caius cannot escape from drowning without pushing a shipwrecked companion from the only plank which is insufficient for both, or if Sempronius who has been sentenced to death for crime cannot escape execution unless he kills his guard, the means of securing safety are unlawful.

(c) Private safety from death is a sufficient reason, if it compensates for the loss and is secured lawfully. Hence, if the life of the innocent person is only of equal importance, self-defense against an unjust aggressor by means of flight that will involve the innocent person’s death does not make one guilty of homicide (e.g., Titus is speeding in his car in order to escape a pursuer bent on murder and he cannot avoid hitting and killing a cripple who crosses the road). If self-defense is conducted by means of attack, one may use violence against the aggressor (e.g., one may shoot at him, although an innocent person whom he is using as a shield will be killed), but not against the innocent person (e.g., one may not shoot at the innocent person in order to deprive the aggressor of his shield, nor may one hold the innocent person before one in order that he receive the assailant’s bullet).

Destruction of the Unborn.—(a) Direct and intentional destruction of this kind is unlawful and is known as feticide, when the fetus is killed within the womb, or abortion, when a non-viable fetus is expelled from the womb. It is not abortion to hasten the birth of a viable fetus (i.e., one which is about six or seven months old and can live outside the womb), since the child can be kept alive, but grave reasons are required to make it licit, since it presents a risk to the child’s life. But to deliver or expel a non-viable fetus is abortion. Every direct abortion is regarded by the Catholic Church as murder and is penalized with the censure of excommuuication (Canon 2550, Sec. 1). It might be argued that the direct killing of what is surely a human being is murder, but when does the fetus become a human being? The ancient theory of Aristotle, followed by St. Thomas and most medieval authors, maintains that the embryo did not become human until some time after conception, an opinion that still has great probability physically. Others maintain that animation is simultaneous with conception. Since we do not know the exact moment of animation, the moment of conception must be accepted in practice as the beginning of human life. Probabilism is ruled out in this instance, for there is no doubt about the law and its application: we must not directly kill what is probably a human being. Accordingly, abortion is considered to be murder. Hence, even in the case of a girl who has been raped—although it is a probable opinion that measures may be taken to remove the semen from-her body—it would be gravely sinful to give any treatment which would abort an impregnated ovum.

(b) Indirect and unintentional killing, or rather permission of death, is not unlawful in such a case, when there is a proportionately grave reason, such as the life of the mother. Thus, it is permissible to give the mother a remedy necessary to cure a mortal disease (e.g., medicinal drugs, baths, injections, or operations on the uterus), even though this will bring on abortion or the death of the fetus; for the mother is not obliged to prefer the temporal life of the child to her own life. But the baptism of the child must be attended to, for its salvation depends on the Sacrament, and the eternal life of the child is to be preferred to the temporal life of the mother, if the conditions of 1166 are verified.

(c) Contemporary moral opinion considers that in tubal pregnancies (ectopic gestation) the tube itself is in a pathological condition long before rupture of the tube, as experts in obstetrics teach, and hence can be excised as a diseased organ of the human body. As such, the excision of such a tube would be in itself a morally indifferent act and, granting verification of the other conditions for the principle of double effect, could be licitly performed. (For a history of the moral question, medical testimony and full argumentation see Chapter X of Medical Ethics by Charles J. McFadden, O.S.A.) Some theologians, however, believe that the tube cannot be removed unless it can be proved in each case that a pathological condition, placing the woman in danger of death, exists. The first view is accepted as sufficiently safe to be followed in practice. (See Francis J. Connell, C.SS.R., Morals in Politics and Professions, p. 118.)

It is unlawful positively to kill the mother in order that the unborn child may be saved or baptized. When a caesarean section offers the sole chance of saving the mother’s life, it is permitted. It is seriously doubtful whether a mother is morally obliged to undergo the operation in situations where a threat to her life exists. In this case, if baptism in the uterus is possible without increasing the danger to the mother’s life, it should be attempted. When a caesarean section does not offer any chance of saving the mother’s life, but will directly contribute to her death, the operation should not be performed. One must await the death of the mother and then observe the norm of Canon 746; “Immediately after the death of a pregnant woman, a caesarean section should be done in order that the fetus may be baptized.” The procedure to be followed is outlined in medical-ethics books. (See McFadden op. cit., pp. 244 ff.)

Direction in Cases of Doubt, Ignorance, or Error.—(a) In case of doubt, if there are positive and solid reasons for believing that an operation performed to save a woman’s life will not be destructive of the life of a fetus, the operation seems lawful; for in doubt, the woman, as the certain possessor of life, has the presumption.

(b) In case of ignorance or error (e.g., when a penitent asks whether a certain operation is permissible, or a surgeon in good faith performs an operation that is not lawful), either a truthful answer should be given to questions, or silence should be observed when an admonition would only be harmful (e.g., if to require the Caesarean operation from a dying mother would have no other result than to make her die in bad faith instead of good faith).

Canonical Penalties for Homicide and Abortion.—(a) Homicide, if voluntary, produces irregularity (Canon 985, n. 4) and subjects the guilty party to exclusion from legitimate ecclesiastical acts or to degradation from the ecclesiastical state (Canon 2354). Moreover, a church is violated by the crime of homicide (Canon 1172). (b) Abortion of a human fetus, when the effect is produced, brings irregularity on those who procure it and also on the cooperators (Canon 985, n. 4). Moreover, those who procure abortion effectively, the mother not excepted, incur excommunication latae sententiae reserved to the Ordinary, and, if clerics, they are to be deposed (Canon 2350).

Accidental Homicide.—Accidental homicide is that which happens without any direct purpose to kill. But the following cases should be distinguished:

(a) when the homicide is not voluntary, either in itself or in its cause (see 35, 94), that is, when the slayer had no intention to kill and could not foresee that death would result from his act or omission;

(b) when the homicide is voluntary only in its cause, inasmuch as the person who kills is guilty of negligence in a lawful thing, or of something unlawful, and death results from the negligence or from that which is unlawful, although there was no direct wish to kill.

Moral and Legal Guilt.—The law may hold one responsible for homicide, even though there is no theological guilt (see 1766 sqq.). (a) Thus, one may be held responsible for the consequence of acts only juridically negligent, as when an automobilist while driving at a speed unreasonable in law, but not in fact, kills a pedestrian. (b) One may be held responsible for acts committed by those subject to one’s care or control, as when a man keeps a dog loose not knowing that it is vicious and it kills a neighbor’s child, or when he illegally lends his car to a minor, thinking the latter is a good driver, and the minor carelessly runs down a person in the road.

What is the order of the precepts among themselves? - "After the three precepts pertaining to religion, by which the debt is rendered to God, and after the fourth precept, which belongs to piety, by which the debt is rendered to parents, in which is included every debt which by some special reason is owed, it was necessary that consequently some precepts be placed pertaining to justice properly so called, which renders the debt indifferently to all." S. Th. 2. 2, q. 122, a. 6.

Therefore the six precepts of the Decalogue which follow, as the same Angelic Doctor teaches, l. c. a. 1, are "about the acts of justice commonly so called, which is considered between equals." In these six precepts are prohibited homicide, adultery, theft, and false testimony. "But all other harms which are inflicted on neighbors can be reduced to these, which are prohibited by these precepts, as to certain more common and principal things. For all harms which are inflicted on the person of a neighbor are understood to be prohibited in homicide, as in the more principal thing. But those which are inflicted on a connected person, and especially by way of lust, are understood to be prohibited together with adultery. Those, however, which pertain to damages inflicted in things, are understood to be prohibited together with theft. But those which pertain to speech, such as detractions, blasphemies, and any such things, are understood to be prohibited in false testimony, which is more directly contrary to justice." S. Th. l. c. a. 6 ad 2.

To what is the damager bound because of unjust homicide? - Homicides or mutilators more probably must restore nothing precisely for life, member, etc., because these are not estimable by price. But they are bound to compensate all other temporal damages of which homicide was the efficacious cause. L. 7, de His qui effuderint, Dig.; C. A. 1325 ff., 1329; C. B. 823; L. 626.

II. Those, with the devil urging, laying violent hands upon clerics or monks of either sex, with exception, as regards reservation, of cases and persons concerning whom by law or privilege it is permitted that a Bishop or another absolve.

Violent hands: by this is understood any injurious exterior action by deeds, not words, mortal against the person of a cleric; whether by it someone injures his body by striking him, wounding him, giving him poison, when an action of this kind has begun to harm; or injures his liberty by thrusting him into prison, C. Nuper 29, de Sent. exc., etc.; or injures his dignity by bringing force against him in any way, e.g., if he stops the carriage in which he is carried, violently takes away his hat, fouls him, etc. L. 272-275, 280. But an injurious striking would be had even if the cleric consented to it, since this law is in favor of the state. C. Contingit 36, de Sent. excomm. On the contrary, they do not incur excommunication if some strike a cleric for the sake of defense, or in jest; or if parents, teachers, superiors strike a cleric for the sake of correction. C. Cum voluntate 54, sec. 2, ibid.; C. Ex tenore 10, ibid.; C. Si vero 3, ibid.; C. Super eo 1, ibid.

With the devil urging: this "only imports a striking with grave sin." L. 275, 48; Suarez, De Cens., disp. 22, sec. 1, n. 2; Schmalzgrueber, n. 228; Elbel, n. 132. Laying: not those commanding, counseling, consenting, ratifying, or not impeding the laying on. Clerics: by this name is understood everyone initiated at least by first tonsure, even if married, provided he is married to one virgin only and wears the clerical habit and tonsure, C. single chapter, de Cler. coni., in VI; likewise, even one excommunicated, suspended, interdicted, only verbally deposed, or irregular. Monks: "understand any religious, even a lay converse, novice, of either sex. Likewise Tertiaries of St. Dominic and St. Francis if they wear the habit and live in community. Likewise hermits subject to some rule or superior.... Fagnanus says the same of women living together in conservatories, although the religion has not yet been approved.... And Renzius says the same of seminarians, etc." L. 271; Schmalzgrueber, n. 219.

Excepted, etc. Therefore the cases and persons are excepted concerning which by law or privilege it is permitted that a Bishop or another absolve. Cases: a threefold striking must be distinguished: enormous, moderate or grave, light. Striking is enormous if by it someone has mutilated a cleric or monk, put out his eye, broken a limb, inflicted a huge wound, caused a great quantity of blood to be poured out from somewhere other than the nose. It is moderate if the striking brings contusion or deformity, for instance if a tooth is extracted, if an amount of hair is plucked out, if bruising of the flesh is made, if a quantity of blood is poured out, yet without a graver injury of the body. Finally, striking is called light here, not because it imports venial sin, but because, although it is mortal, by the judgment of the prudent it is considered light compared with enormous striking, e.g., if it is done with the palm, fist, staff, stone, without leaving a trace. But it must be observed that light striking can become grave or enormous by reason of circumstances, namely by reason of the person injured, the person injuring, the person before whom the striking is done, and by reason of scandal, place, time, and injury. L. 276-278; Extravagant Perlectis apud the Holy Doctor, n. 277. From light striking, even public, Bishops can absolve from C. Pervenit 17, C. Si vero 3, de Sent. exc. And likewise their Vicars General can do this, because Bishops have this by ordinary law. The same can be done by others having quasi-episcopal jurisdiction. L. 79, 279. From enormous or moderate striking, if it is public, only the Pope or a Legate a latere, who enjoys pontifical authority, can absolve, from C. Ad Eminentiam 20, de Sent. exc. The same can be done by Legates sent to some province from C. Excommunicatis, penultimate, de Off. Legati, but only in their province, and not as regards outsiders. But if the striking was occult, Bishops also can absolve from it by Trent, C. Liceat 6, sess. 24. L. 88, 279.

Persons: Bishops can absolve nuns and all other women from striking, even public, from CC. Mulieres 6, Ea noscitur 13, De monialibus 32, de Sent. exc.; Ithur., case 43, n. 29. "And this even if the striking was enormous.... Likewise those who live collegially, if the striking was grave, but not if enormous.... Likewise all impeded from going to Rome." L. 279; C. Canonica 50, de Sent. excomm.; C. Quoniam 9, de Vit. et hon. cl. Add also regulars, "if the striking was light or enormous but occult..., with the license of their prelates." L. 107; appendix de Privil., n. 97. Cf. Suarez, De Relig., tome 4, book 2, chap. 3.

Or another: therefore regular prelates can absolve their subjects, even novices: 1. if they have struck a fellow member of the same order, unless the striking is enormous or hands have been laid upon a Bishop or Abbot. 2. If they have struck a religious of another order, provided the judgment of the prelate to whom the one struck is subject is also applied. But they cannot absolve them if they have struck a secular cleric, but they must be absolved by the Apostolic See, except in the case of light striking, in which they can be absolved by the Bishop. CC. Monachi 2, Cum illorum 32, Canonica 50, de Sent. exc.; Religioso 21, e.t., in VI; St. Alphonsus, n. 107, where he adds: "It must be noted... that the aforesaid things proceed according to common law; for when privileges are considered, religious can well be absolved by their prelates even if the striking was enormous, from several privileges..., even if a religious struck another of another order, or a secular cleric..., even if the striking was public." Cf. Lucidi, de Visitat., etc., chap. 4, de Clero regul., sec. 4, nn. 96-98; Scavini, book 1, n. 954. Or another: "when the penitent is impeded from approaching the superior, or in danger of death, he can be absolved by any confessor." D'Annibale, Summ., part 1, n. 368, 3rd ed. C. 29, cause 17, q. 4; Suarez, disp. 22, sec. 1; Schmalzgrueber, nn. 97, 243-262; Elbel, nn. 125-149; Bonacina, disp. 2, q. 3, part 6.

XV. Those extracting relics from the sacred Cemeteries or Catacombs of Rome and its territory without legitimate permission, and those furnishing help or favor to them.

Of relics which are found in the Crypts and Cemeteries of the City, it is established that some are of the Holy Martyrs, e.g., "when glass or earthenware phials stained with blood are found at the tombs of the buried in the sacred cemeteries, either inside or outside them"; Sacred Congregation of Relics and Indulgences, December 10, 1863. But it is established that some are not of martyrs, such as those which are found in open loculi. Finally, concerning some it is doubtful whether they are of Martyrs or not. The present excommunication is incurred by one who extracts those former relics of Holy Martyrs, but by no means by one who extracts the rest, whether it is certainly established that they are not of Saints, or whether it is doubted. Relics, namely bones and ashes. Paul V, decree of August 23, 1613, and May 16, 1614, prohibited under grave obligation to take away without permission even the smallest particle of these, and at the same time declared that theft of this kind is never excused because of smallness of matter. Legitimate permission must be given by the Eminent Cardinal Vicar, with the form preserved which was established by Paul V in the places cited and by Clement X in the Brief Ex commissae nobis, January 13, 1672. Namely written permission is required, subscribed by the Eminent Cardinal Vicar of the City, furnished with his seal, and extraction from the catacombs must be done in the presence of a delegated priest. And to them, those extracting. Bonacina, disp. 2, q. 3, part 13, sec. Incidens.

Irregularity is incurred from homicide. In this matter homicide can occur in three ways: justly, accidentally, unjustly. For just homicide no irregularity is incurred, since then no fault is had. L. 382, 388, 389. For merely accidental homicide no irregularity is also incurred, whether it happens while giving work to a lawful thing or to an unlawful thing. The reason is that such homicide then is not voluntary. But laws establishing irregularity from homicide intend to punish those truly delinquent by the fault of homicide. Clementina Si furiosus un., de Hom. But irregularity is incurred first, if the action is lawful, but the effect is foreseen, and sufficient diligence is not applied to prevent it, namely such diligence as would excuse from grave sin. L. 366, 377, 382, 383-386. Second, if the action is unlawful and commonly dangerous of death, although all diligence is applied lest the foreseen death follow, because since the work is of itself proximately dangerous, no diligence can make it not dangerous. L. 386, 387; book 3, n. 398. If the homicide is unjust, whether directly willed in itself or indirectly willed in a cause inseparably and proximately joined with homicide, irregularity is incurred. Chap. Si quis 1, de Hom.; Trent, sess. 14, chap. 7, de Ref.; L. 365; book 3, n. 628.

All those incur irregularity who by their own action kill a man. Chap. Si quis 1, de Hom.; Trent, sess. 14, chap. 7; L. 367, 368, 369. Likewise all those incur irregularity who command homicide, or counsel it, truly influencing the homicide, and others cooperating in any way efficaciously and positively. Chap. Si quis viduam 8, Dist. 50; chap. Significasti 18, de Hom.; chap. Sicut 6, same title; L. 370-376.

Irregularity contracted through homicide is removed by baptism; or rather, sin having been destroyed by baptism, irregularity is not had. Chap. Si quis, Dist. 50; and by dispensation of the Supreme Pontiff. L. 390. But Bishops, if the homicide was voluntary, can in no way dispense in the irregularity, even if it was occult. Trent, sess. 24, chap. Liceat 6; sess. 14, chap. 7; L. 391, 392. But if the homicide was accidental, it is very probable that the Bishop can dispense in the irregularity contracted from it when the crime was occult, since the Council in the said chap. Liceat denies to Bishops the faculty of dispensing only if the homicide was voluntary, as distinguished from accidental. L. 393. Besides, they most commonly teach that Bishops can dispense in irregularity from accidental homicide, even notorious, for receiving minor orders and simple benefices; because Bishops already could do this by the old law. But Trent reserved only irregularity from voluntary homicide, not public accidental homicide. L. 393, 394, 395, de Priv. 51, 52; book 3, n. 397. As regards regular prelates, cf. L. 396. St. Thomas, II-II, q. 64, art. 8; supplement, q. 39, art. 4; D'Annibale, part 1, n. 424, 3rd ed.; Lugo, Resp. Mor., book 2, dub. 8, 9, 11.

From defect of gentleness he is irregular: 1. who kills or mutilates in a just offensive war, but not if others kill; nor he who kills in a just defensive war; nor he who exhorts to killing, even if the war is offensive, provided it is just. Chap. Petitio tua, chap. Dilectus, chap. Significasti, de Homic.; Benedict XIV, Notification 191; L. 457-460; La-Croix 528. 2. In a just judgment those become irregular who cooperate toward death or mutilation actively, efficaciously, and proximately by an action of its nature ordered to this. Clementina Si furiosus, de Hom.; chap. Clericis, chap. Sententiam, Ne Cler. vel Mon.; chap. Ex litteris, de Exc. prael. Therefore judges become irregular, advocates or procurators acting against the accused, notaries, apparitors, lictors, executioners, voluntary witnesses, otherwise coerced witnesses, accusers or denouncers; otherwise nevertheless if they accuse the guilty person only so that they may prevent their own harm, or that it may be repaired for them, protestation being made that they do not will the penalty of blood, chap. Praelatis, de Hom. in 6, in their own cause or even that of relatives up to the fourth degree; or unless the cause is that of their own Church; or if harms are to be inflicted in the future on others, so that they cannot be impeded by another way. L. 461, 468. 3. Clerics constituted in sacred orders, or monks, practicing medicine with cutting and burning, are also irregular from defect of gentleness, chap. Sententiam 9, Ne Cler. vel Mon., if from such cutting or burning mutilation or death follows. If nevertheless another skilled person is absent, then a cleric or monk will well be able, without sin and consequently without danger of irregularity, to apply cutting or burning. L. 384, 385, 389. St. Thomas, supplement, q. 39, art. 4; D'Annibale, part 1, nn. 426, 427, 3rd ed.

1. Sempronius, wearied of his wife, made espousals with another. Wherefore, in order to free himself from his present wife, while she was on a journey, in a certain solitary place, he pierced her with a bullet; and seeing her as though struggling with death, he commanded his servant, whom he had taken with himself as a companion of the journey, under penalty of death to be inflicted immediately upon him likewise, to slaughter the still-breathing mistress with a sword, and without delay to commit her, slaughtered, to the earth.

Q. 1. Is homicide ever licit? 2. Could the servant in this case licitly obey his master?

R. To the first. Cf. I. M. 719 seqq., 736 seqq.; E. M. 722. - To the second. The servant could not obey his master by slaughtering the mistress with a sword; nevertheless he could licitly obey by committing her to the earth after death. The reason for the disparity is this: because to commit a dead woman to the earth is not evil, but rather good, or certainly indifferent of itself. But what is good, or at least indifferent, we licitly do from a just and grave end, namely that of escaping death or another grave evil threatened to us. On the contrary, to slaughter an innocent person was evil, intrinsically such, forbidden by natural and divine right. But an evil intrinsically such may never be committed, however grave a fear of death may impend over us. - Elbel, De Act. hum. 43.

Hence another case is resolved: whether, at the time of the Paris Commune, and generally, whether in a time of anarchy, regular soldiers of the preceding Government, from fear of death, could fire upon religious, clerics, and honest citizens, and slaughter them. Altogether negatively, since neither by private nor by public authority is it licit to kill the innocent. And this is intrinsically evil; and accordingly it remains evil even when most grave fear of death stands.

2. "The Catholics of this diocese are inexorable in vengeance, and this because there is no one in those regions who administers justice. Therefore it is asked: 1. Whether, every other means of obtaining redress for their wrongs being excluded, Christians can consider themselves with respect to this point as if they were in the natural state. 2. Whether they are capable of the sacraments so long as they persist in this desire of vengeance. The reason which they bring forward to prove the necessity in which they are of avenging themselves is that the killer and his supporters would become fiercer and more intolerable against the relatives of the killed man, and would commit new homicides, if these did not resist and did not oppose force to force.

R. Negatively to each part." S. C. de P. F., 21 May 1759; Collectan., n. 2092, 2094, 2098.

3. A popular disturbance having been made in a certain great city, the Prince is expelled, and Anarchy is proclaimed for several weeks. Meanwhile thieves and highway robbers commit thefts, robberies, and homicides with impunity. Carolus, a powerful and honest man, judging that crimes ought to be punished, in order to protect honest citizens, public authority being lacking, himself assumes this office for himself. Hence, when he hears that either thefts and robberies or homicides have been committed by someone, judging that no other punishment in the present circumstances is possible and efficacious except the punishment of death, by night he himself with his servants kills thieves and homicides. And the matter always succeeds prosperously for them, so that it is altogether unknown by whom they were killed. What of Carolus?

R. Carolus acts altogether badly. For he himself has no power of exercising public vindication of crimes, since he has no authority in civil society. But citizens, for protecting themselves, can rightly use, if thieves and homicides attack them, the natural right of defense, repelling force by force, with the moderation of blameless defense. For indeed, "to kill evildoers is licit insofar as it is ordered to the safety of the whole community; and therefore it belongs only to him to cut off a rotten member, when the care of the safety 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 permitted only to them to kill evildoers, not to private persons." St. Thomas, 2. 2, q. 64, a. 3. Nor indeed does it avail to object from the same Holy Doctor, ibid., q. 108, a. 1, that vindication is a virtue of a private person, and accordingly that it is also permitted to private persons at least to avenge injuries inflicted on themselves. For it is singular in this virtue of vindication that the person who is the subject of the virtue cannot through himself consummate the proper action of that virtue because of the necessity of the matter; because namely its matter is the evil of punishment, which requires coercive power in the author; and accordingly, although vindication is a virtue of a private person, nevertheless a private person cannot consummate his action unless public power is joined, on account of the condition of the matter to be rendered, namely the evil of punishment for the evil of the inflicted injury. Cajetan, in l. c. Cf. St. Thomas, 2. 2, q. 66, a. 8.

4. Gaspar, a physician, gave a drug to a certain woman to impede conception, namely in order that he might remove the most grave danger of death which he knew from experience threatened her; and accordingly he intended this only, that is, to procure her safety. But that woman, already made pregnant, is in reality placed in the highest danger of life, together with the offspring, which consequently would die without baptism together with the mother. Hence Gaspar, in order to save the mother from death and to procure baptism for the offspring, at the suitable time procures abortion by medical art. And thus the mother is in reality saved, and the offspring, having come forth alive, dies only after baptism.

Q. 1. Is it licit to procure abortion? 2. Has Gaspar acted rightly?

R. To the first. Cf. I. M. 742 seqq.; E. M. 742, 745; Comment. Theolog. Moral., fifth commentary, De Procuratione Abortus; sixth commentary, De Responso S. Officii circa craniotomiam.

To the second. Gaspar first sinned gravely by impeding generation, which in reality he himself intended, although he illusorily asserts that he intended only to procure the woman's safety. He indeed intended this as an end; but as a means to obtaining that end, he assumed this means: to impede generation by a drug, whence the woman's safety, from asserted experience, was being brought into danger. Therefore he intended this also. G. 400.

Gaspar also sinned gravely by directly procuring abortion, which from its intrinsic nature is true homicide. Nor indeed can he be excused from the excellent end of saving the mother and baptizing the offspring; for evils must not be done so that goods may come. But in the case the abortion is procured directly; for abortion is assumed and is intended in itself as the means to each. G. 400 seqq.

Hence Gaspar, on account of the direct procurement of abortion, incurs the excommunication reserved to bishops from the Constitution Apostolicae Sedis. Moreover, he becomes irregular; for since the question concerns a fetus which is so harmful to the health of the mother, it cannot be doubted that it is now informed by a rational soul. Cf. I. M. V. 2, n. 1204, 1335.

5. Hortensia, pregnant and now near birth, seized by a grave disease in the West Indies, dies. Richardus, a new missionary, judging himself obligated to perform the Caesarean operation, soon carries it out and baptizes the offspring still alive, which then continues to live. But as soon as the matter is made known, he is nearly slaughtered by the inhabitants of the place as the murderer of the mother. Immediately Richardus flees, and no further report of him is had in that place.

Q. 1. Whether and when can the Caesarean operation be done, and what precautions are there in practice? 2. Has Richardus acted rightly?

R. To the first. Cf. I. M. V. 2, 469 seqq. - To the second. Richardus did not act rightly. For, as appears from the case itself, the most grave danger of scandal was not lacking. Besides, there is the prohibition made to missionaries by the decree of the Holy Office, 15 Feb. 1760. Cf. Enchir. Moral. 471.

If, the mother now being dead, the Caesarean operation cannot be done, then the infant in the mother's womb can be baptized in the best way in which it can be done, namely by the aid of a small siphon or another instrument by which the infant in the maternal womb may be reached and water poured upon it. Hence, by the aid of an instrument of this sort, the membranes in which the fetus is enveloped must be cut, so that the water may immediately reach the fetus. This operation is easy and can rightly be done by a midwife or by another woman. - If, as is gathered from the case, a surgeon or another skilled man was truly lacking for carrying out the Caesarean operation, Gaspar could have procured that baptism be administered to the infant through some experienced woman in the way said. - G. v. 2, 218, 220; Gennari, Consultazioni, etc., p. 1, cons. 21.

Namely: 1. of the killing of a guilty person; 2. of an aggressor; 3. of an innocent person.

311. Homicide means the same thing as the killing of a man. But those who are killed can be innocent, or evildoers condemned by public authority, or unjust aggressors. Hence we shall speak: 1. of the killing of the innocent; 2. of the killing of an evildoer; 3. of the killing of an unjust aggressor. - But the things which we say concerning homicide can, with due proportion, be predicated of wounding and mutilation.

³ St. Thomas, 2. 2., q. 64; Lugo, disp. X, n. 56-223; Lessius, lib. II, c. 9, n. 36-111; Billuart, diss. X, art. 4-9; Carriere, II, n. 744-805; Ball. P., Tr. VI, n. 876-922; Lehmkuhl, n. 832-849.

St. Alphonsus, l. c.; Cathrein, Moralphil., II, p. 634; Tanquerey, II, n. 316, where there are many useful things; Willems, III, p. 462; works of Ces. Lombroso and of his disciples; Krauss, Kampf gegen die Verbrecherursachen; Berardi, Theol. mor., II, n. 639; Beccaria, Dei delitti e delle pene.

728. Definition. Homicide is the violent killing of a man done by a man.

Division. Homicide, by reason of imputability, is one thing if casual, another if voluntary; - by reason of quality, it is called qualified or simple.

1. Casual homicide happens apart from the intention of the one killing. - Voluntary homicide is committed from the intention itself of the one killing: either directly, when someone with deliberate effort kills another, for example with dagger, fire, suffocation, poison, etc.; or indirectly, when someone posits those things from which he foresees the death of another will follow. - 2. Qualified homicide is that to which special circumstances accede: of this kind is treacherous homicide, which is perpetrated under the appearance of friendship; lying-in-wait, which is from ambushes; assassination, which is by others hired for pay; robbery-slaying, which is for the sake of spoil. - Among qualified homicides the first place is held by the slaying of a parent, offspring, spouse, brother, prince, and sacred person: for crimes of this kind involve special malice in themselves. But other killings are reckoned among simple homicides (cf. Salmant., tr. 25, c. 1).

Note. a) The principles which will be established concerning killing, whether licit or illicit, have force, due proportion being observed, for mutilation, beating, and any harming of the body: for it is always a question of preserving the consistency of one's own person.

b) Vexation, beating, or killing of animals is not prohibited by the fifth precept. For animals do not have rights, since they do not possess personality. Nevertheless, vexation of animals, especially that mode of vexing which they name VIVISECTION, is not always free from every fault. For he who without cause vexes animals acts against right reason, which commands moderation and prohibits that those things which have been created for our utility serve solely for our games. Besides, a man indulging in these things is always more inclined to fierceness and cruelty. Cf. Lessius, de Just., l. 4, c. 4, n. 43; Stimmen aus Maria-Laach, 1881 and 1908; Schindler, II, p. 790; Linz. Quart. Schr., 1911, p. 130.

These things having been premised, we shall treat: 1. of the killing of a malefactor; - 2. of an aggressor; - 3. of an innocent person. - Concerning the shortening of the life of the dying we shall speak n. 761.

A malefactor is called one who commits a crime very harmful to society. That it is not licit for princes to punish malefactors with death is affirmed, besides the Waldenses, by Anabaptists and not a few pseudo-politicians, who under the pretext of philanthropy loudly declare that the death penalty is by no means necessary to the good of society, indeed very iniquitous and therefore to be abrogated. Materialists, under the leadership of Lombroso, consider malefactors as sick persons, to whom remedies and mercy are owed.

729. Principles. I. It is licit to kill or mutilate malefactors. This is proved: 1. From divine right (Exod., 22, 18): Thou shalt not suffer malefactors to live; cf. Rom., 13, 4. - 2. From the right of nature: for every part which is harmful to the whole is licitly cut off. Therefore, if a man, who is a part of the community, is found harmful or dangerous to it, he will be able salutarily to be killed, so that the whole may be preserved. Add that criminals are turned away from crimes by no thing more efficaciously than by fear of death (St. Thomas, 2.2, q. 64, a. 2).

730. II. To public authority alone belongs the power of killing malefactors. For it is not licit to kill a malefactor except insofar as the killing is ordered to the safety of the whole community. But care of the community does not pertain to a private person. - Note that by the name public authority that only is understood which presides over a perfect society, such as that of a king in a kingdom; for the supreme right belongs only to supreme authority.

Hence: 1. It is not licit for a father to wound or mutilate his own children, nor for a master his own servants, for the cause of correction. This is drawn from the 19th proposition condemned by Alexander VII: "A husband does not sin who kills by his own authority his wife detected in adultery." A fortiori, it is not licit for the people, by themselves, to exercise vengeance upon malefactors, lyncher, Lynchjustiz.

2. But sometimes it is permitted to private persons to kill those enemies of the republic whom they call proscribed or banished: for these are killed not by private authority, but by public, that is, by the authority of the prince, who can concede it from a most grave cause, and only in his own territory.

3. It is not licit for guards to kill a guilty person fleeing or resisting, although he has already been condemned to death, unless they have a special mandate concerning this (III, 376, 380; H. Ap., VIII, 9).

4. For soldiers placed on station, for guards of borders in relation to defrauders of merchandise, let the following norms have force: a) they must warn those who advance farther or flee concerning the danger which threatens them, and concerning the penalty which public authority has established, namely the discharge of a gun; b) as much as can be done, if the warning is given in vain, let them only wound those resisting.

731. III. Public authority regularly cannot kill malefactors unless the order of law has been observed. The reason is both because it is a question of a most grave matter committed by God to the prince because of necessity alone; and because the nature of the act demands that it be done from public power and public knowledge; and finally because occasion of abuse of power must be closed off. See n. 2295, where the order of law is treated.

We have said regularly; for sometimes an exception is given, if the crime is notorious, or there would be danger of sedition, or disgrace of the prince, if one proceeded juridically (III, 377; IV, 193).

732. Questions. QUES. 1. Whether it is licit to kill a tyrant?

Resp. Negatively, whether there is question of a tyrant of regime, that is, of a legitimate prince who governs tyrannically; or of a tyrant of usurpation, that is, of an illegitimate prince who has already come into peaceful possession of the kingdom; or finally of a tyrant invader, who has not yet come into such possession; unless, in this last case, from the authority of the legitimate prince, or from just defense to protect one's own life, or in the act of war of the republic against him (cf. n. 150, q. 2). Read St. Thomas, 2.2, q. 64, a. 7; de Regim. princ., l. 1, c. 6.

QUES. 2. Whether it is ever licit to beat one's neighbor?

Resp. Beating is punishment; but this supposes coercive power. Therefore, the case of legitimate defense excepted, it is licit for no one to beat someone not subject to his power, unless there accedes at least the tacit consent of him who has the power.

Therefore they can beat: a father, his children; a teacher, his disciples. But they cannot beat: a husband, his wife, otherwise, if in a special case charity demands it, since she is a companion, not a slave; nor an elder brother, younger brothers, unless this has been commanded by the father; or unless, the father being dead or absent, he himself rules the family; because primogeniture alone does not confer such power (Reuter, P. 3, n. 369).

733. Things to be noted beforehand. An aggressor can be just or unjust. - There is no treatment of a just aggressor; since it is not licit to kill, mutilate, or strike him, because it is repugnant that rights opposed to rights be given. Whence one justly condemned to punishment cannot defend himself against the ministers of justice, such as lictors, witnesses, judges, executioners, by striking, mutilating, etc. (cf. n. 2311; see German Code, 226-231). An unjust aggressor is called one who, right resisting, actually invades life, fortune, modesty, or honor.

734. Principles. I. For protecting one's own life, or members of the body, it is licit to kill an unjust aggressor, with the moderation of blameless defense nevertheless observed.¹ That such defense of oneself is licit by both human and divine law, all doctors with St. Thomas and the Roman Catechism affirm, and the same is expressly declared in c. Si vero 3, de sent. excom., where it is said: "All laws and all rights permit force to be repelled by force" (III, 380; H. Ap., VIII, 11).

Indeed, if someone were morally certain concerning an aggression prepared for him, and could not otherwise avoid the ambushes laid and the dangers of death, it would be licit for him to anticipate the aggressor, lest later his own defense be rendered impossible or ineffective. Yet St. Alphonsus admonishes (III, n. 387) that this opinion, although more probable, can scarcely be held in practice because of the danger of hallucination.²

We have said: 1. It is licit to kill, but no one is held to this; because it is an extraordinary means of conserving one's own life.

Indeed, it is an act of perfection to permit one's own killing, lest the aggressor be deprived of temporal life together with eternal life; provided that: a) the life of the one invaded is not necessary or very useful to the common good, or to the family; b) the one invaded is not in the state of mortal sin: because then he is altogether held to defend himself (III, 380; H. Ap., VIII, 12, where there are more things). See what was said n. 482, 483.

2. An unjust aggressor, even if he is mad or drunk. For drunkenness and madness indeed exempt the aggressor, of themselves, from sin, but they do not deprive the one invaded of the right of protecting his own life. - In practice defense becomes easier if the aggressor is mad or drunk.

3. With moderation observed, etc.; that is, there must be in defense such moderation that nothing is done beyond that which is absolutely necessary for warding off injury. Whence, if the one invaded had another way of freeing himself from the invader, for example by fleeing, terrifying him with cries, disarming him, wounding him, he would not be in the extreme necessity which alone furnishes a just cause of killing.

But this, that they flee, etc., cannot be imposed on those who, because of omission of positive defense, even with lethal outcome, would receive a mark of cowardice or timidity. Yet this does not run for clerics, religious, and common people, for whom flight is not ignominious. - For the rest, the killing or mutilation of the aggressor must never be done from hatred, etc. Yet if it were done from hatred, the sin of injustice would not be present. Finally it must be noted that there is no moderation in defense if someone attacks, pursues, and kills the aggressor who flees.

735. • II. For protecting temporal goods of great value, it is licit to kill an unjust aggressor, provided they cannot otherwise be defended. Thus commonly.³ It is proved from Exodus (22, 2): If a thief breaking into a house, or digging under it, should be found, and having received a wound should die: the striker is not guilty of blood. The stronger reason is because the precept of charity does not oblige one to prefer the goods of neighbor of a higher order, unless neighbor is in extreme necessity. But he is not in extreme necessity when he of his own accord exposes himself to danger of death (III, 382). Besides, the killing of such an aggressor is not against justice, which of itself rather favors the rights of the actual possessor, and shows it to be necessary that such repression be done, so that the goods which are necessary for life may be preserved.

We have said: 1. Goods of great value, whose loss namely would bring notable harm, which must be judged from the circumstances, with both the wealth or need of the person and the necessity or superfluity of the things themselves being inspected.

For it is certain that it is not licit to kill an aggressor if it is a question of goods of small moment; or of goods which we do not yet actually possess. Hence this 31st proposition was condemned by Innocent XI: "Regularly I can kill a thief for the conservation of one gold coin." And the 32nd: "Not only is it licit to defend by killing defense the things which we actually possess, but also those things to which we have an inchoate right, and which we hope that we shall possess" (III, 383, q. 2; H. Ap., VIII, 15).

2. Provided they cannot otherwise be defended: for otherwise it must be said if, through the laws and police of the State, sufficient provision is made for public security and the reparation of injuries (Marres, de Just., l. 2, n. 240).

From these things it is deduced: a) It is licit for each person to defend his goods with arms, even through servants. - b) If a thief has already placed in safety your thing of great value which was taken away, and you have no other way of recovering it, you can more probably, if the thief resists you demanding back the thing, strike him, and, if necessary, kill him; because he is still an invader of the thing and a true aggressor. - c) Since the right of defense is natural, it belongs also to clerics and religious, who then do not incur irregularity. Yet such defense is not to be advised to them, if it is a question of goods of fortune alone (III, n. 383-385). d) Of itself it would not be illicit to arrange certain machines for defending a house against malefactors. For what the owner can do through himself, in the act of aggression, he can do through others or through other things. - Ordinarily, however, these will not be licit, because for the most part moderation in defense will be lacking. But if they become necessary, let citizens be warned that danger is not lacking. Ami du Cl., 1905, p. 1146; cf. Lehmkuhl, Cas. consc., n. 670.

736. III. For protecting modesty, it is licit to kill an unjust invader, if force cannot otherwise be repelled. Thus commonly against a few. The reason is both because for the most part there is danger of consenting to an act of sin, and because modesty is a good to be esteemed most greatly, and to be preferred to all riches, indeed even to life (III, 386; H. Ap., VIII, 16).

Hence: 1. A man can kill him who wishes to commit adultery with his wife, if he cannot otherwise avoid infamy (l. El. qq. ref., n. 22; III, 391).

2. It will be licit for a girl, not only while she is actually violently touched, but immediately after, to strike the invader with slaps, fists, a staff, and even with non-dangerous blows. The reason is that unless in such a mode she shows her displeasure, he will not easily depart. Hence, this is to be advised to a woman, so that the other at least may come to his senses and not solicit her another time (III, 386).

737. IV. For protecting the goods of reputation or honor, it is not licit, at least practically speaking, to kill an unjust aggressor. This is established from proposition 30 condemned by Innocent XI: "It is right for an honored man to kill an invader who strives to inflict calumny, if otherwise this calumny cannot be avoided; the same also must be said if someone strikes with a slap or beats with a staff, and after the slap struck or the blow of the staff flees." For the one invaded can always provide for his own honor by another way, for example by flight, by action before a tribunal. Besides, this being admitted, the way would be open to innumerable slayings (III, 381; 2. El. qq. ref., n. 9).

Although it is not licit to kill the invader of honor, nevertheless by no right is it prohibited that the one invaded immediately by words or deeds make an attack against those who by words or deeds detracted from his honor. Certainly there are counsels and the example of the Lord which indicate another way; but here the question is only of licit or illicit (Noldin, II, n. 334).

Let it be noted: 1. What is licit for anyone for the defense of his own life, modesty, fortune, this also generally is LICIT for the defense of similar goods against an unjust invader of neighbor, as is gathered from the precept of loving neighbor as oneself. Except, as regards modesty, the case in which the person invaded herself consents: unless she is very near to the defender, and he cannot otherwise avoid his own infamy. - But if it is a question of life, it is licit to defend neighbor, even if this person has yielded the right of legitimate defense; because the right to defense is diverse from the right to life: for neighbor cannot abdicate the right to life, since he is not the lord of his own life.

2. No one is HELD to such defense of neighbor, unless he owes it from office, as soldiers hired for the security of citizens; or from piety toward more nearly related blood relatives, namely parents, children, brothers, sisters. The reason is that from the precept of charity alone we are not held to stain our hands with human blood, nor to undergo grave inconveniences which usually arise from homicide otherwise licit. - Yet except "if the one to be killed by the invader is drunk and in the state of mortal sin, because he is truly in extreme necessity of soul" (III, n. 389-391; H. Ap., VIII, 17).

3. Civil laws do not protect the goods enumerated above in an equal way. Let each person consult the codes. Nevertheless tribunals ordinarily do not condemn those who kill an aggressor of goods of the greatest moment. Cf. Tanquerey, II, p. 144; Noldin, II, n. 334; Olshausen, Strafgesetzbuch, § 53.

There must be said: 1. concerning the killing of an innocent person in general; - 2. concerning the procuring of abortion.

The killing of an innocent person, by reason of imputability, is either voluntary directly or indirectly, or involuntary or casual.

Indirect killing supposes an action licit in itself, from which, beyond the intention, by accident, death follows. Casual killing supposes the action to be in itself rarely dangerous, and proportionate diligence to have been used. If the action is frequently dangerous and killing follows from it, it can no longer be said that casual killing is present, although some diligence was observed.

738. • Principles. I. Direct killing of an innocent person is never licit, unless from the special permission of God. For since the dominion of life belongs to God alone, such killing is intrinsically evil, and is prohibited by divine law (Exod., 23, 7): Thou shalt not kill the innocent and just. Cf. III, 393.

Hence: 1. It is not licit to kill hostages lethally wounded, nor any other dying persons, lest they suffer longer; nor rabid persons, lest they harm others, when they can otherwise be restrained from harming.

2. It is not licit to kill an innocent person in order to satisfy a tyrant demanding his death under penalty of the overthrow of a city, and this even if the innocent person should consent to his own death; because he does not have dominion over his own life. Nevertheless, more probably, he can be compelled to hand himself over to the tyrant for the public good; and, if he is unwilling, even to be handed over as guilty, since from charity and legal justice he is held to expose his life for the republic (cf. n. 483). H. Ap., VIII, 21.

3. Physicians, midwives, guardians of infants and of the sick sin gravely if from their grave negligence they either do not impede their death, or cause or accelerate it.¹ Likewise, if from gravely culpable ignorance they furnish harmful things to the sick.

4. It is not licit for those sailing, tossed at sea and escaping from shipwreck in a skiff, in order to lighten the skiff, which otherwise they fear is about to sink, to cast into the sea any except those who, descending last into the skiff, are the cause why it is about to sink (Konings, n. 473, 6).

739. • II. Indirect killing of an innocent person is licit, the things to be posited for indirect voluntary having been posited. It is licit to posit a cause about to have immediately two effects, one good and the other evil, intending only the good and permitting the evil, provided there is present a sufficient reason proportioned to the evil effect about to follow (cf. n. 315). See III, 398, 1.

Hence: 1. If someone sitting on a horse cannot avoid assassins unless he flees through a narrow road where a child is found about to be crushed, he can pass, provided the child is baptized. 2. In war it is licit to direct war machines toward a besieged city, even if innocent persons are foreseen as about to perish. Cf. the case in the periodical Linz. Quart. Schr., 1898, p. 94. 3. It is licit to baptize with cold water a child soon about to perish, although from this his death is accelerated (VI, 106).

740. • III. Casual killing of an innocent person is not a sin. The reason is that such homicide is involuntary.

Hence: 1. A cleric is excused from homicide and does not become irregular who by chance should kill a man while applying himself to the hunting of wild beasts, otherwise prohibited to him, if he used due diligence. 2. But they are guilty of homicide who strike a pregnant woman with the heel, or terrify her, from which abortion happens; parents suffocating an infant in bed; men slaughtering a man by casting stones with a sling for the sake of playing. 3. He is guilty of homicide who posits an action of itself and commonly dangerous, from which death frequently follows; for homicide of this kind is voluntary in the cause, as we said above. Cf. III, 398.

Corollary. From these things it is understood why the operation which is named PUNCTURE OF THE HEART must be reprobated. Indeed the intention of those who demand it arises from compassion; they fear lest one who is believed dead be buried alive. But is not such a mode of acting true homicide of an innocent person, in the case in which life has not yet entirely departed? Therefore to demand this operation absolutely, in every event, is directly to intend evil. Nevertheless the physician would not sin if he performed this puncture after he had known from undoubted signs that death had truly occurred. Noldin, II, n. 339; Linz. Quart. Schr., vol. 54 (1901), p. 122.

St. Alphonsus, III, 394; ed. G., I, p. 644; H. Ap., VIII, 22; Lupellus, de Castit., I, p. 348; Antonelli, Med. past., II, de 5 Praec., de Bapt., de Usu Matrim.; Eschbach, disp. III and IV, in the work Disput. physiol.-theol.; Berardi, Capellmann, Olfers, Surbled, and many others.

Things to be noted beforehand. 1. Conception of the fetus. According to physicians, ordinarily conception by no means concurs with copulation; indeed most often it occurs with several hours or days intervening. - 2. Animation of the fetus. That the fetus from the beginning of conception, or at least after some days, is informed by a rational soul, St. Alphonsus already taught (VI, 124), and today it is commonly admitted.² Yet the matter is not proved by an altogether certain argument. Cf. Antonelli, Eschbach, l. c. - 3. Viability of the fetus. The fetus after the seventh month of pregnancy is, as they say, viable, so that, without proximate danger of destroying it, it can be drawn forth to light. In the case in which they use artificial incubation, couveuse artificielle, the fetus could be drawn forth from the completed sixth month without proximate danger. It belongs to the physician to judge concerning viability in individual cases. - 4. Ectopic being of the fetus. Although ordinarily the fetus lives in the uterus of the mother, sometimes it can happen that pregnancy occurs outside the maternal uterus: then ectopic fetuses are had. - 5. Life of the fetus. It is established by experience, and because of reasons taken from embryology it must be admitted, that the fetus in the uterus of a dead mother can live for some time.

741. Definition. Abortion is the ejection from the uterus of an immature fetus. Thus in the Constitution Effraenatam of Sixtus V.

Division. Abortion, by reason of imputability, is voluntary or casual. Voluntary is direct or indirect. Abortion is procured directly if deliberately, from whatever operation, an immature fetus is expelled; but indirectly, if a cause is posited acting of itself on the mother, but from which detriment can arise for the fetus, for example a bath, venesection, a remedy by which the health of the mother is consulted. All these things can produce contractions in the muscular coverings of the maternal uterus.

Note. Physicians directly procure abortion for several causes: if, the mother being ill, birth is foreseen as difficult; if, although the mother is healthy, she cannot give birth because of narrowness without danger, etc. Sometimes also through diverse operations, concerning which below, they directly attack the life of the fetus, afterward intending to expel it lifeless. It is plain that that very evil mode of acting cannot be called abortion properly so called, although, as regards the gravity of the crime, it is not less than abortion; see Nouv. Rev. Theol., 1911, vol. 43, p. 599.

742. Principles. I. Direct abortion is never licit. The reason: homicide, whether real or attempted, will never be licit. But if the fetus is animated, real homicide is committed, and indeed the more atrocious because soul and body at once are cast into ruin. But if the fetus is said not yet animated, this always remains: that there is danger lest a man truly endowed with spiritual life be killed. Therefore attempted homicide is had. Therefore Innocent XI rightly condemned the 34th proposition: "It is licit to procure abortion before the animation of the fetus, lest a girl detected as pregnant be killed or defamed." Cf. Response of the Holy Office, 4 May 1898, ad 2, where the Decree of 25 July 1895 concerning the illicitness of abortion is confirmed. Nouv. Rev. Theol., vol. 31 (1899), p. 276; Anal., VI, 277.

Hence: 1. They are guilty of homicide: a) Those who so strike or terrify a pregnant woman that abortion follows. - b) Likewise pregnant women who, with grave imprudence, posit a proximate cause of abortion in various ways, say by washing the feet in cold water, carrying heavy burdens, indulging a violent commotion of mind, etc.³

2. Probably an oppressed woman does not commit sin who at once expels the seed emitted while she resisted. Cf. Lehmkuhl, I, n. 1013. - St. Alphonsus (III, n. 394; ed. G., I, p. 647; VI, n. 954) holds the contrary opinion. But there he supposes as certain what moderns often and more often think to be little probable: namely that conception happens immediately after emission. Indeed it cannot be denied that conception can happen at once, and therefore an unmarried woman who sinned voluntarily cannot expel the seed; but for the woman invaded the right of repelling aggression prevails.

3. Certainly they commit homicide who induce a falsely colored acceleration of birth, whether through puncture of the membranes or in another mode, at that time when the fetus certainly is not viable.⁴ For this is equivalent to direct killing, just as we are said truly to kill a fish if we draw it from the water. Thus from the grave Response of the Holy Office, 25 July 1895. After this Decree, let the controversy among authors have an end. Nouv. Rev. Theol., vol. 27, p. 599.

743. • II. Indirect abortion is sometimes licit.

It is said: 1. Indirect, that is, coming beyond the intention from an ambiguous action, for example by supplying to the mother a medicine indeed salutary to her, but dangerous to the offspring, as we have explained.

2. Sometimes, namely if the conditions from the indirect voluntary are present, and indeed: a) the remedy is of itself and directly curative of the illness; - b) another cannot be used; - c) provision is made for the extreme spiritual necessity of the fetus, as it can be provided.

The proposition is proved: The indirect voluntary, in which we are here, under due cautions, is no sin. The two prior conditions are required of themselves. The later condition here must necessarily be expressed, since charity and piety oblige the mother to prefer the spiritual life of the offspring to the health of her own body. - Now, abortion truly does not deprive the fetus of the hope of Baptism when, the remedy having been omitted, it would certainly die with the mother, or when it is hoped that it will be brought forth alive into the light, and therefore can be baptized, or finally if in fact it can be baptized in the uterus. - It is plain besides that it is licit to take such a remedy if the danger of abortion is equal whether it is taken or not: the condition of the fetus is not made worse from it (III, 394; H. Ap., VIII, n. 26).

Note. 1. Let the physician not be too anxious as regards medicines to be furnished to mothers. For it is morally impossible, the mother perishing, that the offspring can survive for a long time, unless the mother is near birth, or the disease is very brief (Antonelli, l. c.).

2. Nevertheless attention must be given to the cautions which we indicated above in the case in which, so that he may consult the mother, he wishes to diminish the volume of a sufficiently mature fetus (Lehmkuhl, I, 1009).

3. If the fetus is only probably viable, the timorous physician will wait, insofar as can be done, for the certain maturity of the fetus. But if from delay the danger for the mother or for the offspring becomes greater, it is sufficiently probable that acceleration of birth is licit. The reason: in a desperate case it is licit to use a doubtful remedy (cf. n. 84), the more so because here there is not lacking hope of conserving the fetus alive, which otherwise would be constituted in the highest danger.

744. • Corollaries. In our times, so that the very intricate question of very difficult and dangerous birth may be solved, physicians have recourse to various operations, in which, from the end of the one operating, the safety of the mother alone is sought, with no or almost no respect had to the rights of the infant. Of these: 1. certain ones directly offend neither the mother nor the fetus, for example compression of the abdomen, puncture of the membranes, by which birth is accelerated; - 2. others directly touch the fetus, as craniotomy and similar ones; - 3. finally others directly touch the mother, as symphysiotomy, Caesarean section, laparotomy, the Porro operation. It is licit to designate the whole series of these operations by the name: medical abortion.

The operations of the first genus we have already called back under the scales. Concerning others, some things. The hinge of the question is in this, that we see whether these operations can or must be reduced to direct or indirect abortion.

I. CRANIOTOMY, or EMBRYOTOMY. It consists in the perforation of the skull of the infant, and extraction of the cerebral mass. - Supposing that the fetus is not certainly dead, it is a most grave sin, even if it appears as the only remedy of saving the mother. For it is an action of itself and directly killing, and, since it is inflicted on an innocent person, intrinsically evil; nor can it ever be made honorable by the intention of saving the mother. Nor let it be said: only the death of the infant, otherwise certainly about to die, is accelerated; for is not this acceleration of death, willed in itself, although not for itself, true homicide? - Nor let the fetus be equated with an unjust aggressor: for one who from the sole natural course of things, for example a man infected with plague, becomes the cause of death to another cannot be held as an unjust aggressor. Whence, on 19 August 1889, the Holy Office declared: in Catholic schools it cannot safely be taught that the surgical operation which they call craniotomy is licit, as was declared on 28 May 1884, and any surgical operation directly killing the fetus or the mother carrying it. These things were confirmed by the Decree of the same Holy Office on 25 July 1895. Cf. A. S. S., vol. 17, p. 601.

Note. To this operation must be assimilated and therefore condemned the mode of acting of those who attempt directly to extinguish an ectopic fetus, concerning whose presence there is certainty, by injection of morphine or by applied electrical force (Lehmkuhl, I, n. 1011).

II. CAESAREAN OPERATION. It consists in incision of the uterus, to this end that the fetus can be drawn out. This operation, which formerly they named difficult, barbarous, today is often performed by physicians, and indeed happily, while the mother is living, so that more or less 90 percent of mothers are saved. Cf. the things which Antonelli, Eschbach, and Capellmann narrate in the cited works.

A double question can be posited: 1. Whether it is licit for the mother to permit such an operation? - 2. Whether the mother is held to this?

To the first one must respond thus: It is licit if on the one side, because of her robust constitution and the skill of the surgeon, the danger of death becomes only remote, and on the other side hope shines out that the life of the offspring, both temporal and spiritual, can be consulted. But it is not licit if the danger of death as regards the mother appears proximate or truly probable, because such a danger must be equated with death (VI, 106; ed. G., III, p. 84). See the cited Response of the Holy Office, year 1898, ad 2 and 3.

To the second it must be said that if there is present a founded hope of drawing out the infant viable, of itself, from the precept of well-ordered charity, the mother is obliged to undergo the operation, which in our times, as we said, no longer remains an extraordinary means (cf. Lehmkuhl, I, n. 758, note, where he cites St. Alph., II, n. 26, 27); and even if it is supposed extraordinary, is not the eternal salvation of the infant worth so much? (cf. above n. 483). Yet let the prudent confessor see whether, with the natural horror of the mother toward such operations standing, the intimation of this obligation can be urged.

Note. a) What we said concerning the licitness of this operation can equally and under the same cautions be affirmed of SYMPHYSIOTOMY, by which narrowness of the pelvis must be removed through the cutting of the cartilage joining two bones. - For the rest, Antonelli adds (II, n. 94) that this operation and another similar one are not approved so commonly by surgeons.

b) The same must be said concerning LAPAROTOMY, by which a tumor is cut out so that an extrauterine fetus can be drawn out, or concerning the PORRO OPERATION, by which the uterus and ovaries are cut out. The Holy Office declared, 4 May 1898, that all these things are licit, provided that serious and opportune provision is made for the lives of both the fetus and the mother (Nouv. Rev. Theol., vol. 31, p. 276). The Holy Office confirmed these previous Decrees on 5 May 1902 (ibid., vol. 45, p. 161).

c) The pregnant woman having died, nothing prevents the Caesarean operation from being performed. In this case a strict obligation urges. But whatever some have said, it is certain that the priest is not obliged to this. The Holy See expressly declared that on 15 Dec. 1899, confirming the things which it had already prohibited on 15 Feb. 1780 (A. S. S., vol. 32, p. 503). Cf. Antonelli, II, n. 103.

III. DOUBTFULLY PROHIBITED OPERATIONS. Three very difficult cases are especially given, in which the licitness of the operation is not established: 1. The uterus of a pregnant woman sometimes prolapses and cannot be reduced except through puncture of the covering, so that the amnion flows. But from this abortion certainly follows. 2. Sometimes also the very uterus of a pregnant woman is so infected by malignant tumors, or in a healthy uterus such tumors are formed, that the health of the mother can be restored only by removal of the whole uterus. But removal of the uterus, in the case, unhappily draws with itself the extraction of a fetus perhaps immature. 3. Finally sometimes, in the case of extrauterine conception, the tumor will cast the mother into highest risk, and, if the organs rupture, into certain death; which seems to render removal of the tumor necessary.

Concerning the three aforesaid cases, there is no consensus of authors. There are not lacking those who think that puncture, removal, in the case in which the fetus is immature, is not licit, according to the Decree of the Holy Office, 5 May 1902, in which the Eminent Fathers refer themselves to the Response of 4 May 1898 cited above. But others judge that discussion of direct abortion cannot be instituted here, but of abortion which is procured only indirectly; and that the excusing cause is the highest and certain risk of life in which the mother is placed. Nevertheless all agree in this, that these things are in no way licit as long as true and certain danger for the mother does not exist. Cf. Lehmkuhl, I, n. 1011, who says the Response of the Holy Office of 1902 lacks pontifical approval; Nouv. Rev. Theol., vol. 44 (1912), p. 590; vol. 45 (1913), p. 154; Antonelli, II, n. 110.

745. • CONCERNING PENALTIES IMPOSED ON THOSE PROCURING ABORTION. I. From canonical right they are the following: 1. Papal excommunication reserved to the Ordinary (cf. n. 1349). Nevertheless those do not incur this who commit the crime of craniotomy. Cf. Noldin, de Poenis eccl., n. 93; Linz. Quart. Schr., 1910.

2. Irregularity, if nevertheless the fetus is animated (cf. n. 1946). 3. Inability for ecclesiastical titles, which is incurred ipso facto, but probably can be removed by the Bishop. 4. Privation of benefice, office, etc., but after a sentence declaratory of the crime (III, 395-397).

II. From civil right this crime is punished with grave imprisonment. Cf. French Penal Code, a. 317; Italian, a. 381; German, a. 218, 219, 220; Spanish, a. 425-428. It happens more and more often that physicians indiscriminately consider all those things which happen in birth, for rescuing the mother from certain death, as necessary consequences of their function.¹

Practical rules. 1. Good faith can be given concerning the licitness of medical abortion, whether in parents, or in mothers, or in physicians. The confessor, if he is not asked, should speak prudently concerning these matters: for his admonition, for the most part useless, indeed frequently harmful to those to be admonished, will become so, since it draws with it danger of formal sin. Asked by a physician, let him reprove the operation as illicit, yet without always making mention of the prohibition of the Church. - Asked by a mother, in many cases he will satisfy his function if he exhorts her that she herself say to the surgeon, in the best mode by which she can, that the life of the infant must be consulted. Let him not impose on the mother without consultation that she refuse the operation, nor indiscreetly manifest the prohibition of the Church. Yet sometimes, for example if a physician not very scrupulous advises a falsely colored acceleration of birth for avoiding inconveniences that are not grave, the confessor cannot be silent (Card. Gennari, Cons. mor., t. I, n. 77; cf. Nouv. Rev. Theol., vol. 45, 1913, p. 160 seqq.). 2. Physicians, especially if they are called unexpectedly, often are placed in a state of perplexed conscience. Therefore they must be judged according to the rules fitting this state, and, if fruit is hoped, admonished and instructed. 3. Sisters of Charity, if some hospital proper to them exists, are held to choose truly upright men. If the manner of acting, on the part of the physician, is less conformable to the Decrees of the Holy See, they are not held to resist his work, unless in the case in which his intention of prevaricating would evidently disclose itself (S. Poen., 7 July 1911; Nouv. Rev. Theol., vol. 44, 1912, p. 35 and Rev. Eccl. de Metz, 1911, p. 588).

Namely 1° of the killing of a guilty man; 2° of an aggressor; 3° of an innocent.

464. Principles. - I. It is licit to kill malefactors by public authority. The reason is that this is a necessary means for procuring the common good of the whole society, indeed for preserving society itself; which indeed for the most part cannot be obtained except by the death of wicked men. But God must be said to have conferred the power without which society could not stand. This is clear also from the practice of every legislation, from Sacred Scripture, and from the universal consensus of all.

II. But it is not licit to kill malefactors by private authority. Because no one can kill another without power; but private persons have received no power of this sort from God: for, lest all things be filled with slaughters, this power has been given to the Superior alone of the whole civil society. Therefore.

465. You will resolve. - 1° It is licit for no one to beat someone not subject to his power, unless there accede at least the tacit consent of him who has power, for example, of a father over a son, of a master over a disciple; for beating is a punishment; but this supposes gubernative power. Except, unless this be necessary for averting a present injury, as will be said below. - Reuter.¹

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

3° An elder brother cannot beat younger brothers, unless this has been commanded to him by the father, or unless, the father being dead or absent, he himself governs the family; because primogeniture does not confer such a right on him. - Billuart and others.

466. Questions. - Quaer. 1° Can those upon whom, from office, it is incumbent to apprehend or guard a malefactor kill him when he flees?

Resp. In the negative, even if he has already been condemned to death; because by force of their office they can only restrain the guilty man,² indeed with weapons among us, if there is need, even deadly ones, yet avoiding his killing as much as it will be possible.

Quaer. 2° Is it licit to kill a tyrant?

Resp. 1° It is certain that it is not licit to kill a tyrant of governance, or a legitimate Prince governing the people tyrannically, and even oppressing them: for it is necessary to obey masters even harsh ones.¹ - Thus commonly with St. Alphonsus.²

Resp. 2° Nor is it licit to kill a tyrant of usurpation, if he is already in peaceful possession of the kingdom. But the opposite sentence must be called improbable and false; because according to St. Thomas a usurper ought to be held as legitimate, at least in practice, if afterward the subjects acknowledge him as such. Besides, the public good requires that obedience be furnished to him for preventing disturbances and overturnings of the Republic.³

A tyrant certainly sins by usurpation of authority, whether while he makes laws, or while he pronounces law, or imposes tributes, etc. For he usurps to himself the authority of a prince, since he is not prince.

Nor does he sin only by invading the republic or provinces, but he also sins afterward by constantly preserving them oppressed and subject to himself; since he constantly oppresses and inflicts injury, not otherwise than as someone thrusting another unjustly into prison not only sins at the beginning, but also continually afterward, as long as he continues this calamity of another.

There is added also this, that while the tyrant sins by retaining usurped power, he at the same time has another obligation, namely of providing for the common good of the usurped province; and therefore he sins still more if, when there is need, he either does not pronounce law, or does not restrain the guilty, etc. The reason is that he harms the citizens still more gravely, and inflicts a greater injury; namely just as one who retains another's thing and uses it sins by using it, and at the same time sins by not using it, if use is necessary to the thing, lest it perish or become worse.

Corollary. - Laws which are made by a tyrant of usurpation, now peacefully holding another's dominion which he unjustly occupied, are of two kinds. For either they are directed against the legitimate prince, or they conduce to the tranquillity and prosperity of another's dominion. If the former, it is not licit to obey them, provided a most grave penalty is not imminent; for then one would not sin who, for example, took up arms or stood among the ranks until he could safely flee; yet, excepting the case of pure defense of one's own life, he could not strike the defenders of legitimate authority. If the latter, the subject can and ought to observe the laws (Haine, T. I. p. 69. q. 49): for the necessity of the republic, which cannot kill itself, requires this. Nor does he sin who seeks justice from a judge constituted by the tyrant: the reason is sought from "the will, at least interpretative and implicit, of the republic, which, while it cannot repel the tyrant and the judges constituted by him, tacitly confers on them the power of governing, and ratifies their laws and acts."¹ Cf. n. 369. q. 5°; n. 459; n. 1717.

When a tyrant of usurpation or his successors become just possessors, even though the prior prince does not consent or even protests, is difficult to say. Yet that this must happen at length sometime is clear even from this, that otherwise almost no prince now could be judged legitimate.

Resp. 3° Nor is it licit to kill a tyrant or unjust usurper, even if he is not yet in possession of the kingdom, except from the authority of the legitimate Prince, or from just defense, or in an act of war of the Republic against him; for it is never licit to kill a man by private authority. - Thus commonly, and it must be held certainly.² - Recall what was said in n. 459.

467. Principles. - I. It is licit for each one to defend his own life even with the killing of an unjust aggressor; for each one has a right of conserving life unjustly attacked: therefore he can defend it by necessary means, and consequently even by mutilation or killing of the aggressor, if in no other way he is able to snatch himself from death; for the order of right and of charity permits that we prefer our own life to another's: and in Canon Law it is said: "All laws and all rights permit force to be repelled by force." - I said: it is licit, but not commanded, unless the life of him who suffers the aggression is very useful to the common good, or the one attacked would die in mortal sin. - St. Alphonsus.³

II. In just defense against an unjust aggressor the moderation of blameless defense must be observed, or nothing ought to be done except that which is absolutely necessary for protecting oneself; because what necessity does not excuse is against justice. - Likewise one must take care lest the killing, etc., be done from hatred, revenge, etc.

468. Questions. - Quaer. 1° Is it licit to kill a drunken or insane aggressor?

Resp. In the affirmative, more probably, unless it is clear to you that he is in the state of mortal sin. The reason is that although the drunken or insane man is not formally your unjust aggressor, nevertheless he inflicts a true injustice, and there remains for you the right of defending your own life. But if you know certainly that he is in the state of lethal sin, since he is in extreme necessity, charity requires that you prefer his eternal salvation to the conservation of your temporal life. But otherwise if he were master of himself (for his own evil would be imputed to him), or if no prudent hope of his salvation shines forth, as almost in the insane. L. IV. 390 at the end. (T) p. 479.

Quaer. 2° Is it licit to defend an innocent neighbor by the killing of the aggressor?

Resp. In the affirmative, in every case in which it is licit to defend one's own life; and this by reason of charity.¹ Yet a private person rarely seems to be bound to this. - I said: 1° rarely; for an exception must be made if the one attacked is necessary to the public good, or if he is father, son, wife, or brother, whom piety obligates one to protect, or if he is drunk and in mortal sin, because then he is in extreme necessity. I said: 2° a private person; because by themselves those are bound upon whom the special duty is incumbent of defending citizens, yet not with danger of their own life, unless there is question of averting a public evil,² or they have specially obligated themselves also to this.

469. • Quaer. 3° Is it licit to kill an unjust aggressor also for the defense of members?

Resp. In the affirmative with the common sentence, against a few. The reason is that each one has a right of preserving a good most necessary to himself for life. Besides, in such risk the life of the one attacked is also practically endangered.³

Quaer. 4° Is it licit to defend goods of fortune of great moment with the killing of the thief, if otherwise they cannot be defended or recovered?

Resp. In the affirmative, at least more probably. The reason is deduced from what was said in the preceding question; for each one has the right of conserving goods of great moment in proportion to his condition, and therefore, by that very fact, of using means absolutely necessary for this. On the other hand, the precept of charity does not obligate one to prefer the goods of a neighbor, although of a superior order, except when the neighbor is in extreme necessity; but otherwise, when he of his own accord exposes himself to this danger of death.² (Y) p. 460.

470. • Quaer. 5° Is it licit for a woman to kill an invader of chastity?

Resp. In the affirmative, more probably. The reason is that chastity is a good more excellent than riches; therefore, if it is licit to kill an unjust aggressor of goods of fortune, it will be licit a fortiori for preserving chastity. - St. Alphonsus² and others commonly. From what was said in n. 468, Quaer. 2°, it is also clear that it is lawful to kill an invader of another's chastity, just as it is licit for the one suffering force herself; unless, however, the woman consents, or at least does not positively resist; indeed even if she consents, provided she is very closely related to the defender. - Yet this is never licit after the fact.³ Cf. n. 471. 3°.

Quaer. 6° Is it licit to kill another for the conservation of honor?

Resp. In the negative, at least speaking practically; because honor for the most part can be preserved by other means: besides, by today's morals, flight in such a case is not held shameful either for a noble or for a military man. Otherwise, moreover, a way would lie open to innumerable slaughters. This is also clear from propositions 17 and 18 among those condemned by Alexander VII, p. XIII, and 30 by Innocent XI, p. XVI.

471. You will resolve. - 1° It is not licit to kill a thief carrying off a thing of lesser moment, even with resistance of the owner; because although such taking away is done with a special injury against him on account of violence, nevertheless an injury of this sort is not judged grave according to the estimation of men.⁴ Yet the owner is not bound to let go of the thing, and, the moderation of blameless defense being observed, he can defend himself, if the other inflicts force upon his person for carrying it away.

2° It is not licit to kill him whom you merely suspect of aggression.⁵ But otherwise, speaking speculatively, if it is morally certain concerning the depraved will of the aggressor, and the danger cannot be met in another way. - I said: speaking speculatively; for in practice, on account of the danger of hallucination, and because that certainty is obtained with greatest difficulty, it will scarcely be licit.²

3° It is not licit to kill an aggressor after the fact, because it would be revenge, not defense. An exception is made when the aggression, effectively, as they say, was continuing in the flight of an aggressor carrying off a stolen thing. - Thus commonly.

4° It is not licit for a girl to kill the aggressor of her honor after oppression; yet she can strike him and treat him badly and most bitterly, especially because, unless in such a way she shows her constancy and displeasure, the wicked man will not easily depart, or will be able easily to return to solicitation.³

5° It is not licit, at least practically speaking, even for an honorable man to anticipate by killing an aggressor wishing to strike him with a slap; for he can always consult his own honor by flight or another way.² Yet it is licit to ward off the one attacking, even with weapons made ready, and to show oneself ready for one's own defense.

472. Principles. - I. It is never licit directly to kill an innocent, whether by private authority or public, even for procuring the public good; for it is an intrinsically evil action and expressly prohibited by divine law.⁴ The innocent and just you shall not kill.⁵

II. It is licit, on account of a grave cause (that is, equal to the life of the innocent), to posit an honest action from which, beyond the intention, the death of an innocent follows, according to the principle of St. Thomas set forth at n. 461.

III. He is not guilty of homicide who, even without cause, but with diligence applied, posits an action which of itself does not bring death, from which nevertheless by accident homicide follows; because that homicide is altogether fortuitous and involuntary. But otherwise, if he posits an action which of itself brings death, or is very dangerous, and from which death often follows, even if diligence has been applied for preventing damage.¹

473. You will resolve. - 1° It is not licit to kill those lethally wounded, nor any other moribund persons whatever, lest they suffer longer; nor those who are rabid, lest they harm others, provided they can otherwise be held back from harming. The reason is that according to the known maxim evils are not to be done in order that goods may be obtained.

2° It is not licit to kill an innocent in order to satisfy a tyrant demanding his death even under penalty of a city to be overthrown, and even if he consented to his own death; the reason is that he does not have dominion over his own life. Yet more probably he could be compelled to hand himself over to the tyrant for the public good, and probably, if he were unwilling, even to be handed over. St. Alphonsus² with others.

3° It is licit in war to direct artillery against the stations of enemies, although from this even some innocents are going to suffer death; because their death follows beyond the intention.³

4° It is not licit to kill envoys or hostages, even if the enemies who sent them have not kept the faith given, and have unjustly killed hostages or envoys sent to them; because they are innocent. - Busembaum, and others commonly with St. Alphonsus.⁴

5° Physicians, midwives, and guardians of infants and the infirm sin gravely if, from grave negligence, they either do not impede, or cause, or accelerate their death. Likewise if from gravely culpable ignorance they furnish harmful things to the sick.

6° It is not licit for those voyaging, tossed at sea and escaping from shipwreck in a skiff, for the sake of lightening the skiff, which otherwise they fear is to be sunk, to throw into the sea any others than those who, last descending into the skiff, are the cause why it is to be sunk.

Abortion is the lethal expulsion of the ovum, embryo, or fetus from the maternal womb. Mar.

474. Principles. - I. It is never licit directly to procure abortion, even if the fetus were supposed to be still inanimate; which supposition today, especially now that the dogma of the Immaculate Conception of the B. V. M. has been proclaimed, lacks foundation.⁵ The reason is that if the fetus is animated, it is homicide properly so called; but if it is not animated, it is anticipated homicide. For the fetus even not animated is ordered to forming a man; therefore its ejection is anticipated homicide. St. Alphonsus,¹ Lacroix.²

II. Sometimes it is licit indirectly to procure abortion, or better, to permit it, namely by administering to a mother laboring under grave disease remedies harmful to the fetus, if the following conditions concur, namely 1° that there is question of a lethal disease; 2° that the remedies harmful to the fetus are directed of themselves to curing the disease; 3° that there is no hope of procuring for the fetus eternal life through Baptism. But hope of this sort can be absent in a twofold case: namely in the earlier days of conception; or where it is morally certain that the fetus, when the mother dies, will die at the same time or before. - St. Alphonsus,³ Lacroix,⁴ Billuart.

III. It is licit to give to a pregnant woman who is ill remedies suitable for curing diseases, even if sometimes abortion could follow. The reason is that it is clear from experience that abortion very rarely follows from ordinary remedies, at least most of them. - Thus commonly.

475. Questions. - Quaer. 1° Is embryotomy, or the killing of an infant in the mother's womb, ever licit?

Resp. 1° It is certainly illicit, if either by a Caesarean operation, of which in the Treatise on Baptism, one can certainly consult the life of the infant and probably also of the mother, or if the fetus is soon to perish, and, its natural death having been awaited and it then extracted, some hope still probably remains of saving the mother. For where the good effect can be had from a certainly licit cause, it is illicit to use a cause concerning the liceity of which at least there is doubt.

Resp. 2° Since embryotomy is an action of itself or directly killing, but the direct killing of an innocent is licit in no case ever, embryotomy, although the sole remedy remains by which the life of the mother can certainly be provided for, cannot be permitted. And this is the common sentence of Theologians. Cf., if you please, Acta⁵ and Revue des sciences ecclés.⁶

Quaer. 2° Is at least the so-called medical abortion ever licit, or the acceleration of birth before the completed 28th week of gestation induced by art?

Resp. It is controverted. There are those to whom it seems the direct killing of an innocent, because from the very acceleration of birth before the seventh month of gestation the death of the fetus ought to follow of itself; for before that time it cannot live outside the mother's womb; therefore to extract it from that womb is the same as positively depriving it of precisely that thing without which it cannot live. Those who think the contrary say that in this case the fetus is only removed from a place in which it cannot live longer, and is placed in another in which it cannot continue life for long; wherefore they permit that acceleration of birth if the conditions are present of which in n. 474. II. Adhering to the former with Capellmann,¹ we apply the following admonition of Kenrick concerning embryotomy also to the acceleration of birth. If the mother asks what is to be done by her, it seems one must say that she ought to beg the surgeon to consult the life of the fetus in every way that he can.² (a) p. 469.

476. You will resolve. - 1° It is licit to expel a dead fetus, because the expulsion is no longer lethal. - Likewise, in the very violent oppression it will be licit to impede conception, yet not to expel a fetus actually already conceived.³ (b) p. 430.

2° It is not licit for a pregnant girl to take medicines (although these are generally taken in vain) for expelling the fetus, lest she lose reputation, because abortion would be directly intended. This is also clear from proposition 34 condemned by Innocent XI, p. XVI.

3° It is licit for a physician to furnish a remedy of itself ordered to curing the disease of the mother, if it is certain that, the remedy not being given, both the mother otherwise will die, and the fetus will be extinguished without Baptism; for thus both the mother and the fetus are helped in the better way in which they can be helped; but most rarely will there be certainty concerning both. But if the danger of abortion is equal, whether the remedy be taken or not, it is licit to apply it; because without greater danger to the offspring the life of the mother is consulted. - But if the danger becomes greater from the medicine, certainly one must proceed cautiously, since it is not lawful, in order to protect temporal life, positively to expose one's neighbor to the danger of eternal death. Yet it must be noted that, in order that this prohibition urge, there ought to be present a reasonable hope of saving the life of the offspring after the death of the mother, not indeed that a slight and most remote hope suffice; but most rarely does the offspring survive the pregnant mother. Hence the physician should weigh the circumstances conscientiously, yet not scrupulously.¹

4° They are homicides who strike a pregnant woman, or terrify her, so that abortion follows. Likewise pregnant women who with grave imprudence in various ways posit a proximate cause of abortion, for example by giving attention to excessive labors, by carrying heavy burdens. In both cases foresight of the danger is required.

5° A fortiori those girls are guilty of homicide who, pregnant from fornication, apply repeated attempts to try for abortion, by potions, jumps, burdens, strong striking and compression of the belly, etc. ... When women of this sort confess, they are to be questioned about abortion desired or attempted carefully, but not abruptly.

S. Th. II-II, q. 64, a. 2, 3, 4, 6, 7, 8.

355. The killing of one's neighbor, like the killing of oneself, is distinguished as direct and indirect. Direct killing is not just, except from public authority, toward malefactors, and toward harmful enemies in a just war, but not toward the innocent, nor for merely private persons; nevertheless indirect killing can be licit, even for merely private persons, for the sake of just defense or preservation.

The unjust killing of a man is called homicide, that is, the slaughter of a man; but this is simple, or qualified, that is, involving a specially sinful circumstance to be declared in confession, for example, sacrilegious homicide (by reason of a sacred person), parricide, fratricide, killing of a spouse, infanticide or the slaughter of offspring, regicide, robbery perpetrated from the will of plundering, assassination or homicide done from compact or from ambush.

364. Remarks. - 1st. As with the killing of oneself, so also with the killing of an innocent person, in practice it is not always easy to determine whether it is direct or indirect; whence here also the first remark made in the preceding article, n. 354, 1st, must be applied.

2nd. For practice we note that the probable doctrine concerning the killing of an unjust aggressor against chastity or goods of fortune is not to be publicly proposed to the people, on account of the abuses which would easily follow from it. In fact, that doctrine can very rarely be brought into practice, because a thief can ordinarily be repelled by other means, and because a thing seized can often be sought back by judicial way.

Besides, our Penal Code (arts. 416 and 417) does not recognize a right of defense unless the aggression is in some way judged to be directed against the person.

3rd. Charity does not require that one abstain from killing a culpable aggressor in order to avoid his eternal damnation. Charity indeed obliges even to exposing one's own life if one's neighbor is in extreme spiritual necessity. But a culpable aggressor is not in extreme necessity, since he voluntarily exposes his salvation and, by giving up the unjust aggression, can escape unharmed.

4th. Just as someone can protect himself by bloody defense, so also from charity he can, for the defense of his neighbor, do what that person can do for himself; but he could not thus defend goods which the neighbor voluntarily renounces, for example, the chastity of a woman who consents to sin or does not resist. Yet no one is bound thus to defend his neighbor, unless a special office obliges him to this, as officers, or piety or the common good urges, for example, for the life of a father or of a person who is altogether necessary to the republic.

5th. It is illicit to kill a legitimate prince, though a tyrant by regime and oppression, because no one can, unless he has public authority, kill a malefactor however distinguished; - unless the people, in establishing the king, reserved to itself this power of punishing in this way, or unless it is a question of necessary defense against an actual unjust aggression.

But a usurper or tyrant by title, who has not yet become the legitimate king, can be killed, apart from the case of just defense, by the authority of the legitimate prince or in an act of war of the republic against him, if he does not yet possess the kingdom peacefully; but if he now possesses it, this can be done only from the authority of the legitimate prince commanding it. - In practice, however, it will not be licit unless certain conditions have been posited, namely, a) that the tyrant certainly does not have a right to the kingdom; b) that there likewise is no superior to whom recourse can be had; c) that the republic does not contradict the killing of the tyrant; d) and that from his killing more or greater evils are not to be expected.¹²

¹² Thus Billuart, diss. X, a. 2.

I. Hitherto of restitution in general: now restitution in particular is to be treated; and first of all restitution on account of voluntary homicide, in which two losses can be regarded. The first is the taking away of life or of members; the other is that which follows upon the privation of life or the mutilation of members. He who voluntarily snatches away another's life injures commutative justice — for the discourse is not now of mutilation or homicide which follows upon necessary defence. But life once snatched away, or a member cut off, cannot be rendered back. What therefore is to be done, that injured justice may be repaired? If the judge punish the slayer or mutilator, no other satisfaction is required: since the judge commands that all the losses which are to be repaired in justice be repaired. It is disputed therefore concerning what is to be restored by a slayer or mutilator not punished by a just judge.

II. QUESTION I. Is a slayer or mutilator bound to compensate a personal injury with goods of fortune? ANSWER. There is a twofold opinion. One denies that anything is to be restored on account of a personal injury, that is, on account of the mere taking away of life or the mutilation of a member. The other opinion, which is the more probable, affirms it. Because he who kills, mutilates, or injures another violates commutative justice. Therefore this justice ought to be repaired by that way which is possible. But although life or a cut-off member cannot be rendered back, it can nevertheless in some manner be compensated with goods of fortune. He who owes to restore a thousand, but can only a hundred, will he be free from the restitution of a part, because he cannot render the whole? As regards practice therefore, it is the confessor's part to hand down that a homicide or mutilator, besides the compensation both of ceasing gain and of emerging loss to be made to the heirs, should bestow something for the life or member taken away, should take care that sacrifices be offered and alms laid out, and should study to console and help with all his might the whole family of the slain or mutilated man.

III. QUESTION II. What losses ought a slayer to compensate? ANSWER. All the losses which follow from the killing or mutilation are to be made good. There are to be compensated the expenses of the cure, and all the gains which the slain or mutilated man could have obtained by his art, trade, or industry, when there are sons, or sisters, a wife, and other relations who suffer such losses from the killing or mutilation. But if there be no one who suffers loss, nothing is to be restored. Authors dispute how many years of life are to be reckoned in the slain man. To settle the matter in few words, all these things are to be subjected to the judgment of prudent men. Killings among nobles are wont to be made good by no compensation. If a homicide should pay the penalty of retaliation, the heirs would be liable to no restitution, because when the penalty of death is inflicted all things are reckoned remitted: so the common custom obtains. If anywhere an opposite reasonable usage prevail, it is to be observed.

IV. If one provoked to a fight kill the provoker with the moderation of a blameless defence, he is bound to restore nothing. But if he had gravely exceeded the limits of moderation, then he would owe to restore in proportion. If they have mutually provoked one another, nothing is to be restored, because each yielded his right. If one has provoked the other by casting up the mark of cowardice, the provoked slayer is not held to restitution, say many of the younger authors: because he could not refuse the duel without disgrace. This reason seems to me to fight with the Gospel. Wherefore to me the following opinion of Fr. Viva is false, unless all things deceive me, who in Vol. III, part 3, question 7, article 1, no. 2, says: “Although he sometimes sins by not fleeing against charity, if namely he could flee without loss of honour, yet he does not sin against justice. Therefore he is not held to restitution.” What? Does a Christian sin against charity when he cannot flee without loss of worldly honour, and yet not sin against justice? But who would not disapprove this doctrine? For he is bound to take to flight, while the way lies open, with the loss of that honour which is set in the opinion of a raving world.

V. QUESTION III. Whether from casual homicide there arises a debt of restitution? ANSWER. Titius wounded Sempronius with a wound by no means mortal: by the negligence of a surgeon or physician Sempronius dies. Titius is bound to compensate the losses which follow not upon the death but upon the wound. If nevertheless Sempronius die of the wound received because a surgeon is not found, Titius the wounder is bound to compensate the losses which follow the death. From homicide following by accident nothing is to be restored. A cleric exercises forbidden hunting, uses all diligence that he may avoid a homicide: if this follow, he is bound to restore nothing. If on the contrary the homicide followed from gravely culpable negligence, then all the losses would be to be restored.

VI. QUESTION IV. To whom is restitution of the losses which follow from homicide to be made? ANSWER. It is to be made to the heirs — not to the free heirs, but to the necessary. Brothers and blood-relations, though they succeed ab intestato, are not necessary heirs, and consequently to them no restitution is to be made. Wives, sons, and parents are necessary heirs, to whom restitution is to be made.

VII. Moralists disagree whether a homicide is bound to pay the debts of the slain man to his creditors. The more common opinion denies it, since no action is given to the creditors against the slayer or mutilator in the exterior forum, nor even in the interior. The circumstances nevertheless are to be regarded, and the counsels of wise men to be heard, when like cases occur, that in most grave delicts that which is just may be determined.

VIII. If a wounded lord be absolved, and before he dies remit, together with the injury done him, also the losses to be made good, the slayer is free from restitution. For the rest, although a wounded man be bound to remit every injury done him and to love his wounder, he is nevertheless not obliged to remit the losses thence emerging; nay, if his wife, sons, grandsons, or parents should be gravely in need, he would sin against charity if with so great a cost and detriment to his own he condoned the losses.

IX. QUESTION V. What ought a deflowerer of a maiden to restore? ANSWER. Authors commonly absolve a deflowerer from restitution when the maiden consented spontaneously, and is her own mistress. The civil laws appoint that a ravisher either endow or marry the maiden ravished, because they always presume that she was seduced by blandishments and fraud. And indeed in practice a ravisher is scarcely to be absolved except from marrying or endowing the maiden. The circumstances nevertheless are to be regarded. If the defloration be public, accomplished by threats or fraud, then not only is the stain of corrupted virginity to be compensated, but also the mark of infamy inflicted upon her parents. A deflowerer is not bound to give a whole dowry, but to increase the dowry to be given by the parents. If nevertheless the deflowered woman be poor, then a whole dowry is to be given by the ravisher. If a doubt occur whether the maiden had been previously deflowered, the safer part is to be chosen, because no one is presumed wicked unless it be proved. Wherefore even in a doubtful case the losses are to be compensated. Nay, if in fact she was not a virgin, but was nevertheless so reputed, and the ravisher defamed her, then the losses are to be compensated. But if from such intercourse she suffered no infamy, nothing is owed to be restored. The same which has been said of a maiden is to be said of an honourable widow.

X. If by entreaties, blandishments, and little gifts alone he draw a maiden into consent, authors commonly teach that he is held to nothing, as has been said, because all these do not take away liberty. If nevertheless the entreaties were so repeated, and the blandishments so assiduous, that they were equivalent to violence, then the losses would be to be compensated. Whosoever has deflowered a maiden under hope of marriage is bound to marry her, because this contract is onerous and binds both parties, even if the promise were feigned. For although a contract concerning a shameful thing be null, the penalty of the crime committed is nevertheless to be undergone.

XI. These things are absolutely true: but for the rest, if the girls of our time be regarded, they are not seldom so shameless, so stripped of modesty, so brazen, crafty, and bold, that they themselves attack young men and men, and they themselves circumvent, bewitch, and craze them with their blandishments and tricks, either to plunder their purse or to draw them into matrimony. Wherefore, for the repressing of so great an audacity of girls, a law ought to be established that the deflowered should mourn their ravished virginity in perpetuity. This is always to be held before the eyes, that maidens modest, bashful, lovers of solitude, and fleeing the meetings and conversation of youths and men, are violated by no one. If therefore they themselves are forward, and hawkers of their own virginity, that others may learn, they ought to be punished as a public example, not endowed; especially if the deflowerers be of a nobler and higher estate. This nevertheless I submit here to the judgment and decision of prudent men, that that may be determined which is expedient for the public good.

XII. QUESTION VI. What is to be restored on account of adultery from which offspring follows? ANSWER. When from certain signs it is evidently established that the offspring was conceived from union with the adulterer — either because the husband was absent, or because he was sick, or because he was impotent — then all the losses are to be compensated which the husband has suffered from the third year of age in rearing the boy: for in the first three years the mother, but afterwards until the time at which the son can provide for himself, the father is bound to feed the son. What if a doubt occur whose the offspring is? Some, resting upon that axiom, the condition of the possessor is the better, deny the debt of restitution.

XIII. What seem to me the more probable are the following. When the adulterer and the adulteress have perpetrated the adultery by mutual consent, both are held in proportion to feed the boy and to compensate the losses to the husband or his lawful heirs: if one fail, the other is held in solidum. On the contrary, if the adulterer provoked the adulteress, and drew her into adultery by blandishments and little gifts, then the adulterer alone, as the principal cause, is liable to compensation. The adulterer failing, nevertheless, the adulteress is held. When it is doubted whose the offspring is, then judgment is to be made in favour of the marriage. But if the doubt persist, and reasons equally probable or more probable persuade that the offspring is spurious, I should judge that compensation is to be made in proportion to the doubt.

XIV. When an adulteress admits two men, one after the other, and it is unknown whose the offspring is, who of these is held to compensation, when it is established that the offspring was conceived by the work of one or the other? De Lugo, López, Trullench, Sánchez, Soto, and others free both; this opinion the Salmanticenses and Cardinal Cozza also defend. This opinion is to me improbable. What? It is certain that one or the other is the true parent, and both shall go free! If each perpetrated adultery, each ought to undergo the penalty. If each had attempted homicide, though it were unknown which of them had in fact perpetrated the homicide, in what forum would each go free? Each perpetrated adultery, each exercised the procreative action. Therefore neither is innocent, although one begot the son. Therefore each is bound in proportion to feed the son and to compensate the losses. The arguments of the opposite opinion do not press. They would have him innocent who did not beget. But how innocent, if he committed adultery and posited the generative action? There are therefore two guilty. Therefore both are to be punished: both ought to concur in making good the losses; and one failing, the other is held in solidum.

XV. QUESTION VII. An adulterer knowing for certain that offspring was procreated from his adultery, what is he bound to render to the lawful sons? ANSWER. Diana, Henríquez, Soto, Ledesma, and others contend that an adulterer is not bound to compensate the losses which the lawful sons undergo in the portion of the inheritance or of the legacies which the spurious son receives, when he did not persuade the substitution of the spurious son. This opinion is commonly disapproved; and they teach that both the adulterer and the adulteress ought to compensate all the losses which come to the lawful sons by reason of the spurious son, even if the adulterer did not persuade the substitution. Since each was the cause why the spurious son is reputed lawful: therefore each is subject to the reparation of the losses. First therefore each ought to use all diligence that the losses of the lawful offspring be avoided, while this can be done without loss of reputation. If the wife have paraphernal goods, or others free, she ought to give these to the lawful sons. But if the adulteress possess no free goods, what then? Ought the adulteress to betray herself, that she may avoid the losses of the sons? If the adulteress conceive no morally certain hope of preventing the losses which threaten the lawful sons on account of the offspring procreated from adultery, she is not bound to disclose the crime to the spurious son, even if she cannot compensate the losses: since she would imprudently squander her reputation, while she prudently doubts that the manifestation of her crime would profit. Nor is it to the purpose that you object that a defamer ought with the loss of his own reputation to retract what he said, even when he doubts that his retraction will profit: since indeed the defamer injured his neighbour in reputation, and therefore ought in the same kind, with the loss of his own reputation, to make good the blackened reputation. But an adulterous mother inflicted losses upon her sons not in reputation, but in money. Wherefore while she cannot compensate in the kind of money, she does not seem bound to make good losses of this kind with the loss of her reputation and honour.

XVI. A son is not bound to give credence to a mother testifying, even with an oath, that he is spurious, as the common opinion holds: because the word of one witness does not bring in a necessity of believing, especially while she lays open her own shame, with detriment to him who believes. There is added that, since the son by the common persuasion and by his own is reputed lawful, he cannot by right be deprived of the inheritance unless it be established by certain witnesses and proved that he is spurious. If the woman be of a lower condition and of slight reputation, and a vast inheritance is to be taken by the spurious son, then she ought to reveal her crime, as all commonly teach: for indeed a woman of slight reputation can easily be induced to make the loss of it. On the contrary, authors commonly free an honourable woman of bright reputation from the manifestation of her crime, even if a vast inheritance were to be taken by the son. But as regards this, the circumstances are to be regarded, and, all things weighed, it is to be determined what is more expedient. For a certain rule can scarcely be assigned.

SINCE among the other goods life is most dear to each one, by its unjust removal one sins most gravely against one's neighbor; for it is like an annihilation of all the goods which one living possesses: wherefore by homicide all the rights by which we are bound to our neighbor are violated in every way; and this is done spiritually by hatred and detraction; corporally it is done by the tongue and by deed; the former precepts, counsels, or does not inhibit; the latter sometimes issues in homicide, by executing justice, by killing by accident, or by necessity of defense; and in this last way, the things to be observed being observed, homicide is free from fault: but if it be done by will, with the lust of vengeance alone ruling, one sins gravely, as will be seen presently.

HOMICIDE is thus defined by St. Bonaventure, p. 1. Centil. sect. 31: Homicide is the killing of a man, done by a man. This definition is followed by Ioannes de Anania in the rubric on homicide, num. 1. and others. It is called the killing of a man, to distinguish it from the slaying which is inflicted on brute animals. It is said to be done by a man, to distinguish that killing by which a man is killed by some brute animal. But this definition regards rather the force of the name (as Catterius saw, in the practice, tract. on homicide and assassination, at the beginning) than the essence of the sin, which Fagundez also notices on the fifth precept, chapter 1.

THEREFORE Catterius and the Jurists commonly, as cited by Prosper Farinacius, quaest. 119. Tom. 4., and the Theologians, as cited by Fagundez, loc. cit. from St. Bonaventure's sermon on the ten precepts, cap. 6., define it as prohibited in the 5th precept: It is the unjust killing of a man. Now homicide unjustly done is that which is done by private authority, without the moderation of blameless defense being observed; or by public authority, without due justice and the order of law being observed, as Fagundez observes from St. Bonav. loc. cit. and in 3. dist. 37. dub. 5. lit. et in qq. Of both kinds we must treat.

Homicide is divided in many ways. First into Spiritual and Corporal, by St. Bonav. in the places cited, and by other Doctors of both Laws; on which division Farinac. treats especially, at the place cited, from Jacobus Boulent. in the repertory of the capital law, §. Famos. num. 63. ff. de poenis.

SPIRITUAL homicide is called, first, that by which a detractor unjustly blackens reputation. For in law the detractor is called a homicide, cap. Homicidiorum, de poenit. dist. 2. Second, that by which one hates his neighbor, 1 John 3: He who hates his brother is a homicide. Third, that by which he persuades another to harm his neighbor, for in law both the persuader of evil and the one who holds another in hatred are called homicides, C. Noli putare, de poenit. dist. 1. C. Homicidium. Fourth, that by which each one strives to harm his neighbor in some way, C. Homicidium, de poenit. dist. 2. Fifth, that by which someone denies sustenance to his brother in extreme need, as we have in dist. 86. from Ambrose: Feed him dying of hunger; if you did not feed him, you killed him.

CORPORAL homicide, however, is that by which the body of a man is killed; but spiritual homicide is chiefly that by which one is led to the death of the soul through sin, as St. Bonav. notes in the Confessionale, cap. 2. particula 3.

HOMICIDE, therefore, as it is defined by the Theologians, is a most grievous and atrocious sin, graver than theft and adultery. For the loss of homicide is irreparable, and by it we inflict on a man the greatest of all harms that we can inflict on him; as Socinus proves at large and learnedly, consil. 157. num. 8. lib. 2., with arguments from St. Bonaventure.

THE FIRST argument is: Graver are those sins by which harm is inflicted on the body than those by which harm is inflicted on a man's external goods and possessions; and thus for a single homicide the punishment of death is imposed; not so for a single theft, unless it be clothed with most grave circumstances, as the holy Doctor relates in the Confessionale.

THE SECOND argument, because in the ten precepts of the Decalogue the precept forbidding homicide is placed before the precept prohibiting theft and adultery, as the holy Doctor argues in 3. dist. 37. art. 2. quaest. 2.

THE THIRD; because in the Decretals the Title of homicide is placed before the Title of adultery and theft.

THE FOURTH, because it is easier to dispense with a thief than with a voluntary homicide, as is clear from C. sicut dignum, on homicide, num. 2. fol. 315. Decian. in the tract on crimes l. 9. cap. 17. num. 18. Matfil. in l. 1. num. 3. ff. ad legem Cornel. de sicar. With Socinus, that homicide is graver than adultery, they prove from the text in C. si quid verius, dist. 30. quaest. 2. L. Quamvis and from the circumstances; as in adultery and notorious theft the contrary must be said, as Decius teaches, consil. 65. l. 1.

BUT THE TRUE reason of the whole thesis is, because the harm inflicted by death is irreparable; but the harm from adultery and theft is per se repairable, since it concerns goods more extrinsic, as Fagundez says, cap. 1. num. 3., with St. Bonav.; and surely a man simply values life more than riches, fame, and honor, as the holy Doctor says in 3. dist. 37. art. 2. quaest. 1. in corpore; for it is against the very being of the individual, and against the more intrinsic good.

ALTHOUGH he adds there that fornication is against the due preservation of the species, still the harm inflicted on one's neighbor is less; nor is the damage to the species in one act of adultery so great as in homicide.

HOMICIDE, says St. Bonav. above, with St. Augustine, epist. 54., is taken in a twofold way: for either it is from private authority or from public; and both, if done in an illicit manner, are prohibited, Exodus 20. Deuter. 5. It will be illicit privately, if it be done without the necessity of blameless defense; but public, by a Judge or Prince, if someone is killed against justice. For although Princes are commanded to punish the wicked, even by death, as was said to Moses, Exodus 23: You shall not suffer the wizards to live; yet at the same time it is also commanded that they do not kill the innocent against justice, nor even the guilty in undue ways, as the holy Doctor teaches in 3. at the place cited.

IT IS INDEED NECESSARY for the safety of the commonwealth that robbers, cutthroats, assassins, and traitors be punished; and this power, or this sword of justice, was given by God, as the Apostle says, Rom. 13: Let every soul, that is, every man, as St. Augustine expounds, tract. 105. on John, be subject to the higher powers. If you do evil, fear: for he bears not the sword without cause. For they bear it to repel the evils which run rampant through the world in the body of the commonwealth, as St. Thom. teaches, 2. 2. quaest. 64. art. 1. For as a public member is cut off in the human body so that the safety of the whole body be consulted, so a noxious member of the commonwealth is deservedly removed from the midst, lest it corrupt the whole political body. But then a man is killed by a Judge not as a man, but as a criminal; and therefore out of hatred of malice and zeal for justice he is lawfully and deservedly put to death, as the holy Doctor sets forth in 2. dist. 44. art. 3. quaest. 1. and in 3. dist. 37. dub. 5. litt. and in the little work on the ten precepts, cap. 6., where he subdivides several other ways in which a man is killed privately, of which below.

From what has been said you have that not every killing of any living thing is forbidden, but only of men. Therefore it is lawful to cut plants and herbs, as is said Genesis 1: Behold I have given you every herb, and all trees, that they may be to you for food, and cap. 9: Every thing that moves and lives shall be food for you. And Aristotle acknowledged this too, lib. 1. Politics, cap. 5. and 6. Therefore St. Augustine, lib. 1. on the city of God, cap. 20: With most just ordination the Creator subjected both the life and the death of all living things to our uses. This is proved by the holy Doctor with very many passages of Scripture everywhere. Wherefore he deduces from the places alleged, with St. Thom. art. 1., whom others imitate, that the Manichaeans were senseless and foolish who cried out that by this precept it was forbidden to kill not only brutes but even plants. For all these things were made for the sake of man, for his use, as the Lord declares in the places alleged, and as our holy Doctors argue. Hence, after it was granted to men in Genesis 9. to kill animals, the prohibition of killing man is added, the reason of which the Lord gives: For man was made after the image of God. In what ways it is illicit, and in what ways lawful, to kill a man, I shall set forth below.

A MAN is killed in a threefold way: by Accident, by Necessity, and by Will, as the holy Doctor notices, sermon 6. on the ten precepts: But in the first part of the Centil. sect. 31. he adds the Homicides of Justice; and since we treat of the sin of homicide, we must first treat of that which is more voluntary, such as those placed in the title, which are called qualified Homicides, each of which always has the punishment of death enjoined: l. 3. C. de Episcopali audientia, l. si servus, C. de his, qui ad Ecclesiam confugiunt, l. 3. §. of the Law Cornelia. And l. Qua caedem, ff. de sicariis, l. Poena, ff. on Parricide, §. Likewise the Law Cornelia, t. of the Instit. on public judgments.

HOMICIDE from design (which we call, deliberated case) is that which is proved to have been premeditated for a long time. And although we cannot penetrate thoughts, yet we deduce it from the acts, for example, if he has elsewhere laid snares for him, if he has waited armed with assembled cutthroats in some place; if he has kept watch many days in some house,¹ etc.; if the slain man has been cruelly stabbed, cut down, mutilated in some members, for example the nose, ears, etc. It is said to be from design if, after 24 hours from the injury received, he kills, he being proved to have laid snares or plotted death, by calling together companions, sending out scouts, etc. All which things are entrusted to prudent judgment, as Julius Clarus warns, l. 5. sent. §. Homicidium, num. 8. Therefore one guilty of such must be punished with the ordinary punishment, which is death. So Salicet. l. 15. Qui cum telo, C. de sicariis. And l. 1. ff. extraord. Couar. on the Clementine, si furiosus, at the beginning of the second part; Ioan. Igneus l. 1. §. occisorum, num. 41. ff. ad Syll. Iul. Clar. §. Finali, 9. quaest. 1. ¹ Editor's note: the print reads 'attendetit multos dies in aliqua domo'; 'attendetit' is a corrupt verb form; rendered 'attendebat' (kept watch/lingered), the reading required by the insidiis context.

TREACHEROUS homicide, which almost always carries with it guile and fraud, is when someone awaits a man in a hidden place and kills him as he comes, or treacherously, feignedly, and by simulation, having summoned him, kills him in the house in which he is. But it can be treacherous and yet not from design, if he be killed in the heat of anger within the day. He is punished with the punishment of death, as the alleged laws and the expositors of the law decree, with St. Bonav. in the Dieta, tit. 3. cap. 4.

TRAITOROUS homicide is that which is committed traitorously, no other injury intervening, no hatred, no quarrel preceding; as he who kills a companion of his journey, or, feigning himself a friend, kills. So St. Bonav. in the mirror of the soul, cap. 1. about the middle; Barthol. l. to be regarded, §. Delinquant, num. 1. ff. de poenis. Igneus on the Law, si certus, §. si unus ex dominis, ff. ad Syll. after number 44. Iul. Clar. l. 5. sent. §. Homicidium, num. 10. These are condemned to the punishment of death, as the Laws above alleged decree; and they are excluded from the immunity of the Church, just as those who killed treacherously were also excluded; and those who killed from design were excluded by the old law.

The holy Doctor shows all this most beautifully in the Biblioth. loc. 19, cited from Scripture; for Joab the General, united to King David by blood and faithful, yet because he had killed Abner, 2 Reg. 3. from design and with guile, and Amasa, 2 Reg. c. 20. traitorously, kissing him, the dying holy King condemned him, and commanded Solomon his son: 3 Reg. 2: Thou also knowest what Joab the son of Saruiae did to me, what he did to the two generals of the army of Israel, Abner the son of Ner, and Amasa the son of Iether: whom he slew, and shed the blood of war in peace. Do thou therefore according to thy wisdom, and let not his grey head go down to the grave in peace.

STRAIGHTWAY Solomon the King, most wise and most just, commanded Banaiae to kill him. And because he fled to the Temple and laid hold of the horn of the Altar, and would not go out, Solomon commanded that he be killed in the Temple: whence he killed him.

From this it is deduced, with the holy Doctor, that such traitorous homicides are excluded from ecclesiastical immunity.

And indeed Doctors taught commonly that homicides also from design are excluded: Suarez t. 1. l. 3. de relig. cap. 11. Nauar. summa cap. 25. Couar. l. 2. var. cap. 20. Julius Clar. l. 5. sent. §. finali, quaest. 30. Guido Papa decis. 121. Bouërius decis. 109. Alex. consil. 145. num. 46. Corrad. in pract. fol. 268. Blancus in pract. fol. 4. num. 26. Ordinatio Lusitana in nouis lib. 2. tit. 5. Gambacurt. l. 5. cap. 4. num. 19. Fagundez on the 5th Precept, l. 5. cap. 1.

Of homicides also from snares they assert that they are excluded: Julius Clarus, Suarez, Nauartus cited, Remigius on the immunity of the Church, fallentia 13. Fagundez loc. cit. num. 19.

NOW, however, Gregory XIV. by his Constitution excludes from these only those who kill traitorously, correcting the common law, cap. 1. on Homicide. And thus Clement VIII. declared in a certain Brief to the Archbishop of Palermo, in the year 1597, on the 6th of February; which is found in Marcus Antonius Genuensis in praxi, cap. 76., as Diana relates, p. 1. Tract. on the immunity of the Church, resol. 1., where he shows that by that Bull Gregory revokes all the former privileges and all the customs, and he cites very many Doctors. See Riccius p. 5. collect. 1791. Peregrin. on Immunity, cap. 7. Bonacina Tract. on the Laws, disp. 3. quaest. 7. §. 6.

MOREOVER, that the one who kills traitorously is excluded was taught also by Iul. Clar. l. 5. sent. §. Homicidium, num. 10. Couar. l. 2. variarum, cap. 20. num. 7. Gomez cap. 10. on crimes; Remig. on the immunity of the Church fol. 225. Placa lib. 1. delict. cap. 21. Igneus on l. 1. si Dominus, num. 7. ff. ad Syll. Milleus in pract. crim. fol. 32. Fagundez num. 21.; and Covarruvias testifies that this is the custom of the whole world.

NOTE, however, that in St. Bonaventure Abner also was the traitor killed by Joab; for, although he had formerly been an enemy and had killed Asaëlem the brother of Joab, yet he had been reconciled, and he killed him under the appearance of friendship, or of reconciliation; which very many also think. Hence much more are kinsmen excluded.

NOTE also, with Diana resol. 5., that long after the Bull had been published, some, interpreting it otherwise, asserted the opposite of that sentence: but others wrote against it for this reason, as Fagundez and Portellus, because they dwell in Spain, where the Bull of Gregory was not received.

AS FOR the intermediary of assassination, they teach that he enjoys ecclesiastical immunity: Antonius Novatius in summa Bullarum, tit. on the Immunity of the Church, num. 72., who cites the other Novarius Ronius and Gambacurtus, with whom Diana subscribes, p. 4. tract. on the immunity of the Church, resol. 109. and resol. 33., where he also relates that Antonius de Marinis in resol. quotidian. cap. 171., Gambacurtus on the immunity of the Church l. 5. cap. 34. num. 14., Masculus in his addition to Capyc. decis. 112. The reason is, because the Doctors, in C. pro humana, on homicide, in 6., state that the intermediary does not fall under the name of assassin; and that this was decided in the Sacred Consistory in the year 1615, Rovitus relates in pragm. 1. on assassination, num. 49. But in the Bull of Gregory XIV. only the assassins are excluded from immunity: therefore not the intermediaries.

WHETHER, however, one who kills an infidel traitorously enjoys immunity: Ambrosius on immunity, cap. 7. Bonacina on the decal. disp. 3. quaest. 7. p. 6. §. 3. num. 6. bring forward that he does, because the infidel does not seem to be our neighbor: But Gregory excludes only the one who kills his neighbor traitorously. Ambrosinus argues, moreover, because if an assassin [killing an infidel] enjoys it, much more the traitor, since assassination is graver than treachery.

BUT assassins and those who command them are excluded from immunity, as Doctors commonly teach, cited by Fagundez on the 5th Precept of the decal. l. 5. cap. 1. n. 22. Now the assassins are a certain kind of men in Syria, subject to Christian lords, believing that they will be saved if they kill men at the command of their lords. So Suarez judges, T. 5. in 3. p. disp. 23. sect. 5. Couar. l. 2. var. cap. 20. num. 9. and others, cited by Fagundez num. 25.

BUT others say that the assassins are those who, lying in wait on the roads, kill men. But Julius Clarus, l. 5. sent. §. Assassini, and Bossius in the Counsel, on the command to homicide, num. 16., and others say less severely that these do not incur the punishments of assassins established in cap. 1. on homicide, in 6.

INDEED those who, lying in wait on the roads, kill men are truly assassins, and therefore are to be mulcted with their punishment, as St. Bonav. also seems to assert in the little work on the ten precepts, cap. 6., where he calls them robbers; for so they are called also in Italy. For these have their own Chiefs, whom they obey, after the manner of the Syrians. The authors of this opinion are Imola, and Geminianus on cap. 1. on homicide, in 6. Barthol. on l. Non solum, §. si mandatu, ff. de iniuriis. Salicetos on l. ea quidem, C. de accusat. and others, cited by Julius Clar. l. 5. sent. §. Assassini.

YOU WILL SAY that in cap. 1. on homicide, in 6., the punishment of death is established only for those who command the assassins, because the assassins are infidels, outside the law of the Church.

Fagundez ANSWERS, num. 25., that it was enough for the Pontiff to impose the punishment on those who command; for if these did not command, neither would the assassins go out to homicides.

I SAY therefore that excommunication is imposed only on those who command, inasmuch as they are Christians; not on the Syrian assassins, infidels; but the punishment of death is understood, from all the laws, to be common to these and to those.

BUT that those who travel on the roads, whom we call assassins, are robbers, the holy Doctor shows on those words of Luke, 10: And he fell among robbers, which he proves also by Jeremiah 3: On the ways you sat, waiting for them, like a robber in the wilderness.

Of these it is said, Proverbs 1: Their feet run to evil, and make haste to shed blood. He intimates the same on cap. 19 of Luke, on those words: You have made it a den of robbers.

THE FIRST opinion is that the punishment is not the same for both, just as neither is the guilt. Thus many, cited by Julius Clarus, book 5 of his Sentences, §. final, question 89.