Imprisonment

What mutilation is, and what direct and indirect mutilation are, has been set forth in the treatise on charity (n. 526). Now proceed:

I. Direct mutilation of an innocent person, with the required consent posited, is lawful if it is ordered and necessary for the preservation or well-being of the whole body. Otherwise it is illicit. For the reasons brought forward where there was discussion of direct mutilation of oneself have force (n. 526).

II. Indirect mutilation of an innocent person is per se illicit; but for a proportionate cause it becomes lawful, as was said about indirect mutilation of oneself (n. 526).

III. Imprisonment of an innocent person is likewise illicit, because each person has a right of procuring his own good even by external action; this right is violated by one who imprisons someone (St. Thomas, II-II, q. 65, a. 3).

IV. Finally, beating of an innocent person is illicit, because each person has a right to the delight or quiet of his senses, "to which beating is opposed, or anything whatever that affects the sense with pain" (St. Thomas, loc. cit.).

V. Nor is it lawful for public authority directly to mutilate an innocent person; for just as it is not lawful for it to deprive an innocent person of life (n. 731), so also and for the same reason it is illicit to deprive him of the integrity and use of members (St. Thomas, II-II, q. 108, a. 4, ad 2). Likewise it is illicit for it to imprison or beat an innocent person, because neither can public authority injure the goods of the body of innocent persons; and goods of the body, besides life and integrity of members, are the use of members, which is impeded by imprisonment, and the quiet of the sense, to which beating is opposed (St. Thomas, II-II, q. 65, a. 3).

Nor does public authority lawfully impose mutilation, for example vasectomy, oophorectomy, and so forth, for this end, that the procreation of weak, miserable, and similar offspring may be forestalled. Thus expressly Pius XI in the encyclical Casti connubii.¹ And the Holy Office, to the question, "What must be thought of the theory called eugenic, whether positive or negative, and of the means indicated by it for improving human progeny, with laws, whether natural, divine, or ecclesiastical, concerning marriage and the rights of individuals set aside," answered on March 31, 1931: "That it is altogether to be disapproved and to be held as false and condemned, as in the encyclical letter on Christian marriage, Casti connubii, given on December 31, 1930."² And indeed, first, the end does not justify a perverse means, such as the mutilation of an innocent person. Next, neither can public authority directly impede the good of the species, since it is ordered to no intermediate end, but to God alone, and therefore cannot be impeded for any intermediate end.³

Objection 1. Public authority can provide for the common good; consequently it can mutilate an innocent person and impede the good of the species, if that is necessary for the common good.

Resp. I deny the consequence; or rather, public authority can provide for the common good, but not by an evil means, of which sort are mutilating an innocent person and impeding the good of the species.

Objection 2. Public authority can provide for the good of the species. But by impeding the procreation of weak offspring it provides for the species.

Resp. That public authority can provide for the good of the species by using an evil means, such as mutilation of an innocent person, I deny. Besides, the Minor must be denied, because the good of the species pertains in no way to the accidental condition of the offspring.

¹ December 31, 1930.

² Acta Apostolicae Sedis, 1931, p. 118.

³ Cf. Brouillard in Etudes, 1931, p. 440 sq. and 578 sq.; Dr. Grosam in Theologisch-praktische Quartalschrift, 1931, p. 497 sq.

I. Public authority, just as it can kill a criminal, so a fortiori can mutilate, imprison, and beat him. But it is another question whether public authority lawfully imposes certain mutilations, namely vasectomy, oophorectomy, and so forth, as a punishment. Now, speaking theoretically, a punishment of this kind, although it can be defended from the fact that it deprives criminals of a great good, that is, of the faculty of procreating, seems less congruent with the common sense of morality. I said theoretically, because in practice it will impose the said punishment for this end, that the procreation of offspring to be procured by the criminal may be impeded. But that is illicit, because it is not lawful even for public authority directly to impede the good of the species (n. 740).

II. Superiors lacking supreme power, for example parents and those taking their place, cannot mutilate or strictly imprison their delinquent subjects; nevertheless they can beat them moderately. It is said:

1. They cannot mutilate them, because "man himself and all his parts" belong to society (St. Thomas, II-II, q. 65, a. 1); but it belongs only to the supreme governor of society to subtract from the community what pertains to the community (n. 741).

2. They cannot strictly imprison them, because not only man and all his parts belong to the community, but also his activity; hence again it belongs only to the supreme governor of society to impede the activity of man by strict imprisonment (St. Thomas, II-II, q. 65, a. 3). Nevertheless inferior Superiors can keep their subjects at home for just causes.

3. They can beat them moderately. For they enjoy the power of coercing subjects insofar as by acting thus they do not inflict injury on the community. But beating a subject inflicts no injury on the community, because it removes neither life, nor the integrity of members, nor activity (St. Thomas, II-II, q. 65, a. 2). Yet it is not lawful for a man to beat his wife, unless a most grave necessity urges, since the wife is not his servant but his companion (St. Alphonsus, VI, 972).

III. Equals, for example brothers and sisters, even if older by birth, cannot even beat delinquents, unless by consent of a superior. The reason is that by beating some harm is inflicted on the body of him who is beaten; moreover, it is not lawful to inflict harm on someone except by way of punishment, on account of justice. But no one can punish someone unless he is subject to his power. Therefore an equal cannot beat an equal (St. Thomas, II-II, q. 65, a. 2).

Rights and Duties of an Accused Who Has Been Found Guilty.—(a) Appeals.—It is lawful to appeal from a sentence that is unjust (whether because of the innocence of the accused, or of the illegality of the process), because appeal is a means of self-defense granted to the innocent. It is not lawful to appeal from a sentence that is certainly just, merely in order to cause delay or to defeat an adversary; but one may make an appeal when there are just reasons (e.g., in criminal cases the hope of getting an easier sentence or of prolonging life, in civil cases the discovery of new proofs, or of probable arguments against the sentence given). But one who has pledged his word not to appeal from the decision of an arbitrator should abide by his promise, and there is no appeal from the final decision of the highest court, which in the Church is the Roman Pontiff (Canon 1880), and in the State the Supreme Court.

(b) Escape from Prison.—If the sentence was unjust, it is lawful to escape, unless the means employed are intrinsically evil (e.g., killing of guards), or the results will be more harmful than continuance in prison (e.g., the overthrow of public order, the too great risk of the attempt to escape). If the sentence was just, there are various opinions on the lawfulness of flight. Some think it is never lawful, because a just sentence is a precept of authority and should be obeyed; others think that flight is lawful in grave cases (e.g., when the prisoner has been sentenced to death or to life imprisonment, or when the conditions of prison life are unbearable, because human law cannot impose as a normal regulation what is too difficult for human nature); still others think that flight is always lawful, because the court sentence is that the prisoner be forcibly confined, not that he remain in prison voluntarily. But one is not necessarily bound to escape (see 1857).

(c) Resistance to Sentence.—If the sentence is unjust, resistance is not unlawful per se, because one has the right of self-defense against unjust aggression (Ezech. xxii. 27). Hence, if one were condemned to execute oneself (e.g., by taking poison), the common opinion is that the sentence would be unjust (see 1856), and therefore not obligatory. If the sentence is just, even though it be a capital sentence, resistance is not lawful, for the judge who duly pronounces sentence on a guilty man has the right to obedience (Rom., xiii. 1-5).

When does the aforesaid precept oblige? - This precept obliges when these circumstances concur: 1. If the sin of neighbor is certainly established for you; but only a superior is bound to investigate. Prov. 24:15. 2. If it is not established that he has amended himself, nor established that he will amend himself, but that he will relapse; because alms must be made only to the needy. - 3. If another equally suitable is not present, who is thought likely to correct. 4. If there is hope of fruit, because, when the end is despaired of, the means cease; unless public damage follows from omitted warning, as, for instance, if others think what is not corrected is licit, or if scandal of others follows.

Public; for if the damage is private, of a third party, although there is no strict obligation of warning, nevertheless it can be done if he is not bound from charity to suffer that damage. For if he can vindicate his own thing for himself, another can warn the possessor about its being restored; for the obligation of charity is equal toward the owner and toward the possessor. And practically some hope is regularly always present that this person may wish to restore another's thing, moved by the obligation of conscience. - 5. If there is a good occasion, a suitable place and time, and you can do it without your grave harm, unless nevertheless someone is bound to correct by reason of office. - But if any one of these is lacking, the precept does not oblige. S. Th. 2. 2. q. 33, aa. 2, 4-6; L. 36, 42; Struggl, q. 4, nn. 54, 57; E. M. 412.

Is it lawful at least, by private authority, to beat or imprison someone? - It is lawful for no one to beat someone not subject to his power, unless there be added at least the tacit consent of him who has power, for example of a father over a son, of a husband over a wife, of a master over a servant; for beating is punishment, and this supposes governing power. Since, however, this beating is done for the sake of discipline, it must be moderated. Hence per se teachers can moderately beat pupils, because they hold the place of parents. On the contrary, an elder brother cannot per se beat younger brothers, unless this has been commanded 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 upon him. S. Th. 2. 2, q. 65, a. 2.

Likewise "to imprison someone, or in any way to detain him, is unlawful unless it is done according to the order of justice, either as punishment, or as a precaution for avoiding some evil," S. Th. 2. 2, q. 65, a. 3. Cf. here 422.

What concerning special inquisition? - "For a judge to make a special inquisition, there must, at least regularly, precede infamy, or something equivalent, which gives a just cause. The reason is both because otherwise he would defame without cause, and because a judge must proceed from public knowledge, which he does not have except through accusation, or the confession of the defendant, or evidence of the fact, or through infamy; for which two witnesses are not sufficient, who swear that they have seen the crime committed, because it is still hidden, but it is required that rumor be spread through the greater part of the community, that is, of the city, neighborhood, or monastery, and that it not have arisen from slanderers, although in this matter it is safe to follow the common practice of good men and republics." L. 801.

Regularly; for again there are excepted cases, namely if there is imminent danger of common damage, or of grave damage to another person, or if it concerns graver crimes, homicides, thefts, and other things disturbing the republic, and if there is some suspicion arising from indications not slight, lest delicts left unpunished provide occasion for wicked men to disturb the republic by their crimes and to injure the innocent. Wherefore the judge must then use great prudence, and have regard to persons, and until he sees whether the matter can be proved, he must take information in such a way that reputation is injured as little as possible. Hence, if he sees that it cannot be proved, he must desist. Lessius, l. 2, c. 29, dub. 15.

But lest meanwhile the defendant be able to corrupt witnesses or himself flee, the judge can command that he be enclosed in prison. But this cannot be done without grave delict and grave indications. Lev. 24, 12. Indeed by common Law it is provided that an innocent citizen not be enclosed in prison; and likewise to defendants the faculty is given, pledges having been furnished, of enjoying liberty until they have undergone judgment, unless they are accused of greater crimes with a great presumption of delict. S. Th. 2. 2. q. 14. a. 3; Quodl. 11, a. 13; Lugo, l. c.; CC. Accedens 23, Qualiter et quando 24, Cum oporteat 19, Inquisitioni 21 sections 1-2 de Accusationibus; Trent, sess. 25, c. 6 de R.; C. I. penal procedure, l. 1, title 1, c. 2, title 2, c. 1-4.

That it is not licit to imprison someone by private authority, the Saintly Doctor teaches in speculo animae, cap. 5. The reason is that this is to inflict harm as regards the movement of the limbs, as S. Bonav. loco cit. hints, and D. Thom. Yet it would be licit for someone having charge to imprison, e.g. a son, or a slave, to avoid some grave damage; but more licit is it for the judge, for custody or punishment, as all teach.

As to blows: it is licit for a father to beat his son, and a master his slave.

Yet S. Bonavent. in speculo animae admonishes that it not be done with cruelty. For cruelty is harshness of soul in exacting punishments for sin, just as faecitas¹ when one rages against one's neighbor without his fault; in which, if the excess is grave, the Saintly Doctor says it is mortal. ¹ N. Editor's note: the print/OCR reads 'faecitas', not a Latin word (perhaps 'feritas', savagery); the raw OCR of the print is equally garbled here; rendered as 'savagery' from context.