The State's right to inflict death

330. By the name of criminal here is understood one who has perpetrated a crime worthy of the penalty of death.

On the right over criminals. 1. Public authority, and it alone, has the right of killing criminals insofar as this is necessary for the common good. This is proved from sacred Scripture, from the universal consensus of all peoples, and from the nature of the matter.¹

a. There are those who altogether deny to civil authority the very right of inflicting the penalty of death; others do not deny the right itself, but grant it only in certain extreme cases of necessity; others indeed grant the right without limitation, yet say that its exercise in our times of civilization and humanity must be abrogated. From this it has happened that the penalty of death has been abolished in several kingdoms. But after a short time, when crimes grew strong, the subjects themselves asked that it be restored.

b. Although some testimonies of the old covenant pertain to judicial laws that were to have force only for the Israelites,² nevertheless others have universal value, as this: "Whosoever shall shed human blood, his blood shall be shed; for man was made to the image of God."³ St. Paul also attributes to civil authority as such the right of inflicting punishments in general, and specifically the right of inflicting the penalty of death: "He is God's minister to thee for good. But if thou do evil, fear; for he does not bear the sword without cause. For he is God's minister, an avenger unto wrath to him who does evil."⁴

c. Legislators of all times decree that the penalty of death is to be inflicted; even those who, imbued with perverse principles of right, thought that it should be abolished, nevertheless decreed that it must be retained for certain cases. All nations have recognized this penalty as licit and just, which they would never have done unless by the light of reason they had known it to be necessary to supreme power.

d. The right of decreeing and inflicting the penalty of death is necessary to supreme authority. And indeed, from the right and office of efficaciously defending social order and of providing stable security of rights for subjects, it can decree and inflict those penalties by which men are efficaciously deterred from even more atrocious crimes. But, as experience witnesses, many are not sufficiently deterred from the most atrocious crimes except by fear of capital punishment. Criminals of this sort, who become harmful to the community, are like a rotten member in an organism, which has lost the right to life and must be separated from the body of society for the common good.

e. But the reason for the second is that criminals can be licitly killed only on account of the common good. Therefore it belongs to him to whom the administration of the community is committed, namely to the supreme ruler, to punish criminals. Far greater evils would come upon the republic if anyone by private authority could kill criminals. Wherefore it is licit neither for a father nor for a master to kill or mutilate a son or servant for the sake of correction, or universally to inflict an irreparable damage upon him; this is licit only to supreme power on account of the common good.

2. In order that one guilty of crime can be justly killed, three things are required: a. that he has committed a truly grave crime; for the penalty of death is the gravest penalty which civil society can inflict; b. that he has certainly committed the crime; for he cannot be certainly despoiled of the right over his own life except on account of a certain crime; therefore if the crime is only probably established, the guilty person must be favored by law; c. that the crime committed be judicially established; for the law of nature demands that the guilty person be able to defend himself and that he be condemned only if juridically convicted, unless public authority in a particular case, for a reason of the common good, has given power of killing a man caught in the crime itself.

To one condemned to death there must be granted time to receive the last sacraments. Yet if he were unwilling to confess his sins, after admonition had first been given, he could nevertheless be killed; for he ought to attribute eternal damnation to himself.

¹ Cf. Vict. Cathrein, Moralphilosophie^4 (Freiburg: Herder, 1899), II, p. 634 ff.; Theod. Meyer, Institutiones iuris natur. (Friburgi: Herder, 1900), II, 593 ss.

² Lev. 24:17.

³ Gen. 9:6.

⁴ Rom. 13:4.

331. Resolutions. a. It is not licit for guardians of public order to kill fleeing criminals, even if they have already been condemned to death; for public authority's power is required for killing anyone. Hence if sometimes the same guardians discharge weapons against criminals either resisting or fleeing, they can do this either by right of defense or from a special power given to them against guilty persons already condemned to death. For anyone can of himself be constituted by the judge as executor of the penalty. But once the permission of public authority has been removed, it is licit for no one to kill even public robbers.

An outlaw, that is, one declared guilty of death by public authority, is licitly killed by anyone; for in this case anyone is constituted by public authority executor of the just sentence against the outlawed criminal. Wherefore the outlaw himself cannot defend himself and kill the aggressor; for it is licit to defend oneself only against an unjust aggressor.

b. A soldier placed on guard can licitly fire upon one approaching whom he had vainly warned not to advance, under these conditions: alpha. that the instruction of supreme power command it; beta. that the one ordered to stop be warned of the penalty, namely the discharge of a gun; gamma. that, once wounding is admitted, killing be avoided. For although the disobedience by which he resists the just order of the soldier, by reason of the common good, can in certain circumstances be gravely punished, nevertheless it is not a crime worthy of death. Something similar must be said of guards of borders who fire upon smugglers of merchandise.

c. Nor is it licit for citizens to exercise the vengeance which they call popular justice, that is, Lynchjustiz, because public order in civil society once constituted demands that the power of punishing guilty persons be reserved wholly to public authority; otherwise all things would be filled with slaughter.

THE right of the State to punish criminals with the infliction of death is either expressly conceded or clearly supposed in Holy Scripture.¹ It is sufficiently evident, too, from natural reason, for the State should be endowed with all those powers which are necessary to secure its end, the temporal happiness of its citizens. But it would not be possible to keep human passion within bounds and ensure the safety of the lives and property of its peaceful citizens, unless the State had the power of inflicting death on those who have been guilty of great crimes. The practice of the most civilized states confirms this view, and experience seems to demonstrate its truth. If the time should ever come when the infliction of less severe penalties will suffice to punish crime and safeguard life and property, then capital punishment should be abolished, but that time does not seem to be at hand yet.

If the State has the right to deprive a criminal of life, a fortiori it may inflict lesser punishments, such as flogging and imprisonment. Indeed, certain persons who have authority over others, such as fathers of a family, captains of vessels at sea, and schoolmasters, have the power to inflict smaller punishments in moderation on delinquents under their authority. Before capital punishment can be inflicted the essentials of a judicial process by which a grave crime is brought home to the delinquent must be gone through. For the right of capital punishment belongs to the State as such, to the public authority, and so before punishment is inflicted it should be proved that the crime was committed by the person charged, and judicial sentence according to law should be passed upon him. In certain cases when the ordinary process of law cannot be followed, and there is danger in delay, the public authority might empower anyone to kill a notorious criminal, but in settled times and ordinarily this should not be done. It would be a very dangerous remedy for crime if the State empowered its citizens to punish delinquents without previous trial and conviction. 196 ‘The innocent sometimes suffer in spite of the elaborate precautions and delay of modern criminal trials. If these were abolished and every citizen became a judge and executioner for crime, the remedy would be far worse than the disease. The Roman - law and that of some more modern states permitted a father or husband to kill a daughter or wife found in adultery. Such laws were not approved by the Church, and they could not in conscience justify one who took advantage of the immunity they gave to commit so cruel a murder.

¹ Rom. xiii 4.

To take means to safeguard the public welfare, and especially to inflict the punishment of death on criminals, belongs to the public authority and not to private citizens, and so these cannot lawfully arrogate to themselves the power of inflicting capital punishment. Lynch-law, then, is against sound principles of morality. In places where no effective government exists, the people should constitute a government to safeguard the common interests and to punish crime; this duty must not be left in private hands.

I quote the following from the Encyclopedia of the Laws of England, s.v. Escape: ‘‘ Considerable controversy has from time to time arisen on the question whether the officers of the law or persons entitled to apprehend or detain a person accused or suspected of crime are entitled to kill him on pursuit if they cannot otherwise stop him, or to kill him to prevent his escape after arrest. It seems to be agreed that the custodian is not entitled to kill to prevent escape from custody on a civil charge, nor from custody on a charge of misdemeanour. Where the escaped prisoner is accused of a capital offence, the custodian appears to be entitled to kill him if he cannot otherwise retake him; but it is not clear whether the mitigation of the severity of the law as to punishments for felony during this century (the nineteenth) can be regarded as reducing the right of the officers of the law to kill a fugitive from justice. With respect to convicts under sentence of penal servitude escaping from prison, questions arose in 1896 owing to the shooting of an escaping convict on Dartmoor which cannot be regarded as settled, and which have led to a revision of the Convict Prison Rules.”

392. Principles. - I. It is lawful 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; and this, for the most part, can be obtained only by the death of criminal men. But God must be said to have conferred the power without which society could not stand. It is also clear from the practice of every legislation, from sacred Scripture, and from the universal consent of all.

II. But it is not lawful 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 only to the Superior of the whole civil society. Therefore ¹.

¹ It is in no way opposed to this doctrine that civil laws have sometimes, with certain conditions observed, given faculty of killing now one adulterer, now both, which laws Cardinal de Lugo mentions (De Iust. et Iur., disp. 10, n. 84). For, as St. Thomas has (In 4, dist. 37, q. 2, art. 1): "The civil law reckons as quasi-lawful that he" (the husband) "kill her in the very act, not as prescribing, but as not inflicting the penalty of homicide on account of the very great incitement which the man has in such a deed to the killing of the wife. But the Church is not bound to human laws, so that it should judge him to be without guilt of eternal punishment or of punishment to be inflicted by ecclesiastical judgment from the fact that he is without guilt of punishment to be inflicted by secular judgment."

Moreover the holy Doctor himself meets the difficulty which could be sought from c. Si vero 3, De Sent. excomm., namely that he is immune from the excommunication of the Canon who lays violent hands on a cleric shamefully found with his wife, mother, sister, or own daughter. For St. Thomas responds (ibid., ad 5): "From this it is not proved that" (wife-killing) "is simply lawful, but as regards immunity from some penalty: because excommunication is also a certain penalty."

To these add proposition XIX, condemned under Alexander VII, which reads thus: A husband does not sin by killing on his own authority his wife detected in adultery.

393. Resolves. - 1. It is lawful for no one to beat someone not subject to his power, unless there is added at least the tacit consent of him who has power, for example of a father over a son, of a teacher over a disciple; for beating is a punishment, but this supposes governing power. Except unless this is necessary for averting a present injury, as will be said below. - Reuter, n. 369.

2. It is not lawful 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, surely requires perfect power, which neither father nor master has. - Billuart.

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

394. Questions. - Q. 1. Whether soldiers ordered to seize and guard a malefactor can kill him while fleeing?

Resp. No, even if he has already been condemned to death; because by force of their office, and with a special mandate of the Prince excluded, guards can only restrain the guilty man. - St. Alphonsus, Hom. apost., n. 9.

Q. 2. Whether it is lawful to kill a tyrant?

Resp. 1. It is certain that it is not lawful to kill a tyrant of governance, or a legitimate Prince tyrannically ruling and even oppressing the people; for it is necessary to obey masters even when froward. 1 Pet. 2. 18. - Thus commonly with St. Alphonsus, Hom. apost., n. 13.

Resp. 2. Nor is it lawful to kill a tyrant of usurpation if he has already come into possession of the kingdom. But the opposite opinion must be called improbable and false, because according to St. Thomas a usurper must 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 ² for forestalling disturbances and overthrows of the commonwealth. - St. Alphonsus, ibid. Resp. 3. Nor is it lawful 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 lawful to kill a man by private authority. - Thus commonly, and it is to be held certainly. - St. Alphonsus, ibid. - Recall what was said at the end of the fourth precept, n. 387.

² A tyrant surely sins by usurpation of authority, whether while he makes laws, or while he renders judgment, or imposes tributes, etc. For he usurps for himself the authority of a prince, although he is not a prince.

Nor does he sin only by invading the commonwealth or provinces, but afterward both he himself and his heir sin continually by preserving them oppressed and subject to themselves; since they continually oppress and inflict injury, just as one unjustly casting someone into prison not only sins at the beginning, but continually also afterward, as long as he continues this calamity of another.

There is also added this, that while a tyrant sins by retaining usurped power, he has at the same time 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 render law, or does not restrain the guilty, etc. The reason is that he harms the citizens still more gravely and inflicts a greater injury; just as someone who retains another's thing and uses it sins by using, and at the same time sins by not using, if the use of the thing is necessary lest it perish or become worse.

And plainly singular is this condition of the unjust usurper of public authority, that on the one hand he is guilty by retaining usurped power, but on the other he binds himself by a new crime if in the meantime he does not sufficiently consult for the society which he holds oppressed.

Yet this necessity of consulting for order or the common good does not excuse the usurper from guilt both of usurpation and of the use of power unjustly obtained; for this necessity is consequent upon the crime of retaining usurped power, by which he prevents order in the society from being provided for through the legitimate prince.

Nevertheless it is lawful for the inhabitants of the usurped province to furnish those things which are necessary for preserving order, without which the society itself could not be preserved. Nor can they only lawfully furnish this, but they are also bound. For the necessity of preserving the community or society itself requires this. And to this pertains what the Doctors commonly have, that laws and sentences issued by a tyrant are to be observed if they are just and honorable per se, although they are not just insofar as they are issued by an illegitimate power. The reason is that society cannot stand unless it is ruled by some power, laws, and judgments. But laws, sentences, etc. of this sort then cannot be had except those which are issued by the tyrant. Therefore these are to be observed.

Nor indeed does this introduce any approval of tyranny. For subjects do not observe those laws as if they had or professed the legitimate power of the usurper, but because the natural law commands that some order be observed; and since that order alone is then possible, the law of nature orders this to be observed. And this plainly has the sense of what the Doctors say, that society to this end confers on the usurper the power of making laws, governing, instituting judgments, etc.; but by no means that any legitimate right is thereby acquired for the usurper.

316. State of the question.⁵ It is indeed unjust to kill the innocent, but when there is question of evildoers who have been guilty of a most grave crime, the matter stands otherwise. For among almost all peoples, both ancient and recent, the punishment of death has been received by common usage.

⁵ Meyer, op. cit., II, n. 594.

Yet the Waldenses denied that even evildoers could be punished with the death penalty: this opinion was then commonly reproved. Nevertheless, already from the eighteenth century, not a few philosophers and jurists went over to the same opinion. Thus Cesare Beccaria (1716-1793) taught that the right of inflicting the penalty of death is to be restricted to the crime of dangerous sedition, or to the case in which the death of the delinquent is the only means for restraining the crimes of others;⁶ Jeremy Bentham (1748-1832), who acknowledges as the principle of morality utility alone, denied that capital punishment is useful and consequently just.¹ Ch. Lucas² (1803-1889) proceeded further, directly asserting that the penalty of death is neither just nor useful: for neither in the individual nor in society is there an inherent direct right over the life of the neighbor, but only the right of repelling an unjust aggressor by force; now the penalty of death established by laws is not inflicted in self-defense, since the evildoer, having been captured by authority, is no longer able to harm, but only in vengeance; and this is manifestly unjust. - Others, with Spedalieri (1741-1795), defend the same in another way; namely they say that the State obtains its rights from a social pact, and therefore does not have the right of death, since citizens could not validly renounce the right and duty of preserving life.

⁶ Beccaria, Dei delitti e delle pene, § 16.

¹ Theorie des peines et des recompenses, Paris, 1812.

² Many others wish the penalty of death to be abolished; among whom are Mittermaier, De la peine de mort, transl. Leven, 1865; C. J. Paton, Death Penalty, New York, 1891, with the authorities alleged, p. 140-160; Hello recounts others, Revue critique, 1867, t. 31, p. 322.

Hence in certain regions capital punishment in fact was abrogated: in Italy, in some parts of Switzerland, and in certain of the United States of America;³ but, after a few years, already in several of these States it was restored anew.

³ Garraud, Precis du Droit Criminel, 8th ed., 1904, n. 164; Tarde, La Philosophie penale, 3rd ed., Paris, 1892, p. 534-536.

317. Principle: The supreme civil authority can punish with capital punishment evildoers fully convicted of a most grave crime, as often as the public good requires this.

(A) To supreme authority there certainly belongs the right of protecting society against evildoers, who disturb the public order, by efficaciously deterring them from crimes especially harmful to the security of the commonwealth and of citizens; for upon it lies the right and duty of protecting the common good against any invaders of rights whatever. Now both historically and psychologically it is clear that the boldness and propensity of some toward committing crimes are not broken except by fear of capital punishment. (a) Historically: for among almost all peoples capital punishment flourished down to these last times. Thus, already in the time of the Patriarchs, it had been said to Noah and his sons: "Whoever shall shed human blood, his blood shall be shed";⁴ likewise to the Jews: "You shall not suffer sorcerers to live⁵... He who strikes and kills a man shall die the death."⁶ Among the Greeks and Romans, and also other Nations, the same penalty was inflicted not only on slaves, but also on free men, whose life was greatly esteemed. The Apostle acknowledges it as legitimate, writing concerning supreme civil authority:¹ "But if you do evil, fear; for he does not bear the sword without cause. For he is the minister of God, an avenger unto wrath to him who does evil." In reality, among Christian nations, otherwise protectors of human life, the penalty of death was by no means abolished, but on the contrary was always held as a necessary means for protecting the life of peaceful citizens. But in more recent times capital punishment, removed from the midst in a few regions, after the experience of a few years, has already been restored in certain places, so that public security might be provided for more efficaciously;² since indeed the boldness of evildoers and the number of crimes were increasing each year. But, on the other hand, in regions in which the penalty of death was preserved rather firmly, as in England, the number of crimes is accustomed to decrease. Historically, therefore, it is clear that a penalty of this kind is an efficacious and morally necessary means for providing for the public good.

⁴ Gen., IX, 6.

⁵ Exod., XXII, 18.

⁶ Levit., XXIV, 17.

¹ Rom., XIII, 4.

² Thus especially in certain parts of Switzerland and of the United States of America. As regards Switzerland, Garraud has these things, op. cit., p. 234, note 1: "Following a very active campaign of petitioning for the restoration of the death penalty, the National Council (of Switzerland) decided that a new constitutional provision would be submitted to the popular vote; it was adopted on May 18, 1879, and revises art. 65 in this sense, that each canton is permitted to reestablish the death penalty for crimes of common law. Some cantons have profited from this faculty, among others those of Zurich, Lucerne, and Zug." Likewise, of the four American States which had abolished the penalty of death, two established the same anew.

318. (b) The same is proved psychologically. For man by a certain natural instinct dreads death more than other evils; this feeling even the most abandoned of evildoers experience, though impervious to other motives; hence those condemned to death earnestly beg that the sentence be changed, and, when the punishment is imminent, not a few strive with all their strength to escape; on the other hand, from various testimonies it is clear that many are deterred from crime by terror of the final punishment;³ but if some are not deterred from crime even by fear of death, this generally arises from the fact that, entangled by depraved passions, by an inveterate habit of evil, or by occasions, they do not think of capital punishment, or hope to elude the ministers of justice; but many others in reality abstain from crimes through terror of the extreme punishment. - But, on the other hand, no other penalty sufficiently deters certain evildoers from homicide; not long and laborious detention, because today it is usually tempered, at least after some time, so that some value it more highly than a life indeed free, but subject to many miseries; on the other hand hope remains, because of the instability of political affairs, of recovering liberty after a short time, - nor that solitary detention which in Italy holds the place of a capital sentence: for this does not sufficiently terrify abandoned men, who retain hope of escaping.¹ Therefore both historically and psychologically it is clear that the penalty of death is a most efficacious means for deterring evildoers from crimes, and therefore can be inflicted by supreme authority, on account of the public good.

³ Thus, in the Italian Chamber, March 10, 1865, the deputy Conforti narrated that a conspiracy for perpetrating theft and homicide had been abandoned because on that day on which it had been agreed to carry the crime into execution, two other evildoers underwent the penalty of death. Cf. Garofalo, La Criminologie, 1890, p. 225.

¹ On the other hand this penalty is more cruel than death itself, since it is accustomed to bring on weariness, desperation, and a certain form of insanity.

319. (B) This is confirmed by another argument from the ethical order. Justice demands that the wounded moral order be healed and repaired by suitable satisfaction; and therefore the duty lies upon the rulers of the commonwealth of taking care that grave offenses be punished by a proportionate penalty; for otherwise the moral order is disturbed and endangered. Now there are offenses so grave that, according to common estimation, they can be expiated only by the penalty of death; such are especially homicides cruelly perpetrated after mature deliberation; for offenses which include the highest injury of the moral order and the highest injury demand a penalty highest from its kind, or the penalty of death. This indeed is so true that, as the adversaries admit, the rule set forth above is approved by common sense: "Whoever shall shed human blood, his blood shall be shed."

320. The principal difficulties are solved. (a) Some indeed object that evildoers, as long as they live, can be amended for the better; therefore they are to be spared so that they may do penance and thus repair the injured order.¹ - St. Thomas had already solved this difficulty:² "But the fact that the evil, as long as they live, can be amended, does not prevent their being justly able to be killed; because the danger which threatens from their life is greater and more certain than the good which is expected from their amendment. They also have in the very article of death the faculty that through penance they be converted to God. But if they are so obstinate that even in the article of death their heart does not recede from malice, it can be estimated with sufficient probability that they will never recover sense from malice."

¹ Thus C. Lucas, op. cit., p. 129: "From the Christian point of view, society commits a crime greater than that of the assassin whom it immolates; it kills the soul; it is the life of the soul, it is the penitential life that it tears away."

² Contra Gentiles, lib. III, c. 147.

321. (b) Others say that in no one, except God, is there an inherent right of life and death, and therefore society usurps divine rights while it kills evildoers. - We indeed confess that in God alone there is the full and direct right over the life of man; but He can delegate to Princes, and in fact has delegated, an indirect power; for to them has been entrusted the charge of promoting the common good of society; now the common good sometimes requires that certain evildoers be punished with the penalty of death, so that these and others may be deterred from similar crimes;³ then they act not indeed by their own authority, but insofar as they take the place of God: "For there is no power except from God... For he is the minister of God, an avenger unto wrath to him who does evil."⁴

³ "The common good is better than the particular good of one. Therefore the particular good must be taken away, so that the common good may be preserved. But the life of certain pestiferous men impedes the common good, which is the concord of human society. Therefore men of this kind are to be taken away from the society of men through death." (St. Thomas, l. cit.)

⁴ Rom., XIII, 1, 4.

322. (c) They insist: Capital punishment, as inflicting irreparable damage, can be decreed only by an infallible authority; now what judge can claim infallibility for himself? - We willingly concede that only those are to be punished with death who, not from indications more or less probable, but from morally certain proofs, have been juridically found guilty, as we said in the thesis; but for this an infallible judgment is by no means required, but that certainty suffices which can be found in human affairs after diligent examination; in reality, does not moral certainty, which does not exclude every danger of death, suffice for performing surgical operations? Do men not also daily expose life for pursuing a private good? If the matter stands thus, why could supreme authority not punish with extreme punishment him who with moral certainty has been judged harmful to society?

323. Moreover it is equitable that death be decreed only for the gravest crimes, namely fully deliberate homicides, as in reality is done today among cultivated nations. Indeed it is to be wished that morals be so tempered that the penalty of death is no longer necessary. Meanwhile, however, it is unjust, by sparing the guilty, to expose the life of the innocent to danger.

324. Corollary: In well-ordered societies, it is not licit for a private man by his own authority to kill evildoers outside the case of legitimate defense.

For from what has been said, the right of life and death is proper to God, and therefore cannot be exercised except by those to whom it has been delegated divinely, for the good of the whole community; now, in societies already rightly constituted, the right of punishing evildoers has been granted by God not to individual citizens, but to legitimate superiors; and deservedly; for, since the killing of evildoers is ordered to the public good, it belongs only to those to whom the care of the community is committed, namely to legitimate superiors having public authority.¹ - On the other hand, no one ought to be punished with capital punishment except after a mature judgment in which, all things having been carefully weighed, the guilty man has been juridically convicted of the crime; for how many evils would spring forth if it were licit for each person, without judicial sentence, to punish evildoers? Now for a prudent and mature judgment that order is required which magistrates follow when sitting before the tribunal.

¹ St. Thomas, 2. 2., q. 64, a. 3.

Therefore the practice is to be reproved which still flourishes in certain regions, of killing certain evildoers immediately after the crime has been committed, without judicial form.²

² This practice in the United States of America is called lynching; concerning which see The Catholic World, August 1887, p. 593; Bryce, The American Commonwealth, 3rd ed., New York, 1897, t. II, p. 567. - In certain cases, when there is question of very odious crimes, and otherwise public authority is little solicitous about punishing them quickly, there can be, and in fact are, men who in good faith judge the killing of evildoers done by private persons to be licit; therefore, while this is objectively reproved, attention must especially be paid to subjective dispositions.

a) The Old Testament not only carried capital punishment in its penal code, but expressly prescribed it for certain crimes, according to the divine command to Noë: “Whosoever shall shed man's blood, his blood shall be shed.”²

² Gen. IX, 6; cfr. Ex. XXI, 12, 14, 23; Lev. XX, 1 sqq.; XXIV, 17, 21; Deut. XVII, 6; XIX, 11.

Although the judiciary laws of the Old Testament are abolished under the New, capital punishment has not been done away with. On the contrary, Christ Himself expressly admits the right of public authority to put criminals to death³ and St. Paul not only declared that he would not refuse to die if he had “committed anything worthy of death,”⁴ but that the evil-doer has every reason to fear public authority, because it is “God's minister, an avenger to execute wrath upon him that doth evil.”⁵ The public authority, therefore, has power over life and death, i. e., the right to inflict the death penalty (gladii ius et potestas). This right, of course, entails a corresponding duty. The context of Rom. XIII, 4, which we have just quoted, shows that the Apostle not merely had in view some definite or concrete State or political system, but that he wished to describe the ideal Christian regimen. Consequently, the power of life and death flows from the very nature of public authority. Had Christ wished to forbid capital punishment in opposition to the Mosaic law, He would no doubt have formulated this prohibition in express terms. In reality the New Testament presupposes the death penalty as an integral constituent of the penal law.⁶

³ John XIX, 10 sq.

⁴ Acts XXV, 11.

⁵ Rom. XIII, 4.

⁶ Matt. XXVII, 22 sq., 26, 35; Luke XIX, 27.

From the undeniable fact that Divine Revelation teaches the lawfulness of capital punishment, it does not, however, follow, as the Calvinists and Puritans contend, that the public authority is strictly bound to inflict this penalty as the morally necessary and solely admissible atonement for certain heinous crimes, e. g., murder. For, in the first place, the Old Testament palliated the severity of the law by admitting the right of asylum, and substituted exile for death in the case of the first murderer (Cain), merely demanding that he be expelled from the society of men.⁷ Secondly, the idea that an angry God is pacified by the execution of a criminal is not Biblical, but pagan, and incompatible with the Christian dogma that through the blood of “the one mediator of God and men, the man Christ Jesus, who gave himself a redemption for all,”⁸ the sins of the whole human race have been wiped out and all men have been redeemed. Divine Revelation, therefore, and in particular the religion of Jesus, while it acknowledges the right of the State to inflict capital punishment, does not demand its infliction. For this reason the Church used to recommend condemned criminals to the mercy of the king; for the same reason she inflicts canonical irregularity upon those who co-operate in the infliction of the death sentence. As the old saying is: “Ecclesia non sitit sanguinem,” that is, the Church does not represent the principle of strict justice, but rather of charity and mercy.

⁷ Gen. IV, 16 sqq.

⁸ 1 Tim. II, 2, 5 sq.; cfr. Rom. III, 24 sq.; Eph. I, 7.

b) Ecclesiastical tradition definitely teaches that neither the infliction nor the execution of the death penalty violates the fifth commandment of the Decalogue. The contrary view of the Waldensians and the Anabaptists, that capital punishment is forbidden by divine law, is rejected by Catholic theologians as contrary to the spirit of the Church.⁹

⁹ Professio Fidei praescripta Waldensibus ab Innocentio III: “Of the secular power we assert that it can exercise the judgment of blood without mortal sin, provided that in inflicting punishment it proceeds not from hatred but from judgment, not rashly but advisedly.” (Denzinger-Bannwart, n. 425).—Cfr. St. Augustine, Serm., 13 (al. 94, De Temp.), n. 8: “If you hear your neighbor in the same way as you hear yourself, you persecute sins, not the sinner; and if perhaps anyone, turned away from the fear of God, is hardened against the correction of his sins, you persecute this very thing in him, this very thing you will try to correct, this you will labor to destroy and remove, so that the man may be preserved when the sin has been condemned. For there are two names, man and sinner: God made the man; the man made himself a sinner. Let what man made perish; let what God made be set free. Do not, therefore, go as far as death, lest, while you persecute the sin, you destroy the man. Do not go as far as death, so that there may be someone to repent: let the man not be killed, so that there may be someone who can be amended. Keeping this love of man for men in your heart, be a judge of the earth, and love to terrify, but cherish. If you are proud, be proud against sins, not against the man. Rage against that which displeases you in yourself, not against him who was made as you were. You came from one workshop, you had one craftsman, one clay is your material. What do you destroy by not loving the one whom you judge? Because you destroy justice, [you destroy it] by not loving the one whom you judge. Let punishments be applied—I do not refuse, I do not forbid—but with the mind of one who loves, the mind of one who cherishes, the mind of one who corrects.” (Migne, Patr. Lat., XXXVIII, 110).

The strict canonical precept forbidding clerics to co-operate in the application of the death penalty and inflicting irregularity upon all who co-operate in the administration of capital punishment, does not prove that the Church denies the right of the State to inflict this punishment, but is merely a logical deduction from her exalted conception of the clerical profession.¹⁰

¹⁰ C. I. C., Can. 138; P. Augustine, O. S. B., Commentary on the New Code, Vol. II, p. 87.

c) The teaching of the Church on this head is confirmed by the consensus gentium. Surely men would not have so willingly admitted the right of their rulers to deprive them of their most precious possession, i. e., life, for certain grievous crimes committed against the public order, had not this right been universally regarded as a corollary of the natural law and a postulate of right reason. In matter of fact all nations have always admitted the right of the State to inflict capital punishment, and wherever rulers or public opinion were by specious arguments induced to restrict it, the people soon demanded its restoration. The fact that certain classes of persons (e. g., soldiers) and certain conditions (for instance, a state of war) have always been excepted when laws were passed to abolish capital punishment, proves that the public authorities wished to reserve to themselves the right of inflicting the death penalty in circumstances under which it appeared to them necessary.

d) Philosophically, the right of the State to inflict capital punishment can be demonstrated by both juridical and sociological arguments. Not everything, however, that has been brought forward by writers on the subject is entirely convincing. To prove the intrinsic justifiability or the necessity of capital punishment from the notion and purpose of punishment in general, or to base it upon reasons of social utility, is beside the point. For, in the first place, all the essential objects of punishment can be attained just as well by other methods; nay, the infliction of the death penalty may frustrate the true purpose of punishment without in the least repairing the injury done. The arguments taken from sociology, namely, that, on the one hand, a murderer has forfeited his human dignity and rights by his crime and must consequently be cast out as a worthless member of society, and that, on the other hand, society must be protected against dangerous or injurious members, really presuppose capital punishment as the sole means for obtaining the ends in question, and therefore involve a petitio principii.

The right of the State to inflict capital punishment can be convincingly proved only from its right of self-defense. As a State or community may be threatened in its material and ideal existence by enemies from without, so also by enemies from within,—those who attack discipline or, worse still, commit violence or crime and thereby undermine the very foundations of the social order. Against these,—radical Socialists, anarchists, Bolsheviki, or whatever else they may be called,—the authorities frequently have no other effective means of preserving or restoring law and order and securing peace, than capital punishment.

“Another kind of slaying,” says the Catechism of the Council of Trent, “is permitted, which belongs to those magistrates to whom is given the power of condemning to death, by the legal and judicial use of which they punish guilty and protect innocent men [Rom. xiii, 4]; in which function, provided they act justly, they are not only not guilty of murder, but eminently obey this law which prohibits murder; for as the proposed end of this law is to provide for the life and safety of men, to the same end also tend the punishments inflicted by magistrates, who are the legitimate avengers of crimes, giving security to life by punishing and thus repressing audacity and outrage. Wherefore David says: ‘In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.’”¹¹

¹¹ Cat. Rom., P. III, c. 6, qu. 4.

“Every part [of an organism],” says St. Thomas, “is directed to the whole, as imperfect to perfect, and therefore every part is naturally for the sake of the whole. For this reason we observe that if the health of the whole body demands the excision of a member, on account of its being decayed or infectious to the other members, it is both praiseworthy and advantageous to have it cut away. Now every individual person is to the whole community as a part to the whole. Therefore, if a man be dangerous and infectious to the community, on account of some sin, it is praiseworthy and advantageous that he be killed, in order to safeguard the common good. . . .”¹²

¹² St. Thomas, Summa Theol., 2a 2ae, qu. 64, art. 2: “Every part is ordered to the whole as the imperfect to the perfect, and therefore every part is naturally for the sake of the whole. And for this reason we see that if the health of the whole human body requires the cutting off of some member, for example when it is putrid or corruptive of the other members, it is praiseworthily and beneficially cut off. But each individual person is related to the whole community as a part to the whole. And therefore, if any man is dangerous to the community and corruptive of it because of some sin, he is praiseworthily and beneficially killed, so that the common good may be preserved.”—Ibid., ad 1: “When no danger threatens the good from the killing of the wicked, but rather protection and safety result, then the wicked may lawfully be killed.”

Capital punishment, therefore, like war, is the exercise of a nation's right of self-defense against the danger arising to its very life from putrid or infectious members, which threaten to infect and corrupt others and thereby imperil the very existence of the State.¹³ Whenever there is need of exercising this right of self-defense, when capital punishment has been established by law for certain grievous crimes, the magistrates exercising the proper authority are permitted, nay, obliged to put malefactors to death.¹⁴ If society is not in a state of necessary self-defense against internal enemies and the dangerous elements can be rendered innocuous by other means, such as incarceration, banishment, or deportation, or if certain crimes do not imperil law and order and public peace, the death penalty should not be inflicted. A temporary abolition of capital punishment may be morally justified. Even where capital punishment is legal, it need not be inflicted in every case; for it is but a relative law, and as such involves no absolute obligation. In matter of fact the supreme representative or bearer of civil authority has at all times in the world's history exercised the right to pardon condemned criminals. It goes without saying that this prerogative must be exercised prudently, lest the non-infliction of capital punishment in flagrant cases create contempt for authority.¹⁵

¹³ Ibid., art. 3: “It is lawful to kill a malefactor insofar as this is ordered to the welfare of the whole community.”

¹⁴ Ibid., art. 7: “It is not lawful to kill a man except by public authority for the common good.” Cfr. Contra Gent., l. III, c. 146, n. 3–5.

¹⁵ Cfr. F. X. Linsenmann, Moraltheol., p. 473; V. Cathrein, Moralphilosophie, Vol. II, 5th ed., pp. 675 sq.

118. Principle. Public authority, and it alone, has the right of killing those who have committed most grave crimes.

Proof. The reason is that the death penalty is a necessary means for preserving the common good. For unless great evildoers could be killed by public authority, they would always become more arrogant and would greatly diminish public peace and security. Therefore in Sacred Scripture also we read that this power was conferred upon public authority,¹⁰⁴ and we find its use among all peoples. Thus, e.g., among the Israelites it was established: "He who strikes a man, wishing to kill, let him die by death." "He who has cursed his father or his mother, let him die by death."¹⁰⁵ But no one except public authority can inflict the death penalty, because evildoers can be licitly killed only on account of the common good. Therefore he alone who by office ought to procure the common good, i.e., the superior of the community, can punish someone by death. The Angelic Doctor writes to the point: "To kill an evildoer is lawful insofar as it is ordered to the safety of the whole community, and therefore it belongs only to him to whom the care of preserving the community is committed; just as it belongs to a physician to cut off a putrid member when the care 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 lawful for them alone to kill evildoers, not for private persons."¹⁰⁶

Those private men act illicitly who kill certain evildoers immediately after the crime committed by their own authority, which practice is commonly called Lynch justice, lynching. Thus at least objectively speaking, because perhaps several so acting are in good faith.

Soldiers and guards appointed for capturing or guarding an accused man cannot indeed kill him when he is taking flight, but they can fire a gun at the legs of the one fleeing, so that he can be captured. But if in this way the fleeing man is accidentally killed, the guards have not sinned. For the rest, guards, watchmen, and soldiers are accustomed to have special instructions how in individual cases they ought to act. They are not to be disturbed in conscience if they act according to these instructions.

Things To Be Provided Before A Sentence Of Death. No one can licitly be condemned to death by supreme authority unless, after judgment, moral certitude has been had concerning the most grave crime committed.

Therefore in order that the death penalty can be licitly inflicted, there is required a) a most grave crime; b) moral certitude that this crime has been perpetrated. The crimes which are punished by the death penalty by modern criminal codes are few, e.g., voluntary homicide, treason, certain crimes during war. It is not indeed required for the liceity of the death sentence that the accused have confessed his crime in court, but it is altogether necessary that moral certitude concerning the crime perpetrated be had, because otherwise an injury could be done which afterward would be irreparable.

Before execution of the sentence of death, time must be conceded to the accused for reconciling himself with God according to the prescriptions of religion.

Several criminal codes rightly establish that no pregnant woman can be punished by death, but that birth must first be awaited.

In ancient times civil law permitted that a husband could kill an adulterer caught in the very act. But since certain theologians extended this permission of civil law even to the killing of the wife, proposition 19 was condemned by Alexander VII: "A husband does not sin when he kills by his own authority a wife detected in adultery."¹⁰⁷ St. Thomas had already solved this question: "Civil law reckons as licit, as it were, that he kills her [namely, the wife] in the act itself [of adultery], not as commanding, but as not inflicting the penalty of homicide, on account of the greatest incitement which a man has in such a deed to the killing of his wife. But the Church in this is not bound by human laws.... And therefore in no case is it lawful for a man to kill his wife by his own authority."¹⁰⁸

¹⁰⁴ Cf. Ex. 22, 18 and Rom. 13, 4.

¹⁰⁵ Ex. 21, 12 sqq.

¹⁰⁶ S. theol. 2, 2, q. 64, a. 3. Similar things are had there a. 2 and 7; q. 65, a. 1 and ad 2; q. 108, a. 3 ad 1; De malo q. 1, a. 5 ad 12; Contra gent. 3, 146. But always the same reason is brought forward by the Angelic Doctor for the liceity of the death penalty, namely, the necessity of the common good.

¹⁰⁷ Denz. n. 1119.

¹⁰⁸ 4 dist. 37, Q. 2, a. 1.

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).

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.

356. Thesis I. From natural law, supposing the natural fact of society, the supreme civil authority can punish by capital penalty malefactors fully convicted of a most grave crime, as often as the public good requires this.

Thus against the Waldenses and Anabaptists, and against certain modern philosophers, who unduly restrict that right to the crime of sedition or even assert that it is altogether useless and unjust, because an aggressor is indeed justly killed while in act, but one captured is no longer able to harm; or because authority is derived from the social pact, but individuals reserve for themselves the right to life, which they cannot renounce: thus among others Cesare Beccaria, Jeremy Bentham, Ch. Lucas, Spedalieri, Ahrens, Holtzendorff.

It is certain from the profession of faith by Innocent III against the Waldenses: "Concerning secular power we assert that without mortal sin it can exercise the judgment of blood."

It is proved 1) by reason: To the supreme social power there belongs the right and office of defending laws by efficacious sanctions and of efficaciously deterring malefactors from crimes: for this is necessary to the good of the republic. But for the most part it could not sufficiently furnish this, unless it threatened capital punishment and inflicted it, as is established by experience: both historical experience, from the common estimation of all times, and psychological, because many men are found who are not sufficiently moved by other penalties of exile or detention, even perpetual, whether laborious or solitary, but for whom the penalty of death is the one remedy which of itself efficaciously detains them from every crime. Therefore the supreme social power has the right of inflicting capital punishment.

And indeed: a) Supposing that in society there is present the power of punishing, as cannot be denied, it is required that the moral order violated in the republic be sufficiently repaired, and crimes be punished by proportionate penalties. But some crimes are so grave that they can be expiated only by capital punishment and abscission from human society; therefore.

b) Right reason dictates that a part is to be amputated if it harms the whole. As St. Thomas teaches, q. 64, a. 2: "Every part is ordered to the whole as the imperfect to the perfect; and therefore every part naturally is for the sake of the whole. And on account of this we see that if the cutting off of some member is expedient for the health of the whole human body, say when it is putrid or corruptive of other members, it is laudably and healthfully cut off. But each singular person is compared to the whole community as a part to the whole. And therefore if some man is dangerous to the community, and corruptive of it because of some sin, he is laudably and healthfully killed, so that the common good may be preserved."

Briefly: experience teaches that the one remedy which efficaciously draws back from crimes is capital punishment; without it neither are crimes sufficiently vindicated nor is society sufficiently protected.

2. Revelation also recognizes this. For the old law established: "You shall not allow malefactors to live... He who strikes and kills a man, let him die by death" (Exod. XXII, 18; Lev. XXIV, 17), of which the universal reason is indicated: "Whoever sheds human blood, his blood shall be shed" (Gen. IX, 6). Whence it holds not only concerning the power instituted among the Jews in the Old Law, but also in the New Testament concerning the supreme power among pagans, as the Apostle testifies (Rom. XIII, 4): "But if you have done evil, fear; for he does not bear the sword without cause: he is the minister of God, an avenger unto wrath against him who does evil."

But it is said: a) it belongs to the supreme social authority: for no one except public power can inflict the penalty of death, because malefactors can licitly be killed only for the common good. "To kill malefactors," says St. Thomas, a. 3, "is licit insofar as it is ordered to the safety of the whole community, and therefore it belongs only to him to whom the care of preserving the community is committed; just as it belongs to a physician to cut off a putrid member, when care of the health 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 licit for them alone to kill malefactors, but not for private persons." Besides, then greater evils would arise for society and perpetual conflicts. Whence it is licit neither for the people (lynching), nor for a father or husband, to kill malefactors, even in the very moment of the crime committed, from indignation, or to kill an adulterer or a daughter or adulterous wife caught in the act of delict; but if civil law sometimes tolerates this, it does not make it licit in conscience but only intends not to punish in the judicial forum, as St. Thomas testifies, IV Sent., d. 37, q. 2, a. 1: "The civil law accounts it as quasi-licit that he kill her (the wife) in the very act (of adultery), not as commanding it, but as not inflicting the penalty of homicide, on account of the very great incitement which the man has in such a deed toward killing his wife. But the Church in this is not bound by human laws... And therefore in no case is it licit for a man to kill his wife by his own authority."¹

¹ Hence the proposition condemned by Alexander VII, 19: "A husband killing by his own authority a wife caught in adultery does not sin."

b) fully convicted of a most grave crime. Whence it is required that the crime be very grave, morally certain, so indeed that regularly it be judicially established concerning it, and that before death time be given to the guilty person so that he can provide for conscience and eternal salvation. Therefore officers who could not capture or guard a criminal cannot kill him, although they can discharge a firearm into the legs of one fleeing so that he may be captured, even if from this he could accidentally be killed.

c) insofar as the common good requires this. Hence it is not always required that the sin in itself be very grave; it suffices that it greatly harms the republic. "Whence," says Billuart, diss. 10, art. 1, "military laws are not to be called unjust, although they decree the penalty of death for faults light in themselves, say, for brief sleep, for deserting a post, neglecting guard, slight disobedience, a small theft, because from delicts of this kind, however light in themselves, most grave evils would follow for the republic if they were not most severely restrained."

357. Corollaries. - 1. Once the necessity of capital punishment has been proved, by that very fact it is proved that God has conceded such a right to Society. For since He is the author of society, consequently He willed to confer upon it all things necessary; and otherwise we know this positively from revelation.

2. By that very fact also it is proved that the right of society overcomes the right of a private person to life. In the subordination of rights, the right of society is to be preferred to the right of the individual. Whence the right to life ceases in certain circumstances, and just as society, when the common good urges, can obligate with danger of death, so also can it impose the penalty of death.

3. A penalty which inflicts irreparable damage, such as the penalty of death, cannot be inflicted unless there is certainty of the delict. Yet infallibility is not required for this, but that certainty which suffices in human acts, so that the delict is morally certain, just as also it suffices for performing a surgical operation. Besides, we are accustomed to do many things which do not infallibly exclude every danger of death.

4. Nor, in order not to impede the amendment of the delinquent, is the penalty of death always to be omitted. For as St. Thomas notes, C. Gentes, l. III, c. 146: "But that evil men, as long as they live, can be amended, does not prohibit their being able to be killed justly; because the danger which threatens from their life is greater and more certain than the good which is expected from their amendment. They also have in the very article of death the faculty that through penitence they may be converted to God. But if they are so obstinate that even in the danger of death their heart does not recede from malice, it can be judged sufficiently probably that they will never recover from malice." Amendment indeed is a secondary end of penalties; the primary is the common good to be vindicated.²

² Cf. I-II, q. 87, a. 3, ad 2; q. 95, a. 1.

5. Therefore penalty can be viewed in two ways: before infliction, in threat, and thus it has influence toward deterring from crime; after infliction, in execution, and thus it avails for repairing the order injured in the evil example given to others, and at the same time for impeding new crimes of the guilty person.

358. Observation. - In a just war, from the supreme social authority, on account of the good of the republic, it is licit to kill enemies officially fighting, but not those already captured, or those laying down arms, nor inhabitants unless they exercise acts of hostility. Thus from legal justice (n. 274).

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

On this I find only this in St. Bonaventure, serm. 6. on the Decalogue: that ministers of justice can kill the impious, provided it be done from zeal for justice, not from appetite for vengeance.

But they ask: Whether they can then be treacherously killed. Decius affirms, cap. Quae in Ecclesiarum, de constitut. num. 14; Bossius in pract. under the title of the banished.

Mantua denies it, consil. 100; so too Angelus, Lex, final, Cod. de delator; Alexander in the postilla on Bartolus on the same final Lex.

Whatever may be the case concerning these, in whom this second opinion seems to be to be held for the soul's salvation of that wretched man; yet if anyone had given his faith to a banished man that he would not harm him, and then killed him, he would deserve the extreme punishment, as Julius Clarus asserts, L. 5. sentent. §. Homicidium, num. 61, and Fagundez, Book 5, cap. 16, num. 12.

1. By the right of the sword is technically meant the right of inflicting capital punishment, according to the Apostle's words: "But if thou do that which is evil, fear: for he beareth not the sword in vain." (Rom. xiii. 4.) We commonly call it the power of life and death.

2. That a government may be a working government, as it should be (s. iv., n. 2, p. 319), it must not only make laws, but bear out and enforce its legislation by the sanction of punishment. "If talk and argumentation were sufficient to make men well-behaved, manifold and high should be the reward of talkers…. But in fact it appears that talking does very well to incite and stimulate youths of fine mind; and lighting upon a noble character and one of healthy tastes, it may dispose such a person to take up the practice of virtue: but it is wholly unable to move the multitude to goodness; for it is not their nature to obey conscience, but fear, nor to abstain from evil because it is wrong, but because of punishments. The multitude live by feeling: they pursue the pleasures that they like and the means thereto, and shun the opposite pains, but they have no idea, as they have had no taste, of what is right and fair and truly sweet…. The man who lives by feeling will not listen to the voice of reason, nor can he appreciate its warning. How is it possible to divert such a one from his course by argument? Speaking generally, we say that passion yields not to argument but to constraint…. The multitude obey on compulsion rather than on principle, and from fear of pains and penalties rather than from a sense of right. These are grounds for believing that legislators, while exhorting to virtue and putting certain courses of conduct forward as right and honourable, in the expectation that good men will obey the call, as their habits lead them, should at the same time inflict chastisements and punishments upon the crossgrained and disobedient; and as for the incurably vicious, put them beyond the pale altogether. The result will be, that the decent and conscientious citizen will listen to the voice of reason, while the worthless votary of pleasure is chastened by pain like a beast of burden…. Law has a coercive function, appealing to force, notwithstanding that it is a reasoned conclusion of practical wisdom and intelligence. The interference of persons is odious, when it stands out against the tide of passion, even where it is right and proper to interfere; but no odium attaches to statute law enjoining the proper course." (Aristotle, Ethics, X., ix.)

3. Aristotle seems hard upon the masses, likening them to brutes who must be governed by the whip. He may be supposed to speak from experience of the men of his time. If humanity has somewhat improved in two and twenty centuries, yet it cannot be contended that the whip is grown unnecessary and beyond the whip the sword. But we must observe a certain modus operandi of punishment which Aristotle has not noted, a more human mode than the terror of slavish fear. Just punishment, felt as such, stimulates the conscience to discern and abhor the crime. Men would think little of outraging their own nature by excess, did they not know that the laws of God and man forbid such outrage. Again, they would think little even of those laws, were not the law borne out by the sanction of punishment. A law that may be broken with impunity is taken to be the toying of a legislator not in earnest. Men here are as children. A child is cautioned against lying. He reckons little of the caution: he tells a lie, and a flogging ensues. Thereupon his mind reverts to what he was told: he sees that the warning was meant in earnest. He reflects that it must have been a wicked thing, that lie which his father, the object of his fond reverence, chastises so sternly. If the thing had been let pass, he would scarcely have regarded it as wicked. Next time he is more on his guard, not merely because he fears a beating, but because he understands better than before that lying is wrong. The awe in which grown-up people stand of "a red judge," is not simple fear, like that which keeps the wolf from the flock guarded by shepherds and their dogs: but they are alarmed into reflection upon the evil which he is God's minister to avenge, and they are moved to keep the law, "not only for wrath, but for conscience sake." From this we see that for punishment to be really salutary, its justice must be manifest to the culprit, or to the lookers on, at least in their cooler moments. A punishment the justice of which is not discernible, may quell for the moment, but it does not moralise, nor abidingly deter. There must be an apparent proportion between the offence and the punishment. A Draconian code, visiting petty offences with the severity due to high misdemeanours, is more of an irritant than a represser of crime, because it goes beyond men's consciences.

4. There is in every human breast a strong sense of what the learned call lex talionis, and children tit for tat. "If a man has done to him what he has done to others, that is the straight course of justice;" so says the canon of Rhadamanthus, quoted by Aristotle. (Eth., V., v., 3.) We have argued the fundamental correctness of this rule. (Ethics, c. ix., s. iii., n. 2, p. 169.) It appears in the divine direction given to Nod: "Whoso sheddeth man's blood, his blood shall be shed." (Gen. ix. 6.) It appears in that popular sentiment, which in some parts of America displays itself in the lynching of murderers, who have unduly escaped the hands of the law; and which, under a similar paralysis of law in Corsica, broke out in blood-feuds, whereby the nearest relative of the deceased went about to slay the murderer. Such taking of justice into private hands is morally unlawful, as we have proved. (Ethics, c. ix., s. iii., n. 4, p. 171; Natural Law, c. viii., s. ii., nn. 2, 3, pp. 308, 309.) It is a violent outburst of a natural and reasonable sentiment deprived of its legitimate vent. Unquestionably then there is an apparent and commonly recognized fairness of retribution in the infliction of capital punishment for murder. Thus the first condition of appropriate punishment is satisfied, that it be manifestly proportioned to the crime.

5. Capital punishment is moreover expedient, nay, necessary to the State. The right to inflict it is one of the essential prerogatives of government, one of those prerogatives the sum of which, as we have seen, is a constant quantity everywhere, (s. iv., n. 7, p. 322). No Government can renounce it. The abolition of capital punishment by law only makes the power of inflicting it latent in the State (s. iv., n. 8, p. 323); it does not and cannot wholly take the power away. You ask: Is there not hope, that if humanity goes on improving as it has done, capital punishment will become wholly unnecessary? I answer that—waiving the question of the prospect of improvement—in a State mainly consisting of God-fearing, conscientious men, the infliction of capital punishment would rarely be necessary, but the power to inflict it could never be dispensed with. If men ever become so ideally virtuous, the right of the State to visit gross crime with death cannot hurt them, and it will strengthen their virtue, as all human social virtue will ever need strengthening.

6. The abiding necessity of this right of the sword is argued from the strength and frequency of the provocations to deeds of bloodshed and violence that must ever be encountered in human society. What these provocations are, how many and how strong, may be left to the reflection of the student who reads his newspaper, or even his novel. Not the least appalling thing about crime, atrocious crime especially, is the example that it gives and the imitators whom it begets. It is not merely that it sets the perpetrator himself on the downward path, so that, unless detected and punished, a man's first deed of blood is rarely his last: it draws others after him by a fatal fascination. Like the images which the Epicureans supposed all visible objects to slough off and shed into the air around them, such phantoms and images of guilt float about a great crime, enter into the mind of the spectator and of the hearer, and there, upon slight occasion, turn to actual repetitions of the original deed. The one preventive is to append to that deed a punishment, the image of which shall also enter into the mind, excite horror, and disenchant the recipient. This is not to be done by mere banishment of the criminal, nor by his perpetual incarceration. Exile and prison—particularly in view of the humanity of a modern penitentiary—do not sufficiently strike the imagination. One sweet hour of revenge will often appear cheap at the price of ten years' penal servitude. There is nothing goes to the heart like death. Death is the most striking of terrors; it is also the penalty that most exactly counterpoises in the scales of justice the commission of a murderous crime. All States need this dread figure of the Sword-bearer standing at the elbow of the Sovereign.

7. But is not every capital sentence a trespass upon the dominion of God, Lord of life and death? No, for that same God it is who has endowed man with a nature that needs to grow up in civil society, which civil society again needs for its maintenance the power to make laws, to sit in judgment on transgressors, and in extreme cases, as we have proved, having tried them and found them guilty, to take away even their lives, to the common terror and horror of the crime. God, who wills human nature to be, wills it to be on the terms on which alone it can be. To that end He has handed over to the civil ruler so much of His own divine power of judgment, as shall enable His human delegate to govern with assurance and effect. That means the right of the sword.

8. It may be objected that to kill any man is to treat him as a thing, not a person, as an heterocentric, not an autocentric being, which is a proceeding essentially unnatural and wrong, (c. ii., s. i., n. 2, p. 203.) St. Thomas's answer here is peculiarly valuable:

"Man by sinning withdraws from the order of reason, and thereby falls from human dignity, so far as that consists in man being naturally free and existent for his own sake [autocentric]; and falls in a manner into the state of servitude proper to beasts, according to that of the Psalm (xlviii. 15): Man when he was in honour did not understand: he hath matched himself with senseless beasts and become like unto them; and Proverbs xi. 29: The fool shall serve the wise. And therefore, though to kill a man, while he abides in his native dignity, be a thing of itself evil, yet to kill a man who is a sinner may be good, as to kill a beast. For worse is an evil man than a beast, and more noxious, as the Philosopher says." (2a 2æ, q. 64, art. 2, ad 3.)

Hence observe:—(1) That a Utilitarian who denies free will, as many of that school do, stands at some loss whence to show cause why even an innocent man may not be done to death for reasons of State, e.g., as a sanitary precaution.

(2) That the State must come to a conclusion about inward dispositions by presumption from overt acts, arguing serious moral guilt before proceeding to capital punishment. To this extent the State is remotely a judge of sin. But it does not punish sin retributively as sin, nor even medicinally. It punishes the violation of its own laws, to deter future offenders. (Ethics, c. ix., s. iii., nn. 4-6, pp. 171-174.)

Readings.—St. Thos., 2a 2æ, q. 64, art. 2, 3; 2a 2æ, q. 108, art. 3.