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.