GENERAL PRINCIPLES CONCERNING MUTILATION
The members of the human body may be injured (1) by a blow, which
without bloodshed causes pain or a bruise; (2) by a wound, which
breaks the continuity of the tissues; (3) by mutilation, which,
without killing, removes some member requisite for the integrity
of the body. The term Mutilation as applied to the human body has
various meanings. In the civil law mutilation of a person is called
Mayhem, an old form of the word Maim, and is defined by Blackstone[5]
as "such hurt of any part of a man's body as renders him less able in
fighting to defend himself or annoy his adversary." By statute in the
United States and Great Britain the scope of the offence has been so
extended as to include injuries to a person which merely disfigure or
disable. Mutilation in the civil law now implies the taking away of
some part of a legal instrument, as a will, contract, or the like, by
any one who has no right to make this alteration.
[5] _Commentary_, bk. iv, p. 205.
In canon law mutilation is like malicious or accidental mayhem in
the civil law, and it has also a technical phase in relation to
irregularity as affecting the reception of ecclesiastical orders.
The mutilation requisite to irregularity as affecting the reception
of Holy Orders may differ from mutilation in its purely moral and
accidental aspects. Broadly, an irregularity is a canonical and
permanent impediment to the reception and exercise of ecclesiastical
orders. It does not exist unless it is actually promulgated in some
canon, and it is not necessarily grounded on corporal deformity.
Defects of the body that cause canonical irregularity are such as
would render the public ministration of a clergyman either impossible
or indecent.
Molina, treating of mutilation, says[6] it does not exist unless
there is an amputation or shortening (_detruncatio_) of a member.
When a foot or hand is so weakened without amputation that it cannot
exercise its function the person is said to be maimed or lame, not
mutilated. He holds that a finger, and _a fortiori_ a phalanx of
a finger, are not properly members. In defining mutilation as a
cause of canonical irregularity[7] he contends that the weakening
of a member so that it cannot perform its function is not a true
mutilation canonically. He does not agree[8] with Cajetan, de Soto,
and others who hold that an important part of a whole member is
equivalent to a member so far as technical canonical mutilation is
concerned. Molina says that a part of the body as a member to fulfil
the requirements of the law on mutilation as a cause of irregularity
must have a distinct, complete function of its own, not be a mere
part conducing to the function. Ballerini[9] agrees with Molina,
but he draws attention to a decretal of Innocent I. which makes an
amputation by oneself of even a part of one's own finger a full
canonical irregularity, because of the unnatural quality of the act.
[6] _De Justitia et Jure_, disp. 19, tr. 3.
[7] _Ibid._, disp. 68, tr. 3.
[8] _Ibid._, n. 69.
[9] _Theol. Moral._ vol. vii.
Suarez defines mutilation thus: "Mutilare significat proprie membrum
aliquod abscindere"[10]--to mutilate means, strictly speaking, to
cut off any member. He holds with Cajetan that an important part of
a member is in itself equivalent to a member. A reason he offers
for his opinion is that a eunuch is enumerated among those who are
canonically mutilated, but the eunuch, he tells us, "does not lack
any member which in itself has a function in the body independent of
all other organs." This is not true. The testicles, which the eunuch
lacks, have two distinct functions, independent of other organs--they
make the spermatozoa and an important internal glandular secretion.
These facts were not known in Suarez's time (1548-1617). Suarez adds
this remark: "There can be a grave sin in a marring [_diminutio_] of
any chief member, although there may be no grave mutilation; as,
for example, to cut off a part of a finger is undoubtedly a mortal
sin, yet, in the opinion of all moralists, it is not enough to cause
irregularity."
[10] _De Censuris_, etc., disp. 44, sec. 2, 2.
St. Alphonsus Liguori defines mutilation thus: "Mutilation here
signifies that some principal member be separated from the body; that
is, a part of the body that has in itself a distinct function, as a
foot, hand, eye, ear, etc."[11] He says[12] canonical irregularity
as a punishment is not incurred by a person who cuts off another
man's finger, thumb, lips, nose, auricle, or who knocks out teeth,
because these are supposed by canonists not to be properly members
of the body, but parts of members. To blind a man in one eye is
not enough to cause canonical irregularity; the eye must be taken
out.[13] All these injuries are of course mutilations in the moral
sense of the term. To blind a man without removing the eye, to cut
out his spleen in the treatment of Banti's disease, to remove a
woman's ovary or uterus, to cut off part of the point of a finger,
to crop the top of an auricle, to knock out a tooth, and any other
permanent marring of the body, even to cause an unsightly scar across
the face, are all mutilations in the moral sense of the term. A
physician, midwife, nurse, or parent who neglects an infant's eyes,
and so permits ophthalmia neonatorum to blind the child, is guilty of
grave mutilation. In the year 1914, in the Chicago schools, 45,176
children were found suffering from various defects, and 35,425 were
advised by the examining physicians to seek treatment; in each of
these cases the parents were informed of the nature of the disease
and the necessity for treatment, but only 40 per cent. of the parents
paid any attention to the notices. Of 5754 cases of diseased tonsils,
which are likely to affect the heart permanently, only 4 per cent.
were treated; of 1254 cases of discharging ears only 10 per cent.
were treated, although such a condition may go on to deafness if not
attended to. These parents were criminally guilty of grave neglect
in permitting the mutilation of the heart and ears.
[11] _Theol. Moral._, lib. 7, cap. 5, disp. 4, n. 365.
[12] _Ibid._, n. 378.
[13] _Ibid._, n. 382.
Any notable mutilation inflicted upon oneself is akin to the
malice of suicide, and when perpetrated on another it is related
to homicide. The dominion over the members of the body, as over
the whole body, belongs to God alone. Man is constituted by his
parts, members, taken together, and if he were master of his members
he would be master of himself. Again, each member of the body is
naturally united to that body and ordained for determined organic
functions; so it is wrong to render these members unfit for their
natural function or to separate them from the body, unless such
actions are necessary for the preservation of life itself. Although
man is not master of himself, he is the administrator of himself;
and therefore when the amputation of any member is necessary for the
preservation of the life of the whole body it is licit to subordinate
this part to the good of the whole.
A direct mutilation is one intended as an end, or as a means to an
end; it is a voluntary and free act. An indirect mutilation is one
in which the mutilation is the natural effect of the act, but the
intention of the agent is directed toward another end. The mutilation
follows indirectly from the activity of the will, but there is a
satisfying proportion between the accidental effect (the mutilation)
and the end intended. In such an act there are two effects which
follow the causal act _aeque immediate_, or directly (not indirectly,
that is, not all from the other effect, but each immediately from
this cause): one effect is good (to save life, avoid unbearable pain,
or the like), and the other evil (the mutilation), but the good
effect is the end intended, the evil effect is reluctantly permitted.
Such an act is licit provided the usual conditions of the double
effect are present, that is:
1. The action that is the cause of the good and bad effects must be
itself good or indifferent morally.
2. The good and the bad effects must each be an immediate result of
the causal act; the good effect may be not so subordinated to the
evil effect as to be obtainable only through the evil effect.
3. The bad effect must not be intended, either immediately or
remotely; it may at most be tolerated as unavoidable.
4. There must be a sufficiently grave reason for the act.
Indirect mutilation may be licit when the evil to be avoided is
proportional to the mutilation. Direct mutilation, where there is one
direct effect of, say, the surgical operation, namely, to remove the
somatic organ, is not licit, except for the good of the whole body;
and that good to the whole body must be juridically equivalent to
the damage done the body by the mutilation. There is to be a direct
effect in such mutilation, which is the good of the whole body. It is
not permitted to kill directly to save the life of another, but it
is permissible to mutilate directly to save the whole body. Direct
mutilation, however, is never unavoidable because the agent can
always correctly order his intention before the operation.
All direct mutilation, unless for the good of the whole body, implies
deordination: it offends against the supreme dominion of God, who
reserves to himself, as Creator, ownership of human life and its
organs. As we may not destroy life, which belongs to God, we may not
amputate a member to suppress any vital function. The exception which
permits us to mutilate a member or organ is, as has been said, the
adequate good of the whole body. The reason for this is that man is
the administrator of his members, to the good of the whole person.
Each member is not for itself but for the whole body.
The good of the body is the sole cause that renders direct mutilation
licit. The members of the body by their nature are not immediately
subordinate to anything except the conservation of the total
natural good, or that of the body. Therefore direct mutilation is
not permissible to effect immediately spiritual good, or the good
of the soul. We may not castrate a man, or do vasectomy on him, to
preserve his continence, because there is no immediate subordination
and connection between the members of the body and the salvation
of the soul. Moreover, as St. Thomas says,[14] "Spiritual health
can always be preserved by means other than amputation of bodily
members," that is, through moderating by the will the use of these
members. If a mutilation that immediately conduces to the good of the
whole body, happens also to do good to the soul, this second effect
is then legitimate. (The various mutilations of the body by surgical
operations will be considered separately hereafter.)
[14] 2, 2, q. lxv, a. 1, ad 3.
May the state, then, sterilize criminals, and persons afflicted with
dangerous hereditary diseases, to prevent the propagation of moral
and physical defectives? This question is considered specially in
another chapter.
There is an error gradually infecting all nations of late which is
that the state, as such, is above morality; that what the civil
authority permits or orders is by that fact alone made licit or
obligatory. Hence the interference with individual liberty, with the
rights of man, shown by laws for the mutilation of the physically
degenerate, laws conferring privileges on one part of the community
to the detriment of another, meddling in parental rights, and so on.
Political error has come to such a pass that the men on the street
think any majority is justified, solely because it is a majority,
in recalling a judge or a law, in overriding authority for the
satisfaction of appetite. The sovereign people tries to be subject
and sovereign at the same time, and it deems its rulers mere hired
men who may be discharged at will like cooks.
A law is a rule and standard of action; a just, permanent, and
rational ordination for the good of the community, promulgated by one
who has charge of that community. Dominion is the power of claiming
a thing as one's own, the right of ownership; and if this possessor
has created the object, his dominion may be absolute. A governor,
lawgiver, judge, has power or jurisdiction for the good of the
governed. The business of government, of the state, is to protect
each citizen in the pursuit of temporal happiness, to develop his
natural faculties, establish and preserve social order, wherein each
citizen is secured in his natural and legal rights, and is held up
to the fulfilment of his own duties so far as they bear on the good
of the community as such; and also to put within the reach of all
citizens, as far as possible, a fair allowance of means to acquire
temporal happiness, or external peace and prosperity. This is the
whole business of the state. The state is for the people, and it may
not transgress an inch beyond its proper limits, which are as hard
and fast as those that bind the individual citizen. The citizen is
not to be treated solely as an industrial or military unit; nor are
material progress and military power, or even sheer intellectual
civilization, to be the sole aim of the state. The state should
develop a man's entire nature, physical, mental, and moral.
We must obey civil authority, but we are not slaves or chattels of
that authority. The state's authority over us is not dominative; it
is only a power for our good and utility. The civil authority has no
more right to invade the rights of its meanest citizen than it has
to lie or to blaspheme. God gives civil authority to the established
community, and the community entrusts this to its ruler; authority
is a divine institution, rulers are directly a human institution and
only indirectly divine. When the ruler has once been set up, has had
authority entrusted to him, obedience must be given to him while he
acts in keeping with his contract. Kant and his followers erroneously
separate the juridic from the moral order; they deny that beyond the
state there are any rights preeminent to the state's rights, yet they
say there is an innate liberty which belongs to every human being
equally and inalienably. The moral order comprehends all factors that
are necessary to make the free activity of man in every respect well
disposed, and among these factors is the juridic order itself. Man is
naturally social, and whatever means are necessary to preserve human
society are also naturally befitting man. Such means are to preserve
for each man what are his, and to abstain from injuring other men.
Now, so to act, that is, to abstain from murder, theft, and the like,
to fulfil contracts, are strictly juridic duties, and at the same
time moral duties. Therefore the moral order comprehends the juridic
order.
The end of the state, then, is not the public good considered as an
end in itself. The individual citizen is not his own end in life, and
so no mere multitude of men ever can become their own end. If the end
of the state is the public good, then private good is subordinate
to this, and the public good becomes man's final end, which is
subversive of human dignity and is despotism.
A clear definition of the power of the state to interfere with the
rights to life and limb of the individual citizen is very important,
because, as has been said, of late there is an alarming tendency
on the part of the civil authority to override the rights of
private citizens, even in the most democratic forms of government.
Encroachment on the liberty of the individual is characteristic of
unchristian political societies, and all states are now receding from
Christianity. A striking example of this tyranny is the laws recently
passed in ten American states for the mutilation of degenerates. This
definition is more readily made by considering concrete examples of
public conduct.
Suppose an enemy demands from a city the surrender for execution
of an innocent man on pain of the burning of the city and the
destruction of its inhabitants. May the city cut off that member for
the safety of the whole body politic, as a person may cut off his own
hand to save his life? The state has not dominion over the life of a
citizen, nevertheless it may kill a citizen in punishment of crime,
because the punishment is useful to the whole people, is for the
common good, is preservative of the social life. Why, however, should
the state be permitted to kill a criminal rather than an innocent
man, since it has no dominion over the life of either, and we suppose
the death of each is necessary for the public good? If you answer by
saying a man may cut off a diseased member but not a sound one to
save his body, and the state in like manner may cut off a criminal,
unsound member, but not an innocent one, this answer does not remove
the difficulty: we may cut off even a sound member to save the body.
Suppose, for example, a man caught by the arm and in danger of death
from a flood; he might sever a sound arm to escape death if no other
means presented. In like manner the state might cut off an innocent,
sound member to save its life from the enemy, as described above.
This reasoning, however, is open to objection. The state has no
dominion over the life of its members, and there is a vast difference
between the members of the human body and those of a body politic.
A member of a human body has no right in itself against the other
members; nor is it capable of natural injury, since it is not
separable from the whole suppositum, or person. The suppositum, or
person, has a right to the use of the members; it alone is injured
when a member is amputated; and the members are solely for the
utility of the suppositum. Therefore we may licitly destroy a member
to save the suppositum for which this member exists.
The state, however, is not a suppositum in this sense; it may not
wrest the life of its members to its own utility, because the
citizens are not for the state; on the contrary, the state is for
them and their utility. That a rational being should be for the
utility of another person or a society makes him a slave and supposes
dominion in the user. A slave is differentiated from a subject
by the fact that the subject is only politically governed--that
is, governed for his own utility and good; the slave is governed
despotically--that is, for the utility and good of his master. The
state may not, as a master, use the life of a subject for its own
utility alone. Although the suppositum does not own its members,
yet since the members are not separable from the man, are not
self-centred as are the citizens in a state, the man may use them for
his own utility. They are as slaves under a master, not as subjects
in a body politic; therefore they may be sacrificed for the good of
the suppositum.
This is the argument used by De Lugo; Molina follows the same line of
thought; but both authorities finally reach the conclusion, in the
case of the enemy and the citizen whose life is required, that the
state may at least drive this citizen out of the city to save its own
existence. Molina also draws attention to the fact that there is a
great difference between a member of a body politic and a member of
the human body; this identification, if pushed far enough, becomes
an analogical quibble.
Some hold that a judge or the civil authority in general may kill
or maim a criminal by gubernatorial power alone, prescinding from
dominative power, and this not to the utility of the criminal but for
the utility of society. The killing of a criminal, these objectors
say, is not for the good of the criminal; it is a deterrent, a
protective act, for the good of society. This is not true. The penal
law which the criminal breaks was not made solely for society; it was
intended also for the utility of the person who becomes a criminal.
The law was made and the punishment established that all subjects
indiscriminately should be helped to live honestly and blamelessly,
and to this end it was necessary to decree and inflict punishment as
affecting all offenders. The obligation to receive punishment is in
a manner essential to man. As he naturally requires direction and
government unto virtue in his political and social life, he has a
connatural obligation to endure punishment when he violates the law
made for his advantage--one condition cannot exist without the other.
Hence punishment really is to the utility of the criminal.