Capital Punishment and the Church: St. Alphonsus Liguori

IN PRIOR POSTS ON THIS SUBJECT, we have discussed how the Church Fathers--pre-Constantine and post-Constantine, including the redoubtable St. Augustine--, Pope Innocent I and Pope Innocent III, the theologian St. Thomas Aquinas, the canonist Gratian, and the Roman Catechism issued under the authority of the Roman curia and pursuant to the Council of Trent all, without exception, confirm the moral liciety--in the order of justice--of the death penalty for malefactors when applied by the public authority for grave crimes. There is therefore unanimity in the medieval Papal magisterium, theologians, canon law, and doctrinal and pastoral teachings on this issue. To suggest that we are not dealing with an ordinary teaching of the Church infallible and irreformable in nature is temerarious, at best.

In this blog posting we will look at yet another source that confirms this. We will turn to the witness of St. Alphonsus Liguori, Doctor of the Church and Patron of Confessors and Moral Theologians.

St. Alphonsus Liguori

As Thomas Slater, S.J., put it in his A Short History of Moral Theology: "St. Alphonsus Liguori is recognized as the Doctor of moral theology as St. Thomas is of dogmatic." As his fellow Jesuit Fr. John Hardon, S.J., also confirmed:

In moral theology, Alphonsus has no peer. He is the outstanding moral theologian of the Catholic Church. It is not too much to say that he created moral theology as a distinct theological discipline in the Church. His method was mainly what we would call the case method: a problem or a case in moral which he would present very pointedly and clearly, and then resolve the problem and then draw out the principles. What Alphonsus teaches in moral theology, the Church tells us can always be safely followed. Even though others may disagree with Alphonsus, he is a safe guide in moral theology.**

As these Jesuits state in no uncertain terms, St. Alphonsus is obviously no mean authority, and, without very good reasons, we are fools to depart from him.

There is reason for holding the opinion that St. Alphonsus de Liguori is a strong authority in the area of the Church's moral teachings. Not only was he a Roman Catholic bishop, he was a canonized saint, displaying heroic sanctity and fidelity to orthodox teachings, especially in the area of morality. Moreover, was declared a Doctor of the Church precisely because of his teachings on moral theology, and indeed declared patron saint of confessors and moral theologians, suggesting that the Church finds him in some form superlative in this area. Moreover, the Holy Penitentiary during the papacy of Gregory XVI, held, in a response dated July 5, 1831, that the opinions of St. Alphonsus in matters of morals were trustworthy and so professors of moral theology could "quietly [that is, safely] follow and teach" the opinions of this teacher without fear of falling into moral error. He has consistently been held in high regard by the Papacy. DS 2725-27. As Michel Labourdette put it in the Revue thomiste:

Many times praised and recommended by the Sovereign Pontiffs, and again recently by His Holiness Pius XII, Saint Alphonsus remains a Master omni exceptione major. . . . No theologian can afford to ignore in resolving a concrete case what Saint Alphonsus thought. His authority is so great, so authentically established, that . . . it comprises one of the"common principles" to which it will always be permissible for a confessor to appeal when seeking a way out of doubt.

Granted, none of this means that his teachings are infallible; after all, he did not enjoy the charism of infallibility. But at the very least, he is an important representative of the sensus ecclesiae or the sensus fidei. You would have to have a very good reason to contradict the teachings of St. Alphonsus, especially in those areas where he is supported by Tradition.

In his great work, the Theologia Moralis, we find the following short treatment of the Fifth Commandment, "Thou shalt not kill":

Doubt II
Whether, and in what manner, is it lawful to kill a wrongdoer
376. Whether it is lawful for proper authority to kill a criminal?
376.—Response: Other than the case of necessary defense, of which more below, no one except public authority may lawfully do so, and then only if the order of the law has been observed, as is made clear in Exodus 22 and Romans 13.
. . . . The public authority is given the power to kill wrongdoers, and that not unjustly, since it is necessary for the defense of the commonwealth. (Killing may not be done outside of the criminal’s territory, neither is it presumed that another prince has this right.) They also sin who kill not out of the zeal of justice, but out of hate, or private vengeance. Vide Laym l.c. Similarly, a prince or magistrate sins (normally speaking) see below l. 4. C. 3. D. 1, who orders a wrongdoer to be put to death without being properly cited, or heard, or adjudged (by public trial), even it if he has personal knowledge of that person’s guilt, because as a matter of natural law, a public act ought to be derived from public knowledge and authority. There is an exception to this rule if: (1) the crime is notorious, or (2) if there is a danger of sedition, or the King’s disgrace, if the cause proceeds juridically.

Dubium II
An, et quomodo liceat occidere malefactorem.
376. An liceat occidere Proscriptos propria auctoritate? . . . .
Resp. Extra casum necessariae defensionis, de quo infra, nulli id licet, nisi auctoritate publica, et juris ordine servato, ut patet Exod. 22 et Rom. 13.
. . . Secus est de proscriptis quos occidendi cuius acutoritas publica datur: idque non injuste, cum ad Reipublicam defensionem sit necessarium. (Modo occisio non fiat extra territorium proscribentis: nisi praesumatur licentia alterius principis. Sal. De V Praec. C. 2 n. 19 Vide. n. 380. Vers. Decius) Peccant tamen qui no ex zelo juistitae, sed odio, aut privatae vindicate causa id faciunt. Vide Laym. l. c. Peccat Princeps, vel Magistratus (regulariter loquendo) ut vide infra l. 4. c. 3 d. 1 qui occidi juebt reso non citatos, vel no auditos, vel non damnatos, etsi privata scientia conste eos esse nocentes; quia ex jure naturae actus publicus fieri debet ex scientia et auctoritate publica. Vide Caj. V. Homicidium, Fill. Tr. 29. C. 2 q. 6 n. 27. Bon. L.c.p.1 n.7 Vide et infra l.4.c.3.d.1. (Excipe 1. Si crimen set notorium. 2. Si esset periculum seditionis, aut esset dedecus Regis, si juridice procederetus. Salm. Ibid. num. 18)

This was his formal teaching, and it is rather succinct and curt, surely because this teaching was so well known that no one would even bother to contest it. This position was hardly controversial. As Brugger expresses it, St. Alphonsus Liguori's teaching on capital punishment "is typical for its measured rearticulation of the Church's traditional teaching."***

To his credit, Brugger is honest in his treatment of St. Alphonsus and the teaching contained in the Theologia Moralis. He could recruit him for his particular viewpoint of Evangelium vitae,† but he does not. As he explains:

When Liguori teaches that criminals may be killed "if it is necessary for the defense of the republic [idque not iniuste {occidere proscriptos} cum ad reipublicae defensionem sit necessarium] he appears to be using the principle of "necessity" as it is used in the Catechism of the Catholic Church and Evangelium Vitae. But his further statement that "beyond the cause of necessary defense, it is never licit [to kill malefactors], except by public authority and in order to preserve the order of law" [nisi auctoritate publica, et juris ordine servato] makes a distinction between "necessary defense" as self-defense (as in the Catechism, no. 2267) and the killing necessary for "preserving the order of law."

Brugger, 124-25.

In other words, St. Alphonsus does not limit the moral or just application of the death penalty by private authority to instances where it is necessary in the manner that it would have to be necessary for a private individual to justify killing another in self-defense. The notion of "necessity" when it comes to the public authority's defense of the common good is much broader than the notion of "necessity" required to justify deadly force against an unjust aggressor.

In his Instructions for the People, a sort of concise and more popular version of his magnum opus, the Theologia Moralis, St. Alphonsus addresses those "causes" which permit the killing of another person. St. Alphonsus identifies only three causes that "render it lawful to take away the life of man: public authority, self-defense, and a just war."

With respect to his treatment of the death penalty, St. Alphonsus expands as follows:

It is lawful to put a man to death by public authority: it is even a duty of princes and of judges to condemn to death criminals who deserve it; and it is the duty of the officers of justice to execute the sentence; God himself wishes malefactors to be punished.

Per l'autorità pubblica è ben lecito, anzi è obbligo de' principi e de' giudici di condannare i rei alla morte che si meritano, ed è obbligo de' carnefici di eseguire la condanna. Dio stesso vuole che siano puniti i malfattori.

Here, St. Alphonsus ascribes an affirmative duty to the public authority to condemn to death and execute criminals who are guilty of capital offenses.

Of course, St. Alphonsus Liguori is just one of literally scores of moral theologians which, either relying upon him or independently relying on the Magisterial, theological, patristic, scriptural, or natural law sources all held--in virtual unanimity--that the public authority could, in proper instances and with proper purpose, put a malefactor to death without falling into any mortal sin or moral fault.†† It is impossible in light of this witness for the Church to hold that capital punishment is per se evil, and that the State has no authority given to it by God, to put a malefactor to death and not infringe upon the demands in justice. Indeed, justice may in fact demand it.

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*Rev. Eugene Grimm, ed., The Complete Works of Saint Alphonsus de Liguori, Vol. XV, "Instructions on the Commandments and the Sacraments" (New York: Benziger Brothers, 1890)I.V, p. 462
**John A. Hardon, "History of Religious Life: St. Alphonsus Liguori and the Development of Popular Piety" accessible here.

***E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notredame University Press, 2003), 124.
†As quoted in Théodule Rey-Mermet, Moral Choices: The Moral Theology of Saint Alphonsus Liguori (Paul Laverdure, trans.) (Liguori Publications, 1998), 78.
††Brugger's argument is that Pope John Paul II's encyclical Evangelium vitae set up the possibility of the Church teaching that capital punishment is per se evil. He argues that the encyclical teaches that the only justification for capital punishment--in the order of justice--is self-defense, i.e., it being necessary for the defense common good. I strongly disagree with Brugger's position because he finds too much discrepancy between the Tradition and Evangelium vitae, and he seeks to supplant the former with the latter instead of trying for a true reconciliation of what is only an apparent contradiction. He also, in my mind, confuses the order of justice with the order of mercy.
†††Eighteen exemplars of these are indicated in Brugger, foonote 95, p. 228, and with a little bit more effort he could have found dozens more. He is honest about their unanimity: "The first thing a reader notices in these works is the overwhelming consensus on the morality of capital punishment."

Capital Punishment and the Church: The Roman Catechism

IT IS INCONCEIVABLE THAT AN OFFICIAL Catechism of the Catholic Church, especially one geared toward the instruction of priests, would contain fundamental error. Until the recent Catechism of the Catholic Church, the Catechism of the Council of Trent or Roman Catechism enjoyed preeminence as a summary of Christian teaching. Those who suggest that the Catholic Church's Magisterium could declare capital punishment in all cases violates justice and is a mortal sin would essentially be calling into question every moral teaching of the Church. To suggest that capital punishment is a malum in se, an intrinsic evil, would be to overturn two millenia of Church teaching; rather, the Tradition has always regarded capital punishment, justly applied within the rule of law, to be a moral and just punishment for malefactors guilty of serious wrongdoing against the common good.

St. Charles Borromeo
who proposed, and had a role in,
developing the Roman Catechism

The Roman Catechism or the Catechism of the Council of Trent (Catechismus ex decreto Concilii Tridentini ad Parochos) handles the issue of the Fifth Commandment's prohibition against killing. The purpose of this commandment, states the Roman Catechism, is "to protect the life of each one." The words of the Fifth Commandment "emphatically forbid homicide." It is an absolute, exceptionless norm.

In explaining the commandment, the Roman Catechism excludes from its auspices brute animals, as these "form no part of human society." It also excludes killing in a just war; consequently, a "soldier is guiltless who, actuated not by motives of ambition or cruelty, but by a pure desire of serving the interests of his country, takes away the life of an enemy in a just war." Killing by accident, by ignorance of fact, "without intent or design," is likewise an exception to the rule in that it "involve[s] no guilt whatever." Similarly, killing in self defense, "having used ever means consistent with his own safety to avoid the infliction of death" does not constitute a violation of the divine injunction not to kill.

The Roman Catechism also excludes from the scope of the Fifth Commandment the execution of criminals. It states that this is an example where "life may be taken without violating this Commandment." Specifically, the Roman Catechism states:

Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment­ is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: 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.

Alterum permissum caedis genus est, quod ad eos magistratus pertinet, quibus data est necis potestas, qua, ex legum praescripto, iudicioque in facinorosos homines animadvertunt, et innocentes defendunt. Quo in munere quum iuste versantur, non modo ii caedis non sunt rei, sed huic divinae legi, quae caedes vetatur, maxime obediunt. Quum enim legi huic finis is propositus sit, ut hominum vitae, salutique consulatur: magistratuum item, qui legitimi sunt scelerum vindices, animadversiones eodem spectant, ut audacia et iniuria suppliciis repressa, tuta sit hominum vita. Quare David: "In matutino," inquit, "inteficiebam omnes peccatores terrae, ut disperderem de civtitate Domini omnes operantes iniquitatem."

(Roman Catechism of the Council of Trent, 1566, Part III, 5, n. 4)

Surely this teaching is of no less magnitude than the teaching found in the modern Catechism of the Catholic Church. After all, to follow St. Vincent of Lerins, the Faith is what has been believed everywhere, always, and by all [quod ubique, quod semper, quod ab omnibus creditum est], and so we may believe that the same Faith underlies the 16th century Roman Catechism with the 20th century Catechism of the Catholic Church. Though we may not begrudge development in the span of five centuries, we certainly will not entertain contradictions.

In fine, the teaching of the Roman Catechism must be reconciled with the teaching of the Catechism of the Catholic Church. It will not do to have one contradict the other.

The Papacy and Capital Punishment: Innocent I and Innocent III

IT IS WELL-NIGH INDISPUTABLE that the Church Fathers, even those prior to the Edict of Milan who confronted an enemy State, held fast to the moral liciety of the death penalty justly applied. This was seen both as a principle of the natural law and of the Scriptures, in particular the clear indication in the Old Testament which allowed for putting malefactors to death despite the prescriptions of the Fifth Commandment which prohibited murder. It was also the unanimous understanding of those portions of St. Paul's Letter to the Romans which might be called the Staatstaffel or summary of principles as it related to the Christians relationship to the State, namely Romans 13:1-7. The sword of justice included the sword of execution. There was no per se injustice in it, though it might be unjust per quod. This was recognized by Pope Innocent I (r. 401-17) put it in his letter to Exsuperium, the Bishop of Tolouse in 405:

About these things we read nothing definitive from the forefathers. For they had remembered that these powers [of judging a man on capital offenses and in application of the death penalty] had been granted by God and that for the sake of punishing harm-doers the sword has been allowed; in this way a minister of God, an avenger, has been given. How therefore would they criticize something which they see to have been granted to the authority of God. About these matters therefore, we hold to what has been observed hitherto, lest we may seem either to overturn sound order or to go against the authority of the Lord.

Quaesitum etiam est, super his qui post baptismum administraverunt, et aut tormenta sola exercuerunt, aut etiam capitalem protulere sententiam, nihil de his legibus a maioribus definitum. Meminerant enim a deo potestates has fuisse concessas, et propter vindictam noxiorum gladium fuisse permissum, et dei ministrum esse datum in huiusmodi vindicem. Quomodo igitur reprehenderent factum, quod auctore domino viderent esse concessum? De his ergo ita ut actenus servatum est sic habeamus, ne aut disciplinam avertere, aut contra auctoritatem domini venire videamur. Ipsis autem in ratione reddenda, gesta sua omnia servabuntur.

Innocent I, Epist. 6, C. 3. 8, ad Exsuperium, Episcopum Tolosanum.* The baptized who were in positions of legitimate authority could participate in judging capital cases and in putting others to death under the Rule of Law. In doing so, they could not be accused of injustice or of mortal sin. It was the law which received its authority from God and expressed the good of the common good, and not the individual himself, who was the agent of the killing.

The traditional teaching is accepted by all medieval Churchmen. Accordingly, we find it as received teaching in St. Thomas Aquinas or in Pope Innocent III. The few dissenting voices we hear about are heretical splinter groups such as the Waldenses. In fact, it is the Waldenses to which we now turn, because the interesting conditions imposed upon them for re-entry into the communion of the Church is a fascinating chapter in the Church's traditional teaching on capital punishment. As Brugger properly characterizes it, "Pope Innocent III's famous statement in the Waldensian oath that it is possible for civil authority to administer the death penalty without mortal sin is unquestionably the most influential ecclesiastical statement on the morality of capital punishment in the Middle Ages (and arguably in Church history)."**

Pope Innocent III

The Waldenses were an enthusiastic heretical group, similar to the Cathari and Albigenses, founded by a wealth Lyonnais merchant called Waldes (or Waldo). After experiencing a conversion, Waldes sold all he had, made provisions for the maintenance of his wife and children, and went about the land wearing sandals, preaching a message of evangelical poverty. He soon gathered about him a band of followers, and they soon pitted themselves against established Church authority. In fact, they seem to have developed a sort of an independent hierarchy or constitution of their own. Unfortunately, regardless of their sincerity, they were ill-educated and in much of their preaching they fell into heresy, denying the existence of purgatory, making the efficacy of sacraments dependent upon the spiritual state of the minister, teaching the immorality of taking of oaths so central the feudal civil society, and so forth. They also allowed any convert to dissolve his marriage without consent of his partner. They also condemned all war and held that any infliction of the death penalty was immoral. Their attachment to heresy and their belief that they were a movement willed by God soon led into disobedience of any authority. Convinced of their cause, they ignored all sorts of ecclesiastical and civil proscriptions, including the canons of the Third General Lateran Council. Eventually, they were excommunicated by a bull issued by Pope Lucius III in 1184.

Pope Innocent III's oath arises from his efforts to reconcile a branch of these Waldenses headed by Durand of Huesca (Osca), the reconciliation of which led to what were called the "Poor Catholics." During the series of efforts to effect reconciliation, Pope Innocent III required the Waldenses to abjure their opposition to capital punishment. They were made to swear to the following:

We declare that the secular power can without mortal sin impose a judgment of blood provided the punishment is carried out not in hatred but with good judgment, not inconsiderately, but after mature deliberation.

Concerning secular power we declare that without mortal sin it is possible to exercise a judgment of blood as long as one proceeds to bring punishment not in hatred but in judgment, not incautiously but advisedly.

De potestate saeculari asserimus quod sine peccato mortali potest judicium sanguinis exercere, dummodo ad inferendam vindictam, non odio, sed judicio, non incaute sed consulte procedat.

DS, 795 (425).***

Brugger attempts to circumvent this important Papal act by suggesting that this is a speculative (possibility only) proposition, without application in real or concrete reality. This, of course, is to explain away the entire oath and render it to something as inane saying "it is possible that a Tyrannosaur appear on my front lawn tomorrow morning."

Next, he tries to argue that the Waldenses did not in fact believe that a magistrate imposing the death penalty sinned mortally, but that this is essentially a gratuitous obiter dicta by the Pope having nothing to do with settling the controversy between the Church and the Waldenses.

Brugger is compelled to do engage in these somersaults because his burden is to explain away the entirety of Catholic tradition and Magisterial authority to try to come to the proposition that Pope John Paul II in his Evangelium vitae set the stage for an absolute prohibition of capital punishment on the grounds that it is intrinsically immoral. (He does this in Chapter 7, which is a tour de force that guts 2000 years of Tradition with unmatched sophistry. But here we might paraphrase St. Thomas More's discourse with his son in law William Roper as portrayed by Robert Bolt's A Man for All Seasons:

William Roper: So, now you give the Devil (i.e., capital punishment) the benefit of Tradition!
Sir Thomas More: Yes! What would you do? Cut a great road through the Tradition to get after the Devil?
William Roper: Yes, I'd cut down every Tradition to do that!
Sir Thomas More: Oh? And when the last Tradition was down, and the Devil turned 'round on you, where would you hide, Roper, the Traditions all being flat? This Church is planted thick with Traditions, from generation to generation. And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of Tradition, for my own safety's sake)

I disagree with Brugger's position, and find it intellectually essential neither to minimize or deprecate traditional teaching on the liciety of capital punishment (which I think is irreformable), nor minimize Evangelium vitae (which I think is an exercise of the ordinary Papal magisterium), but to find a way to reconcile both or understand them together. I believe that the traditional teaching on the death penalty can remain entirely intact and Evangelium vitae given its full and plain construction by the simple expedient of recognizing that the traditional teaching relates to the order of justice, whereas Evangelium vitae relates to the order of mercy. What we will see is that Evangelium vitae, without deprecating the teaching of St. Thomas Aquinas, is very Ambrosian or Augustinian at heart.

Evangelium vitae's teaching on the death penalty is, in fact, highly traditional. It is the traditional teaching brought forth in the circumstances of the modern State built on a political philosophy that is contractarian, secular, and relativist, and which recognizes not its authority under God. It is how traditional Catholic teaching ought to be applied when the Church confronts a State which has largely lost the moral legitimacy to take the life of the guilty because of its wholesale failure to protect the life of the innocent. It is what ought to happen when the State is vastly more guilty and unjust with respect to the innocents than the guilty whom they purport, on the grounds of justice, to kill. For the modern State which subscribes not to the Gospel of Life, every execution meted out is a rank act of hypocrisy. It is the unjust slaying the unjust, and there's no Church that ought to bless that.

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*English translation from E. Christian Brugger, Capital Punishment and Roman Catholic Moral Tradition (Notredame Press 2003), 89.
**Brugger, 103.
***First English translation is from Brugger, 104. The second may be found here under the old number D 425. The Latin is found in DS 795. In an earlier correspondence between these groups, Pope Innocent III phrased it in a letter thus: "Let none of you presume to assert the following: that the secular power cannot carry out a judgment of blood without mortal sin. This is an error because the law, not the judge, puts to death so long as the punishment is imposed, not in hatred, but with deliberation." I think Brugger is correct when he states that the form of the oath contained in DS 795 is Innocent's authoritative teaching on the morality of capital punishment."