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.
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.
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."
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.
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.)
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.