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.