2. What has Been Established by Statute

237. About the second point [n.227], namely what has been established by statute: In recompense for the first and greatest loss, namely the taking away of life, the law of ‘an eye for an eye’ is regularly established in many communities, namely that the murderer die. And reasonably, namely because not only does this belong to the Mosaic Law but also to the natural law, and it is approved and confirmed in the Gospel Law of Christ, Matthew 26.52, “he who kills by the sword shall die by the sword.” And consequently wherever such a law about returning life for life has been established, justly should a man pay the penalty and justly bear it. But if anywhere it has not been established, no one ought to inflict it on himself, because no one ought to be a murderer of himself without a special command of God; rather, for making restitution to him whose life he took away, it is expedient for him to expose his life in a just cause, as against the enemies of the Church.

238. But if he not wish to make so great a restitution, he cannot be altogether immune from restitution, as some fatuous people make him, who absolve murderers by not making clear to them the restitution that necessarily falls on them - as if it could be easier to pass over a homicide than (so to say) a dogicide or an oxicide, because if someone had killed his neighbor’s ox or dog, he would not without restitution be absolved. Therefore, he is bound to do spiritual restitution, equivalent to the life that he took away, as equivalence is possible in such cases. And not this only, but if the one killed was supporting some others, as father or mother or neighbors, the killer is bound to all of them for as much restitution as he took from them by the killing of that person.

239. And because someone could scarcely recompense by his action that which the homicide took away, it would be expedient for the soul of such a one that he make payment through sufferings voluntary or patiently borne, namely so as to be ‘killed’ for the one he murdered. Therefore, the community is best provided for where the law of ‘an eye for an eye’ in a case of homicide has been established. For it is plain how much God detests homicide when David (who however had killed justly) wanted to build God a house, but because he was a shedder of much human blood, he was forbidden by God [I Chronicles 22.8, 28.2-3]. If therefore a just killer is not accepted by God for his cult, where will an unjust killer appear?

Let this, then, be said about killing unjustly.

240. But who is a just killer?

A response is obtained from Gratian, Decretum p.2 cause 23 q.5 ch.9, and it has the title there ‘Augustine, City of God 1 [ch.2]’: “With,” says Augustine, “these exceptions (those whom a just law generally, or God specifically, commands to be killed), whoever has killed a man will bear the guilt for his crime.” And as to what is a just law,

Augustine himself determines it briefly in On Free Choice I ch.4 n.27, “No law is just save one that has come already from the Divine Law (as are practical conclusions from practical principles), or one that agrees with Divine Law, at least does not disagree with it.”

241. As to the issue at hand, the Divine Law prohibits it, “Thou shalt not kill” [Exodus, 20.13], and it is licit for no inferior to dispense from the law of a superior; therefore, no positive law, establishing for a man to be killed, is just if it establishes it in those cases where God has made no exception. But he has made exception in many cases, as is plain in Exodus 21.12-22, 29, about blasphemy, homicide, adultery, and many others. No one, therefore, justly kills according to the law unless the positive law inflict homicide and unless the case is an exception from God who prohibits homicide.

242. If you object that therefore the law is unjust that prescribes that a thief is to be killed, because God has not made this an exception, namely the sin of theft, from the negative precept ‘thou shalt not kill’. Rather he has manifestly shown that he does not want to except a thief from the precept ‘thou shalt not kill’, and that he does not to want him to be punished with death, because he inflicts another penalty on a thief - I reply: it is clear that God does not in the Mosaic or Gospel Law explicitly except the sin of theft from the precept ‘thou shalt not kill’, so that, surely, it be licit to kill a man for this sin. And therefore unless he has revoked it by some special revocation that is contained in Scripture (and we have not heard of any official decree descending from heaven), I do not see that any just law could establish that someone is to be killed for theft alone. I say ‘alone’, because if he is a thief, and along with this an intruder, he is presumed to be a murderer because he is willing to kill, and is ready for this if someone resist him. This is plain from Exodus 22.2-4 about a thief by night and by day. A thief by night is killed with impunity; but he who kills someone who enters by day to steal will be guilty of homicide. The cause of the difference is that it is presumed that he who is a thief by night would kill one who resists him if he could, but not a thief who enters by day.

243. Let it also be that it would have been in some way licit for Jews to kill for theft, it seems that by Gospel mercy is this rigor revoked more than the rigor against adultery, because the sin of theft is much less than adultery, according to Proverbs 6.30, “The fault is not great when someone is a thief, for he steals to fill his hungry soul; when caught too he will give back sevenfold.” There follows, 6.32, “But he who is an adulterer, because of his want of heart, will lose his soul.” But the punishment for adultery is revoked in John 8.10-11, “Has no one condemned you, woman?... Neither will I condemn you; go in peace and sin no more.” Much more, therefore, would the rigor against theft have been revoked if it had been established in the Mosaic Law.

244. About other losses in body, namely extreme or non-extreme mutilation [n.226], there has been established in the Church only a pecuniary penalty. And it should respond not only to the loss that someone incurs for the mutilation through the whole future time in which he was going to use the limb cut-off, but also for the expenses added in caring for it (and this is stated in the chapter cited [n.230] from Gregory IX, Decretals V tit. 36 ch.1); and further for placating the one wounded, which would be required even if there were no such mutilation; and for the consolation of the one afflicted, because of his abiding desolation over such mutilation. And the mutilation of the poor must be more weighed than that of the rich, if the poor had more need of the part cut off for necessary provisions; because he would have used that part for procuring necessities, although there may be a preponderant condition on the other side, namely the dignity of the [rich] person, but this is little compared to the former condition.