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The Thomist 63 (1999): 511-52 EVANGELIUM VITAE, ST. THOMAS AQUINAS, AND THE DEATH PENAL1Y STEVEN A. LONG University ofSt. Thomas St. Paul, Minnesota THE MAGISTERIALJUDGMENT ofEvangelium vitae concerning the legitimacy of capital punishment constitutes-as emphasized anew by its insertion within The Catechism of the Catholic Church-the most important modern locus for understanding the Church's teaching on this topic. The position presented in this encyclical has figured prominently in more recent papal and episcopal statements dealing with the death penalty. The question that has created some confusion is what kind of teaching is being presented. A common interpretation is that Evangelium vitae marks a doctrinal development: the encyclical is said to restrict use of the death penalty to cases where it is absolutely necessary for the physical protection of society in a sense comparable to the use of lethal force in self-defense. Yet such a reading neglects numerous and substantial contributions from the tradition that argue for a different understanding of the penalty's legitimacy. It is the nearly unanimous opinion of the Fathers and Doctors of the Church1 that the death penalty is morally licit, and the teaching of past popes (and numerous catechisms) that this penalty is essentially just (and even that its validity is not subject to cultural variation).2 Saint Augustine says, in The City of God: 1 The two exceptions are Tertullian, who died outside the Church, and Lactantius. 2 Cf. Acta Apostolicae Sedis 47 (1955): 81-82, recounting this teaching of Pope Pius XII within this century. 511 512 STEVEN A. LONG The same divine law which forbids the killing of a human being allows certain exceptions, as when God authorizes killing by a general law or when he gives an explicit commission to an individual for a limited time. Since the agent of authority is but a sword in the hand, and is not responsible for the killing, it is in no way contrary to the commandment, "Thou shalt not kill," to wage war at God's bidding, or for the representatives of the State's authority to put criminals to death, according to law or the rule of rational justice.3 This teaching of St. Augustine well sums up the general attitude of the Fathers and Doctors of the Church. Augustine often in practice opposed executions, and stressed the importance of the possibility of repentance. Yet given his formal teaching here cited on the matter it cannot rightly be claimed that he held the penalty as such to be wrongful, nor that he justified it solely by reference to the safety of society apart from the issue of the manifestation of a transcendent norm of justice in the world. His own concern in pressing for mercy is pastoral, and framed in such a manner that the plea of the minister of God's mercy does not always trump the minister of God's justice. It is for this theological reason that he does not condemn the rightfulness of authority of those commanding execution even in those cases where his counsel of mercy was ignored. Augustine's teaching about the penalty is refined and further articulated by St. Thomas Aquinas,4 and resonates through the tradition of the Church on this matter. Augustine's conclusion diverges from Thomas's only in this: that for Thomas divinely commanded killing is not even an "exception" to the commandment "Thou shalt not kill" since the instrument is not the principal subject of imperation but rather is only its tool. Hence if an act of killing really be included within the positive·decree of God, it is God who formally slays, while the human agent is not 3 St. Augustine, The City ofGod, 1.21. 4 English translations are preponderantly derived as follows, any reformulation being mine: the Vernon J. Bourke translation of the Summa contra Gentiles (University of Notre Dame Press, 1975); Fathers of the English Dominican Province translation of the Summa theologica (Benzinger, 1947); Cyril Vollert translation of the Compendium of Theology (Herder, 1952). The Ottawa edition of the Summa Theologiae (College Dominicain d'Ottawa, 1941), and the Leonine edition (Sancti Thomae de Aquino opera omnia, vol. 14 [Rome, 1926]) of...