Palladium theologicum, Tomus quintus: De virtutibus

On Homicide.

SINCE among the other goods life is most dear to each one, by its unjust removal one sins most gravely against one's neighbor; for it is like an annihilation of all the goods which one living possesses: wherefore by homicide all the rights by which we are bound to our neighbor are violated in every way; and this is done spiritually by hatred and detraction; corporally it is done by the tongue and by deed; the former precepts, counsels, or does not inhibit; the latter sometimes issues in homicide, by executing justice, by killing by accident, or by necessity of defense; and in this last way, the things to be observed being observed, homicide is free from fault: but if it be done by will, with the lust of vengeance alone ruling, one sins gravely, as will be seen presently.

What Homicide is, and how many kinds of it there are.

HOMICIDE is thus defined by St. Bonaventure, p. 1. Centil. sect. 31: Homicide is the killing of a man, done by a man. This definition is followed by Ioannes de Anania in the rubric on homicide, num. 1. and others. It is called the killing of a man, to distinguish it from the slaying which is inflicted on brute animals. It is said to be done by a man, to distinguish that killing by which a man is killed by some brute animal. But this definition regards rather the force of the name (as Catterius saw, in the practice, tract. on homicide and assassination, at the beginning) than the essence of the sin, which Fagundez also notices on the fifth precept, chapter 1.

THEREFORE Catterius and the Jurists commonly, as cited by Prosper Farinacius, quaest. 119. Tom. 4., and the Theologians, as cited by Fagundez, loc. cit. from St. Bonaventure's sermon on the ten precepts, cap. 6., define it as prohibited in the 5th precept: It is the unjust killing of a man. Now homicide unjustly done is that which is done by private authority, without the moderation of blameless defense being observed; or by public authority, without due justice and the order of law being observed, as Fagundez observes from St. Bonav. loc. cit. and in 3. dist. 37. dub. 5. lit. et in qq. Of both kinds we must treat.

Homicide is divided in many ways. First into Spiritual and Corporal, by St. Bonav. in the places cited, and by other Doctors of both Laws; on which division Farinac. treats especially, at the place cited, from Jacobus Boulent. in the repertory of the capital law, §. Famos. num. 63. ff. de poenis.

SPIRITUAL homicide is called, first, that by which a detractor unjustly blackens reputation. For in law the detractor is called a homicide, cap. Homicidiorum, de poenit. dist. 2. Second, that by which one hates his neighbor, 1 John 3: He who hates his brother is a homicide. Third, that by which he persuades another to harm his neighbor, for in law both the persuader of evil and the one who holds another in hatred are called homicides, C. Noli putare, de poenit. dist. 1. C. Homicidium. Fourth, that by which each one strives to harm his neighbor in some way, C. Homicidium, de poenit. dist. 2. Fifth, that by which someone denies sustenance to his brother in extreme need, as we have in dist. 86. from Ambrose: Feed him dying of hunger; if you did not feed him, you killed him.

CORPORAL homicide, however, is that by which the body of a man is killed; but spiritual homicide is chiefly that by which one is led to the death of the soul through sin, as St. Bonav. notes in the Confessionale, cap. 2. particula 3.

HOMICIDE, therefore, as it is defined by the Theologians, is a most grievous and atrocious sin, graver than theft and adultery. For the loss of homicide is irreparable, and by it we inflict on a man the greatest of all harms that we can inflict on him; as Socinus proves at large and learnedly, consil. 157. num. 8. lib. 2., with arguments from St. Bonaventure.

THE FIRST argument is: Graver are those sins by which harm is inflicted on the body than those by which harm is inflicted on a man's external goods and possessions; and thus for a single homicide the punishment of death is imposed; not so for a single theft, unless it be clothed with most grave circumstances, as the holy Doctor relates in the Confessionale.

THE SECOND argument, because in the ten precepts of the Decalogue the precept forbidding homicide is placed before the precept prohibiting theft and adultery, as the holy Doctor argues in 3. dist. 37. art. 2. quaest. 2.

THE THIRD; because in the Decretals the Title of homicide is placed before the Title of adultery and theft.

THE FOURTH, because it is easier to dispense with a thief than with a voluntary homicide, as is clear from C. sicut dignum, on homicide, num. 2. fol. 315. Decian. in the tract on crimes l. 9. cap. 17. num. 18. Matfil. in l. 1. num. 3. ff. ad legem Cornel. de sicar. With Socinus, that homicide is graver than adultery, they prove from the text in C. si quid verius, dist. 30. quaest. 2. L. Quamvis and from the circumstances; as in adultery and notorious theft the contrary must be said, as Decius teaches, consil. 65. l. 1.

BUT THE TRUE reason of the whole thesis is, because the harm inflicted by death is irreparable; but the harm from adultery and theft is per se repairable, since it concerns goods more extrinsic, as Fagundez says, cap. 1. num. 3., with St. Bonav.; and surely a man simply values life more than riches, fame, and honor, as the holy Doctor says in 3. dist. 37. art. 2. quaest. 1. in corpore; for it is against the very being of the individual, and against the more intrinsic good.

ALTHOUGH he adds there that fornication is against the due preservation of the species, still the harm inflicted on one's neighbor is less; nor is the damage to the species in one act of adultery so great as in homicide.

HOMICIDE, says St. Bonav. above, with St. Augustine, epist. 54., is taken in a twofold way: for either it is from private authority or from public; and both, if done in an illicit manner, are prohibited, Exodus 20. Deuter. 5. It will be illicit privately, if it be done without the necessity of blameless defense; but public, by a Judge or Prince, if someone is killed against justice. For although Princes are commanded to punish the wicked, even by death, as was said to Moses, Exodus 23: You shall not suffer the wizards to live; yet at the same time it is also commanded that they do not kill the innocent against justice, nor even the guilty in undue ways, as the holy Doctor teaches in 3. at the place cited.

IT IS INDEED NECESSARY for the safety of the commonwealth that robbers, cutthroats, assassins, and traitors be punished; and this power, or this sword of justice, was given by God, as the Apostle says, Rom. 13: Let every soul, that is, every man, as St. Augustine expounds, tract. 105. on John, be subject to the higher powers. If you do evil, fear: for he bears not the sword without cause. For they bear it to repel the evils which run rampant through the world in the body of the commonwealth, as St. Thom. teaches, 2. 2. quaest. 64. art. 1. For as a public member is cut off in the human body so that the safety of the whole body be consulted, so a noxious member of the commonwealth is deservedly removed from the midst, lest it corrupt the whole political body. But then a man is killed by a Judge not as a man, but as a criminal; and therefore out of hatred of malice and zeal for justice he is lawfully and deservedly put to death, as the holy Doctor sets forth in 2. dist. 44. art. 3. quaest. 1. and in 3. dist. 37. dub. 5. litt. and in the little work on the ten precepts, cap. 6., where he subdivides several other ways in which a man is killed privately, of which below.

From what has been said you have that not every killing of any living thing is forbidden, but only of men. Therefore it is lawful to cut plants and herbs, as is said Genesis 1: Behold I have given you every herb, and all trees, that they may be to you for food, and cap. 9: Every thing that moves and lives shall be food for you. And Aristotle acknowledged this too, lib. 1. Politics, cap. 5. and 6. Therefore St. Augustine, lib. 1. on the city of God, cap. 20: With most just ordination the Creator subjected both the life and the death of all living things to our uses. This is proved by the holy Doctor with very many passages of Scripture everywhere. Wherefore he deduces from the places alleged, with St. Thom. art. 1., whom others imitate, that the Manichaeans were senseless and foolish who cried out that by this precept it was forbidden to kill not only brutes but even plants. For all these things were made for the sake of man, for his use, as the Lord declares in the places alleged, and as our holy Doctors argue. Hence, after it was granted to men in Genesis 9. to kill animals, the prohibition of killing man is added, the reason of which the Lord gives: For man was made after the image of God. In what ways it is illicit, and in what ways lawful, to kill a man, I shall set forth below.

On homicide from deliberate, treacherous, and traitorous design.

A MAN is killed in a threefold way: by Accident, by Necessity, and by Will, as the holy Doctor notices, sermon 6. on the ten precepts: But in the first part of the Centil. sect. 31. he adds the Homicides of Justice; and since we treat of the sin of homicide, we must first treat of that which is more voluntary, such as those placed in the title, which are called qualified Homicides, each of which always has the punishment of death enjoined: l. 3. C. de Episcopali audientia, l. si servus, C. de his, qui ad Ecclesiam confugiunt, l. 3. §. of the Law Cornelia. And l. Qua caedem, ff. de sicariis, l. Poena, ff. on Parricide, §. Likewise the Law Cornelia, t. of the Instit. on public judgments.

HOMICIDE from design (which we call, deliberated case) is that which is proved to have been premeditated for a long time. And although we cannot penetrate thoughts, yet we deduce it from the acts, for example, if he has elsewhere laid snares for him, if he has waited armed with assembled cutthroats in some place; if he has kept watch many days in some house,¹ etc.; if the slain man has been cruelly stabbed, cut down, mutilated in some members, for example the nose, ears, etc. It is said to be from design if, after 24 hours from the injury received, he kills, he being proved to have laid snares or plotted death, by calling together companions, sending out scouts, etc. All which things are entrusted to prudent judgment, as Julius Clarus warns, l. 5. sent. §. Homicidium, num. 8. Therefore one guilty of such must be punished with the ordinary punishment, which is death. So Salicet. l. 15. Qui cum telo, C. de sicariis. And l. 1. ff. extraord. Couar. on the Clementine, si furiosus, at the beginning of the second part; Ioan. Igneus l. 1. §. occisorum, num. 41. ff. ad Syll. Iul. Clar. §. Finali, 9. quaest. 1.

TREACHEROUS homicide, which almost always carries with it guile and fraud, is when someone awaits a man in a hidden place and kills him as he comes, or treacherously, feignedly, and by simulation, having summoned him, kills him in the house in which he is. But it can be treacherous and yet not from design, if he be killed in the heat of anger within the day. He is punished with the punishment of death, as the alleged laws and the expositors of the law decree, with St. Bonav. in the Dieta, tit. 3. cap. 4.

TRAITOROUS homicide is that which is committed traitorously, no other injury intervening, no hatred, no quarrel preceding; as he who kills a companion of his journey, or, feigning himself a friend, kills. So St. Bonav. in the mirror of the soul, cap. 1. about the middle; Barthol. l. to be regarded, §. Delinquant, num. 1. ff. de poenis. Igneus on the Law, si certus, §. si unus ex dominis, ff. ad Syll. after number 44. Iul. Clar. l. 5. sent. §. Homicidium, num. 10. These are condemned to the punishment of death, as the Laws above alleged decree; and they are excluded from the immunity of the Church, just as those who killed treacherously were also excluded; and those who killed from design were excluded by the old law.

The holy Doctor shows all this most beautifully in the Biblioth. loc. 19, cited from Scripture; for Joab the General, united to King David by blood and faithful, yet because he had killed Abner, 2 Reg. 3. from design and with guile, and Amasa, 2 Reg. c. 20. traitorously, kissing him, the dying holy King condemned him, and commanded Solomon his son: 3 Reg. 2: Thou also knowest what Joab the son of Saruiae did to me, what he did to the two generals of the army of Israel, Abner the son of Ner, and Amasa the son of Iether: whom he slew, and shed the blood of war in peace. Do thou therefore according to thy wisdom, and let not his grey head go down to the grave in peace.

STRAIGHTWAY Solomon the King, most wise and most just, commanded Banaiae to kill him. And because he fled to the Temple and laid hold of the horn of the Altar, and would not go out, Solomon commanded that he be killed in the Temple: whence he killed him.

From this it is deduced, with the holy Doctor, that such traitorous homicides are excluded from ecclesiastical immunity.

And indeed Doctors taught commonly that homicides also from design are excluded: Suarez t. 1. l. 3. de relig. cap. 11. Nauar. summa cap. 25. Couar. l. 2. var. cap. 20. Julius Clar. l. 5. sent. §. finali, quaest. 30. Guido Papa decis. 121. Bouërius decis. 109. Alex. consil. 145. num. 46. Corrad. in pract. fol. 268. Blancus in pract. fol. 4. num. 26. Ordinatio Lusitana in nouis lib. 2. tit. 5. Gambacurt. l. 5. cap. 4. num. 19. Fagundez on the 5th Precept, l. 5. cap. 1.

Of homicides also from snares they assert that they are excluded: Julius Clarus, Suarez, Nauartus cited, Remigius on the immunity of the Church, fallentia 13. Fagundez loc. cit. num. 19.

NOW, however, Gregory XIV. by his Constitution excludes from these only those who kill traitorously, correcting the common law, cap. 1. on Homicide. And thus Clement VIII. declared in a certain Brief to the Archbishop of Palermo, in the year 1597, on the 6th of February; which is found in Marcus Antonius Genuensis in praxi, cap. 76., as Diana relates, p. 1. Tract. on the immunity of the Church, resol. 1., where he shows that by that Bull Gregory revokes all the former privileges and all the customs, and he cites very many Doctors. See Riccius p. 5. collect. 1791. Peregrin. on Immunity, cap. 7. Bonacina Tract. on the Laws, disp. 3. quaest. 7. §. 6.

MOREOVER, that the one who kills traitorously is excluded was taught also by Iul. Clar. l. 5. sent. §. Homicidium, num. 10. Couar. l. 2. variarum, cap. 20. num. 7. Gomez cap. 10. on crimes; Remig. on the immunity of the Church fol. 225. Placa lib. 1. delict. cap. 21. Igneus on l. 1. si Dominus, num. 7. ff. ad Syll. Milleus in pract. crim. fol. 32. Fagundez num. 21.; and Covarruvias testifies that this is the custom of the whole world.

NOTE, however, that in St. Bonaventure Abner also was the traitor killed by Joab; for, although he had formerly been an enemy and had killed Asaëlem the brother of Joab, yet he had been reconciled, and he killed him under the appearance of friendship, or of reconciliation; which very many also think. Hence much more are kinsmen excluded.

NOTE also, with Diana resol. 5., that long after the Bull had been published, some, interpreting it otherwise, asserted the opposite of that sentence: but others wrote against it for this reason, as Fagundez and Portellus, because they dwell in Spain, where the Bull of Gregory was not received.

AS FOR the intermediary of assassination, they teach that he enjoys ecclesiastical immunity: Antonius Novatius in summa Bullarum, tit. on the Immunity of the Church, num. 72., who cites the other Novarius Ronius and Gambacurtus, with whom Diana subscribes, p. 4. tract. on the immunity of the Church, resol. 109. and resol. 33., where he also relates that Antonius de Marinis in resol. quotidian. cap. 171., Gambacurtus on the immunity of the Church l. 5. cap. 34. num. 14., Masculus in his addition to Capyc. decis. 112. The reason is, because the Doctors, in C. pro humana, on homicide, in 6., state that the intermediary does not fall under the name of assassin; and that this was decided in the Sacred Consistory in the year 1615, Rovitus relates in pragm. 1. on assassination, num. 49. But in the Bull of Gregory XIV. only the assassins are excluded from immunity: therefore not the intermediaries.

WHETHER, however, one who kills an infidel traitorously enjoys immunity: Ambrosius on immunity, cap. 7. Bonacina on the decal. disp. 3. quaest. 7. p. 6. §. 3. num. 6. bring forward that he does, because the infidel does not seem to be our neighbor: But Gregory excludes only the one who kills his neighbor traitorously. Ambrosinus argues, moreover, because if an assassin [killing an infidel] enjoys it, much more the traitor, since assassination is graver than treachery.

BUT assassins and those who command them are excluded from immunity, as Doctors commonly teach, cited by Fagundez on the 5th Precept of the decal. l. 5. cap. 1. n. 22. Now the assassins are a certain kind of men in Syria, subject to Christian lords, believing that they will be saved if they kill men at the command of their lords. So Suarez judges, T. 5. in 3. p. disp. 23. sect. 5. Couar. l. 2. var. cap. 20. num. 9. and others, cited by Fagundez num. 25.

BUT others say that the assassins are those who, lying in wait on the roads, kill men. But Julius Clarus, l. 5. sent. §. Assassini, and Bossius in the Counsel, on the command to homicide, num. 16., and others say less severely that these do not incur the punishments of assassins established in cap. 1. on homicide, in 6.

INDEED those who, lying in wait on the roads, kill men are truly assassins, and therefore are to be mulcted with their punishment, as St. Bonav. also seems to assert in the little work on the ten precepts, cap. 6., where he calls them robbers; for so they are called also in Italy. For these have their own Chiefs, whom they obey, after the manner of the Syrians. The authors of this opinion are Imola, and Geminianus on cap. 1. on homicide, in 6. Barthol. on l. Non solum, §. si mandatu, ff. de iniuriis. Salicetos on l. ea quidem, C. de accusat. and others, cited by Julius Clar. l. 5. sent. §. Assassini.

YOU WILL SAY that in cap. 1. on homicide, in 6., the punishment of death is established only for those who command the assassins, because the assassins are infidels, outside the law of the Church.

Fagundez ANSWERS, num. 25., that it was enough for the Pontiff to impose the punishment on those who command; for if these did not command, neither would the assassins go out to homicides.

I SAY therefore that excommunication is imposed only on those who command, inasmuch as they are Christians; not on the Syrian assassins, infidels; but the punishment of death is understood, from all the laws, to be common to these and to those.

BUT that those who travel on the roads, whom we call assassins, are robbers, the holy Doctor shows on those words of Luke, 10: And he fell among robbers, which he proves also by Jeremiah 3: On the ways you sat, waiting for them, like a robber in the wilderness.

Of these it is said, Proverbs 1: Their feet run to evil, and make haste to shed blood. He intimates the same on cap. 19 of Luke, on those words: You have made it a den of robbers.

Whether the one who commands is to be burdened, on the same account, with the same guilt and the same punishment as the one commanded.

THE FIRST opinion is that the punishment is not the same for both, just as neither is the guilt. Thus many, cited by Julius Clarus, book 5 of his Sentences, §. final, question 89.

THE SECOND opinion is assertive. Thus D. Bonaventure in the Bibliotheca pauperum, cap. 85, which he proves from the Scriptures, which impute to the one commanding that he killed, and that he is to be punished with the murderer's penalty. He is followed by Fatinacius t. 4. question 134. on consultations, cap. 2. number 93. Bartholomew on the book alone, ff. de iniuriis. And on the law Caetero, ff. de poenis, the Abbot on the chapter Nihil, number 9. on election. Jason on the authentic quaest. act. number 17. C. de Sacrosanctis Ecclesiis, Salzedo cap. 67. number 6. Curtius Junior consil. 237. Corra on the word, mandans homicid. Carretto in practice, fol. 331. after number 113. Julius Clarus §. final, question 89. Decius on l. 15. damnum, ff. de reg. iuris. The Abbot on C. Licet, number 3. on tithes. And C. Qui facit, de reg. iuris, l. 6.

I ADMIT however, that as to punishments the tenor of the laws must be observed, which often decree them against the one commanded, and often even against the one commanding. Thus many distinguish, cited by Fagundez on the 5th precept, book 5. cap. 1., with whom he himself agrees, positing by this distinction a middle opinion.

I ASSERT, with D. Bonaventure, that the one commanding a killing is to be mulcted with the same punishment as the one who killed.

IT IS PROVED by him from 1 Kings 22, where Saul commanded Doeg the Edomite to kill Abimelech, and the others to destroy unto extermination the inhabitants of Nobe. And Nobe, the city of the Priests, he smote with the edge of the sword, both men and women, children and sucklings: and he smote it by command. [1 Reg. 22:19]

SO Judges 9: the men of Sichem killed the seventy sons of Prince Gedeon, as Joathan cried out, their surviving brother: Hear me, ye men of Sichem: You have risen up against my father's house, and have killed his sons, seventy men, upon one stone. And yet it is said in the same place: Abimelech came into his father's house, and killed there his brothers, seventy men upon a stone. Thus the one who commands alone is here named the homicide, as the Holy Doctor notes.

THE SAME appears in 2 Kings 12, where David caused Urias to be killed, and yet he is said to have committed the murder. Thus says Nathan: Thou hast slain Urias the Hethite with the sword of the children of Ammon.

MANY other examples are adduced by the Holy Doctor in that place.

The reason is intimated by the Holy Doctor in the Mirror of the Soul, cap. 3. and 4., because sins which are placed against justice in inflicting harm have their malice, gravity, and demerit in this: that harm is brought in by the one commanding, who also introduces the executor; and he who does through another is held to do through himself, according to the rule of Law in 6.

THEN acting and consenting are punished with equal penalty, in cap. 1. where the Gloss, v. pari poena, de officio Iudicis delegati, and there commonly the Doctors. And in C. Notum, at the end, dist. 2. question 1. and C. Facientis, at the end, dist. 86. and cap. 1. de homicid. in 6.

WHEREFORE such a one commanding merits the punishment of death according to the rule of law, which holds that they make one cause with the actors or executors. And the Holy Doctor takes up this argument cap. 3. of the mirror of the soul. And he confirms it from cap. 1. of Romans, where D. Paul enumerates nearly all crimes; he especially adds homicides, full (he says) of murder: Who, when they had known the justice of God, did not understand; because they who do such things are worthy of death; and not only they that do them, but they also that consent to them that do them. And he speaks of eternal punishments, as Fagundez also saw, number 27; thus the Jurisperiti hold commonly, cited by Fagundez numbers 21. and 30. l. ad Legem, si quis non dicam, C. de Episcopo.

IT IS CERTAIN also that, the effect having followed, the one commanding is irregular, as the Holy Doctor shows in the Confessionale, cap. 5. part 40. who has given counsel, or command, or study, that a man be killed. Extra C. significasti enim, dist. 50. si quis viduam, de poenit. dist. 1. Periculose.

INDEED, if the one commanded is killed by him against whom he came to kill, the one commanding is guilty and incurs irregularity, as the Doctors teach commonly, Sayrus de censuris, l. 7. cap. 2. num. 12. Reginaldus t. 1. l. 30. tract. 2. cap. 11. sect. 1. num. 326. Tabiena v. irregularitas, 2. §. 12. and others cited by Diana.

THE OPPOSITE, however, as to this point, they hold probable: Diana Tract. 1. Miscell. resol. 17. Bonacina de censuris, disp. 7. quaest. 4. p. 7. num. 17. Henriquez l. 14. cap. 16. Avila de censuris, p. 7. disp. 6. sect. 2. dub. 5. Fagundez on the 5th Precept of the decalogue, book 5. cap. 5. num. 30., who nevertheless says the former is more probable.

HE ADMONISHES, however, with Diana, that even a Bishop can dispense in this case, because it is from casual homicide, according to the Council of Trent session 14. de reformatione, cap. 7.

Whether an attempt at homicide and other crimes is to be punished with the same penalty as the crime consummated.

IT IS PRESUPPOSED by the Holy Doctor, cap. 5. of the Confessionale, part 38., that there are some sins whose attempt is not to be punished as if the effect had followed, and he derives it from l. 1. ubi Doctores, ff. de extraord. criminibus.

AS TO the more atrocious crimes, it is the opinion of many that the attempt and the effect are to be punished with the same penalty: Thus the Jurisperiti commonly, l. si quis alicui, C. ad l. Iulia Maiest. Felinus on cap. 1. de off. deleg. Covarruvias Clem. si furiosus, fol. 276. Boërius de sedit. praesupp. 7. num. 42. Igneus l. 1. §. si occisor num. 41. ff. ad Syll. See Fagundez l. 5. cap. 1. num. 43.

The second opinion is that this ought to be done by law; but that by the custom of the whole world one does not proceed so severely: Thus very many teach, cited by Fagundez: Afflictus 3. p. rubr. 24. the Speculator in tit. de accusat. §. 1. Alexander consil. 15. and 140. Corsetus in the repertory of the Abbot, word affectus, Jason on l. 1. §. final, ff. quod quisque iuris. Boërius decis. 316. Carretto in practice, fol. 186. Baldus consil. 361. Angelus l. 1. §. Final, ff. quod quisque iuris, and consil. 143. where he says this custom is received throughout the whole world. Maranta in the speculum, fol. 26. Fulgosius consil. 149. Julius Clarus §. Final, question 91. Bertrandus consil. 228.

THE SERAPHIC DOCTOR, cap. 5. of the Confessionale, part 38., says there are other cases in which one is bound by guilt of blood, even if he does not kill: namely one who has done something to a man or woman, or given them something to drink, so that they cannot generate, or conceive, or the offspring be born.

THOSE indeed giving poisons to kill one who drinks, or the offspring, are punished with the penalty of death, l. 1. and 3. at the beginning, ff. de sicariis si mors sequatur; but the effect not having followed, the Doctors commonly establish an extraordinary, discretionary penalty. Thus Carrerius in practice, fol. 281. Conradus practice, fol. 338. Julius Clarus l. 5. sent. §. Homicid. num. 13. Fagundez num. 45., who conclude that customs and the laws of one's country are to be kept in these cases.

What the punishments of voluntary Homicide are.

ATROCIOUS is the crime of parricide, which among the Romans, l. poenis ff. ad l. Pompeiam de parricid., was punished with such a penalty, as the Holy Doctor relates, cap. 3. of the Confessionale, part 17. Parricides, well scourged with bloody rods, were sewn into a fresh hide together with a dog, a viper, a cock, and a monkey, and thrown into the sea or into a river, if these were near; if far off, they were exposed to wild beasts. Parricide, however, is committed only against a father, mother, grandfather, or grandmother, nor does the Holy Doctor will anything else. Whence the title, which is De his qui filios occidunt, includes rather the killers of a father; for the killers of sons are also called parricides; yet not in the strict sense, but of Fillicide. Whence the Egyptians, having transfixed the parricide with sharp reeds and penetrated him with the tiniest wounds, rolled him over thorns, and finally, fire applied, burned him in the thickets, the people looking on; the filicide, bound to a stake, they forced for three days to gaze upon his son's corpse before him. These indeed most unspeakable crimes are so called by Azorius in summa, Menochius de arbitr. qq. l. 2. case 356.

At this time those horrible punishments have been changed into the ultimate penalty, with harsher discretionary punishments added at the judge's discretion. Thus the Doctors observe, cited by Fagundez.

AS TO the execrable homicides indeed of the Person of the Supreme Pontiff, the Most Eminent Cardinals, and Bishops, I shall defer to 3. p. Tract. de Censuris.

THE ORDINARY punishments of Homicide established by law are enumerated by D. Bonaventure in the Diaeta, tit. 3. cap. 4. where he says: Threefold is the punishment of homicides, namely exile, the gibbet, and the impediment of irregularity. For homicides go into exile; but when they can be caught, they are hanged.

THEREFORE in the civil law the punishment fixed in advance for a homicide is death. It is clear from l. 3. §. Patiatur, C. de Episcop. audientia. And l. Cornelia, de public. praedic. And l. poenis. §. Qui alias personas, ff. de parricid. But notorious brigands it kills by hanging, l. capita, §. Famosos, ff. de poenis.

THE SAME the Holy Doctor shows in the Bibliotheca pauperum, cap. 85. and on Luke 15, from the Divine law, Genesis 9: Whosoever shall shed man's blood, his blood shall be shed. And cap. 4. Cain is mulcted by God with punishments graver than death, even though written Laws against homicides did not yet exist.

AND Genesis 27. Rebecca pronounced the sentence of death against her son Esau, if he should kill Jacob, as already decreed by God: I shall be bereaved of both my sons, because a homicide (says the Holy Doctor) ought to be reckoned as one already slain; that he might show this punishment of death to be so just that not even the chief men are exempted from it, as Julius Clarus warns l. 5. sent. §. de homicidio, num. 28. Covarruvias l. 2. variar. cap. 9. Angelus on Law 3. §. Legis, ff. ad Legem Corneliam de sicaris. Afflictus p. 1. Constitution. regn. rubr. 13. Ludovicus of Lucca decis. 62. Therefore also Christ decrees Matthew 26.: All who take the sword shall perish with the sword, as the Holy Doctor observes sermon 6. on the ten commandments, and with him Fagundez l. 5. c. first, num. 6. And Apoc. 13. He that shall kill by the sword must be killed by the sword. Levit. 24. Whosoever shall strike and kill a man, shall die the death. And soon after: If anyone kill his neighbor by craft, thou shalt pluck him from my altar, that he may die. Therefore the Holy Doctor observes in the Bibliotheca, loc. cit. that Joab, the commander of the armies, otherwise faithful and joined to Solomon by blood, on account of homicide, by the decree of the holy King David, was punished with death by Solomon, as I said above, who commanded him to be killed even beside the altar, though unwilling to be dragged from it, that he might show that not even the chief men, illustrious in nobility, are to be spared. Therefore Christ threatens Princes with ruins and slaughters, Luke 11. That all the just blood may come upon you, as the Holy Doctor discourses on Luke 11.

Nor do l. 1. ff. ad legem Corneliam de sicaris. and l. 3. §. Legis Cornel. stand in the way, in which nobles for homicide are condemned not to the punishment of death, but to deportation into exile and the proscription of goods. And thus assert Salicetus on l. Is qui cum telo, col. Final, Angelus consil. 14. Montaleone in his practice, fol. 210. num. 535.

For I confess that by the ancient law of the Digest this is true: It is nevertheless not true according to the new Law of the younger Code. For the Law of the Digests has gone into disuse. Wherefore the punishment of death is owed to them also indispensably, as Afflictus warns loc. cit. Placa l. 1. delic. cap. 10. Fagundez num. 7. Indeed, the ancient Law has not been cast down, but rather, I would say, restored, which, as I showed from the divine law, had decreed death.

And so, from the common mouth of all the Doctors, the Punishment of death for a homicide is just, as Fagundez says, enumerating them num. 6.

As to the Ecclesiastical punishments established both for Clerics and for Laymen.

First indeed, as the Holy Doctor warns, in the Confessionale, cap. 3. num. 12., a Cleric who is a homicide is by canonical law deposed in perpetuity dist. 50. by the decree of John VIII. cap. miror, and is thrust into a monastery for seven years, or for five, not only if he commits it himself, but even if he commands it, counsels it, urges it, or assists it, C. sicut digni, § Clericos, extra de homicid. and there the Gloss, Bernardus Diaz in practice, cap 94. Placa in epist. delict. l. 1. cap. 11. Farinacius t. 4. quaest. 119. de homicid. tit. 14. num. 47. fol. 110. and others.

The reason of D. Bonaventure is found in the mirror of the soul, cap. 3. and in the other places related above in the questions; for homicide is committed not only by the hands, but also by deed, counsel, command, urging: Therefore all, since they are guilty of the same crime, as the Apostle says, Rom. 1., ought to be punished in the same manner.

Wherein note that, besides the perpetual deposition of the Cleric, he himself is thrust into prison, because in those cases in which the civil laws impose the punishment of death, the canonical laws, which do not inflict the punishment of blood, in place of death bring in the punishment of prison, or confinement in a monastery, for seven years, or five, or in perpetuity, according to the circumstances of the crime and the proof of it, as is the text in C. Nouimus, de verb. signif. and C. penult. toward the end, de haeret. and C. Quamvis, de poenit. in 6.

In Portugal Clerics are assigned to the galleys, or are carried off into exile to the parts of Brazil or Angola. Truly a fine counsel, that scandalous men of this kind be expelled the farther.

They ask, however: whether a Cleric holding a benefice, a voluntary homicide, is deprived of the benefice by that very fact, before the sentence of the judge.

The more probable opinion is that he can indeed be deprived of the benefice by a judge, and condemned to restore the fruits from the day the crime was consummated; yet he is not bound by that very fact to give up the benefice, and to cease taking the fruits.

This is the opinion of D. Bonaventure in the Confessionale, cap. 5. part. 37.; the Doctors follow him commonly at this time, whom the long roster reports, Fagundez l. 5. cap. 2. num. 4. Thus Suarez Tom. 5. in 3. p. disp. 40. sect. 2. Covarruvias in 4. Decret. p. 2. cap. 6. §. 8. Navarrus summa Latin, cap. 27. num. 249. Farinacius t. 4. quaest. 119. de homicid. tit. 14. Julius Clarus §. Homic. and others.

The reason of D. Bonaventure, which all use, is: No crime brings deprivation by that very fact, unless it is at least declared in law: But in Canonical law it is found nowhere. Indeed, on the contrary, in dist. 50. it is found: If he shall have committed homicide spontaneously, without hope of dispensation and of recovery, let him be deposed, C. Clerici. And C. si quis viduam. This, however, is a sign that they are not already deposed and deprived, as Fagundez and others argue shrewdly.

Because, even if the law were to say: let him be deprived by that very fact, the sentence of the judge must still be awaited, as I showed in the Tract. de legibus, disput. 5. quaest. 7. and as Sylvester warns v. assass. num. 4. Fagundez num. 6. Suarez T. 5. de censuris. disp. 40. sect. 2. num. 22.

The opposite opinion indeed, which more follow, rests on no law, as Fagundez notes.

From our opinion it follows that men of this kind can renounce the benefice before the sentence of the judge, as the Doctors assert commonly, cited by Fagundez number 16.

Many canons are related and declared by the Holy Doctor in the Confessionale, around the Ecclesiastical punishments of Homicides; which it is fitting to bring forward, although very many have fallen into disuse.

What the punishments of the Canons imposed upon Homicides are.

Since it is a nefarious crime unjustly to take away the life of a man, at all times various punishments have been established by laws against homicides, many of which, commemorated in the Seraphic Doctor Bonaventure, I shall here set forth.

From the Council of Elvira it is found cited by Martin of Braga cap. 78.: If anyone shall have committed homicide willingly, let him ever lie at the doors of the Catholic Church, and receive communion at the end of his life; but if he shall have committed homicide not willingly, but by some accident, the first canon ordered him to do penance seven years, the second canon enjoined five: Thus relates the Holy Doctor in the Confessionale, cap. 3. part 13.

He also found part fourteen, from dist. 4.: Who, heedless out of regard for discipline, kills by striking, let him be deposed, extra de homicid. presbyterorum. And it speaks of priests.

From the Council of Lerida dist. 50. it is enjoined that Clerics, in a besieged city, where there was no necessity, killing an assailant, be deprived for two years both of office and of the communion of the Body of Christ, meanwhile assigned to fastings, prayers, vigils, and almsgiving, and finally be restored to communion; yet so that they be not promoted to the former offices. But if there were an unavoidable necessity of fighting, it would be imputed to them in nothing, dist. 50. Quia te, which, it says, is true as to sin, but as to caution it is a good thing to regret it, as extra de homicidio, cap. 2. in the Roman Penitential.

He who kills a brigand, where he could have seized him without killing, for forty days shall not enter the Church, and clothed in a hair garment, from the foods and drinks which are interdicted, and from bed, and sword, and riding, he shall abstain for those days aforesaid. But on the third and fifth feria, and on the Sabbath, let him use some kind of legumes, herbs, fruits, and little fish with moderate beer, temperately.

If a Priest has done the same, let him not be deposed; nevertheless, as long as he lives, let him do penance.

PART fifteen relates the penance of a matricide can. 33. quaest. 2. from Pope Nicholas. For one year, barred from entering the Church, he shall lie at its doors, praying. After a year he may enter the Church, but not communicate. Three years completed, let him be admitted to communion, but let him not offer the oblations until after the course of seven more years. In all these years let him abstain from meat, nor let him presume to drink wine, except on feast days and Sundays, and from Easter until Pentecost; and wherever he wishes to go, let him be conveyed by no vehicle. Let him fast until vespers three days in the week. If before the course of three years he draws near to death, let him be given the Viaticum. More mildly, however, it commands that things be done, if he show signs of great penitence.

PART sixteen relates the tearful letter of Pope Stephen V to Astulphus the wife-slayer, upon whom he imposes entrance into a monastery under the rigid discipline of the monks. But if he wish to do his penance in the world, it imposes most severe penances: perpetual abstinence from flesh, and wine, and cider; fasting on bread and water; and let him live in vigils and prayers: See him, and in this manner let you wither away.¹

PART seventeen sets forth the penances due to a parricide and a filicide, whom Alexander III condemns to perpetual penance, most severe, within the precincts of the Monastery.

PART forty-one relates the penance enjoined on him who killed a priest, which is of 12 years, extra de poenit. et remiss. from the C. Moguntin, and moreover, once convicted, let him lack marriage and the belt of knighthood until death.

But CAPITULUM five of the Confessionale part. 37. sets forth the irregularities and depositions due to Cleric homicides.

He who shall have committed homicide without just cause, is not dispensed with in this. If the cause be of justice, he is not dispensed with in this either, so that he might be promoted; but if he has been promoted, in those orders themselves he can be dispensed with by the Pope, dist. 51. l. 1. Aliquantos. Otherwise, if he shall have committed homicide spontaneously, let him be deposed without hope of recovery and dispensation, dist. 50. Clerici. And C. si quis viduam. If by avoidable necessity, similarly he cannot ascend to the higher orders, but in the orders received he can be dispensed with, although it is not easily dispensed, even by the Pope; if by unavoidable necessity, the counsel is given that a homicide not minister, even in the orders received, dist. 50. De his clericis; yet he is not deposed, but is tolerated in his order by law without dispensation, according to the Letter and Raymundus, extra de homic. cap. 2. and according to Bernardus in the apparatus, upon that chapter extra, Cod. sicut dignum. If he has killed by accident with fault and negligence, he shall cease in perpetuity from the order received, dist. 50. Hi qui arborem, and extra eod. Presbyterum. Yet the Bishop can dispense in the minor orders, and in the subdiaconate already received, extra eod. continebatur. If he be a Deacon or Priest, it belongs to the Pope, that in those orders he either minister or be promoted to them, as in the said C. continetur, and C. Later praesentium. According to Raymundus, however, the Bishop cannot dispense, dist. 50. Miror, which some understand indiscriminately both of the voluntary and of the casual; others, of the voluntary homicide. This is Raymundus. If without fault and negligence, he will be able to minister in the order received, and be promoted to the greater orders, extra eod. Litteris significastis, cap. Dilectus, cap. ex litteris. And some say that he need not be dispensed by them, as appears in the said chapters. But it is safer and more secure that at least the Bishop dispense him by them, dist. 50. Clerico. This the Holy Bonaventure relates.

From what has been said above, you have that it is false, in the time of D. Bonaventure and D. Thomas, that one who kills with the moderamen of blameless self-defense was irregular, as Valentia thinks, quaest. 8. punct. 4., which he thinks is gathered from D. Thomas, quaest. 64. art. 4. ad 3. Sylvester v. homicid. 1. quaest. 9. dict. 4. Matulius l. 1. de irregularitate, cap. 48. num. 9., who cite the chapter de his clericis, 1. dist. 50.*

TRULY D. Bonaventure asserts the opposite above, and so held the Gloss on cap. si quis viduam, v. Defensionis, and on C. sicut dignum, same title.

But that chapter De his clericis gives only counsel, as the Holy Bonaventure notes; the law nevertheless neither deposes nor commands, as Raymundus expounds, and it is found extra de homicid. cap. 2. and according to Bernardus on C. Extra, same place, sicut dignum, and Fagundez also notes it, l. 5. cap. 3. num. 3.*

FINALLY the Council of Elvira can. 50. decrees: If any woman, set afire by fury and zeal, shall have beaten her maidservant with whips, so that within the third day she expire with torment, since it is uncertain whether she killed her willingly or by accident: if willingly, after 7 years; if by accident, after the times of years, lawful penance having been performed, it has pleased that she be admitted to communion. But if within the appointed times she shall have fallen ill, let her receive communion. Thus relates the Holy Bonaventure in the Confessionale cap. 3. part 13.

Whether it is lawful to kill a man with the moderation of blameless defense, in defense of oneself or of one's goods.

AS a certain truth the Holy Doctor asserts that a man may kill another, necessity compelling the defense of his life, his soul, if it be done with the moderation of blameless defense. Hence it follows that this is lawful to any persons whatsoever, even those in a state of perfection, namely Religious, who are bound to perfection, or Bishops, who are bound to be in a state of perfection. So serm. 6. de decem praeceptis.

BUT that we may know: what is that moderation of blameless defense by which homicide is made unpunishable in the external forum, and lawful in the forum of conscience, and immune from all irregularity, and from excommunication.

FAGUNDEZ l. 5. cap. 5. says it consists in three things: namely, in time, in manner, and in cause.

IN Time: that it be done incontinently, that is, in the very act of the assault of invasion, not after a long interval. For if it be done after a long interval, it will not be to repel force with force in act; but it will be to take vengeance, which is never lawful, as is said in Ezech. 9. Vengeance is mine, and I will repay. And Deuter. 32. Mine is revenge, and I will repay in due time. So teaches D. Bonav. serm. 6. Decal. where he laid down the first condition, that it be not done out of a lust for vengeance, which he finds in almost all the authors above alleged. There follow Sayrus l. 7. cap. 10. num. 28. et patet ex cap. significasti, 2. de homicid. Salomon. in repetit. Legis, ut vim, ff. de iustitia, et iure: Claudius num. 56. Bolognetus num 46. because he says it is done incontinently which is done while the brawl lasts, or while the assailant does not withdraw from it. Cynus l. 1. num. 4. C. Unde vi, Bartol. ibi, num. 9. Baldus num. 8. Hostiens. in cap. significasti, 2. extra de homicid. num. 17. Ananias ibi, num. 18. Butrius in C. olim causam, de restit. spoliat. num. 37. Bellamera ibi, num. 22. Angelus de malef. in verbo, et dictus Titius, se defendendo, num. 18.

Wherefore it is not done incontinently when the one insulted withdraws into his house, seeking weapons, and immediately returns to the assailant, as Cepolla thinks cons. 42. et fere Mascard. de probat. l. 3. concl. 1126. num. 51.

Secondly, the moderation of blameless defense consists in manner, which condition the Holy Doctor expresses as: that it be not done out of cruelty: by which word he shows that the manner is exceeded when the manner of defense is with too many wounds multiplied, with the body savagely pierced through, as with the head struck off, the belly laid open. That moderation of the act, indeed, in the recoil, equal to the blow of the assailant, as in an arm for an arm, but not in the head, is morally impossible, as Fagundez says num. 7. Likewise that one, in the equality of weapons, seems vain, for often the assailant has inferior weapons.

Thirdly an equality of Cause is required, and this S. Bonav. explains, saying there must be a necessity morally inevitable, so much so, that it cannot be done otherwise, nor does any other manner of preserving oneself from death, or danger, occur, and this is to repel force with force. So Iaso in l. Vim vi. Bolognetus num. 89. Bartol. l. 1. C. Unde vi. Ananias loc. cit. Caepol. Consil. 43. num. 7. et in hoc fere solo moderamen hoc posuit Molina Tom. 4. tract. 3. disp. 11. as cited by Diana p. 5. tract. 4. resol. 1. But there Vega reports T. 1. cap. 127. casu 12. another condition laid down: that no greater diligence be employed in the defense than is necessary.

The Holy Doctor says there that he, or another Religious, lest perhaps he incur disgrace, cannot kill, but must take flight; otherwise he is not entirely excused, if he kill. Wherefore he seems to concede, with Molina loc. cit. et Hurtado 1. 2. disp. 170. §. 135. and Diana, alleging the common opinion of the Doctors, that it is lawful to kill the assailant, if it would be gravely disgraceful for the assailant to flee: But of this below.

Therefore I assert that it is lawful to kill the invader with the moderation of blameless defense. This is against Accursius, and Gloss. Leg. vim vi, ff. de Iustitia, et iure, Richard de S. Victore opusc. de Charitate. Ioan. Gerson Tract. de Eucharistia, Augustine of Ancona Tract. de potestate Ecclesiae, quaest. 2. art. 3. Hugo dist. 50. C. de his Clericis. Abulensis in cap. 5. Matth. quaest. 109. So all the Doctors uphold it, as cited by Diana loc. cit. et Fagundez in 5. Praeceptum decal. lib. 5. cap. 3.

This Cicero proves pro Milone; nay, the Supreme Pontiff Alexander III. C si vero, de sent. excom. et D. August. l. 1. de lib. arb. before the middle; because all the Laws permit force to be repelled with force.

It is proved secondly by the Holy Doctor at those words Luke 22. Et nunc qui non habet, vendat tunicam suam, et emat gladium, namely for defense.

The Holy Doctor also observes, at those words: et percussit unus ex illis servum Pontificis sacerdotum, et amputavit auriculam eius dexteram, that Luke did not name him; and that John added the name for the sake of praising zeal, Simon ergo Petrus, etc. on which the Gloss: Simon Peter was zealous with the same ardor of mind, as Phinees, of whom it is said, that he therefore obtained from God an everlasting Priesthood, Numer. 25.

But it must be gravely observed that the Seraphic Doctor does not except state, or rank of person in this case, nor even a sacred place, from which you may draw many conclusions.

First, for you have that even in a consecrated Church this is lawful, and it is not defiled thereby. So, even if a Priest, celebrating at the altar, be assailed, he can kill the invader, and immediately continue the Mass without fear of irregularity, even if the invader killed be a cleric: So Abbas C. Clerici de vita cleric. Socin. in repert. C ad audientiam, num. 40. de homic. Decius in l. ut vim, ff. de Iustitia, et iure. Hippolytus in l. Is qui aggressorem, C. ad legem Cornel. Ioan. de Lignano C. de Iusto bello, cap. 26. D. Antonin. 3. p. tit. 34. §. 1. cap. 4. Lessius T. 1. lib. 2. cap. 9. dub. 8. num. 41. Suarez Tom 5. in 3. p. disp. 46. sect. 3. Iul. Clar. §. Homic. nur 29. Gloss in cap. significasti, de homicid. v. tutelae. Farinacius T. 4. quaest. 125. de homic. num. 14. 22. et 29. Capua l. 1. decis. aur. cap. 65. num. 9. Carrer. in pract. de homicid. et affinio, §. 5. excus. 3. Placa epur. delict. cap. 18. num. 4. et 6. et many others cited by Farinacius, with whom Fagundez subscribes num. 5. et others.

Secondly, as to persons, you have also that persons can kill the invader, their own prelate. So Farinac. loc. cit. num. 34. Decius in l. Ut vim, ff. de Iustitia, et iure, num. 8. Salon. num. 10. Bolognet. ibi, num. 16. Angel. in l. Quoniam multa, C. ad l. Iuliam de vi publ. num. 16. Hostiensis in C. significasti, 2. num. 19. de homic. Butrius num. 19. et commonly, as cited by Fagundez num. 6.

But the question is: Whether you may kill even a Prince, an unjust invader. Many indeed affirm it. So Farinac. T. 4. quaest. 125. de homic. num. 34. fol. 202. Marsil. consil. 1. Petrus Caleph. consil. crim. 103. Carter. de homic. §. quinto excusat. etc. Iulius Clar. §. Homicid. num. 23. Decian. in tract. crim. l. 7. cap. 49. num. 25. Azor. Tom. 3. l. 2. cap. 2. Less. T. 1. l. 2. dub. 8. num. 41. et others.

But this must by no means be admitted so absolutely; for the Law dictates that the common good be preferred to the private; yet from the death of a Prince innumerable evils not rarely arise, as Fagundez cries num. 8. Suarez de censur. disp. 46. sect. 1. et commonly the Doctors cited by Diana p. 5. tract. 4. resol. 2. Baffaeus v. Charitas, num. 20. et v. Homicidium 1. num. 28.

Whatever Bisseldins exaggerates de iniur. cap. 1. q. 5. concl. 5. Angel. v. defensio in Princ. Sylvest. v. bellum 2. quaest. 5. S. Antonin. 3. p. tit. 4. cap. 3. Aurea Armilla v. Defensio, Vasquez l. 1. Illustrium contr. cap. 18. n. 8. Card. Zabarell. in Clem. 1. de paenis.

Yet I would not reject the opinion of these Doctors in one case: that if assailed by a Prince, he should probably fear an imminent damnation of his soul. So Malder. 2. 2. tract. 3. cap. 1. dub. 7. et it seems the opinion of D. Bonav. loc. cit. serm. 6. where he concedes it universally, that he may impede him, lest he lose his life and his soul; and while this condition intervenes, it is extended even to Monks, nor is any person excepted. Whatever Diana says with others.

There arises, moreover, from what has been said the question: Whether it be lawful to kill the invader on account of a grave injury, for instance one inflicted upon a wife, who is being assailed.

Diana resol. 5. with Villalob. T. 1. tract. 22. diffic. 10. Vega in summa, tom. 1. cap. 127. casu 11. Petrus Nauar. de restit. lib. 2. cap. 3. num. 361. Salon. 2. 2. quaest. 64. art. 7. controv. 1. Molina tom. 4. tract. 3. disp. 15. Bannes 2. 2. quaest. 64. art. 7. assert that this can be done with impunity.

He brings forward many frivolous reasons. One reason from D. Bonaventure seems valid to me: If damnation presses upon the adulterer, then one will be able to kill such an assailant, as Bannes says, and Rodriquez Tom. 1. cap. 220. for then the natural law dictates to me that even a greater good may be preferred.

Moreover, as to life, the adulterer is an unjust assailant even of the husband's life, whom he gravely provokes to the dangers of death. See Navar. cap. 15. num. 7. yet it would be an eminent act rather to die, as Bassaeus says loco citato.

From these you have that it is lawful even to anticipate the assailant, if it be necessary inevitably to escape death. So Diana resol. 5. et alii, as Couar. in Clem. si furiosus, p. 3. §. unico. Otherwise it is not lawful to anticipate, as Bass. num 11. et 16. says.

The Seraphic Doctor, in serm. 6. de decem praeceptis, speaks thus. But if he be a homicide from necessity, this is twofold: either from inevitable, or from avoidable necessity: Avoidable necessity is, if I can escape, but I decline to do so on account of shame, or another cause, and in that case he is excused from so much, but not from all: because it would be better that he flee.

Then he adds: But if there be inevitable necessity, that a man kill another man, not out of love of vengeance, but out of love of the conservation of life and soul, so that he do not kill him out of cruelty, but that he impede him, lest he lose his life and his soul, provided this be done with the moderation of blameless defense, this has been granted even to persons in a state of perfection, not only to those in an imperfect state. And this he says August. lib. 1. de libero arbitrio, and he is excused from so much, and from all. So S. Bonav. There S. August. cap. 5. being asked: Whether it were lawful to kill an invader of life, chastity, and goods. He answered, that it is lawful on account of life and chastity; the rest he omits.

From these things, attentively read through, you have that, solely on account of saving life or soul, it is lawful, according to D. Bonavent., to kill another; and further, that no person whatsoever is to be excused, if he weigh flight so highly, or any other disgrace, that to flee these he kills.

This opinion they defend: Sylvius 2. 2. q. 64. art. 7. quaeritur 9. Bisfeldius in com. de iniur. et damno, cap. 1. quaest. 5. concl. 8. Bolognetus in l. Ut vim, num. 42. ff. de Iustitia, et iure, Baldus l. 4. consil. 312. and others. You have very many reasons in Sylvius, of which the eminent one is that of D. Bonav. loc. cit. arguing from the Religious and Episcopal state, that it is not lawful for any Christian whatsoever to defend honor in this way. A Christian man, a Bishop, or Religious is bound to flee, if he can, and it is not lawful to kill the assailant, because the Religion of Christ requires this; but a Christian at last pledges the worship of Christ in Baptism, renouncing all the pomps of Satan. This argument terrifies those saying that it is lawful for a noble Christian; not for a plebeian, or Cleric, or Religious, as Bass. num. 22. holds, excluding plebeians, and num. 26. Clerics, etc., with Diana p. 5. tract. 4. resol. 49. Lessio lib. 2. cap. 9. num. 86. and others; who say that this is lawful to a Christian; Bassaeus indeed so holds num. 2. Less. dub. 12. num. 77. Diana p. 3. tract. 5. miscell. resol. 90. Add Petr. Navar. l. 2. cap. 36. num. 389. and others.

I press upon the man himself. That which is of the law of nature pertains to all indispensably: But to kill the one committing injustice does not pertain to plebeians, Clerics, or Religious according to you: Therefore deservedly Andreas Gail. observat. 100. num. 8. says, of those saying the opposite, that they teach politically rather than Christianly.

This utterance, however, Diana cries out is immodest resol. 9. following the opposite opinion, alleging both Nauarros, Valencia, Bannes, Salonius, Aragon, whom he cites and follows Tanner. T. 3. disp. 4. quaest. 8. dub. 4. num. 7. Turrianum 2. 2. T. 2. disp. 28. dub. 5. Escobar. p. 1. de puritate, et nobilitate probanda, quaest. 1. §. 8. num. 13. Azorium Tom. 3. lib. 2. cap. 1. quaestio 14. Molinam tomo 4. tract. 3. disput. 17. Sotum de iustitia, quaest. 1. num. 8. Nauar. man. cap. 15. Gomez Tom. 3. variarum resol. cap. 3. num. 23. and says it is the common opinion.

The same opinion Fagundez upholds in 5. praeceptum, cap. 3. adducing Lessium Tom. 1. l. 2. dub. 11. num. 66. Farinacius with many others cited by him T. 4. quaest. 125. de homicid. tit. 14. num. 41. Salomonem in repetit. Legis, ut vim, ff. de Iusticia, et iure. Bouër. decis. 168. Toletum l. 5. summa, cap. 6. Ananiam in cap. suscepimus, de homicid. Sylvest. verbo homicid. 1. quaest. 15. Iulium Clarum l. 5. sent. §. Homicid. num. 26. Bartholum l. 1. num. 8. C. Unde vi. Angelum in l. Is qui aggressor, C. de sicaer. where he says this is the common practice of the world; add Petrum Navarrum l. 2. de restit. cap. 3. num. 16.

Hence some of those alleged infer that it is lawful for a noble secular man to kill one who insults him, who wishes to strike him with a cudgel, or a blow of the hand, if he cannot otherwise avoid the ignominious blow; a bloody dogma indeed, and worthy that on its account several Pontiffs have hurled various excommunications.

Diana agglomerates many with these p. 1. Tract. 15. resol. 15. saying it is lawful, after a blow of the hand, a cudgel, or a wound has been dealt, to pursue the fugitive and kill him: Navar. Man. cap. 14. num. 4. Petrum Navar. de restit. l. 2. cap. 3. num. 382. Victoriam de Iure belli, quaest. 2. num. 5. Henriquez sum. lib. 14. cap. 10. num. 3. who adduces others, Fernandez in Exam. p. 1. cap. 9. §. 1. the same Diana upholds p. 5. Tract. 4. resol. 11. adducing moreover Merchantium in summa resol. Pastor. ad decal. cap. 5. quaest. 3. casu 3. Fabrum in 4. dist. 15. disp. 52. cap. 1. num. 29.

Against these, however, they set themselves in a crowded column after D. Bonav. loc. cit. Ioannes de la Cruz in Direct. p. 2. praecept. 5. dub. 6. Tolet. l. 2. cap. 6. man. 16. Rodriquez 41. cap. 135. num. 11. Turrian. 2. 2. quaest. 27. dub. 3. citing Bannes and Sotus. Salon. 2. 2. quaest. 64. art. 7. cont. 2. Malder. 2. 2. tract. 3. cap. 1. dub. 14. and others.

From the adversaria others advance, saying it is lawful to kill the one offering contumely, when that injury cannot otherwise be warded off. So Escobar. p. 1. de puritate, et nobil. quaest. 1. gloss. 4. num. 14. Petr. Navar. de restit. l. 2. cap. 3. num. 376. et Henricus Strouersdorf. de Iustitia, et iure, in 2. 2. quaest. 64. art. 7. Baldell. in Theol. Mor. l. 3. disp. 24. num. 24.

Diana reproves this, however resol. 12. loc. cit. Hurtad. 2. 2. disp. 170. sect. 15. §. 123. Petrus Binfeldius de iniur. cap. 1. quaest. 9. Molfes. tom. 1. tract. 11. cap. 19. num. 74. Lessius l. 2. cap. 9. dub. 13. num. 78. Filliuc. tom. 2. tract 29. cap. 3. num. 49. Azor. t. 3. l. 2. cap. 1. quaestio 17. Bassaeus num 23. but coldly.

Hence the opinion of Strouersdorf is rather refuted, that one can be killed who says to a man of honor: you lie, since Diana carps at it Resol. 13. Bass. num. 23. indeed by killing you do not prove yourself truthful. But when it is lawful for the one insulted to say: you lie. See Hurt. t. 2. t. 2. disp. 70. sect. 14. num. 116. Culpatium in casu 13. militari. Bass. num. 17. adds that by fleeing, not to be admitted in practice, it is lawful to kill one accusing him before a judge; Nay, condemned by Alexandr. VII. 1665. 14. Sept. Bass. num. 17. and 24. brings the authorities.

We must now fight for the true opinion of the Seraphic Doctor. Now the Law of Christ is that which we have professed in baptism, renouncing Satan and all his works and pomps. For the Law of Christ teaches, Matth. 5. Whoever shall strike you on one cheek, turn to him the other also. And therefore Christ, Ioan. 18. received the blow, and did not avenge it. And Ioan. 8. he heard: You have a devil. But he could justly have avenged it. Where Chrysostom, homil. 82. in Ioan.: You shudder at heaven; endure on earth the outrage of the mind. The Creator of the world, the eternal Son of God, received the blow, and a servant gave it, who was worthy of every punishment, namely either to be burned with heavenly fire, or swallowed by the opening earth, or seized by a demon and whirled about. And S. August. adds, tract. 113. And yet he who by his power could command, by whom the world was made, chose rather to teach patience. And asking why he did not offer the other cheek, according to the precept, Matth. 5., he says: By this he rather showed what was to be shown, namely that his great precepts of patience are to be performed not by ostentation of the body, but by preparation of the heart. And the same S. August. epist. 5. ad Marcellinum, says that those precepts about offering the cheek, etc. pertain more to the preparation of the heart than to the work. All this S. Bonaventura pursues on 18. Ioannis.

And on 6. Lucae at those words: Et qui te percusserit in maxillam unam, praebe illi et alteram the Holy Doctor observes that the cheek is put for the nobler part of the body, which, when struck, receives the gravest injury; and he notes that Christ commanded patience by precept, according to that Deuter. 31. Vengeance is mine, and I will repay, saith the Lord. And therefore the Apostle, Rom. 12. Not defending yourselves, most beloved, but give place unto wrath. Therefore Matth. 18. he commands: If thy brother shall sin against thee, go, and rebuke him between thee and him alone. Whence it follows that correction is to be made; therefore S. August. serm. 10. de verbis Domini: If you suffer an injury, and are silent, and do not rebuke your neighbor, you sin more by neglecting than he by afflicting.

The same the Holy Doctor proves on 6. Lucae at those words: Qua mensura mensi fueritis, remetietur vobis, namely by harming, according to that Apoc. 18. As much as she hath glorified herself, and lived in delights; so much torment and sorrow give ye to her. And Iohel. 3. Speedily and swiftly will I repay your recompense upon your own heads.

Therefore there he observes that protestation of Christ: Forgive, and you shall be forgiven. Otherwise the prayer is not wholesome: Forgive us our debts, etc. For if you will not forgive men, neither will your father forgive you your sins. And therefore Eccles. 28. Forgive your neighbor that hath hurt thee: and then thy sins shall be forgiven thee when thou prayest. This is the Law of honor, which we Christians profess.

From which you have that this is true not of Clerics and Religious alone; concerning whom indeed the Doctors commonly assert that they are bound to take flight, as Fagundez reports lib. 5. cap. 7. num. 9. but this Law has been given to all Christians. Wherefore with a Christian diploma Alexander VII. decreed that no one, under pain of excommunication reserved to the Supreme Pontiff, teach that a man of knightly rank can accept a duel, lest he incur the note of timidity, certainly by fleeing, or refusing, as you have it proved, in the tome immediately preceding disp. 17. q. 10. sect. 1.

But the little argument, which Diana brings from so many of the great¹, taken from the lesser: It is lawful to kill a thief in defense of one's goods: Therefore also of honor, which is greater, the invader; This is ground to powder by the rubbing of fingers, for the Antecedent is denied with very many, as I shall presently show it must be denied.

Hence Bassaeus ill says, v. Homic. 1. num. 11. that it is lawful to kill even one who injures in honor.

Whether the one assailed is in any case bound to kill the assailant.

We have seen that in some case it is lawful: it must now be seen whether at some time it is commanded.

The Doctors commonly assert that ordinarily the one assailed is bound to defend his life, and if he cannot otherwise protect it, he is bound to kill the assailant. So Farinac. T. 4. quaest. 125. de homicid. tit. 14. Paulus de Castro in l. utim. ff. de Iust. et iure, Salon. ibi, num. 15. Iacobus Ayrerius tract. de homicidii necessitate, p. 1. num. 395. Fagundez in quintum praeceptum Decald. 5. cap. 3.

It is proved by all from a reason taken from D. Bonav. in 3. dist. 29. quaest. 4. for the order of charity is, that we prefer our own life to the life of our neighbor: Therefore he gravely sins who allows his own life to perish by the sword, as he who, outside this comparison, would allow the life of his neighbor to perish.

Yet they allege some causes on account of which the one assailed could allow himself to be killed. First, if he is in his conscience without mortal sin; but the invader is in mortal sin. But this reason is almost always supposed in the assailant: for if he is an unjust invader, he is unjust, and in sin. Second, if the invader be a person necessary to the Republic.

Diana, however, p. 5. Tract. 4. resol. 14. seems not to admit universally that the one assailed is bound by the law of the order of charity to kill the assailant, but only if the one assailed himself be a Prince, or necessary to the Republic, or to his family. The same is held by Soto de Iustitia, l. 5. quaest. 1. art. 8. Sylvius 1. 2. quaest. 64. art. 7. and there likewise Aragon, and others with Bassaeo, v. Homicid. 1. num. 14.

Whether it is lawful, in defense of one's own goods, to kill a thief.

The first opinion seems to be that of D. Bonav. at the place cited, dub. 1, namely that it is not lawful. Accursius and others follow him, whom Navar. cites in Man. cap. 15. The same is held by Archid. and Panormit., whom Sylvester cites, v. homic. 1. quaest. 4. The same seems to be Tabiena's view, v. Homicid. quaest. 7, and v. Irregularitas, 2. num. 25. Gerson, tract. de Euch., August. de Ancona, de authoritate Ecclesiae, Abul. on cap. 15 Matthaei, as cited by Diana p. 5. Tractatu 5. resol. 17, deny it absolutely; the same is upheld by Farinac. t. 4. quaest. 225. de homicid. tit. 14. num. 221. fol. 220. It appears from cap. 2 in fine, extra de homic., in which perpetual penance is imposed upon a priest who kills a thief to recover a thing stolen from him, with the death of the thief; Zabatella there, ante numerum primum; Hostiensis num. 9 v. presbyter, and ex C. suscepimus, same title, there. Ioan. Audr. there n. 1. Butrio num. 4. Felinus 1. not. 1. These canonists say that consequently he incurs irregularity and even excommunication, if the thief be a cleric.

The second opinion is that it is indeed lawful for seculars, but not for Ecclesiastics: Panormit. cap. suscepimus, de homic.; Tolet. lib. 5. summae, cap. 6. n. 14.; Caietanus 2. 2. quaest. 64. art. 7.; D. Anton. 3. part. tit. 4. cap. 3.

The third opinion contends that it is lawful absolutely for all. So Bartol. Lib. 1. num. 2. Cod. unde vi.; Butrio cap. olim, 1. de restit. spoliat.; Angelus in Leg. Is qui aggressorem, num. 2. Cod. ad Leg. Cornel. de sicav.; Iaso in Leg. ut vim, num. 10. ff. de Iust. et iure; Paulus Paris. in cap. Dilectissimi filii, num. 36. de except.; Alex. consil. 109.; the Gloss in cap. significasti, 18. de homic.; the Abbas there; Socin. in cap. ad Audientiam de homicid.; Villadiego tract. de irregular.; Nauar. sum. cap. 15. num. 5.; Plouuius de Irregul. reg. 36. These indeed say that the slayer nonetheless becomes irregular. But others of this opinion deny this: Suarez de censur. disp. 46. sect. 2.; Petr. Nauar. Lib. 3. de restit. cap. 3. num. 414.; Tolet. Lib. 5. summae, cap. 6.; Henricus Boicins in cap. 2. de homic. num. 13.; Annan. there, num. 9.; Felinus in dictum cap. num. 5.; Iacobus AEmilianus conf. 2. num. 54.; Couar. in Clem. si furiosus 3. part.; Fortunius in Leg. ut vim, ff. de Iustitia, et iure; but these two shrink from it; Castro Lib. 2. de lege poenal. cap. 14.; Sotus 5. de iust. quaest. 2. art. 8. Hence he would not even incur excommunication under cap. si quis suadente diabolo, which is incurred for a mortal sin alone, as is commonly taught, according to Suarez disp. 22. de cens. sect. 1. num. 25.; Molina Tomo 3. de iust. tract. 5. disput. 51. num. 6.; and this doctrine holds even if there be doubt whether the thief came with the sole intention of stealing, or also of killing; for when life is in doubt, even a cleric may defend himself, as Farinaq. teaches, quaest. 125. de homic. tit. 14. num. 224.; Polyd. tract. de tempore nost. cap. 24. rubr. de fure, num. 53.; Iacobus Aixer. de homic. necessit. par. 1. num. 139. These Fagundez alleges and follows, Lib. 5. cap. 3.

Others cited by Diana part. 5. tract. 4. resol. 17. followed this opinion, which he calls the common one. So Tanner Tom. 3. disp. 4. quaest. 8. dub. 4. num. 41., who cites Syluestrus, Nauarrus, Sotus, Valencia, Aragonius, Bannes, and Lessius. Add Turrianus 2. 2. Tom. 2. disp. 27. dub. 2. num. 15.; Marchantius in summarefol. pastor. ad Decal. cap. 5. quaest. 5.; Baldellus Tom. 1. Lib. 3. disp. 26. num. 10.; Layman lib. 3. sect. 5. tract. 3. part. 3. cap. 3.; Petrus Binsfeldius de iniuriis, cap. 1. quaest. 5.; Molina tomo 4. tract. 3. disp. 16.; Azorius Tom. 3. lib. 2. cap. 1. quaest. 19.; Filliucius tom. 2. tract. 19. cap. 3. num. 36.; Bassaeus V. Homic. 1. num. 19., speaking loosely.

For Religious, however, Binsfeldius and D. Antoninus deny it; but Diana loco cit. num. 97. affirms it positively; Syluest. quaeritur 8, with Lessius lib. 2. cap. 9. dub. 11. num. 72.; Malder. 2. 2. tract. 3. cap. 1. dub. 13.; Becano 2. 2. Tom. 2. quaest. 7. de homicidio.

Diana adds that a fleeing thief may be killed if he flees with the stolen goods, because the invasion of the property lasts until he reaches a place of safety; and he brings forward the authorities alleged above.

Strouersdorf adds, de Iustitia, quaest. 64. art. 7. in 2. 2., that it suffices for you to be able to kill if you cannot otherwise keep the goods, even if you could recover them afterwards; for no one seems bound to suffer that his property be snatched away, even if it can be recovered later.

Yet I am not carried away by this torrent of Doctors, nor moved to the first opinion.

Therefore I assert that it is not lawful to defend one's private property by killing the thief.

It is proved by D. Bonauent. on 6. Lucae, in those words: And from him who takes away your garment, do not forbid him to take your tunic also. There the Seraphic Doctor notes that Christ speaks of robbers who wrongfully seize things of weight, of which Iob. 24: They strip men naked, taking away their garments, etc., and of these it is said: do not forbid him the tunic also, that is, by wrangling or resisting, following the example of the Savior, of whom Psalm. 21: They divided my garments among them.

He adds that this is a commandment forbidding contention and the lust of vindicating; he declares that unbridled lust, which blazes so fiercely against others for transitory things, is what is meant, as we read in cap. suscepimus, de 2. homicidio, where the Pontiff uses the argument of D. Bonauentura.

He proves it secondly from D. Augustinus, epist. 5. ad Marcellinum: Care must be taken lest, through the desire for revenge, patience itself be lost; which must be prized above every good that an enemy can take from an enemy. He concludes therefore that what is forbidden here is not the correction of one's neighbor, nor the hindering or prohibition of evil, or the punishment of crime by one who can and ought to prevent it — which belongs to the minister of justice — but the lust of revenge, both as to the hand, and as to the sign, and as to the mind.

From this testimony of S. Augustinus is drawn the reason which the authors of the first opinion use: namely, that a greater good is not to be demanded for a lesser, because that is against justice; but the life of one's neighbor is a greater good than one's private property: Therefore.

Diana answers in the name of all: that although by its nature this order is observed, yet through the malice of the aggressor it can be overturned.

On the contrary: since the equality of justice is primarily an equality of things, malice can neither add to nor subtract from it, so as to overturn the order of these same things, when the same circumstances remain unchanged.

Fagundez num. 17., with Tanner, answers thus: Christian Charity does not oblige us to prefer the life of our robbers to things of great moment, except when he is in extreme necessity; but in the present case he is not in extreme necessity, but in wicked intent.

Moreover, no one intends to take away his life, but to recover his own goods; nor is that thief in full possession of his life. Valencia adds that it relates negatively to Charity toward one's neighbor.

I do not understand these metaphysical little proofs. For Christ knew the laws perfectly well, and better than Fagundez, even though the latter was joined to the long company of the Jurists; and yet he denies that these orders are absurd. For it is one thing that I am not bound, in extreme necessity, to spend my private property; another thing to wish to defend stolen goods at the cost of another's death. Moreover, that necessity is extreme which is to be weighed above private property, even if a man has come to it through his own fault; for life is still of a lower order, nor does private property, being of a higher order, take away the right of the higher good, that is, of life. Finally, against Valencia we are bound positively by the order of Charity, when the goods to be loved concur simultaneously in act.

It is proved thirdly from D. Bonauent., serm. 8. de decem praeceptis, from D. Augustinus Lib. 1. de Lib. arb. cap. 1. et 5., where he expressly seems to deny that it is lawful, as Valencia admits, disp. 5. quaest 8. puncto 4.; nor does he answer well by saying it is to be understood of cases in which the moderation of blameless self-defense is not observed.

For on the contrary: when goods are set forth for which one may kill, yet without the lust of vengeance — namely life and chastity — he entirely omits honor and private property, about which he had been asked. Therefore he does not grant that it is lawful even with moderation.

PROBATUR fourthly from S. Bonavent. in confessionali, cap. 3. particula 14, from cap. 2. extra de homicidio, where perpetual penance is imposed upon the Priest, even with moderation, as slayer of the Robber; but to the secular it is said: that if he is able, let him fast for the image of God slain, and give alms liberally.

RESPONDet Fagundez num. 17. that it speaks there on the supposition of an excess in the moderation of blameless self-defense, which response he gathers ex cap. suscepimus, where the excess is related.

ENIM but the passage I now allege supposes no excess; nay, it adds: But if without the mediation of hatred you have slain such members of the devil, delivering yourself and yours, I say in indulgence, on account of the image of God, if you can fast somewhat, it is good for you, and give alms liberally; if a priest has done the same, let him not be deposed, but let him do penance as long as he lives.

EN in the bare act of homicide, with whatever moderation, it places fault and imposes penance, because hands were laid upon the Image of God.

TEXTUS but that passage suscepimus, although it censures the excess of that Monk, yet even if it had been done without excess it condemns it, as a licentious excess, by the argument taken from Christ Lucae 6., on which S. Bonavent. relies. For he says: But since it was better, after the tunic, to leave the cloak and bear the loss of goods, than to blaze so fiercely against others for trifling and transitory things, let this man humbly abstain from the ministry of the Altar, and let each strive to expiate his sin at your discretion. Therefore, even if it had been necessary for the preservation of those goods, as being trifling things compared with the life of man, he decides that the man ought not to have been killed; and he execrates the homicide.

NEQUE do those Canonists of the second opinion satisfy me, who say that this decree concerns Religious only. I grant that it is there written to Religious; but the argument is taken from the Gospel, which binds all by its precept: for it is taken from the order of Charity, which is common to all by the law of nature, namely that for the preservation of worthless things the life of man, which is of a higher order, should not be killed.

DEINDE observe that the text does not exclude from irregularity those who kill for the sake of preserving mere riches, unless it is also necessary, in order to save one's life from the robber, to kill him. Therefore the Pontiff says: delivering yourself and yours, etc., as above; and in the Clementina Si furiosus he excepts only the defense of one's own life, and there excuses him who cannot otherwise escape death.

NEQUE does Fagundez satisfy me, saying num. 15. that in the Clementine it is not said that the slayer, in defense of his goods, becomes irregular. I know it; but the exception confirms the rule, for there he alone is exempted for the defense of life.

Moreover in cap. 2. de homicidio, he saves only him who had killed while delivering himself and his own. Nor let Fagundez say with Suarez num. 8. that the particle que sounds as vel; for that is contrived gratuitously, above all in decrees which are to be sanctioned, so great is the temerity of changing words, so that they render as exclusive what is expressed as conjunctive.

COLLIGE that Bassaeus num. 20. falsely asserts that he may be killed who endeavors to overturn me with falsehoods in a court of judgment, unless you can otherwise prevent him. This is condemned by Alex. VII. on 24 Sept. 1665, as may be seen in the former tome, diss. 17. de conscientia, quaest. 10. sect. 18., where also in sect. 2. you have expounded what some ancient Canones, with D. Augustino, thought about killing a nocturnal thief, or even a diurnal one, attacking life with arms.

Whether it is lawful to kill an assaulter in defense of Chastity.

LICITUM — that a young man, or a woman, may kill an assaulter of her chastity, when she cannot otherwise defend herself, even if the assaulter be a cleric or a Religious — is affirmed by very many, as gathered by Fagundez in Quintum praeceptum, Lib. 5. cap. 3. num. 24. So Tolet. Lib. 5. summae cap. 6.; Lessius tom. 1. Lib. 2. dub. 12. num. 76.; Sylvester V. homic. 1. quaest. 5. num. 9.; Petrus Navar. Lib. 2. de restit. cap. 3. num. 393.; Fatinac. tract. 4. quaest. 125. de homic. tit. 14.; Baldus in Leg. ut vim, ff. de Iust.; Decius there, num. 32.; and it is clear from the text in L. 1. §. item, Decius ff. ad Legem Cornel. de sicar.: the Divine Adrianus responded that he who slew one offering violence to him for the violation of himself or of his own is to be let go, and the Gloss there; Alberici L. 1. num. 17. Cod. Unde vi.; Iodocus in pract. cap. 80.; Bossius tit. de homicid. num. 81.; Hugolin. de censur. part. 2. cap. 11.; Iacobus Ayrerius de homic. necessitate, part. 1. num. 135.; Sylvius 2. 2. quaest. 64. art. 7. quaeritur 9.; Rodriquez in sum. tomo 1. cap. 220. num. 14.; Diana part. 5. Tract. 4. resol. 36., where he says it is the common opinion.

FALLITUR however, together with Tanner Tom. 3. disp. 4. quaest. 8. dub. 4. num. 68., when he says that D. Augustinus doubted in this matter Lib. 1. de lib. arb. cap. 5.; for S. Augustinus seems to grant it only on account of the danger of consent, because then the soul would perish; and S. Bonaventura holds the same with him, serm. 6. Decalogi.

AT Toletus loco cit. and Sylvest. §. 8., with Fagundez, say that, the danger of consent being removed, one can refrain from killing and endure that injury, which will be doubled before God for a crown; but these two say it is safer to kill, if one can; yet more piously does the Seraphic Doctor admit it only, with D. Augustino, when the danger to the soul from the peril of consent is imminent; so also Bassaeus V. Homic. 1. num. 21.

Whether, and how, MONOMACHIA is illicit.

MONOMACHIAM, or the Duel, S. Bonavent. says in speculo animae, cap. 1., toward the end, is prohibited by the Laws, and has the character of mortal sin, both in the appellants and in the lord by whose authority it is held, and in the procurators and in the combatants fighting for money; and this is clear since it has the character of tempting God, and the weak is overcome by the strong, not by right but by nature. Some say, however, that custom excuses this deed; the contrary of which is commonly held by Theologians and Jurists. Such is S. Bonaventura's account.

DVELLUM is a combat of two or more, by agreement, in a fixed and appointed place and time, to redeem the truth of some matter, or to purge a crime or an imputed infamy. So the Doctors commonly: Sanchez Lib. 2. Decal. cap. 39.; Azor Tom. 3. lib. 2. cap. 5.; Bonacina tract. 3. disp. 11. quaest. 3. puncto 42.

TALE a combat is prohibited by the Church in cap. Monomachiam 2. quaest. 5. et cap. 1. et 2. de purgat. vulgari, and cap. Porro; although the Bishop could dispense in this, provided no death or mutilation of a member followed, as D. Bonavent. relates in confessionali, cap. 5. particula 29.

The Theologians condemn it also, with D. Bonavent. here, and D. Thom. 2. 2. quaest. 95. art. 8. ad 3.

DAMNATUR — the duel is gravely condemned in the Council of Trent sess. 25. cap. 19.. He speaks there of the solemn and public duel, held by the authority of Princes in their States.

RURSUS Gregory XIII also condemned the private duel in the Brief ad tollendam detestabilem, in the year 1582. And finally the same was decreed by Clement VIII in the year 1592.

FULMINAT — the Council of Trent moreover fulminates excommunication in these words:

Detestabilis — The detestable custom of duels, introduced by the contrivance of the Devil, that it might reap the ruin of souls together with the bloody death of bodies, is to be wholly eradicated from the Christian world. Emperors, Kings, Dukes, Princes, Marquesses, Counts, and by whatever other name temporal Lords, who have granted a place for Monomachia in their territories among Christians, are by that very fact excommunicated, and are to be understood as deprived of the jurisdiction and dominion of the city, castle, or place in which or near which they permitted the duel to take place, which the Church claims for herself; and if they be feoffed,

directis — the lands are at once acquired by the direct Lords. But those who have engaged in the combat, and those who are called their seconds, shall incur the penalty of excommunication and proscription of all their goods, and of perpetual infamy; and as homicides they ought to be punished according to the Sacred Canons. And if they have died in the conflict itself, let them be forever without Ecclesiastical Sepulture. Those also who have given counsel in the cause of a duel, both in law and in fact, or have by any other reason persuaded anyone to it, as well as the spectators, are bound by the chain of excommunication and perpetual Malediction: notwithstanding any privilege whatsoever, or wicked custom, even though immemorial.

ADVERTUNT — Fagundez, however, in Quintum praeceptum, Lib. 5. cap. 8. et alii, observes that the excommunication laid by the very fact upon Princes is not reserved, and accordingly can be absolved by any approved Confessor; for whenever the supreme Pontiff imposes an excommunication, if he does not reserve it, it is considered reserved to no one, and any Priest exposed to it can absolve from it, as Delrius noted, lib 4. disq. mag. cap. 4. quest. 4. sect. 2.; Graffis p. p. decis. lib. 4. cap. 23.; Sà V. Excommunicatio, 14.; Sanchez Tom. 1. decal. Lib. 2. cap. 39. num. 27. et tom. 2. de matrim. disp. 13.; Fagundez loco cit. num. 4.

ENIM — but Pius IV, in the year of our Lord 1560, in his Constitution, and Clem. VIII in 1592, reserved this excommunication to themselves; and they extend this censure, and the other penalties of the Council, to private duels as well.

POSSUNT — Religious, however, who hold the faculty of absolving from the papal cases, can absolve outside Italy and in Rome itself, as the Sacred Congregation declares, as gathered by Fagundez num. 5. and Diana part. 5. Tract. 14. resol. 102., who says they can be absolved in Sicily, Corsica, and Sardinia, which are probably outside Italy.

DEINDE — mark further that the excommunication of combatants, seconds, and spectators, in the Council, is not expressly stated to be by the very fact: therefore it is not a latae sententiae penalty — so teach Petrus Navar. Lib. 2. de restit. cap. 32. num. 293. and Rodriquez tomo 1. summae, in 2. edit. cap. 73.

EAM — that it is nonetheless laid by law, Suarez holds, de censur. disp. 13. sect. ult. num. 11.; Sanchez Lib. 2. decal. cap. 39. num. 26.; Navar. summa Lat. cap. 27. n. 150.; Delrius lib. 4. disq. magic. quaest. 4. sect. 4.; Toletan. 5. summa cap. 6. num. 32.; Sà V. Excommunicatio; Graff. p. p. decis. tract. 4. cap. 23.; Fagundez num. 7. For he seems to suppose the same from what has been said.

SED — but the dispute is already cut short, for Pius IV and Clem. VIII bind all of them by excommunication latae sententiae.

POENAE — the remaining penalties, however, require the sentence of a Judge, even deprivation of sepulture, as many Doctors teach, as gathered by Fagundez. Pius IV adds many other penalties, of which the same holds. Gregory XIII, however, includes also those who command and do not hinder.

CLEMENS — Clement VIII, moreover, interdicts the places in which a duel is held with the permission of the Lords, whose relaxation he reserves to himself and his successors alone; and because it is a censure, it is incurred by the very fact, as the Doctors commonly teach, as gathered by Sanchez Lib. 2. decal. cap. 39. num. 32.

GRAVITER — I observe, however, gravely, first, with Hurtado 2. 2. disp. 170. sect. 21. §. 190., Fagundez num. 35. and others gathered by him num. 29., against Filliucius tract. 29. cap. 9. num. 176., that the penalties inflicted for dueling are not incurred unless the duel follows. Wherefore if those going to it are removed, it is not incurred. The instigators, however, the relators, and those who intermeddle to promote the duel do incur them, by Clement VIII and Gregory XIII, as gathered by Fagundez num. 29.

ADVERTO — I observe secondly that some say it is lawful to hold a duel to protect life, so that force may repel force: but this is altogether false, as is commonly taught by Sanchez Tomo 1. decal. Lib. 2. cap. 39., Valencia, and others. Hurtado imagines a case indeed, which seems to me rather metaphysical than practical. See Diana part. 5. Tract. 14. resol. 99., who refutes him.

NEQUE — nor is a duel lawful to protect honor, the Doctors cry out commonly, as gathered by Sanchez cap. 39. num. 9.; Azor tract. 3. lib. 2. cap. 4. quaest. 6.; Fagundez num. 39. Alex. VII defined this in the decree of 1665, as I noted, set forth and proved in the place cited at the end of question 3.

PROPONIT — Diana, however, proposes the question part. 5. tract. 13. resol. 27.: whether, if the accuser offers a purgative duel, an innocent man may accept it in order to protect temporal goods, or his life, or a part of his body, which he would otherwise lose through the malice of the judge and of the accuser.

Negative — Negative answers are given by Lessius lib. 2. cap. 9. dub. 8. num. 47.; Filliucius tomo 2. tract. 29. num. 144.; Suarez de Charitate, disp. 13. sect. ult. num. 5.; Aragon. 2. 2. quaest. 64. art. 3. ad 3.; Abul. primo Reg cap. 17. quaest. ult.; Salon 2. 2. quaest. 64. art. 3. controu. 3.

ASSERUNT — but Sanchez affirms it, in summa, tomo 1. Lib. 2. cap. 39. num. 7.; Bannes 1. 2. quaest. 64. art. 7. dub. 4.; Caiet. 2. 2. quaest. 95. art. 8. ad 1. et in summa, V. Duellum.; Hurtado 2. 2. disp. 70. sect. 8. §. 170.; and others, as gathered by Fagundez num. 41. et 44.

PROBANT — they prove it because this is not a duel but just defense; for since it is lawful to kill an unjust despoiler of one's goods, the acceptance of a duel of this kind will also be just.

SED — but these men do not read the reasoning of D. Bonavent., who rebukes them: for this mode of defense is absurd and tempts God; for the innocent can easily be slain by the wicked, and it is not a just defense of the goods of a lower order to demand a life, and — what is more insane — to expose even one's own life to the peril of death.

Hinc — Hence Diana smiles wrongly, when he says that one may even accept a duel for the protection of honors and public offices.

Neque — Nor does the opinion of Hurtadi 2. 2. disp. 170. sect. 9. §. 82. prove to my mind, that an innocent man may offer single combat to his accuser when he cannot otherwise protect himself and his own; with him adhere Bannes 2. 2. quaest. 64. art. 7. dub. 4. Sanchez tomo 1. sum. Lib. 2. cap. 39. num. 7. Petrus Nauar. de restit. lib. 2. cap. 3. num. 289. Valentia tomo 3. disp. 3. quaest. 17. puncto 1. Nutilius 2. 2. tract. de Charitate, quaest. 17. art. 1.

Errant — They are perfectly in error, for, as D. Bonavent. says, they do not have the conditions of necessity with the moderation of blameless self-defense, since other ways lie open for their defense; and this one is assumed whereby they lose the valid protection of Justice, if the innocent man casts himself into the peril of death, repelling the aggressor only in a foolish manner, tempting God, and desiring that his own life and innocence be preserved from wounds — all of which, in my judgment, sound foolish, as the S. Doctor argues, and with him very many, as gathered by Fagundez num. 47.

Utinam — Would that the zealots for honor would attend to the fact that they are to be proclaimed infamous by the Church, accursed, and cast out for burial like an ass's. These would best satisfy the cartel by saying that they are Christians, to whom the Duel is forbidden because of infamy, as Bassaeus says, V. Homicidium 1. num. 15.

Sane — Ludovicus XIII. Iustus, rightly acclaimed by the supreme Pontiff Urbano VIII., sanctioned in the most flourishing Empire of Gaul that law worthy of golden tablets: that those who engage in a duel, sealed with the mark of perpetual infamy, after death inflicted by the executioner, should carry with them to Orcus the eternal disgrace of their glory. Most prudently did that glorious Monarch restrain the generous spirits of the Gauls from the more frequent slaughter of their own people. As some Orator shrewdly expounds, it was a device truly not unlike that by which the African peoples drew back the Lions from slaughter, hanging very many from the branches of trees and exposing them strangled. For the Generous Progeny indeed attended that spectacle of infamy, nor did the offspring of the Lion, seeing their fathers hanging from the gallows, ever return again to waylay merchants and travelers on those roads. They too likewise rested, nor did they lead their lion cubs on to the slaughter.

Audiant — Let them hear, therefore, the penalties inflicted upon duels by the new law of the Council of Trent, of Pius IV, Gregory XIII, and Clement VIII. Of these five are spiritual: first, Excommunication latae sententiae, reserved to the supreme Pontiff. Second, Deprivation of Ecclesiastical sepulture, if they die in the duel. Third, Interdict upon those places in which the duel was held, with the knowledge of their Lords. Fourth, Deprivation of ecclesiastical dignities and benefices, if they were Ecclesiastical persons. Fifth, Inability to obtain those and other things.

Quinque — Five also are temporal. The first is deprivation of States and dominion for those Princes who are subject to the Roman Church; or deprivation of the jurisdiction and dominion of the place in which the duel is held, for other Princes not subject. Second, the crime of Lèse-majesté. Third, rebellion. Fourth, confiscation of all goods. Fifth, perpetual infamy.

Omnes — All the temporal penalties require the sentence of a Judge in order to be incurred, likewise also the spiritual, except Excommunication and Interdict, as Fagundez proves at length, num. 51., in accordance with what I proved in Tract. de Legibus, disputatione 5. quaestione 7.