Palladium theologicum, Tomus quintus: De virtutibus

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.