Doubt III: 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, disp. 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.