Question VI: Whether it is lawful to kill a man within the limits of blameless defense, in defense of oneself or 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.